Is Your Oral History Legal and Ethical?
7 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 agreement 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, and content sensitivity-checking should be carried our beforehand in order to be compliant with GDPR and avoid publishing anything which might cause damage and distress to any living individuals.
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 all or part of 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. This is what occurred in the infamous Boston College case (see further reading). 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 and ensure they have a safeguarding policy in place.
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 it has 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 interview 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. NCVO has further useful guidance on working with volunteers.
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.
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 an individual recording agreement, or they can all sign one recording agreement provided they all agree to the wording.
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, but all of the usual rules around reasonable adjustments for disability apply, so alternative methods of indicating and recording ethical agreement for those unable to write are encouraged. One way of doing this is to record the wording from the form orally, together with the individual’s oral agreement to that, as part of the audio interview. This weds their legal and ethical participation to the output of the activity.
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 CopyrightAct 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.
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 (see above), 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 (and GDPR), if interviews contain confidential or defamatory information relating to them which they can show have led to ‘substantial damage and distress’. 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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