Module 4:
Ethics, legalities and rights
It is essential to be aware of the basic ethics involved in oral history, and to conduct your oral history project with ethics in mind. As an oral historian, you have a serious responsibility to record and manage people’s stories in a way that is thoughtful and respectful.
What is informed consent, and why is it important?
Informed consent is when an individual gives their permission for something that has been explained to them and that they understand well.
Clearly explain your oral history project and every step of the process to your interviewees, so that they understand why they are being interviewed, what is involved and exactly what they are agreeing to. You may want to provide all the information about your project both verbally and in writing, via a letter or information statement. This should include:
- the background to your project – what stories are being collected and why
- what will happen before, during and after the interview
- how long the interview will take
- how the interview will be recorded
- what will happen to the recording and other interview materials (such as transcripts and summaries) in the future.
Gathering and recording consent
Consent for being interviewed can be sought in a variety of ways. You may simply seek an interviewee’s verbal agreement, such as in the case of a private oral history project for a family, or you may want to ask your interviewee to give their informed consent verbally in the interview. In the case of recording an interview that will be archived by a collecting institution, you will ask your interviewee to sign a rights agreement form. It is important to note that consent to be interviewed is not the same as transferring rights. This is covered in more detail below.
Interviewees should be told explicitly that their involvement in the oral history project is voluntary. No one should ever be pressured into agreeing to take part in an oral history interview if they do not want to.
You may wish to begin your interview with a variation of the following introduction:
This is an interview with [interviewee name]
for the [name of project] oral history project.
This interview is taking place on [full date]
and is being conducted at [location, or remotely via Zoom].
My name, the oral historian, is [interviewer name].
Thank you for agreeing to talk about your experiences with me.
If you are interviewing children or people who may not be able to give informed consent for themselves, ensure that you seek the informed consent of a parent or guardian. If you are unsure about a potential interviewee’s ability to give informed consent, seek advice from others who know that person well. It may not be appropriate for them to be interviewed.
Copyright
Copyright and consent are different. Copyright can be a complex topic, so be sure to explain it to your interviewees in simple language. It is most important to make sure your interviewee knows that their story belongs to them, and they will decide how it might be used.
Transferring copyright to someone else (e.g. a collecting institution) does not stop someone from retelling their story again and again.
What is copyright?
Copyright is the legal right of ownership of original works. The copyright holder controls how the work is used, reproduced and distributed.
Copyright and oral history is complex, and the information provided here is not definitive, but it should provide a helpful starting point.
In short, there are two distinct copyrights in an oral history recording: one in the words of the oral history and one in the interview recording. The interviewer is the owner of the copyright in the interview recording (where an interview is commissioned, the commissioning body is the copyright owner). But the interviewee also owns a copyright in the words and stories they recorded in the interview.
Before every interview, it is best practice to explain and seek written permission to use the interview recording and transcript. This is different from consent to be interviewed, and it is important because this is what dictates how the interview can be made available and used into the future. A rights agreement form is the best way to do this.
A rights agreement form will ask the interviewee to:
- give permission for future use of the interview recording and transcript (as well as any other related interview materials such as timed summaries, photographs taken at the interview etc.)
- dictate any special conditions of use or access restrictions they wish to impose.
A rights agreement may also give permission for the interview recording and transcript to be lodged in a specific archive/collection/library.
Where an interview recording and transcript is to be lodged in a specific archive/collection/library, in the rights agreement the interviewee will often agree to transfer (‘assign’) their copyright in the interview to that institution. The interviewer (or their commissioning organisation) will also usually be expected to transfer (‘assign’) their copyright in the interview to that institution.
Alternatively, an interviewee may retain their copyright in the interview but give permission for future use subject to any special conditions of use or access restrictions they wish to impose.
Why do collecting institutions want copyright?
Collecting institutions and archives often want the copyright for oral history interviews in their collections, because that means they can control the use of the interviews and make them accessible. In the same way that other collection items, such as pictures, documents, maps and books, are made accessible.
Not transferring or assigning copyright to the collecting institution does not mean the interview will not be accepted, however, it can make future accessibility and use of that oral history material more problematic.
Conditions of use
Within the rights agreement, the interviewee can transfer copyright with stipulated special conditions of use or restrictions.
Conditions of use can include things such as:
- A period of time for which the interview is closed or restricted (e.g. for 50 years or until the interviewee’s death)
- The interviewee must be contacted before their interview can be accessed and be informed of future projects/uses
- The transcript of the interview may be available online through the collection catalogue, but the audio file can only be accessed upon request
- Anonymity of the interviewee in any content that is produced using their interview.
It is important to ensure that whatever conditions are imposed will be able to be upheld and maintained by the collecting institution or archive where the interview is kept. Be honest with your interviewee about the practical realities of this. If these requests cannot be guaranteed, be clear. It should also be noted that any conditions of use will also mean the interview is potentially less accessible and useable.
Download an example rights agreement form here.
Alternative arrangements
Like with all aspects of oral history, there is no one-size-fits-all when it comes to copyright. There are alternative approaches to copyright that may be more suitable for your oral history project. In some instances, copyright can be shared, or the interviewee might retain copyright and issue the interviewer or collecting institution with a license to use the interview. If you are conducting interviews that feature First Nations interviewees or include information about Indigenous knowledge and culture, make sure you learn about Indigenous Cultural and Intellectual Property (ICIP).
Access and storage
How will interviews be stored and protected into the future?
Talk to your interviewees about how their interview recordings and any transcripts will be stored and how they may be accessed and used by others in the future. Will the interview recordings be freely accessible to anyone? Will researchers need to apply for access? Will audio recordings be available, or only transcripts? Will the interview material be shared online? If an interviewee wishes to keep their interview private for a certain period of time, how will that be managed? For example, they may agree to their interview being publicly accessible only after their death. However, if the interviews are being archived, will that archive have the capacity and resources to manage the collection into the future?
The answers to these questions are very much dependent on the context of your project, and whether there is a collecting institution involved.
Do not make promises that cannot be kept. If you cannot guarantee how the interviews will be managed and accessed, it is important to be honest about this, so your interviewees can make an informed decision about what happens to their interviews.
Managing previously recorded interviews
If you have uncovered oral history interview recordings that were recorded in the past, without any obvious consent process, it is advisable to make all possible, reasonable attempts to contact the people involved in the project and seek their informed consent for ongoing storage and use of their interview recordings and all associated material.
If you are unable to contact anyone who was involved, take into consideration information such as how long ago the interviews were recorded, for what purpose, and their potential significance now and into the future. You may wish to seek advice from a collecting institution (such as a state or national library) about how to best manage the interviews. A number of these institutions are considering these issues and developing guidelines for dealing with orphaned oral history collections.
National and State Libraries Australasia (NSLA) has useful material on this and other topics related to oral history.
Interview review
As a general guide, the transcript should remain an exact, verbatim record of the recorded interview, to maintain the integrity and authenticity of the interview itself. However, the interviewee may wish to review their interview material (recordings and transcripts) before it is archived and used, so that they can correct any inaccuracies, and so that they are aware of exactly what is being kept by the collecting institution.
If you decide to allow a review process, be aware that the interviewee may wish to make changes.
Minor changes such as corrections to misspelled names or places and any revisions to incorrect information, such as dates, names, or places, can be inserted as a correction or clarification. These alterations to the transcript, however, cannot be reflected in the audio file, so that needs to be made clear in the transcript document.
If the interviewee wishes to make major changes, such as redacting or removing content from the transcript, it is up to the interviewer to determine if they will allow this, and if they can edit the audio file to remove part of the interview itself. If not, this needs to be made clear in the transcript document. In the event of major changes to the transcript, you may wish to add a statement to the beginning of the transcript that advises users the document has been reviewed and edited, and may not entirely match the audio recording of the interview. This should advise future researchers to seek the advice of the interviewee and/or the collecting institution if they wish to use parts of the interview that have been edited.
It is important to determine from the outset if a review process will be allowed and if so, explain to interviewees what should and should not be edited in their transcript.
Risk management
Consider in advance some of the risks that may be involved in your oral history project and prepare to manage them. If you will be interviewing a particularly vulnerable group and/or asking about particularly sensitive topics, it is especially important to have a robust plan in place for managing potentially complex situations that may arise.
Sometimes an interview can contain material that may pose a risk for the interviewee or other people named in the interview. For example, a statement that may be considered defamatory or injurious about another person, or accounts of illegal activities. If there is anything that you or your interviewee are concerned about, be sure to note this in your post-interview summary and make sure the interview material is reviewed carefully before being made public. If in doubt, you may wish to seek the opinion of a legal expert such as Victoria Legal Aid.
Sensitive topics
Is it likely that you may be discussing sensitive topics with your interviewees? Be aware that oral history interviews can be emotional and sensitivities can arise for people as they share their memories, even from questions or topics that seem on the surface to be innocuous.
If an interview becomes emotional, check in with your interviewee. Would they like to stop recording, or perhaps take a break? Be aware of your own needs too.
If you or your interviewee become distressed during or after the interview, how will you manage that? You may wish to seek advice from a mental health professional and prepare a list of services to refer your interviewees to, should they need further support.
Data security
Make sure to save your interview material – including digital files, consent forms, transcripts, and summaries – carefully and securely. Use password protection when saving your files on a computer or external hard drive. If using a cloud-based storage (such as Google Drive or Dropbox), be sure you understand the security risks associated with these platforms.
Privacy
In oral history interviews, interviewees are typically named and most are happy to be identified as they are usually talking about their own stories and experiences. However, there may be instances when an interviewee wishes to remain anonymous. If this is the case, it is important to consider whether you can ensure this level of privacy. How will this affect how the interview is archived and used in the future?
