This is the detailed response sent from the branch to University of Leeds senior management at the start of the consultation on the proposed changes by management to the agreed lecture capture policy.

(See also the motion passed by the branch at the start of the consultation process.)

Proposed new audio-video recording policy

Position of Leeds University UCU

General

• The current policy, negotiated with UCU, is generally popular and successful. It maintains a right to opt-out, subject to the existence of a counterveilling legal obligation (e.g. to provide a reasonable adjustment for disabled students) and would therefore seem, if applied properly, to comply with the University’s legal obligations under the Equality Act. If 82% of lectures are currently recorded, that means that over 82% of staff are currently prepared in principle to record their lectures (as some staff record some but not all lectures). Our members’ consultation indicated that more staff would be prepared to record lectures if firmer assurances could be given about use of those lectures outside of their immediate context (i.e. as part of a module or programme of study, in a particular year), if staff were given more control over the use of their lectures such that they are treated as owners of the material they produce, and if staff were given guarantees against misuse of that material. Instead of proposing an updated policy that addresses these concerns, the University proposes a policy that not only exacerbates some of those worries, but also that moves the basis of lecture capture policy away from the principle of consent (and thus buy-in by staff) and towards an approach of coercion, containing threats as to the use of recorded material beyond their immediate context. This would be a problem at the best of times. At a time of global crisis, when the sector and the institution are under unprecedented threat, and where employment relations within the institution are already poor, this approach is very disappointing indeed. We need the University to engage with our concerns meaningfully and to commit to reaching an agreed outcome, rather than imposing an policy on staff without our agreement, even if doing so means being unable to have a finalised policy for Senate in July. We believe that it is possible to reach agreement on a policy which represents an improvement for all parties on the previous, already very good, policy;
• The justification for a new policy outlined in the context section has a significant gap; a lack of evidence of the pedagogic value of lecture capture. We need see a more explicit and better evidenced pedagogic defence of lecture capture, specifically on the impact of lecture capture on student learning. The document refers to evidence that lecture capture reduces attendance (without explaining why that is not a problem) and makes no reference to the significant developing literature around best practice in the use of lecture capture.
• We also need to see an Equality Impact Assessment of this proposed policy. We envisage disproportionate impacts on, amongst others, disabled staff, staff with mental and physical health conditions, migrant staff, staff who have experienced harassment, stalking and domestic violence, trans staff, female staff and BAME staff. We need to understand how the university plans to mitigate those disproportionate impacts and, in particular, how it intends to fulfil its Equality Act duties towards staff.

Introduction

1. We think there are good reasons why one might wish to distinguish between audio and video recordings. Many staff who have concerns about lecture capture are far less concerned about audio recordings than about video recordings. What is the justification for treating them the same throughout the policy? We would particularly like it to be made clear, under the current circumstances, that staff working from home are not required to make video recordings.
2. Final added sentence: remove the word ‘Generally.’
3. The purpose of this lengthy new clause is unclear, other than the first sentence: the rest repeats what is already asserted in the introduction (and as such lacks evidence as to the pedagogic benefit of lecture capture). It does carry the implication, however, that all ‘educational activities’, not just lectures, need to be recorded. We see significant issues with this, some of which are raised throughout the document, but key points are (a) significantly higher likelihood in interactive classes that special category data will be recorded; (b) likelihood that recording will change the dynamic of a class, making students less willing to contribute and causing them to expect a transmission pedagogy, which may not be what the lecturer/tutor is aiming for; (c) significant technological difficulties in recording, for example, break out groups and staff and students moving around; (d) inadequacy of a recording as replacement or support for learning through discussion. As well as the technological and legal concerns, we need to see specific evidence that recording interactive classes has pedagogic value and that it is a necessary reasonable adjustment for disabled students.
4. This provision substantially removes autonomy from staff and we would like to see the previous formulation retained. Without prejudice to that position, we need a more precise understanding of what circumstances will be considered ‘appropriate’ to be respected by the Head of School/Service and on what basis the Head of School/ Service will be required to give agreement. Leaving matters to the discretion of individual Heads of School/Service will not improve consistency around the university (Context; point 9). Failing to respect the university’s legal and moral obligations towards staff will not provide a practical, legal and ethical framework for decision-making. We note in particular that some Schools have made, after proper deliberation, decisions to opt-out collectively from lecture capture (with opt-ins of individuals allowed) – how will they be dealt with?
5. Needs to be updated in the light of the change made to 2.
6. Remove the word ‘routinely’ from sentence 1 and replace ‘should’ with ‘will’. Remove ‘for example’ and be precise about what purposes the recording can be used for. We need the statement that recordings will not be used for performance management, including disciplinary proceedings, to be unconditional. Under what circumstances might external regulatory bodies request recordings? We assume this will be exceptional, in which case that word should be used. We are particularly concerned about the rise in complaints from students that are politically motivated or framed and need to see the University’s commitment to academic freedom reiterated here.

Deciding when to record

7. No comment, subject to our reservations about recording interactive classes
8. Appropriate educational activities- who decides what is appropriate and according to what criteria? We believe that that that judgment should lie within the academic freedom of staff in terms of the pedagogy that they adopt, subject to the requirements of inclusive education.

University recording

Agreement

9. What provision will be made during staff induction and through staff training to facilitate this? We think that there are currently significant gaps in staff understanding of the existing policy and of the functioning of the lecture capture system.
10. Given that the policy is to record ‘all appropriate educational activities’ this seems to assume that recording special category data will be exceptional. We disagree. Video recordings routinely capture special category data (e.g. racial or ethnic origin religious beliefs). Staff may reveal special category data about themselves as part of a normal human interaction within a lecture or seminar, and students may also do so, particularly in interactive sessions. Requiring staff to exclude special category data from teaching events would involve significant changes in teaching approach in some cases, thus interfering with academic freedom, and the consent procedure seems impractical in the case of students. If staff do not consent to the recording being made, on what basis does the University intend to process and store this special category data?

Editing

11. Live editing is very difficult in practice. The pause buttons are very stiff and often unresponsive, and unusable for staff with some impairments. Live editing also disrupts the class and is difficult when ‘in the flow’ of delivery, particularly when one finds lecturing stressful or anxiety-inducing. We do not, therefore, consider that it is practical to rely on live editing.

Notice

12. No comment
13. No comment

Exceptions

14. How does the first sentence tally with point (10)? We believe that the decision whether or not to record should be in the hands of the staff member concerned. Without prejudice to that position, we note that this provision gives a great deal of power to Heads of School with little guidance as to how it should be exercised and we need more precision as to what counts as ‘a sound pedagogical, legal or other justifiable reason.’ The wording also implies that an individual can ask for an opt-out based on their situation, but it is not clear whether it is possible for an individual to choose to record some classes and not others based on the content of the class (e.g. specific pedagogy, reliance on copyright material or images, particularly sensitive content). Please clarify this point. Finally, for some staff, explaining the reason for wishing to opt-out may require disclosing personal and sensitive information they would otherwise not wish to disclose to their Head of School, and provision should be made for this. We consider the best provision to be the current policy, where no explanation has to be given for an opt-out, as that respects staff privacy.
15. This is a bureaucratic  process which will create further workload for Heads of School – there should be a cost/benefit analysis of this. In addition, there should be a timeframe for a decision, otherwise staff may be obligated to record when they have good reason not to because a Head of School has not had time to make a decision. Also, please clarify why the request has to go to the module leader/programme leader/ DSE if the decision maker is the Head of School, particularly given the point made above about the sensitivity of some reasons for seeking opt out.
16. It’s not clear why this is the only consideration for Heads of School to be mentioned in the policy itself – there are many other things they need to consider. Either all of the considerations for Heads of School need to be in the policy, or they all need to be in the guidance (which we need to agree).

Students with a disability who need a recording

17. Appropriate reasonable adjustments for disabled students are clearly important, both legally and ethically, and we are fully supportive of this requirement and the broader intention to make our university more inclusive. However, this section does not fairly balance the needs and rights of disabled students against the needs and rights of disabled staff. Many, if not most, classes will contain at least one disabled student, and virtually all Assessments of Needs mention lecture capture as a key strategy. This section will therefore impact most, if not all, staff. We are particularly concerned about the word ‘wishes’ in the first sentence, when contrasted with the language of requirement and need, suggesting that opting out is a matter of personal caprice, rather than relating to the needs and requirements of individual staff. Overall this provision seems to create a situation where student rights trump staff rights. We need instead one in which solutions are tailored to the needs of the individual student and staff members so both sets of rights are respected. We suggest that dialogue between teaching staff and DSAS staff, as well as more general dialogue with students, will be required to create the constructive atmosphere in which this can work. 
18. See 19
19. This procedure seems unnecessary, punitive and exposing, bearing in mind that staff may have important, sensitive and personal reasons for not wishing to make their recordings generally available. There are better, more natural ways of managing this. It may also be exposing for students.

Use of microphones in teaching spaces

20. We are supportive of this policy. We note, however, that staff frequently find broken or missing equipment or batteries that have run out. If this policy is imposed as an obligation, provision must be made to ensure that staff have good quality, functioning and sanitised equipment to fulfil their obligation safely. Calling an IT tech is not a good regular solution as it takes time out of a class. Lapel microphones are difficult to wear for those who don’t wear suits, and women more frequently wear clothing that is inappropriate for lapel microphones. We encourage purchase of more suitable, more inclusive equipment.
21. See our comments about recording interactivity. It is not clear how this applies to a typical discussion based seminar or one where breakout pairs or groups are used. We believe that significant further training will be required before most staff are able effectively to record interactive sessions. We also question the pedagogic value of recording interactive sessions, whilst appreciating that the use of microphones and the repetition of questions is important in the session itself for students with hearing impairments; recording often makes students more likely to treat the class as based on transmission pedagogy, which could cause them not to learn effectively from it.

Captioning of recordings

22. Again, we are supportive of the intentions of this policy, but have substantial concerns about the accuracy of captioning, particularly for staff who do not speak in ‘standard’ English accents, for technical terms and terms of art and for foreign languages. The workload implications are considerable if the captioning needs substantial correction. Who is responsible for establishing whether a particular set of captions meets the quality threshold? Workload concerns are heightened by the shortening of the auto-publication time (below). We understand that a pilot is being carried out and would need to see the results of the pilot, understand how broad it has been and whether it has covered some of our areas of concern, and understand the steps that are to be taken as a result to see what can be done to prevent this from creating an unreasonable workload.
23. What about classes which are not delivered in the English language? Or where quotations or texts in other languages are used?
24. No comment
25. No comment
26. Again, this has workload implications if the captions are inaccurate.

Auto-publication of recording

27. We understand that the majority of staff do not edit, and for them this may have no impact. Our consultation suggests that the main reason for not editing is lack of time. Those staff who do edit do so assiduously, mainly to remove sensitive information, including special category data, copyright material or private conversations before or after the class begins. They would find it more difficult to do so, noting the comments under (11) on the unworkability of live editing. We note that in some disciplines the need to edit is great, and will become greater if opt-out is not possible (due to regular use of sensitive data, or regular use of copyright material) and that some Schools use SES staff, rather than academics, to undertake the editing process. This policy also impacts disproportionately on part-time staff, disabled staff, who may find the editing software harder to use, and staff who teach in the latter part of the week (given the emphasis on calendar days not working days). We understand the motivation behind the proposal but it needs more flexibility. Note also comments under (11) about live editing.

Data Protection

28. See below
29. This represents a move away from using consent at the lawful basis for the processing and storing of data – please clarify that this is the case. Assuming that is the case, we need more explanation about why the process of gaining buy-in and consent of staff to lecture capture has been abandoned and why other bases are being used instead. In particular, in our view, the justifications other than consent or legal obligation require more evidence than has been given about the overall pedagogic benefits of recording classes (and legal obligation will only apply if the recording is required as part of a reasonable adjustment). Please also tell us who will be holding the data  – the university or another company? If another company, where is the company based? What purposes will the data be used for? How can individuals access and seek to amend the data?  
30. See above point 10 –  we consider that video recordings in particularly contain special category data as a matter of course, and that many classes will routinely involve sharing of special category data. If staff consent is not given, on what other special condition is the university relying to authorise the processing and storing of special category data of staff?

Student Recordings

31. Under what circumstances might it be justifiable for a Head of School to overrule a staff member’s refusal to consent?
32. What action will be taken against students violating these rules?
33. Does this include the staff member?

Intellectual Property

On this entire section, we observe that the default legal position in relation to performers rights is that they are held by the employee in the first instance, not by the employer (unlike copyright). We note that the JISC guidance on legal issues around lecture capture (https://www.jisc.ac.uk/guides/recording-lectures-legal-considerations) states that any assignation of performance rights to the institution needs to take place as separate documents rather than incorporated into contracts. We therefore do not consider that the University’s Intellectual Property policy  assigns performance rights to the employers, that they remain with the employee and that this thus requires any recording of teaching to be made only with the consent of the member of staff teaching.

Staff leaving the University

34. The form of words here is strange and hostile. Leaving aside the IP position, the current policy does not prohibit the deletion of recordings and thus staff doing so are not doing anything wrong. Is the intention to prohibit staff from deleting material, and if so why? We need more clarity on why the University considers that it might need teaching material once a staff member has left, particularly if the staff member leaves at the end of the academic year. We need an explicit exclusion of the possibility of using captured lectures without the consent of the academic concerned in any context outside of the module and academic session in which the recording was first made, and particularly exclusion of the possibility of using the recorded teaching of staff once those staff members have been made redundant or otherwise left as an alternative to continuing to employ that staff member, or to employing a replacement staff member, to teach the material.

Downloading and Retention of Recordings

35. Are there any circumstances where staff might be required to make recordings downloadable? Is the default that recordings should not be downloadable? What action will be taken against students or graduates violating these rules? When reference is made to Mediasite recordings, does this include both timetabled and non-timetabled recordings?
36. What is the justification for storing recordings beyond the end of the academic session in which they are made?
37. What justification exists for the difference? We are particularly concerned about this given that online teaching provided from home during the COViD-19 situation is likely to involve using non-timetabled recordings exclusively.  What mechanisms exist to remind students and staff of these obligations, particularly where students have left the university? What action will be taken against students or graduates failing to comply?

No comment on the remainder

We finish by noting that the current situation, with the likelihood of online learning moving into next year on an exceptional basis, requires particular provision within this policy and other policies, in order to give staff control over material which they are creating exceptionally, and in order to give staff autonomy to make decisions about delivery of material which work for them and their students.