In Oral History for the Local Historical Society, Willa K. Baum writes,
The members of an oral history project have the following responsibilities to the narrator:
1.To make clear to the narrator what the process will be at each step, how the material will be handled, and what restrictions he can place upon it.
2.To get down what happened as accurately as possible, and to this end to work together with the narrator to record the information. This will include developing delicate or controversial material (where relevant) in such a way as to give the narrator the fullest opportunity to record his point of view.
3.To advise him, with his interests in mind, as to what the best agreement on use would be. If, in your opinion, something he said could be used in a way damaging to him, advise him to put it under seal. It will be of no benefit to the oral history program to have a narrator’s reputation damaged through something he said in an oral history interview.
4.To adhere to any agreements made.
It would be fair to add to this list that if an interviewee communicates something that could be harmful to, or violate the privacy of, others referenced in the interview, it is incumbent upon the interviewer and/or the oral history project to judge, along with the interviewee (where possible) whether or not the passage should be sealed.
When Baum wrote these basic ethical principles of oral history, there was little chance that an interview would be broadcast. In the age of the internet, it is likely an interview will be. Elaborating on Baum’s third and fourth points, Troy Reeves writes:
Legally and ethically, anyone who will conduct interviews in the digital age must discuss informed consent differently than before. Most practitioners—whether they are an archivist within an official repository, a student fulfilling an assignment, or a community member looking to increase their community’s knowledge of a person, place, or thing—now know that a wide distribution (i.e. putting it on a Web site) is likely. Therefore, they should let their narrator know that their words (or more precisely their voice and/or image) will appear on a Web site sometime in the future. (Troy Reeves, “What Do You Think You Own, or Legal/Ethical Concerns,” in Oral History in the Digital Age, edited by Doug Boyd, Steve Cohen, Brad Rakerd, and Dean Rehberger (Washington, D.C.: Institute of Museum and Library Services, 2012) http://ohda.matrix.msu.edu/2012/06/what-do-you-think-you-own/)
Along with creating a trusting relationship with the narrator, and maintaining the integrity of his or her story, the oral historian also has the obligation to “ask historically significant questions, reflecting careful preparation for the interview and understanding of the issues to be addressed…. In the use of interviews, oral historians strive for intellectual honesty and the best application of the skills of their discipline, while avoiding stereotypes, misrepresentations, or manipulations of the narrators’ words.” (Oral History Association, “Principles and Best Practices” (2009), http://www.oralhistory.org/about/principles-and-practices/, accessed 2013 March 13.)
The potential of a defamation suit being brought, less of a concern in the pre-Web world, is more of a risk in the digital age, with ease of online publication. In his article in the OHA Newsletter, “Oral History Interviews Lead to Libel Suit,” John Neuenschwander profiled the use of oral histories in a particular published work, and the subsequent lawsuit brought against the author and publisher. While the plaintiff was not awarded the decision, the trial was by no means straightforward. Concluding that in general there is small chance of such lawsuits occurring frequently given the limited distribution of oral histories (he was writing in 2000), Neuenschwander also states, “If there was any doubt that tale bearers (oral historians) do not face the same potential liability in libel lawsuits as tale makers (interviewees), this case serves to lay this notion to rest. The relative difficulty in getting the court in this case to grant the opinion defense to the author and his publisher points out how unwise it is for any oral historian to dismiss seemingly libelous statements by interviewees as ‘protected opinion.’” (4) Given that the likely audience for an oral history would come from the community in which the interviewee lives and works, interviewers should advise their narrators to avoid defamatory language. Defamation is any intentionally false written or spoken communication that harms a person’s reputation or wrongly induces disparaging feelings against that person.
LEGAL: COPYRIGHT AND RELEASE AGREEMENT
Oral history interviews are owned by their creators – the interviewer automatically owns the questions and the narrator owns the answers. It is a work of joint authorship. This means the interview is protected by copyright for 70 years after the last author's death, barring an agreement with the authors or their heirs releasing the rights to others. The oral history may also be protected by other stipulations, such as time seals or restrictions that prohibit fair use or even any access at all. Creating access to the interview, whether that means including it in a finding aid, making a transcription, or broadcasting it via the Web, must be preceded by an evaluation of participant rights to the interview. The best tool for making this evaluation is the signed release agreement, obtained from both the interviewer and the narrator at the time of the interview, in which the participants license the use of the interview, and acknowledge:
1.The circumstances of the interview.
2.The intention of making the interview available for use.
3.The anticipated uses by the archive of the interview.
4.Rights and licensing of the interview, and their preference for retaining copyright for commercial uses of the interview.
Release agreements can be written in many different ways. An agreement based on the language of the Rubenstein Library’s gift agreement can be found in this basic oral history release form. This agreement balances the philosophy of the Creative Commons with more traditional, easily digested language, reassuring the narrator that s/he owns the interview, and can choose to keep or release the commercial rights.
(1) Willa K. Baum, Oral History for the Local Historical Society (Nashville: American Association for State and Local History, 1969), 45.
(2) Troy Reeves, “What Do You Think You Own, or Legal/Ethical Concerns,” in Oral History in the Digital Age, edited by Doug Boyd, Steve Cohen, Brad Rakerd, and Dean Rehberger (Washington, D.C.: Institute of Museum and Library Services, 2012) http://ohda.matrix.msu.edu/2012/06/what-do-you-think-you-own/
(3) Oral History Association, “Principles and Best Practices” (2009), http://www.oralhistory.org/about/principles-and-practices/, accessed 2013 March 13.
(4) John A. Neuenschwander, “Oral History Interviews Lead to Libel Suit,” OHA Newsletter (Spring 2000), 5.
The first five of these questions were developed by Doug Boyd at the University of Kentucky to assess the publication risks of an interview. The last is one we think makes a sensible addition. If the answer is “yes” to any of these questions, responsible archives will more than likely make the interview available only in the reading room or may even restrict it entirely.
You'll find this link in the Sources section as well, but it bears copying here. Lawyer and professor John Neuenschwander updated his classic work in 2014. If you are considering undertaking an oral history project, this book is the single best source for defining legal issues surrounding oral history, whether they have to do with rights, restrictions, institutional review boards, defamation, or publication.
Do oral histories conducted as part of research projects in academic or research institutions require the support of an institutional review board (IRB)? Well, it depends...
For years there has been debate regarding IRB oversight of oral histories, and IRBs at different institutions set different policies and often work on a case-by-case basis because, as we can imagine, oral histories can run the gamut of research topics and uses. In general, though, IRB oversight of oral history has been considered an administrative hurdle having the potential to impede humanities research, under which the bulk of oral histories fall. In early 2017 the federal government revised its Policy for the Protection of Human Subjects, to clarify that oral history need not be considered research in the spirit that the policy was originally developed in 1991, and therefore did not require IRB approval. The revised policy is scheduled to go into effect January 19, 2018 (more here in the Journal of Higher Education), although it is possible that the date will be pushed back to allow further evaluation.
Even with the new federal policy, research institutions (like Duke) can implement their own IRB policies, to help protect human subjects, ensure ethical practices, and create valid research. These policies may encompass oral history. The best course of action when creating oral histories within a research institution setting is to contact the IRB office. You can contact the Duke IRB office here: campusirb.duke.edu.