Internet Access to Oral Recordings: Finding the Issues
I reviewed sixty-four Websites that contained oral history material. My sources for sites were: the article "Reflections on Oral History in the New Millennium" in the Oral History Review, Volume 26, #2, Summer/Fall 1999; a media review by Brad Lucas titled "Learning American Memories on the World Wide Web" in the Oral History Review, Volume 27, #1, Winter/Spring 2000; the article "Oral Historians Showcase Work on Variety of Websites" in the Oral History Association Newsletter, Volume 34, #1, Winter 2000 (p. 7); the article "Oral Historians Use Words, Pictures, Sound on Web Sites" in the Oral History Association Newsletter, Volume 34, #2, Spring 2000 (p. 8); and links to other oral history sites from the main sites. For each site, I assessed how oral history was used, if audio and/or transcripts were available on-line (full length or excerpts), and if or how the permission and copyright issues were discussed. My annotated site list is included as Appendix A. I also received eleven responses to inquiries I emailed to specific Websites asking them how they addressed the permission/copyright issue. In most cases, these were places without any discussion of this on their site itself.
I discovered that only one site "1968: The World Was Watching" (http://www.stg.brown.edu/projects/1968) includes full audio interviews on-line. Other sites include full written transcripts, with short excerpts in clickable audio form. This approach directs the user to specific quotes that someone else has decided are interesting, instead of letting the user find their own way through a recording. Still more sites contain only tape summaries, or only written transcripts (full or partial) without audio, or only short audio quotes without a transcript. The largest majority of the sites contained on-line finding aids to the contents of oral history collections, most of which were a list of people interviewed. There were no hot links to access the material itself.
These finding aid sites have avoided the whole question of permission for on-line access. The sites with written or audio excerpts may also have avoided copyright issues by having their use of the material fall under the Fair Use portion of copyright law (17 U.S.C. 107). According to United States copyright law, the determination of Fair Use is subject to the following factors:
Inclusion of a full interview on-line, whether it is audio or a written transcript may be a different matter under the law, but the question remains if there really is a difference when approaching the issue from an ethical standpoint. Does only including excerpts exempt a site administrator from asking speakers for permission? Also, there is the question if mounting full audio onto a Website should be handled any differently in terms of permissions than posting full written transcripts? In both cases, the words of a speaker are being made available to a large, basically uncontrolled audience.
There is discrepancy in how Websites have handled these copyright and permission issues. According to United States copyright law, copyright stays with the speaker of on oral history interview. However, the speaker can transfer their copyright if they so desire. Some Websites, such as the Library of Congress, claim copyright lies with the speaker, so permission to quote or otherwise use the material must be obtained from the speaker. On other sites, such as the University of New Mexico Archives (http://www.unm.edu/~unmarchv/oralhist.html), and the Women in Journalism Oral History Collection of the Washington Press Club Foundation (http://npc.press.org/wpforal/ohhome.htm), the institutions claim rights to the material and state that permission to quote or use the material must be obtained from them. I assume these groups have signed release forms giving their institution full copyright to oral history recordings and permission to use them for public educational and research purposes. The sites which leave copyright with the speaker may never have had copyright transferred to their institution.
Some sites have clear copyright protection statements, while others do not mention the issue at all. The Library of Congress, American Memory site (http://lcweb2.loc.gov/ammem) is a good example of full copyright disclosure. They include copyright and restrictions information for each collection within the site, as well as overall copyright and legal notice information for the Library of Congress. According to an email received from Thomas Bramel, team leader for putting material from the Library of Congress' American Folklife Center onto the Web, they do extensive copyright research and analysis of all audio selections proposed for the web site, and they attempt to receive approval from all persons recorded or their next of kin before putting anything on-line. For instance, for the Omaha Indian Music portion of the American Memory site (http://memory.loc.gov/ammem/omhhtml/omhhome.html), the Library of Congress collaborated closely with members of the Omaha community to ensure that the material was used appropriately.
In comparison, the Washington Press Club Foundation claims to hold copyright to the interviews in their collection, and that permission to publish quotations beyond that allowed by "Fair Use" must be obtained from the Club. They do not explain how they have copyright or if they asked the speakers about Internet access to their recordings.
On sites without any mention of copyright or permission issues, it appeared that the organization had not dealt with the matter. In some cases, these sites did not have direct, on-line access to audio or transcripts, so it didn't matter. In other cases, there were full written transcripts and/or audio excerpts accessible on-line. I wondered if they had addressed the permission issue at all. Upon further inquiry, however, I discovered that they usually had, but just did not discuss it on their Website. For example, the University of California, Berkeley's Regional Oral History Office at Bancroft Library includes no discussion about copyright or use permission issues on their Website (http://www.lib.berkeley.edu/BANC/ROHO/index.html), but has full written transcripts of interviews. In an email response to my inquiry, Laura Gonzales explained that their legal forms give copyright to the Regents of the University of California and are all encompassing it does not specify whether the material can be used on the Internet or not. They believe this gives them the authority to put them on the Internet, although they do try to contact interviewees or their families to obtain permission. They now explain to new interviewees about the Internet as a possible use of the recording.
The same is true for the University of California, Santa Cruz's Regional History Project, which makes no mention of copyright issues on their Website either (http://library.ucsc.edu/reg-hist/index.html). Irene Reti, the project's director, stated in an email that legal counsel advised them that their agreements cover web publication. In addition, many of the oral histories posted on their site are with people who are no longer living, so gaining permission was not possible.
The University of Michigan's project: "Voice Vision: Holocaust Survivor Oral Histories" (http://holocaust.umd.umich.edu) also determined that their existing form which released the tapes to the University for educational and research purposes was sufficient to cover Internet use. (email communication with author) However, they have updated their release form to include multi-media and Internet as possible uses for the material.
While most of the sites I investigated try to contact interviewees or next of kin for permission to put their oral histories on the Web, this is time-consuming and expensive. Not all organizations with oral histories of historic and cultural value that could be worth putting on the Web are as big or well-funded as the Library of Congress or a large university. They just may not have the resources available to devote to such a process. So, what should they do? Some sites include a copyright statement or disclaimer about the ownership, protection, and preferred uses of the material on their Website, which may be in place of or in addition to seeking permissions. Most do not mention whether they sought extra permissions from interviewees or relied upon their existing release or deed of gift forms. Such statements could be an interim option for smaller organizations until they can raise the funds for a concerted permission seeking effort. Or they should wait to include on-line access to oral history material including only finding aids on their sites -- until they have obtained the necessary permissions.
One issue missing from any discussion of copyright or permissions on the Web has to do with the interviewer. Permission from the interviewee is all that people seem to be concerned with. According to John Neuenschwander in his book "Oral History and The Law," the interviewer is an equal creator of the oral history interview with the same rights as the speaker. The interviewer is "...the catalyst who brings the parties together. He or she usually dictates the topics to be addressed and the nature of the coverage by means of the questions that are asked." (Revised Edition. Albuquerque, NM: Oral History Association, 1993:19). Perhaps it is time that institutions recognize this joint authorship and secure copyright transfer from interviewers as well? At UAF, we not only have revised our release form to reflect the possibility of Internet use of the material but have added a line for the interviewer's signature as well as the interviewee's.
Also missing from the Websites I reviewed was discussion of ethical concerns about use of oral history materials. Some sites introduced their collections, their content, and discussed how the material was incorporated into a Website, but nobody discussed the respectful use of their material or established any access provisions. Most common are sites such as the University of California, Santa Cruz that require a researcher to obtain permission from them before any of their oral history material can be used. Most of these sites, however, do not have their material on-line and available with one click of the mouse. One site that addresses the larger ethical issues about appropriate use of oral history and related material is the American Folklife Center of the Library of Congress. They present information about ethnographic field collections, how they differ from other material, and considerations for use. (http://lcweb.loc.gov/folklife/ethno.html). They include the following statement on each collection's copyright page:
All in all, the matter of copyright, use and permission is a complicated legal issue. Legal counsel should be sought before making final decisions about how to handle it.