IS YOUR ORAL HISTORY LEGAL AND ETHICAL?: PRACTICAL STEPS

Who is this guidance for?

This guide is for people who record oral history interviews, and organisations and individuals who keep collections of oral history recordings in the four nations of the United Kingdom. England, Scotland, Wales and Northern Ireland comprise the UK and amongst them have three legal systems. However so far as the law is referred to in this document it is safe to assume that all come within the wider context of UK and European law. The Oral History Society promotes the use of oral history techniques to record the memories of those whose life stories would otherwise be lost to future generations, and encourages researchers and teachers to make use of oral history in their work.

It is essential that interviewees should have confidence and trust in interviewers, and that recordings should be available for research and other use within a legal and ethical framework which protects the interests of interviewees. The following information and guidelines are aimed at ensuring that these objectives are achieved.

Anyone involved with the creation and preservation of oral history interviews should take steps to safeguard their reputation for trustworthiness. This means ensuring that what they do is within the various UK and European laws that apply to oral history and that they have not been acting illegally. Oral historians generally speaking have a good reputation in this respect. This guidance is therefore offered as reassurance and advice to both interviewers and interviewees.

The Oral History Society believes that, while oral history work must comply with the law, legal requirements alone do not provide an adequate framework for good practice. No UK law was designed specifically to regulate oral history work; in fact no law even mentions it. Beyond legal considerations we have long held the view that oral historians should abide by a voluntary set of ethical guidelines.

For these reasons this guide covers responsibilities and obligations beyond legal requirements. Members of the Oral History Society, including those who are custodians, archivists and librarians, have agreed to abide by these guidelines.

The guidance reflects the workflow of a typical oral history interview. Much of the legal and technical detail is available not within the main guidance text but via hypertext links so that the key steps and terms can be understood and followed. There are also links to sample documents and resources.

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Disclaimer

This guide is intended as no more than guidance and does not constitute formal legal advice. If you need legal advice you should consult a solicitor.

While every effort has been made to ensure the accuracy and currency of the information brought together here from a wide variety of sources and experience, neither the authors nor the Oral History Society can accept liability for any consequences which may result from the use of this information for any purpose.

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Copyright statement

This document is © Oral History Society, 2012. It replaces two previous documents entitled 'Is your oral history legal and ethical?' by Alan Ward (2003) and the 'Oral History Society Ethical Guidelines', and benefits from additional advice on copyright from Tim Padfield of The National Archives. Rob Perks and Joanna Bornat redrafted and rewrote the document with support from members of the Oral History Society committee, in particular Beth Thomas and Alan Ward.

The copyright owner will allow all forms of copying, downloading and quotation on condition that the Oral History Society is acknowledged as the source.


Step by step guidance
BEFORE THE INTERVIEW OR PROJECT BEGINS

Before an interview or project begins interviewers or project managers should prepare by taking a number of essential steps so that what is proposed is acceptable to all participants and will pass ethical scrutiny.

Preparatory steps

At the outset the interviewer or project leader needs to consider the purpose of the interview and the possible range of future uses to which it might be put (for example research, educational use, as an archive, transcription, publication, broadcasting).

Arrangements need to be made for the custody and preservation of the interview and accompanying material, both immediately and in the future. For example, archives which may be willing to accept the recordings should be contacted in advance to check what documentation is required and to ensure that any wording about conditions of access and reference to the archive is accurately presented to interviewees and project partners.

The project’s objectives and intentions can best be expressed in a clear public statement or information sheet (PDF - 121Kb) detailing the nature of the research or project, which can be widely shared and understood by interviewees, project partners and stakeholders, and potential users.

As well as these steps, interviewers also need to carry out research about the topic to be covered by the interview, acquire sufficient technical knowledge and attend specialist training to conduct an interview of the best possible standard.

Organisations carrying out or sponsoring oral history work should select interviewers of sufficient competence and skill, and provide sufficient guidance or training to ensure that recordings and documentation are carried out to the best possible standard.

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Ethical considerations

Interviewers working in a UK institution of higher or further education, or whose interviewees are either employees or currently patients of the National Health Service (NHS) will be required to submit their research proposal to an ethics committee. In higher education this will be a Research Ethics Committee

Interviewers wishing to approach staff or patients of the UK National Health Service, offenders and certain other individuals will need to complete the Integrated Research Application System (IRAS) documentation before their project can begin.
Ethical considerations apply to all projects, whether in higher education or not, and these continue throughout the course of the project: from the first contact with an interviewee to preserving, sharing and disseminating the results of interviews.

The following principles or 'duties' have been identified by the UK Data Archive:

  • a duty of confidentiality (though not necessarily anonymity) towards informants and participants
  • a duty to protect participants from harm, by not disclosing sensitive information
  • a duty to treat participants as intelligent beings, able to make their own decisions on how the information they provide can be used, shared and made public (through informed consent)
  • a duty to inform participants how information and data obtained will be used, processed, shared, disposed of, prior to obtaining consent
  • a duty to wider society to make available resources produced by researchers with public funds (data sharing is required by some funders)

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Interviewing children and vulnerable adults

Interviewing children and vulnerable adults requires awareness of legal responsibility as well as issues of power and ownership.

So far as children are concerned, based on health service clinical practice and drawing on legal rulings, young people over the age of sixteen can give their own consent. Younger children should be approached through a responsible adult such as parent or teacher and should be given information about the research that can be presented verbally and visually to help their understanding of what will happen, what their involvement will be and the expected outcomes of the research.

Vulnerable adults, for example people with learning difficulties or with some degree of cognitive impairment, may sometimes be encountered by means of a ‘gatekeeper’- a carer, relative or friend – whose role in the interview process needs to be carefully defined. It is important to ensure that explanations and presentation of the research is communicated in ways that are accessible without being patronising. In some instances it may be helpful for the adult concerned to have a friend or long term associate with them to help with interpretation and explanation of the interview process.

This guidance includes examples of information and consent forms designed for children and for vulnerable adults.

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Interviewing within the family

In a one-to-one interview, interviewees often reveal thoughts, memories and insights that they haven’t vocalised before. Whilst this is very useful for family history research, if the interviewer is a member of the same family as the interviewee this can also mean that information and family secrets might be disclosed that could potentially be distressing to the interviewer or other members of the family. This guidance recommends that, in line with all oral history interviewing, a number of preparatory steps are taken before recording oral history within the family.

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WHEN AN INTERVIEWEE IS FIRST APPROACHED

Preparing an interviewee with an explanation of what is involved is an important part of the process of preparing for an interview

Explaining the interview

First contact with an interviewee may be face-to-face, by phone, by email or letter. Whatever the approach it is important to ensure that right from the start people have information about the purpose and nature of the project or research, and what consenting to take part will mean. Interviewees should be provided with a copy of the project information sheet, (PDF - 121Kb), and it is important to ensure that he or she has understood this.

An oral history interview is a relationship between two people who will each have views and hopes for its outcomes and future use. This means that it is important that both parties are aware that it is unethical, and in many cases illegal, to use interviews without the informed consent of the interviewee, in which the nature of the use or uses of their recording is clear and explicit.

What consent and copyright mean

Informed consent is best acknowledged by means of a Recording Agreement, often called a ‘Consent’ or ‘Clearance Form’, which should be completed and signed face-to-face at the conclusion of the interview (see 4.4 below) but which should be shown to and explained to an interviewee before any recording begins. Contacting people at a later date is usually very time-consuming and often impossible if interviewees or interviewers have died or moved away. Where informed consent has not been given, interviews cannot be used for many purposes and the value of keeping them is much reduced. The need for a signed Recording Agreement should be clearly referred to in the project information sheet and/or in a letter of approach.

The Recording Agreement also sets out rights and responsibilities with respect to the copyright ownership of the interview. Both interviewer and interviewee have copyrights in the recording (see 'AFTER THE INTERVIEW' below).

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Where the interview takes place

Interviewers should check with the interviewee what their preferences are as to where and when interview should be conducted. For example will another person be present (this is not usually necessary), and what broad subjects will be covered? It is best to find a quiet and undisturbed location for an interview, usually the interviewee's home, though sometimes they may prefer another place.

Interviewing at a distance

If the interview is to be recorded by telephone or by Skype there are additional legal and ethical considerations which will need to be observed.

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DURING THE INTERVIEW

Once the interview is underway it is important to remember the interviewee’s wishes from both a social and an ethical perspective.

The interview relationship

A good interview is only achievable if there is mutual trust and rapport between the people involved. If for any reason an interviewee asks that the interview be ended or broken off and resumed at some later date, that preference should be respected. With this in mind it is often helpful before the interview begins to agree a time to finish the recording session, or perhaps to arrange to have a break.

Maintaining confidentiality

Interviewers, and project staff/volunteers processing interview data, should treat the content of the interview as confidential until a Recording Agreement or other access agreement has been finalised. If a duty of confidentiality is not included in standard employment contract terms and conditions, or in volunteer contracts, then project managers should consider asking project staff and volunteers to sign a Confidentiality Agreement, (PDF - 70Kb).

Awareness of defamation and libel

Interviewers should we aware of potential libel or defamation as the interview process progresses, bringing this to the attention of interviewees and project leaders so that everyone involved can weigh up the likely risk of offence being taken. This may result in the closure or partial closure of the interview.

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AFTER THE INTERVIEW

The interviewer or project manager’s responsibilities continue after the interview has been completed.

Clarifying rights

At the end of the interview the interviewee should be:

  • reminded of his or her rights under copyright law: in summary that an interviewee owns copyright in his or her recorded words spoken on the recording and that this can be retained or assigned (passed) to someone else
  • reminded again of the arrangements which have been made for the custody and preservation of the interview and accompanying material, both immediately and in the future, and of any use to which the interview is likely to be put
  • asked if they require any restrictions on the use or availability of their interview at the time or in the future.

All these and other points should have been included in the information sheet, (PDF - 121Kb), which ideally should have been sent to the interviewee before the interview. It’s helpful to carry a spare copy so that this can be left with the interviewee after the interview.

Copyright for oral historians

All oral history projects, interviewers, researchers, and custodians in archives, museums and libraries holding oral history material, need clear authority to use those materials, otherwise they may not be able to justify the time and effort needed for conservation, documentation and storage. Interviewers and bodies such as societies or museums should therefore ask interviewees to give written assignments of copyright and other rights, and make clear their consent for use and access, by completing and signing a Recording Agreement, (PDF - 53Kb). The purpose of this form is:

  • to enable routine consultation of interviews to take place, subject to any closure or restrictions interviewees have imposed; and
  • to enable parts of recorded interviews or extracts from transcriptions to be used in publications, broadcasts, exhibitions or on the internet; and
  • to record in writing any closure or restrictions on access or use that the interviewee may wish to make.

For family history interviews an adapted version of the Recording Agreement is available: Joint statement of intent for oral history recordings for family research, (PDF - 64Kb). Some organisations, such as the British Library, also have a leaflet explaining what the recording agreement is and how it can be used.

Some funding bodies such as Heritage Lottery Fund (HLF) and the Joint Information Systems Council (JISC) require projects to use a Creative Commons (CC) licence for their work. There are several kinds of CC licence but broadly they allow easier re-use and publication of material without the need to seek the permission from copyright holders.

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Finalising the Recording Agreement

The Recording Agreement should be discussed face-to-face and signed by both the interviewee and the interviewer. Both should hold a copy.

Simple assignment by the interviewee of their copyright to the interviewer or project will often be the most straightforward way to ensure that the recording can be utilised in the widest possible manner. Permission to make use of it in certain defined ways (a licence) is also acceptable. With few exceptions, UK copyright law provides no mechanism through which interviews or recordings may be used without permission, for instance in cases where the rights owners cannot be traced and no recording agreement has been obtained.

Although form-filling may be irksome, it means that interviewees are made aware of the rights they hold in the recording (their copyright), the purpose of the interview and its future use; thus ensuring that their interview is not subject to exploitative or other undesirable uses.

Preparing for preservation

Interviewers should ensure that the interview is documented, summarised or transcribed, catalogued and made available as agreed with the interviewee, and that a copy of the transcript and/or audio recording are given to the interviewee if an undertaking to do so has been given. Interviewers or project managers may also like to offer interviewees the opportunity to check the transcript though this is not always a universal or necessary practice.

Interviewers and project leaders should ensure that all possible measures are taken to preserve the original unedited interview recording and any related material. If these responsibilities are subsequently transferred to others (for example an archive or other place of deposit), this should be with the knowledge or consent of the interviewee and should be recorded in writing.

Interviewers are strongly advised to seek a permanent place of deposit for their recordings but if this is not possible or, as in the case of family history interviews, the interview partners have decided to keep the recording stored within the family, then the interviewer has a duty to ensure that the audio file is stored and backed-up and that a copy of the signed Joint Statement of Intent for Family History Recordings, (PDF - 64Kb), is kept with the audio files. If the interviewee has requested any access restrictions for the material then the interviewer should honour these.

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ARCHIVING AND LONG-TERM STORAGE IN PLACES OF DEPOSIT SUCH AS ARCHIVES, LIBRARIES, MUSEUMS AND UNIVERSITY DEPARTMENTS

Interview transcripts and audio file originals or copies will be of interest to other researchers or investigators, and interviewees are often keen to see their interviews deposited in places where they will be of more general use. In addition it is increasingly the case that funding bodies (such as the Heritage Lottery Fund and government funding bodies such as the Economic and Social Research Council and Arts and the Humanities Research Council) expect project materials to be deposited in an archive where others can refer to them at some later date.

Oral history recordings are best preserved by professional custodians, such as archivists, librarians and museum curators, who can care for them and make them available to researchers and others in accordance with any limitations set out in the recording agreement. The Oral History Society strongly supports this and can give advice about suitable local places of deposit (some of which are members of the Society’s Regional Network).

Preparing for deposit

There are a number of steps to be taken and legalities to be aware of if deposit is to be satisfactorily completed.

Accompanying documents

Places of deposit tend to avoid the acquisition of oral history interviews which are not accompanied by documentation including provenance, availability for use, and copyright status, except where there is a realistic prospect that retrospective permission for use can be acquired successfully. For this reason interviewers and projects should ensure that all possible steps have been taken to contact interviewees or their heirs in order to obtain written statements concerning copyright and access at the interview or as soon as possible afterwards. As time passes it becomes difficult or impossible to contact interviewees and, without a signed recording agreement, publication or other beneficial uses may not be possible.

Information on copyright ownership and other restrictions and conditions should be recorded in writing, preserved and observed. All transfers of interview recordings and related material from individuals or others also needs to be recorded.

Data Protection law

Oral history interviewers and custodians should be aware of the Data Protection Act. In practice the Act should not be a problem for interviewing and keeping recordings of interviews for research, as long as interviews and transcripts are covered by recording agreements which provide details of the intended dissemination of the contents of the interviews. Third parties, such as people referred to or named in a recording, have the right to access that information (only) unless the recording is closed (reserved) in which case the duty of confidentiality to the interviewer who has requested that closure prevails. In these cases third parties may be told that such information exists without divulging its content.

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Freedom of Information law

Publicly-funded organisations and places of deposit should also be aware of Freedom of Information legislation. Most information held by such bodies has to be made available to anyone who requests it in writing, though there are exemptions to public access, such as in cases where disclosure would be a breach of confidence.

As a general rule places of deposit should ensure that names and personal details of interviewees are not passed on to third parties (for example broadcasters) without the consent of interviewees. Institutions should not become involved in any business arrangements which may result from such contacts.

The Society’s Media Guidelines, (PDF - 33Kb), have been written to assist oral historians and archivists when dealing with media requests.

Places of deposit should decide whether to charge for services relating to oral history materials in their care. Where charges are applied, there should be a standard scale of charges for all users.

Web access: online repositories and ‘cloud’ storage

All the above steps and legalities should be followed when recordings or transcripts are to be deposited or made available onsite. Additionally for web access, interviewers, project managers and custodians of archives should always inform or consult interviewees if their words are to be published, broadcast or placed on the internet or in online repositories unless the recording agreement says otherwise.

For digitisation projects involving online web access to oral history interviews, as far as possible interviewees should be re-contacted to confirm their consent to this kind of access. Although this might not always be a legal requirement where copyright has been assigned and there are no access restrictions, the Society nonetheless regards this as good ethical practice. Interviewees should also be made aware of the website's take-down policy.

Interviews placed on the internet should always be accompanied by terms and conditions for use. This will ensure that anyone making use of them will be aware of what they are allowed to do with them. Normal copyright conditions and exceptions apply to online deposits.

If oral history material is being stored in the internet ‘cloud’, you are urged to read the terms and conditions of storage. Some companies providing this type of storage claim some rights in the material they stores, which could have implications for both copyright and access restrictions.

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Frequently asked questions

Q. Is it OK to put interview material on the internet?

A. Only interview material for which permission has been given may be uploaded onto the internet. This means that Recording Agreements should stipulate what may or may not happen to interviews, allowing interviewees or their successors to restrict how material may be used. For digitisation projects involving online web access to oral history interviews, as far as possible interviewees should be re-contacted to confirm their consent to this kind of access. Although this might not always be a legal requirement where copyright has been assigned and there are no access restrictions, the Society nonetheless regards this as good ethical practice. Interviewees should also be made aware of the website's take-down policy.

Q. Is it worth keeping an interview if I think the contents are libellous or insulting or very personal or sensitive?

A. Yes. The first thing to do is ensure that any use of or access to the interview is clearly covered by a Recording Agreement whereby the interviewer and interviewee may decide that they wish to close access to the recording to avoid possible legal action and/or protect someone named in the interview, including the interviewee themselves. Secure storage of the interview is also paramount.

Q. What should I do if the police want access to interviews in my collection?

A. A person or organisation in possession of information relating to criminal activities is legally obliged to disclose it to the police, if legal proceedings or investigations are under way in connection with those activities. There is no legal obligation to disclose information if no investigation is in progress and there has been no approach from the police, but deliberately evading questioning by the police or being evasive or untruthful when questioned may result in you being charged with perverting the course of justice. In the course of investigations the police may obtain a court order obliging interviewers and custodians to disclose the content of interviews, thus overriding any confidentiality agreements made with interviewees. Courts may similarly require interviewers or others to give evidence based on the content of interviews.

Interviewees who are likely to provide information about criminal activities should be made aware that this may have to be disclosed to investigating police, even if access for everyone else has been restricted.

Q. Should interviewers visiting vulnerable people in their own homes be subject to a criminal records check?

A. Some local authorities, charities and other organisations have insisted that criminal record checks of new employees and volunteers visiting vulnerable people be carried out. In the past this has been done through the Criminal Record Bureau (CRB) which was meant to prevent unsuitable people working with vulnerable groups such as children and older and disabled people. CRB was replaced in June 2013 by a new Disclosure and Barring Service (DBS), details here: https://www.gov.uk/government/organisations/disclosure-and-barring-service. The Oral History Society does not regard a criminal record check as an automatic requirement to undertake oral history interviews and recommends that projects follow previous practice.

Q. When should an interview be treated as confidential?

A. It’s perhaps best to assume that every interview should be treated as confidential until they have been deposited in an archive with documentation which states how it may be used. Assuming an interview is confidential means also making sure that anyone else involved is also aware of this. Transcribers should be aware that they also have duties of confidentiality which mean that an interview transcript should not be shared within anyone apart from the interviewer or other project member and that all interviews files, both recordings and transcripts should be kept in a secure place.
Most oral history projects use a volunteer agreement (PDF - 37Kb) which sets out expectations relating to confidentiality and disclosure.

Q. What happens in cases when an interviewee repeatedly fails to sign a recording agreement? Where an institution has paid for the recording to be made, what kinds of access are possible?

A. This situation can often be avoided if interviewers always obtained clearance at the time of the interview, as is recommended. However, ‘fair dealing’ access for the purposes of non-commercial research will be permissible even without a form (see next FAQ), subject to data protection restrictions. At the very least the interviewer or custodian should establish beyond reasonable doubt that the interview does not contain confidential or defamatory material. If clearance for more extensive uses, such as publication or inclusion on a website, is not available for whatever reason, such uses are not permissible.

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Q. My interviewee refuses to assign their copyright to my project. What does that mean I can do with the interview? Was it all a waste of time?

A. No. There are many, very tightly defined, exceptions in relation to copyright. The most commonly available ones are use for:

  • private study or non-commercial research;
  • criticism or review (published works only); and
  • current news reporting (not with photographs).

These three sets of exceptions are called ‘fair dealing’. In order for a qualifying use to satisfy the exception it must also be fair to the copyright owner, by not interfering with their ‘normal exploitation’ of the work and by not unreasonably prejudicing their legitimate interests. This means that you cannot normally, for instance, copy an entire work. You must also acknowledge the author and the work.

Other exceptions that might apply to oral history material are:

  • copying by libraries and archives for preservation purposes (not for films and sound recordings, though most rights owners accept that such copying is for the best of intentions and does not damage their interests);
  • copying for researchers by libraries and archives of literary works for private study or non-commercial research;
  • copying for an examination (for instance to set the questions or to use in a thesis).

Relatively few exceptions apply to films and sound recordings, so permission for use of them is for the most part required. Most uses of any kinds of work on the internet require permission, which is not surprising given the ease with which almost perfect copies can be distributed around the world by those means.

Q. What happens if an interviewee changes their mind about copyright assignment and/or access conditions after they’ve signed a Recording Agreement?

A. Legally the document should stand but as there is no ‘cooling off’ period that is generally offered to an interviewee within which to change their minds, most projects and archives take the view that interviewees can replace their initial agreement with a new one which better accords with their new requirements. The original agreement would then be destroyed and all the documentation updated to reflect any revised conditions.

Q. Can copyright be owned jointly?

A. Yes, for instance when two people create a work together and their individual contributions are indistinguishable, or when copyrights are bequeathed to all of a rights owner’s children. Project partners, for example two organisations, can also share copyright equally, though this is best governed by a separate heads of agreement before the project starts.

Q. In recordings of group sessions (such as reminiscence groups) do all the speakers have the same copyright and other rights, and does each one have to sign a recording agreement?

A. Each individual participant (or, if appropriate, the employer in the case of copyright) owns the copyright, moral rights and performer’s rights in anything substantial he or she said if the speakers are individually identifiable. If individuals are not identifiable the participants will own the rights jointly. They can each sign a form, or they can all sign one form provided they all agree to the wording.

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Q. Can copyright be assigned orally (for example via a statement on the recording) or does it have to be written?

A. The statute specifies that an assignment (assignation in Scotland) must be written and signed. If for some reason written clearance cannot be obtained (for example because of an interviewee’s disability), a recorded oral statement might be acceptable and is certainly much better than nothing.

Q. Is copyright legislation retrospective? What is the position with recordings made before the 1988 Copyright Act when they are being offered for deposit? Do custodians need to attempt to contact speakers to clear copyright?

A. Provision was made in the 1988 Copyright Act (and later amendments) for the continuation of copyrights which were in existence before the Act came into force on 1 August 1989. The current restricted acts and the exceptions and limitations to the rights of copyright owners apply to earlier works. However, older oral history recordings are likely to lack supporting documentation, especially recording agreements. It is therefore recommended that:

  • access for non-commercial research to older recordings should be unrestricted unless some agreement to the contrary is known to be in existence;
  • in the absence of an existing agreement, as far as reasonably possible permission should be sought from interviewees or their relatives if a substantial extract from an older interview is to be published or disseminated;
  • in the absence of an existing agreement, where interviewees have since died, or attempts to contact them or their relatives have failed, their recorded speech and written transcriptions should only be used without permission for anything other than non-commercial research after careful consideration. This risk assessment should consider the application of any other exception to copyright, any likely damage to the interests of the interviewee and other parties and the risk of an action for copyright infringement or (for instance) for breach of confidence.

Q. What is meant by ‘moral rights’?

A. The 1988 copyright Act gave oral history interviewees the right to be named as the ‘authors’ of their recorded words if they are published or broadcast; and publishers and broadcasters are obliged not to subject their words to ‘derogatory treatment’ by, for example, editing, adapting or making alterations which create a false impression. These rights are retained by interviewees whoever owns the copyright. They cannot be assigned to someone else and so belong to the speaker and his or her heirs until the copyright expires, though they can be waived. The right to be named needs to be ‘asserted’ (in other words stated formally, preferably in writing) by the interviewee in order to have legal force. However, except in cases where interviewees have asked not to be identified, it is recommended that interviewers and custodians should ensure that interviewees are credited whenever their words are made public.

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Q. Even where a speaker has assigned copyright and agreed public use, can he/she still subsequently object to the publication and/or public display of their words in any circumstances?

A. Yes, there are various remaining grounds for objection. For example an interviewee can object and could take legal action if his or her moral rights are infringed, or if confidential or libellous statements are made public. If a living interviewee has any significant objection to the use of his or her words, even if there is no potential legal infringement, custodians are best advised to consider the risks of going ahead and to explore other options.

Q. Can third parties mentioned in recordings (such as the son or daughter of an interviewee) object to the recording mentioning them being made public even when the interviewee has agreed to open access?

A. Legal objections can be raised by third parties under the Data Protection Act, or if interviews contain confidential or defamatory information relating to them. Even in the absence of legal grounds, custodians wishing to follow best practice should give careful and sympathetic consideration to such objections.

Q. Where an institution carrying out an interview programme has received an external grant to fund the work, does the external funder have any automatic copyright claim over the recorded data?

A. In a typical case both the institution and the funding body will have contributed significant resources to the interview programme. In some circumstances its contribution might give the funding body a share in the copyright ownership. The funding body could only claim an automatic right to exclusive ownership of the copyright in the recordings (but not in the words recorded) if it provided all the resources and made all the arrangements. A grant should always be accompanied by a detailed written agreement, negotiated in advance, and the terms of this should specify the ownership of copyrights (whether given to one party or shared) and the permissions granted to the parties.

Q. Do the interviewers who are employed or working as volunteers on my project have any rights in the recordings they have conducted?

A. Assuming they have been recruited and managed by an organisation or project which has made arrangements for the interviews to be carried out, then the organisation or project owns the recording copyright in the interviews. It is advisable to include reference to this in employment and volunteer contracts.

Q. For a video recording, what rights do other participants, such as camera-operators, lighting and sound staff, have in the recording? And how should these rights be negotiated?

A. In the case of the technical staff, none. In any case, where recordings are undertaken on this scale, the recording crew are likely to be employees. Their employer will own the rights in the recording produced.

Q. Are there any particular things I should bear in mind when responding to a request from a television or radio company for access to my oral history interviews?

A. The OHS Media Guidelines (PDF - 33Kb), have been written to assist oral historians and archivists when dealing with media requests.

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Useful web links

British Association of Social Workers Code of Ethics
http://www.basw.co.uk/codeofethics/

British Copyright Council
www.britishcopyright.org

British Library: code of practice on research ethics
www.bl.uk/aboutus/stratpolprog/researchethics

British Sociological Association statement of ethical practice
http://www.britsoc.co.uk/about/equality/statement-of-ethical-practice.aspx

Crown Copyright
http://www.nationalarchives.gov.uk/information-management/our-services/crown-copyright.htm

ESDS Qualidata: access and support for qualitative datasets
www.esds.ac.uk/qualidata/about/introduction.asp

Information Commissioner’s Office
www.ico.gov.uk

Intellectual Property Office
www.ipo.gov.uk

Legislation online (Data Protection Act etc)
www.legislation.gov.uk

Market Research Society standards and guidelines
www.mrs.org.uk/standards/children.htm

National Archives: general copyright guidance, including Crown copyright
http://www.nationalarchives.gov.uk/legal/copyright.htm

National Children’s Bureau: guidelines for research with children and young people
http://www.ncb.org.uk/media/434791/guidelines_for_research_with_cyp.pdf

Open Government Licence
http://www.nationalarchives.gov.uk/information-management/uk-gov-licensing-framework.htm

Press Complaints Commission editors’ code of practice
www.pcc.org.uk/cop/practice.html

Timescapes Ethical Knowledge Bank: researchers share their experiences of ethical dilemmas
http://www.timescapes.leeds.ac.uk/resources/knowledge-bank-for-ethical-practice-in-qualitative-longitudinal-research

UK Data Archive: advice on consent and ethics
www.data-archive.ac.uk/create-manage/consent-ethics

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Further reading

Edward Baden-Powell, Alasdair Bleakley and Jeffrey Eneberi, Intellectual Property and Media Law Companion, fourth edition, London: Bloomsbury Professional, 2010.
A clear and concise examination of the law, practice and procedure of intellectual property and media law covering copyright, patents, trademarks, design protection and database rights.

Graham Cornish, Copyright: Interpreting the Law for Libraries, Archives and Information Services, fifth edition, London: Facet, 2009.
Explains the provisions of the UK Copyright Act and supporting legislation in quick and easy question-and-answer form. Coverage of moral rights and areas such as originality, databases, and the use of broadcast material in education. Wikipedia, Flickr, MySpace, Yahoo, Creative Commons and Open Archives are considered in a copyright context. All types of material that may attract copyright are considered, including: literary, dramatic and musical works; artistic works; sound recordings; films and videos; broadcasts; databases; and, computer programs and websites.

Martyn Hammersley & Anna Traianou, Ethics in Qualitative Research: Controversies and Contexts, London: Sage, 2012-05-15
Debates ethical issues and how these are determined by values external to research which may be dependent on particular situations and which may conflict with one another.

Theodore Karamanski, Ethics and Public History: An Anthology, Malabar: Kreiger Publishing, 1990.
An American collection of articles on ethical issues.

Nicola McKilligan and Naomi Powell (eds), Data Protection Pocket Guide, second edition, London: British Standards Institution, 2009.
A user-friendly guide for anyone who needs to know about the issues involved in data protection. This edition reflects all the changes that necessitated the publication of British Standard for Data Protection 10012:2009, including a new chapter on operating CCTV and guidance on modern dilemmas such as using social networks like Facebook and YouTube for business purposes.

David McMenemy, Alan Poulter and Paul Burton, A Handbook of Ethical Practice: A Practical Guide to Dealing with Ethical Issues in Information and Library Work, Oxford: Chandos, 2007.
Looks at all of the ethical issues facing information and library professionals including a detailed discussion of the issues that impact on the day-today practice of information workers in the twenty-first century, with case studies discussing potential solutions to ethical problems faced.

John Neuenschwander, A Guide to Oral History and Law, New York: Oxford University Press, 2009.
A very useful guide though mainly relates to US copyright law.

National Oral History Association of New Zealand, Code of Ethical and Technical Practice, NOHANZ: nd, online at http://www.oralhistory.org.nz/code.htm

Oral History Association [USA], The Principles and Best Practices for Oral History, OHA, revised October 2009, online at http://www.oralhistory.org/do-oral-history/principles-and-practices/

Tim Padfield, Copyright for Archivists and Records Managers, fourth revised edition, London: Facet, 2010.
This comprehensive manual outlines copyright law in the UK with special reference to materials relevant to archive and records collections such as maps, legal records, records of local authorities, records of churches and faiths, most notably unpublished works. It also offers advice on rights in the electronic environment and the problems associated with rights clearance; and covers related areas such as moral rights and rights in databases.

Daphne Patai, "Ethical problems of personal narratives, or, who should eat the last piece of cake?", International Journal of Oral History, no. 8 (Feb 1987).
A clear discussion of the ethics of oral history.

Wendy Rickard, "'Oral history - more dangerous than therapy?': interviewees' reflections on recording traumatic or taboo issues", Oral History, vol.26 no.2 (Autumn 1998).
A review of ethical issues generated by the re-use of archived data.

Sheena Rolph, "Ethical dilemmas: oral history work with people with learning difficulties", Oral History, vol.26 no.2 (Autumn 1998).
Debates issues relating to interviews with vulnerable adults with learning difficulties.

Paul Ticher, Data Protection for Voluntary Organisations, third edition, London: Directory of Social Change, 2009.
Data Protection explained including fair processing, data subject consent, restrictions on direct marketing, security and enforcement plus freedom of information and how it relates to charities.

Valerie Raleigh Yow, Recording Oral History: A Guide for the Humanities and Social Sciences, second edition, London: Sage, 2005.
An excellent guide which includes a useful chapter on ethical issues.

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