Copyright and ethics

Questions of copyright, data protection and ethics can seem rather daunting to people who simply set out to conduct some oral history interviews. They are not necessarily as complicated as they might seem – but they are very important to the success of any oral history project. The following are an outline of some of the main points that you need to consider, along with sources of further information and guidance.

All information you collect from interviewees should be treated as confidential, and as a researcher you should be in a position to ensure that you are able to keep this information confidential, although there are limits. For example, you may not be able to keep the information from the police if it is germane to an investigation.

If at any point during the planning of an interview or project you are unsure about any legal or ethical issues you should refer to your supervisor.

What is copyright, and how does it apply to oral history recordings?

Copyright is a civil law designed to protect the creative interests or ‘intellectual property’ of those who create a product, and anyone who has invested in enabling its production. Sound recordings of oral history interviews are classed as intellectual property, and are therefore subject to this law. There are in fact two copyrights in oral history recordings:

  1. Copyright in the spoken word of the person being interviewed belongs to that individual, and under the Copyright, Designs and Patents Act 1988, this expires 50 years from the end of the year in which the speaker dies. However from July 1995, copyright duration throughout the European Union was extended to expire 70 years from the end of the year in which the speaker dies.
  2. Copyright in the recording itself belongs to the person making the recording, or the organisation on whose behalf it is made. Under the 1988 Act, this expires at the end of 50 years from the end of the year in which the recordings were made, unless the recordings are published or broadcast, in which case copyright expires fifty years from the end of the year of publication or first broadcast.

What does this mean in practice?

It means that it is important for the person or organisation recording the oral history interview to obtain the consent of the interviewee for the spoken material to be used. This is known as assigning copyright. If this consent is not obtained, then the uses to which the material can be put will be strictly limited under the law. 

Informed consent and copyright

From a legal point of view you must have the informed consent of your interviewee before you can use the information contained in the interview. 'Informed consent' means that the interviewee is aware of all possible uses that may be made of the interview. They should also be correctly informed about the purpose of the study and the procedures the researcher is adopting.

Interviewees should also be aware that they may refuse to answer questions should they wish, and they have the right to restrict parts or all of the interview as they see fit.

Interviewees have a moral right for their words not to be used in a derogatory manner and for their name to be associated with the material should they wish. In circumstances where the interviewee wishes to be anonymous, the researcher must ensure that no material is made available to the public from which the interviewee's identity could be inferred. This may include using pseudonyms.

How can we obtain copyright?

The simplest way of doing this is to ask the interviewee to sign a form indicating what uses of the recording he or she agrees to, and what restrictions if any they wish to place on these. The Oral History Society recommends that restrictions should last for a maximum of thirty years from the date of recording. The law requires the ‘informed consent’ of interviewees, so it is important to explain the range of possible uses before asking them to assign their copyright. These could cover such areas as:

  • educational purposes such as use in schools, universities, colleges and other
  • educational establishments
  • public performance, lectures or talks
  • publications, including print and audio or visual recordings
  • public reference purposes in libraries, museums and record offices
  • public broadcast, or on the internet

Copyright clearance forms should clearly state that the purpose of the agreement is the permanent retention and use of the recordings. An example of a consent form is included below, and you might like to adapt this for your own use. All signed consent forms should be kept securely, as they are the proof that copyright has been assigned to you for specific purposes. It may be difficult or impossible to acquire this consent after a number of years have passed.

What are 'moral rights'?

Oral history interviewees also have certain ‘moral rights’ under copyright law, even after assigning their copyright to someone else. These include the right to be named as the ‘authors’ of their recorded words if they are published or broadcast. However, for a variety of reasons, they may actually wish to remain anonymous, and there should be provision on the copyright consent form for them to indicate this. They are also protected against ‘derogatory treatment’ of their words by publishers or broadcasters - for instance, editing or alterations which distort what they have actually said.

What happens if an interviewee dies without assigning copyright?

In these circumstances, the consent form needs to be signed by the subsequent owner of the intellectual property. Often this will be the next of kin of the interviewee – but copyright can be willed, so this may not necessarily be the case. We can provide an example of the form that EMOHA uses for this purpose.

How does data protection affect oral history projects?

The Data Protection Act of 1998 imposes certain restrictions on the collection and use of personal data. This includes the contents of oral history recordings and any accompanying documentation.

One issue with sound recordings (similar to one with photographs) is that you won't be able to get the consent of everyone 'appearing' in it. The interviewee will sometimes refer to other individuals by name or other identifying features, and you will often not know whether that person is alive or dead. If they are alive, they too are data subjects. However, as with photographs, a ‘risk assessment’ approach is required. This means asking what is the likelihood of damage or distress occurring to the person mentioned as a result of the particular use of the recording? If in doubt, leave it out!

You also need written permission from individuals to enter personal details onto a database, e.g. a mailing list. If you intend to use them for anything else, it is worth having a sentence at the bottom saying something along the lines of ‘the details you provide will be used for administration of the project and for xxx'.

Ethics

Particularly when the subject matter of the research deals with medical issues, you may have to seek the approval of an ethics committee before starting research. Ask your project supervisor, check your department's policy.

You also need to be aware of some of the ethical issues involved in interviewing and preserving information for future use. These go beyond the legal requirements of copyright and data protection. They are basically a question of your relationship with your interviewees, how you treat them and their testimony, and of building a degree of trust.

Broadly, you should:

  • Acquire sufficient technical knowledge to conduct an interview to the best possible standard.
  • Treat interviewees with respect and courtesy.
  • Not promise anonymity unless you are certain you can provide it.
  • Warn the interviewee/ be aware of the possibility of defamation or libel.
  • Be aware of the possible harm which may come from an interview, and that the interviewee's well being should not be jeopardised for the interviewer's gain.
  • Not break promises made to interviewees e.g. offering a copy of the transcript/recording.
  • Inform interviewees of the arrangements made for the custody and preservation of the recordings.
  • Ensure that the names and personal details of interviewees are not passed on to third parties without their consent.
  • Ensure that the interview is documented, indexed, catalogued, and made available as agreed with the interviewee.
  • Ensure that ownership of data and eventual access is made clear with funding/commissioning bodies.

Researchers at the University of Leicester should be aware of the University's Ethics webpages.

You may also want to consult these websites:

University of Leicester Data Protection

The University of Leicester's Information Assurance Services provides the following information:

  • Data Protection Code of Practice
  • Dos and Don'ts
  • The Data Protection Principles
  • Transitional Arrangements
  • Data Protection Co-ordinators Audit Form
  • Student Registration Form Data Protection Statements

Further information

Websites

Books

  • Alan Bruford et al., "My tongue is my ain", Phonographic Bulletin, 57 (1990).
  • GP Cornish, Copyright: interpreting the law for libraries, archives and information services (1997)
  • Theodore Karamanski, Ethics and public history: an anthology, Malabar: Krieger Publishing, 1990. An American collection of articles on ethical issues.
  • National Oral History Association of New Zealand, Code of ethical and technical practice, NOHANZ: nd.
  • John Neuenschwander, Oral history and the law, Albuquerque: Oral History Association, revised edition 1993. This provides a useful comparison by describing the position in the US.
  • Oral History Association [USA], Oral history evaluation guidelines, New York: OHA, 1980 (and amendments).
  • Daphne Patai, "Ethical problems of personal narratives, or, who should eat the last piece of cake?", International Journal of Oral History, 8 (Feb. 1987). A clear discussion of the ethics of oral history in the US.
  • J.B. Post and M.R. Foster, Copyright. A handbook for archivists, Society of Archivists, 1992.
  • R A Wall, Copyright Made Easier (1998).
  • Alan Ward, Manual of sound archive administration, ,Gower, 1990. Includes a chapter on copyright considerations.
  • Valerie Raleigh Yow, Recording oral history: a practical guide for social scientists, Sage, 1994. An excellent guide which includes a useful chapter on ethical issues.