Copyright and Ethics

Copyright
1. Introduction

There is nothing in UK Copyright law to prevent individuals or organisations from

* playing sound recordings of any kind or age to individuals

and nothing to prevent individuals from

* listening to sound recordings or watching videos
* taking notes based on the contents of recordings
* transcribing the contents of unpublished speech recordings or transcriptions of them word for word

Copyright law is only concerned with copying, and equivalent or related activities such as publishing, performing, broadcasting or transmitting electronically e.g. via the Internet.

The rights established by copyright law enable copyright owners to license the copying, distribution and performance of their “intellectual property” (including written or recorded words, musical compositions, sound and video recordings etc.) in return for payment. This is one of the main sources of income supporting authors, composers, publishers and record companies, not to mention the thousands of lawyers and executives who run the large international organisations which negotiate and distribute copyright payments.

Copyright owners are entitled to

* sue those who make unauthorised use of their words, recordings etc.
* seize “infringing copies” of their copyright works
* sue those who misuse their testimony in publications (under the “moral rights” enjoyed by authors) and those who sell or distribute infringing copies are liable to prosecution.

However, individual interviewers and interviewees involved in oral history work cannot normally expect payment if their words or recordings are copied or distributed, and they cannot normally afford to sue those who infringe their rights. Partly for this reason, most are willing to transfer recordings and assign their rights to custodians such as sound archives, museums, or local history collections in libraries, which can

* prevent the abuse and unauthorised copying of interview material
* provide suitable facilities for proper use.

The Society strongly supports this and can give advice about suitable local places of deposit (some of which are members of the Society’s Regional Network). In this context therefore, copyright law provides a rather cumbersome framework for the transfer of rights to trustworthy custodians. In return, the custodians obtain permission to make responsible use of interviews, for example by making them available for research or for educational use.

Copyright in the UK is still based on the provisions of the Copyright, Designs and Patents Act (1988). Although it covered many kinds of intellectual property, the text of this act was relatively easy to follow and implement. However since it came into force it has been amended by the

* Broadcasting Acts 1990 and 1996
* Copyright etc. and Trade Marks Act 2002
* Copyright (Visually Impaired Persons) Act 2002
* several statutory instruments required to implement European Commission directives.

Although these measures have had little effect on the law as it applies to oral history, they have served to obscure what was already a complicated subject, and it is not surprising that many people find it forbidding. So an attempt has been made below to summarise in straightforward terms those parts of the current law which relate to oral history in the UK. In doing this some details and exceptions have been omitted. There are several good articles and websites which are worth consulting in addition – these are listed at the end.

2. Ownership of copyright

When an interview is recorded, separate copyrights in

1. the words spoken
2. the recording

are created.

Initially the owner of the copyright in the words is the speaker, while the copyright in the recording belongs to the person(s) or organisation(s) which arranged for the recording to be made. Recordists working as individuals own the copyright in their recordings, but where the recordist is employed by someone else, the employer owns the copyright.

Copyright in written transcripts of interviews, made either verbatim or subsequently from recordings, is best regarded as belonging to the owner of the copyright in the words transcribed.

Copyright is a form of property and its ownership and operation are subject to contract. In the UK most features of copyright can be altered or set aside if the copyright owner agrees. In particular, the copyright in an interview can be assigned or bequeathed by the owner to another person or organisation; or the owner can agree that the interview can be used for various purposes without permission, or impose restrictions on access and use; or if an interview is jointly owned by two or more people or organisations, they can make an agreement which clarifies their respective roles and obligations.

There is no requirement under British law for copyright to be registered in some way, or for copyright material to be marked as such. Some countries require copyright material to be marked with the © symbol followed by the owner’s name, and copyright owners are advised to do this in conjunction with material placed on the Internet.

It IS necessary for copyright material to include a statement giving permission for copying and dissemination before copies can be made without the specific permission of the copyright owner(s) or licence holder(s). For instance if permission is not included with material on the Internet, it cannot be assumed that it is legal to copy more than an insubstantial extract from it.

3. Duration of copyright

(a) Recorded speech

Copyright in speech recorded since 1 August 1989, remains in force for 70 years after the end of the year in which the speaker died or dies.

If recorded before 1 August 1989, copyright remains in force for 50 years from the end of 1989, if this is longer than 70 years after the death of the speaker. (Or, put another way, if the speaker died before 1 January 1969, copyright expires on 31 December 2039. If not, copyright expires 70 years after the death of the speaker.)

(b) Sound and video recordings

Copyright in sound recordings expires 50 years after the end of the year in which the recordings were made, unless the recordings are published (including web publication) or broadcast, in which case copyright expires fifty years from the end of the year of publication or first broadcast. Thus if a recording was made in 1993, copyright in it will expire on 31 December 2043, unless it is, say, published in 2010, in which case copyright will expire on 31 December 2060.

Copyright in unpublished sound recordings made during the currency of the 1956 Copyright Act (1957-89) expires at the end of 2039 (50 years after 1988 Act came into force). If such recordings are published within this period, copyright expires at the end of 50 years following the date of publication.

Copyright in films and videos was revised in 1995 to suit the requirements of the film and TV industries, and is owned jointly by the “principal director”, the author of the screenplay, the author of the dialogue and the composer of any music specially created. Copyright expires 70 years from the end of the year in which the last of these dies. If the identity of the above persons is unknown, copyright expires 70 years from the end of the year in which the film was made, or if the film is “made available to the public” within that period, 70 years from then. In many cases the four potential copyright owners will be employees or contractors and as usual their employers will own any copyright in their output. If the film or video did not have a director, author, etc. then the pre-1995 provision still applies: copyright expires 50 years after the end of the year in which the film was made (ie the same as sound recordings). Film or video sound tracks are regarded as integral and copyright in them is the same as for films and videos.

4. The scope of copyright

Recorded speech and recordings which are “in copyright” may NOT be

* copied,,
* “issued to the public”, e.g. in a publication, exhibition or website
* performed or played in public,
* adapted
* broadcast without the copyright owner’s permission.

Where the recorded content of oral history interviews is “in copyright”, some “non commercial” activities are still permitted

* copying for private study, research, criticism or review
* use of short extracts as illustrative matter in publications
* copying by libraries and archives for preservation purposes
* copying for instructional purposes by educational establishments, subject to various limitations

There are NO “fair dealing” provisions which apply to the separate copyright in a recording. So the recording copyright owner’s permission is required if any copying of any sort is envisaged. Strictly speaking, “conservation copying” of recordings, without which they might not survive, requires the permission of the copyright owner, but in practice, custodians of collections regularly make copies for this purpose. Since no one’s interests are at stake, the risk of legal action is slight.

5. Moral rights

A new provision of the 1988 Copyright Act gave oral history interviewees the right to be named as the “authors” of their recorded words if they are published or broadcast; and publishers and broadcasters are obliged not to subject their words to “derogatory treatment” by, for example, editing, adapting or making alterations which create a false impression. These rights are retained by interviewees whoever owns the copyright. The right to be named needs to be “asserted” (ie stated formally, preferably in writing) by the interviewee in order to have legal force. However, except in cases where interviewees have asked not to be identified, it is recommended that interviewers and custodians should ensure that informants are credited whenever their words are made public.

6. The Internet

Copyright law relating to the transmission of recordings or transcripts on the Internet is developing. The safest course is to regard the Internet as a new method of publication and dissemination, to which existing copyright law applies in all respects. It is therefore an infringement to “make available to the public” transcribed interview material on the Internet, except in the form of insubstantial illustrative extracts, without the copyright owner’s permission. The sound or video recording copyright owner’s permission is required for the transmission of any recording, long or short, on the Internet.

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