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Interpreting Future Use Clauses:
Law and Ethics

John A. Neuenschwander is professor emeritus of history at Carthage College and the municipal judge for the City of Kenosha, Wisconsin. He lectures nationwide on the legal aspects of oral history.  His new book, A Guide to Oral History and the Law, 9780195365962explains all the critical legal issues, including legal release agreements; copyright; privacy; screening, editing, and sealing procedures to protect against defamation; the protection of sealed and anonymous interviews from courtroom disclosure; the role of Institutional Review Boards (IRBs); teaching considerations; and the new issues raised by the use of interviews on the Internet.  In the original post below Neuenschwander looks most closely at a question posted on the H-ORALHIST list serve.

In recent weeks several oral historians have posted questions on the H-ORALHIST list serve regarding the advisability of permitting certain uses of oral history material. In both instances those who raised the issue seemed torn between the language of the future use clause that seemingly authorized release of the interviews and the ethics of doing so.

The first question involved a collection of interviews from the 1970s with a group of women who shared a common ethnic identity. The women interviewees were allowed to remain anonymous and the legal releases that they signed specified that their interviews could be used “for such scholarly purposes as the director of the study shall determine.” The director in turn donated the interviews to a regional archive and signed an appropriate release. The archivist, however, was concerned that the original release that the women signed only applied to the study for which they were actually interviewed and not to researchers who were working on different projects etc.

The second question arose from a video oral history that an interviewee made corrections to when the interview was transcribed. These corrections were very few in number and involved grammar and several statements of fact. A request was made to use the video oral history in a media presentation. The potential user did not wish to edit out those portions that the interviewee corrected in the transcript but instead wanted to insert on-screen visual corrections. The future use clause in the release signed by the interviewee allowed the archive “…to publish, duplicate, distribute, dispose of, or use the Memoir in current forms and future electronic media,…for scholarly and education uses, and for other purposes.”

Although the vast majority of requests to utilize archived interviews are quite routine, whenever a request does raise some concern the most advisable approach is to undertake a combined legal/ethical assessment. This type of analysis is advocated by the Oral History Association’s Best Practices for Oral History which was adopted in October, 2009. The ethical guideline that recommends this approach specifically encourages institutions who are responsible for preserving and providing access to interviews “…to comply to the extent to which it is aware with the letter and spirit of the interviewee’s agreement with the interviewer and sponsoring institution.” [Post Interview #7]

Starting with the first query, the release which the women signed allowed their interviews to be used “for such scholarly purposes as the director of the study shall determine.” This language would appear to be broad enough to encompass subsequent donation by the director to an archive where future researchers would in turn have access. Because the women are not identified, the spirit or ethical side of the inquiry is moot.

The second query, however, seems to raise both letter and spirit of the law issues. On the legal side the key question is whether or not the interviewee was clearly informed that both the unedited video history and the edited transcript would be available for future “scholarly and education uses”? In other words, would an interviewee who cared enough to make corrections to his/her memoir be upset to find out that the uncorrected interview was being broadcast? If the answer is yes, then the spirit of the agreement would seemingly be compromised as well and it would be advisable to seek specific consent from the interviewee for the proposed use of his video history in the broadcast.

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