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A Reflection on the OHA’s New Code of Ethics

By John A. Neuenschwander

Last fall the Oral History Association approved a new set of ethical guidelines.  The goal of the task force that prepared the new General Principles for Oral History and Best Practices for Oral History was to provide a more condensed and usable set of guidelines.  The leadership of the Association stressed that the new ethical guidelines would be reviewed periodically to determine if they needed to be amended and/or expanded.  To that end President Michael Frisch recently invited oral historians to join in an online dialogue via the Social Network which can be found on the OHA website.  There will also be a session on the new Principles and Best Practices at the annual meeting of the Association in Atlanta on Saturday, October 30th from 12:00 p.m. to 1:15 p.m. in Room CR 123.

The new Principles and Best Practices like ethic codes of most academic disciplines or fields are intended to help practitioners avoid unprofessional conduct and more indirectly the legal difficulties than can arise from serious ethical lapses.  Some of the suggested practices and procedures in the new Principles and Best Practices are clearly law based while others are derived solely from ethical considerations.   The focus of this is blog is not any specific section of the new code but rather on the absence of any guidelines on the legal standing of interviewers.

From a legal standpoint, there is clearly no seminal court case or specific section of the Copyright Act that designates an interviewer as a joint author.  Despite the absence of any black letter law, there are a number of impressive sources that point to the very real possibility that interviewers are in fact joint authors.  The most telling support for this position comes from the U.S. Copyright Office.  According to their policy manual, Compendium II, “A work consisting of an interview often contains copyrightable authorship by the person interviewed and the interviewer. Each owns the expression the absence of an agreement to the contrary.”   There is also at least one lower court decision and several copyright experts who support the position of the Copyright Office.

The point of all this is that the new guidelines should include some reference to the possible copyright interest of interviewers for both ethical and legal reasons.   Perhaps the best was to do this would be to add a new Principle: Interviewers may also hold a copyright interest in the interviews that they conduct and should always be so informed by the program or archive for which they work or volunteer of their potential rights. Programs and archives who utilized interviewers who are not full-time employees must insure that such interviewers understand the extent of their rights to the interview before they are asked to sign a release.  Interviewers should also receive appropriate acknowledgement for their work in all forms of citation and usage.

John A. Neuenschwander is professor emeritus of history at Carthage College and a municipal judge for the City of Kenosha, Wisconsin. He is the author of A Guide to Oral History and the Law and lectures nationwide on the legal aspects of oral history.

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