CoPAR Bulletin 9: Some Ethical Issues to Consider When Depositing Your Records
Some Ethical Issues to Consider When Depositing Your Records
by Catherine S. Fowler and Steven Crum
When you consider depositing your personal records in an archive, you need to think about a number of ethical and sensitivity issues before deciding how, what, and where to archive. The questions raised here follow from some of the principles stated in the various “Statement(s) on Ethics” issued by anthropological and related associations.
Who Owns the Data?
Although it is not solely a Western idea to commodify intellectual as well as tangible property, it seems to be this Western concept more than any other that guides individual decisions as to what to do with records that have accumulated from a project or a lifetime. It also seems to be this Western view of property that is at the root of present debates about who owns the data and what rights, privileges and obligations flow there from.
The records held by most anthropologists can be divided into various types (see CoPAR Bulletin No. 2, Taking Stock of Your Records, and No. 8, The Special Nature of Linguistic Records), although depending on the person and his/her career, such divisions are not always clear cut and easy to make. But, for the most part, when it comes time to make a decision about records, it is the basic data, the basic set of descriptive observations, that should come to mind first when thinking of this disposition and the question of who owns the materials. For all subfields, it is these data that are of fundamental use to the people studied, to various publics, and to the future of the discipline. A fieldworker has ethical obligations to all of these constituencies in the preservation of a research record [see “Statement(s) on Ethics,” below]. These materials may also most clearly involved collective property rights ( those of a native community), and potentially someone else’s intellectual property rights (songs, texts, performances, etc.). The potential rights of others may also be a primary concern when deciding where to deposit records (local/tribal, public institution, disciplinary archive, etc.).
Personal and professional papers, on the other hand, more clearly pertain to an individual field worker’s intellectual property. They, more than anything else, are the product of your mental activity: the synthesis and interpretation of ethnography or prehistory, the grammar of a language, conclusions about the morphology, demography or other biological aspects of a population, a plan of action for a firm or agency, etc. Here considerations for preservation are more with the future of the discipline in mind, with the potential for reinterpretation of one’s intellectual activities by others, with the overall history of the field. Obviously the entire record is of most value when it is kept together, but if priorities must be set, it would seem that the higher good would be served by preserving that which has the potential to serve the greatest number of individuals and needs. And that would appear to be the field record. Here it does not matter whether you are/were a major figure in the discipline or a person of more modest accomplishments: if you generated data, they are of value.
Some individuals, perhaps especially ethnographers, worry that the quality of their data will reflect on them personally – that they will reveal how good they were at the craft. While this is to some degree true, it is generally recognized that note-taking is partly a matter of personal style. Some fieldworkers write little, assuming that memory will help fill in the blanks; others write a great deal, leaving little to chance or recollection. Some change their style during a lifetime, moving from one to another and perhaps back again. Those who read raw field notes may be frustrated by a minimalist approach. But, depending on the researcher’s level of knowledge, different outcomes can be expected. If a researcher truly knows his/her subject matter, even the most minimal of comments may become highly significant. Native researchers (as well as others)might be more frustrated by the lack of attribution of a statement. For them, the validity or representativeness of a statement comes more often from knowing who said it than from the statement itself (see Who Controls Access? below).
Lest one think that the problem of who owns the data is solely the preoccupation of ethnographers, it should be emphasized that the same concerns apply to other subfields. While it has been more common for archaeologists to deposit their field records with the collections made from an excavation, this practice is by no means universal. There are archaeological collections scattered in museums around the country that are largely useless because the researcher kept the field notes as personal property, usually with the ultimate aim of writing up the site (“someday”), but sometimes also because of concern that the notes were not good enough – full enough, complete enough, accurate enough, cleanly written. The archaeologist might rationalize that no one else could make sense out of them; or that others might misuse them. Regardless of motivation, it can be argued that the notes are not personal property. They belong with the collections, or in a repository where there is access to all researchers. Without them, the data base is incomplete, it can be easily misinterpreted, and both the record and the discipline suffer.
Similarly, linguists sometimes are minimalists in note-taking, hoping that backup tape recordings will fill in the gaps (although many of these never get fully transcribed). They may also change the transcription systems they use over time, and then worry that this might be misinterpreted as a failing. Sometimes translations are missing or meager. Yet field notes, morpheme slips, and untranscribed tape recordings are all of value, not only to other but also to those whose languages are in jeopardy (see CoPAR Bulletin 8). Those in other sub-fields can likewise think of similar situations and uses. Other countries may or may not have policies guiding ownership of these records. If not, then the fieldworker falls back on his/her personal code of ethics in discharging primary obligations (see CoPAR Bulletin 1).
Archivists, in negotiating deeds of gift with donors, generally know the legal difference between their institution’s right to possess the physical property of records and rights to the intellectual property thereof. U.S. copyright law, as revised in 1978 and 1980, grants protection to creators of literary, musical, dramatic, and other categories of artistic products, as well as computer programs. Copyrights are bundles of rights provided to individuals for their creation of original materials that are fixed in tangible form. Knowledge and ideas are not copyrighted, but what is written on a page is. As a property right, copyright is intended to provide authors and artists protection with regard to the results of their creation, limited by the public’s right to fair use. This protection is limited in time, and eventually all works become part of the public domain. Currently, that protection extends for the life of the author plus fifty years, but in no case expiring before the year 2003.
Most donations of personal papers and field notes would be subsumed under this law by the assumption that the person “authoring” the materials (published or unpublished) holds the copyright. If that person does not specifically transfer copyright to the archives in a deed of gift, those rights are retained ipso facto. Specifically retaining them is, in fact, one way to protect one’s intellectual property rights. Most archives now request that a transfer of copyright be made in writing, but some also accept donors’ retaining them, within reason. This does not mean that if another person misuses the archived materials, there is automatic legal redress for damages. Before any infringement of copyright can be litigated in civil court for damages, the original copyright must have been registered with the Copyright Office before the infraction (see Peterson and Peterson 1985 for details).
When archivists receive copyrights from a donor, they assume that the individual has the right to them in the first place. For some kinds of field data, the situation may be ambiguous; examples might be an audio or video record of a performance, the text of a story, or a life history. In the future, it may be decided on legal grounds that in such contexts the fieldworker was indeed only the custodian of these materials, or else a distinction may be made between the tape and the transcription, with the researcher becoming the “author” of the transcription. The question of who owns the data may become more legal than ethical and will certainly evolve as the courts set precedents.
Who Controls Access?
Many anthropologists are concerned about archiving field notes and personal papers because of the sensitive materials they may contain. How can subjects (and the fieldworker) be protected? If restricted access is deemed necessary, who will review the materials and assess how they can be used, anticipating what uses could bring harm? These questions are not easy to answer. They involve access to what was once private but now might become public. Each anthropologist needs to give careful thought to these issues in light of his/her own materials. Other sensitive issues, such as family or community secrets, certain data on religious ceremonies or practices, feelings about sexuality, etc. should not be made generally accessible without individual or community permission. The fieldworker, in consultation with individuals interviewed and/or authorities in the community is a better judge of sensitive issues than an archivist, and thus decisions should not be left solely in the archivist’s hands.
Few ethnographers — but probably many medical anthropologists — have field notes in which subjects are identified only by number and not by name. In large communities, such a procedure might afford good protection. In small communities, however, it probably would not provide much safety, as everyone would know or could guess others’ identity from a reasonably full cultural account.
Anthropologists who work for federal or state agencies may find that access to data deposited with the agency is governed by a freedom of information act. Normally, these acts cover only certain materials relating to governmental activities, and most carry access exemptions for such items as medical records, investigative records (which may include interview data that has been designated as confidential), and matters involving national security When materials are archived, some protection of sensitive data can be obtained, but it will not be complete or permanent. Most archives follow the Joint Statement on Access to Original Research Materials issued by the American Library Association and the Society of American Archivists, in which they pledge to properly care for such materials and provide equal access to all users unless specifically restricted from doing so. The statement asserts that “every repository has certain obligations to guard against unwarranted invasion of personal privacy and to protect confidentially in its holdings in accordance with law.” While recognizing the donor’s right to impose some restrictions on access, it adds that repositories should discourage donors “from imposing unreasonable restrictions and should encourage a specific time limitation on such restrictions as are imposed” (quoted in Peterson and Peterson 1985:98). The easiest restrictions for archivists to administer are those that close access to all users for a specified time period, such as twenty-five or fifty years, or until after the death of the donor. Unreasonable restrictions are those that require archivists to sort users into categories such as “serious researchers,” “professionals,” “only certain families,” or other ambiguous designations. Most archives are understaffed, and although researchers file applications identifying themselves and their intended use of materials, repositories cannot check credentials or police users.
What is Fair Use?
An issue related to that of who controls access is what might be the outcome of such access. Individuals archiving records might be concerned about whether their intellectual property, or the property for which they are custodians, could be used in unapproved ways. The question is legitimate and the answer complicated, reflecting in part archival responsibilities and in part the ethics of the wider community of scholars.
Within U.S. copyright law, there are certain provisions that govern what is called “fair use”. These mandates recognize the right of individuals to use a copyrighted work “for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research” (Peterson and Peterson 1985:82).
Archives are allowed, by an additional section of the Copyright Act (Section 108), to make copies of materials under the provisions of fair use. Copies can be made for individuals for their own scholarly use; an entire work normally cannot be copied unless it is clear that the archives holds the copyright. Archives generally must give formal approval for publication of materials if more than ten to fifteen percent of the content of an item is to be directly quoted. However, archives can only exercise authority over the quotation of material, not its intellectual uses.
These provisions govern archives only with regard to making photocopies for users. Archivists cannot prevent a researcher’s copying material by hand and then using it. They instruct users as to restrictions of various sorts, including copyright restrictions, as well as notify them of proper ways to cite the material and normally require researchers to sign agreements to abide by those restrictions. However, archivists cannot follow up to ensure that materials were used fairly, nor would they enter into litigation over such matters unless the case were clear and damages substantial. At that point, the ethics of the scholar must take over.
Despite these concerns, archivists report that “Like the purity of the famous soap, 99.44 percent of all records are open and 99.44 percent of all working relationships between archivists and users are noncontroversial” (Peterson and Peterson 1985:7). In large part, then, donors’ and native groups’ apprehensions about potential misuse may be unfounded. Careful consideration of the ethical issues involved in archiving can help to reduce the other half of one percent.
In planning for the preservation of records, researchers should take account of their multiple ethical responsibilities — to the people from whom the records were generated, to the discipline of anthropology, to other potential users of the records, and to society.
Anthropologists should assess the sensitivity of the information contained in their records and make informed decisions about the handling of sensitive material after consultation with the individuals or groups affected and with archivists.
Anthropologists should familiarize themselves with copyright laws and with intellectual property issues (CoPAR Bulletin 6).
Peterson, Gary M. and Trudy H. Peterson
1985 Archives and Manuscripts: Law. Basic Manual Series, Society of American Archivists, Chicago.
Statement(s) on Ethics
Code of Ethics of the American Anthropological Association <http://www.aaanet.org/committees/ethics/ethics.htm>. (Also has drafts of SAA, AfAA, NAPA, etc., statements on ethics, as well as a general report of the American Anthropological Association on the review of the code. See also Anthropology Newsletter 39(6):19-20 for approved code, AAA, June 1998 and list of additional society addresses for codes.)