Legal Considerations

The copyright position in respect of most oral history materials is relatively straightforward. There are two copyrights in a recorded interview. First, the copyright in the recording as a recording (i.e. as a work), which usually is the property of the interviewer or the institution he works for (if that institution commissioned the interview). Second, there is a copyright in the information in the recording - that is the words the informant actually says - and this copyright is the property of the interviewee.

The process of making an oral history recording seems to imply certain rights on the part of the interviewer to use the information which he gathers. Directly or indirectly informants are usually given some indication of the purpose of an interview before the recording is made. Thus an informant who, knowing that a historian is collecting material for a book, agrees to be interviewed, would appear to have no grounds for complaint should he duly find himself quoted in print. However, while in practice it may be unlikely that any subsequent objection would be made, the consent implicit in agreeing to be interviewed does not represent a legal right for the interviewer to publish or otherwise reproduce the information he has recorded. To secure this right in law the informant's explicit and written consent is necessary.

The most straightforward practice is to ask each informant to assign his copyright to the collecting institution and-in most cases -they will probably agree to do this. An assignment of copyright effectively transfers all rights in the recording, and therefore the licence for all uses, to the collector. For an assignment of copyright to be legally binding, however, it does have to be in writing and signed by the informant. In some cases the informant will decide to retain his copyright. This need not preclude the collector from using his material for certain purposes, provided the uses envisaged have been specifically authorised by the informant. It should be noted that the authorisation will cover the transcript as well as the recording, only if both these forms of the interview are prescribed in the written agreement. One practical as opposed to legal consideration is that it is frequently more difficult to obtain assignments and settle other conditions of deposit and access with executors or heirs than it is with the informants themselves. As many of the people oral historians interview are elderly it is, therefore, prudent to tie up all the legal loose ends as soon as the interview has been completed.

To deal with questions of copyright and use of oral history materials a form of contract is required. An example is reproduced below:

'I am now writing to formalise the conditions under which the Museum holds your recordings. The questions which I have already put to you verbally are listed below. I should be grateful if you would let me have your written answers in due course.

a. May the Museum's users be granted access to the recordings and any typescripts of them?
b. May the recordings and typescripts be used in the Museum's internal and external educational programmes?
c. May the Museum provide copies of the recordings and typescripts for its users?
d. Would you be prepared to assign your copyright in the information in the recordings to the Trustees of the Imperial War Museum? This would enable us to deal with such matters as publication and broadcasting, should they arise, without having to make prior reference to you. If you agree to this assignment, it would not, of course, preclude any use which you might want to make of the information in the recordings yourself.'

This formal and legalistic kind of procedure is particularly necessary for an institution whose collection is open to a variety of users. Apart from other considerations, it is a matter of common sense to cover the collecting centre against all contingent problems and a matter of administrative convenience not to have to refer to the informant or his heirs for a decision whenever requests to use the material are received. In making these arrangements it is of primary importance that there should be no ambiguity which could lead to future misunderstandings. The responsibility for ensuring that informants and users are clearly aware of the conditions of deposit and access rests squarely on the library or archive.

This section was first published in a similar form as 'Oral history recording: a note on legal considerations' in Oral history, Vol. 4, No. 1; 1976, pp. 96-97.