Questions by authors of material
5a. What is the copyright situation if I make a video myself?
5b. Do I need to make agreements with the collaborators (“co-authors”) when I make a video?
5c. Do I have to pay everyone who collaborates in making the video?
5d. Do I need to ask collaborators to transfer their rights to me?
5e. Do I have to gain the permission of everyone who is shown in the video?
5f. Can I film or photograph a class?
5g. Can I record a conversation with a patient (and then use it in my teaching)?
5h. Can I make a recording with myself in the main role (or have someone else record me)?
5i. Can I use sections of existing programmes or recordings in my video?
5j. What is the copyright situation if the authors of a photo, a video, or an audio recording are employees of an educational institution?
5k. What about if the authors are students? Does the institution then hold the copyright in the work they have created?
5l. If I produce a recording in the course of my studies, do I need to give it up to the institution where I am a student?
5m. What is the educational institution allowed to do with videos that I have made and included in my student portfolio?
5n. My institution wants to include videos that I made in a database, which teachers can take examples from. Is that allowed?
5o. Can someone use my video in his/her own video?
5a. What is the copyright situation if I make a video myself?
If you make an original video yourself, then you hold the copyright in it as the maker (or “author”). Copyright is granted as a reward for the creativity involved, i.e. such things as thinking up and writing a scenario, directing the video, and/or shooting it as a cameraman. You may perhaps make the video together with other people who also make a creative contribution and who can also assert their copyright in respect of the video. The law also recognises the producer, i.e. the person who bears the financial risk of production of the film and who has engaged those who work on it. If the video is made by a single person at his/her own cost, then he/she is also the producer. If more than one person is involved, the Dutch Copyright Act provides that all the exploitation rights in respect of the video automatically accrue to the producer, unless he has made different arrangements, in writing, with the collaborators (i.e. the “co-authors”). This means that if another person wants to reuse the video, he/she only needs to approach a single party.
If you make a video in the course of your employment, or if your employer (i.e. the educational institution where you work) has specifically instructed you to make it, then it is the employer that holds the copyright. If you are in charge of making the recording and thus make your own creative contribution, you will be considered to be the director.
You will need to deal with the rights of other people if several people work with you on the video or perform in it, or if you want to incorporate other people’s recordings (or parts of them). These situations will be dealt with below.
5b. Do I need to make agreements with the collaborators (“co-authors”) when I make a video?
The basic principle is that everyone who collaborates in making a video by providing an original contribution holds copyright. Moreover, the performing artists involved, for example musicians or actors, enjoy neighbouring rights. As already pointed out, the Dutch Copyright Act provides that the exploitation rights of all these collaborators accrue to the producer unless other arrangements have been made in writing. The collaborators are entitled, however, to fair payment for every form in which the video is exploited. That payment must be arranged with them in writing. Just what constitutes fair payment may be the subject of negotiation. It will depend on the intended use or type of exploitation of the video, for example whether it is to be used only during teaching at your own institution or worldwide without restriction. The fees that a collaborator generally receives can also play a role, as well as the extent of his/her fame. A well-known actor can stipulate, for example, that he will appear in the video free of charge as long as it is only used for educational purposes. In actual practice, various different types of payment apply, for example a lump sum for all types of exploitation (sometimes just 1 euro), waiving of the right to a fee, etc.
If you are the director/producer of the video, you yourself must make written agreements with the collaborators on payment (which can be 0 euros). The same probably applies if the copyright in the video accrues to your employer. In that case, you need to be sure that you have the right as director to draw up contracts on behalf of your employer. If no contracts are in fact concluded with them, the collaborators may still be able to demand fair payment at some future date. It can be argued that the fee should be set at zero if the collaborators have already been paid in the course of their employment; this naturally does not apply to “external” collaborators. It may, however, be appropriate for employees to receive payment if exploitation of the video generates large returns.
5c. Do I have to pay everyone who collaborates in making the video?
Basically, everyone who works on a video is entitled to be paid. The fee payable to employees who collaborate in making a video in the course of their employment is generally tacitly set at zero. People from outside the organisation may also collaborate free of charge; you can ask them to waive their fee. Such arrangements regarding fees do need to be set out in writing, otherwise the collaborators may still be able to demand fair payment at some future date.
5d. Do I need to ask collaborators to transfer their rights to me?
The exploitation rights of collaborators in respect of a video are basically transferred automatically to the producer or – in the case of employees – to the employer. It is therefore not necessary to request them to transfer their rights. However, an exception applies to the composer and lyricist of music that has been specially written for the video; they retain their copyright in their contribution and you can in fact arrange with them for their copyright to be transferred. The copyright can only be transferred in writing, with the right holder or right holders signing (see also 6c).
It should be noted that the personality rights remain with the collaborators themselves because these cannot be transferred (see 1c). On the basis of their personality rights, collaborators are also entitled to have their names mentioned and they can also oppose any distortion of the video.
5e. Do I have to gain the permission of everyone who is shown in the video?
Everyone who has been requested to collaborate in the video, for example by playing a role (major or minor) in it and who agrees to do so has thereby given consent for his/her likeness (i.e. portrait) to be used in the video. It is, however, a good idea to get that permission in writing for all intended uses to which the video may be put. This prevents any objections at a later date, for example on the basis of portrait right or the Personal Data Protection Act [Wet bescherming persoonsgegevens], which protect personal privacy.
Even if those collaborating are not professional actors but extras, interviewees or people who demonstrate something, it is still a good idea to get them to sign a waiver agreeing to all intended uses of the video (see also 6c).
People may also “come into shot” by chance, for example passers-by in the background during an interview in the street. It is not feasible to ask all of them for their consent. The rules of portrait right provide that such people can only contest publication of the video (or photo) if they have a “reasonable interest” in doing so. This may be an interest in privacy – for example someone who is filmed in a compromising condition or situation – or a financial interest: well-known people can generally ask to be paid for being shown. Special rules apply to patients on the grounds of protection of their privacy (see 5g).
5f. Can I film or photograph a class?
Photos and films taken or made in a class may show the teacher and students. At the point when the photo or film is made, you need consent – which may or may not be tacit consent – because people may not want to be shown. Once the picture or film has been made, those who appear can only contest publication if they have a “reasonable interest” in doing so (see 5e).
The Personal Data Protection Act also prohibits the use of personal details that reveal someone’s race, religion, health, sexual orientation, police record, or membership of a political party or trade union. There is therefore a problem if a classroom photo or film shows someone’s race, religion or disability. In such cases, it is safer to get explicit permission for use of the photo or film, set out in a collaborator’s statement. If the pupils concerned are minors, then their parents need to sign. Some schools tell parents when their child is registered that photos or videos may be made; if the parents do not object, the assumption is that they have given consent. However, if you want to make a video recording that clearly shows pupils or students, or in which they play a major role, it is a good idea to get them (or their parents) to provide a collaborator statement giving permission for the use of their likeness for all intended types of exploitation of the video.
5g. Can I record a conversation with a patient (and then use it in my teaching)?
You always require the patient’s permission to take a photo or make a sound recording; the same applies to using the photo or recording in your teaching. The patient needs to sign a “patient declaration”. Some hospitals ask the patient to give consent orally, with this being included in the recording. There are also hospitals that inform the patient when he/she is admitted that recordings may be made for research or teaching purposes. The patient’s consent is then linked to his/her admission. However, this method is not sufficient: the patient must give explicit and specific consent.
In some cases, the patient can withdraw consent, after which the recording must be destroyed. The patient has this right if he/she was dependent on the person making the recording (usually the doctor or other person treating him/her); the patient may have felt that he/she was not free to refuse consent. In some cases, however, the recording concerned may form part of a production that is the object of considerable investment. The risk of recordings needing to be destroyed can be avoided by having an actor play the role of the patient (using a different name), or having this done by a former patient who is no longer being treated. The actor or former patient will then sign a collaborator statement instead of a patient statement (see 5e and f).
5h. Can I make a recording with myself in the main role (or have someone else record me)?
The same rules apply to recordings or films in which you play the main role yourself as when other people are involved. It is a good idea to record your consent for the intended uses of the recording or film in a collaborator statement, together with any associated restrictions; you provide this statement to the producer or your employer. The same applies to other collaborators and other right holders.
5i. Can I use sections of existing programmes or recordings in my video?
Before including parts of existing videos in your own video, you basically need to get the permission of the right holder. You do this by approaching the producer, whose name will be given in the credits. Permission is not required if a copyright-protected work only happens to be shown very briefly and marginally, for example when a building, a poster, or a car is shown. The right to quote also allows you to show sections of long works or whole works of art in films made for educational or scientific purposes (for the conditions, see exception 3 in 1g).
When seeking consent for including parts of a film, the problem is often that the producer is unknown, cannot be traced, or does not answer your inquiry. In actual practice, the section concerned is sometimes included anyway. If you decide to do this, you need to realise that if the right holder contacts you at a later date, an arrangement will need to be made – which will often include payment – or, in extreme cases, the section will need to be removed.
5j. What is the copyright situation if the authors of a photo, a video, or an audio recording are employees of an educational institution?
The Dutch Copyright Act provides that when employees create a work, or contribute to it, in the course of their employment, the copyright accrues to the employer. This only applies to the exploitation rights; the personality rights remain with the employee (see 1c).
5k. What about if the authors are students? Does the institution then hold the copyright in the work they have created?
No. Basically the student retains his/her copyright to the work (but see below). If a student is instructed to create a work by the institution as part of his/her study programme, the institution can, however, stipulate that it will have certain rights of use, for example to include the work in an electronic learning environment and allow it to be assessed by the teacher or commented on by other students. The institution can also stipulate that a work should remain available in an e portfolio for a certain period. Legally speaking, the student then grants a licence for the intended use. He can do this by means of a written agreement with the institution, but more often than not this will take place tacitly (after all, a digital assignment has to be made public if others are to assess it). So that students know what kind of use they are consenting to when they upload an assignment, the intended uses can be made clear in the DLE in the form of a set of general terms and conditions.
This means that the student only grants a licence for certain types of use, while retaining his/her copyright in respect of his/her work. This is otherwise only if the institution agrees with the student that he/she should transfer his/her copyright. This can only be done by means of a written agreement that is signed by the student.
5l. If I produce a recording in the course of my studies, do I need to give it up to the institution where I am a student?
No, you do not need to give up the recording to the institution unless this is necessary temporarily so that it can be assessed. You also retain the copyright in recordings or films that you have made (unless you transfer the copyright to the institution by means of a signed declaration). The institution can, however, stipulate that it will have certain rights of use. One of those rights may be that the material included in your digital portfolio should be available electronically for a certain period, for example so that it can be used as study or teaching material by students or teachers. If the institution has made some or all of the recording/filming possible, by financing it or providing facilities, it is reasonable for it to impose certain requirements regarding how the recording or film may be used. The institution can provide for this in the general terms and conditions that apply to the registration of students. If, however, the recording/film is interesting enough that it offers unexpected opportunities for exploitation, it will give both student and institution a greater degree of certainty if a separate licence contract is drawn up.
The student’s consent is required for a teacher to use the recording or film in a teaching situation. This is the case unless the recording or film has previously been shown in public with the student’s consent; it has then already been published, meaning that the teacher can use it in his/her teaching on the basis of the exceptions discussed in 1g. In the light of exception 2, the student can require fair payment (although the fee can be set at zero by mutual consent).
5m. What is the educational institution allowed to do with videos that I have made and included in my student portfolio?
The institution can in any case use such videos in accordance with the purpose for which they were made. This means that teachers can access them in order to view and assess them. Any other use is only possible if the institution has made appropriate arrangements with you as the author. Such arrangements can be included in the general terms and conditions that apply to student registration. (See also 5k and l.)
5n. My institution wants to include videos that I made in a database, which teachers can take examples from. Is that allowed?
The institution can include videos made by students in a database if arrangements have been made for this to be done. Such arrangements can be included in the general terms and conditions that apply to student registration. Students can be given an assignment as part of their studies to make a video that is then watched and commented on by teachers or other students (for example during a course provided in an electronic learning environment). This type of use is perfectly normal in education and the student can therefore be considered to have given consent for it. If a teacher wishes to use a student’s video in his/her teaching, he/she basically needs the student’s permission (see last paragraph of 5l).
5o. Can someone use my video in his/her own video?
He/she can only use your video with your consent except if he/she invokes the right to quote. In that case, he/she can only use a short section of your video (see exception 3 in 1g). The situation may be complicated if you yourself have also used sections of someone else’s film (or films) in your own video after getting their permission. The person who wants to make use of your video will then also need to get the consent of that person because the existing material is being copied and published again.
The person who wants to make use of your video may also need the permission of other people who hold rights to their contributions to your video, for example the composer and lyricist of music that has been specially written for your video. If other people have been involved in your video – for example actors, musicians, scriptwriters, etc. – and you can be considered to be the producer, then the person who wants to use your video only needs to get your consent (see 5a). If you are a teacher and make a video in the course of your employment, then the person who wants to use the video must get permission (i.e. a licence) from your employer, in other words from the educational institution where you work.