Protecting IP Rights to Life Histories

Case Study: Protecting IP Rights to Life Histories

by Peggy Bulger

Historians have recently joined the ranks of ethnographers with the rapid rise of “oral history” as a research tool and methodology for scholarship. Traditionally, historians were reluctant to accept personal recollections as part of the historic record, and interviews with participants concerning their experience of historic events were considered “unreliable”. This attitude has changed during the past generation, with oral history growing rapidly in both academy and lay circles. As oral history has come of age, the archives that hold these expanding audio and video collections are exploring the new protocols that must be developed to deal with the personal life histories of those who have been interviewed. More to the point, new protocols must be implemented to protect the intellectual property (IP) rights of the interviewees as well as those of the documentarians. This need arises from the advent of broadly accessible sound and visual documentation of persons who have witnessed history and have shared their personal stories.

Folklife archives– such as the AFC Archive, the Archive of Traditional Music at Indiana University, the Utah State University Folklife Archive, the Southern Folklife Collection at the University of North Carolina at Chapel Hill, and many others– have developed and adopted procedures and protocols to protect the IP rights of tradition-bearers who are documented in their collections. Over the decades, the formats for recording personal life histories have changed many times, but the protocols for use have remained fairly constant. In the twenty-first century, digital files are the state-of-the-art format for the newest oral history recordings. But the current digital formats will certainly change over time. Protocols and procedures for protecting IP rights must anticipate future formats and delivery systems.

Because recording formats are now digital, oral histories can be shared with a worldwide Web audience. However, this technological development does not change the fundamentals of IP rights protection. Perhaps because folklorists and ethnomusicologists have recorded performances of traditional music, dance, ritual, and storytelling, the protocols they have developed for protection of IP rights have always revolved primarily around the rights of the performers. One recording of a tradition-bearer might include a performance of traditional song, the story behind how the artist learned the song, an explanation of how the song functions in society, and the personal life history of the artist. All of the information captured on a recording is treated as a “performance”. The interviewer has certain rights to his or her collection as a whole, but the IP rights to the actual performances stay with the tradition-bearers who have made the recording. The release forms used by most ethnographic archives provide that any commercial user of a recording (filmmaker, radio producer, recording company) must obtain the permission of the tradition-bearer or his/her heirs or, at least, demonstrate that a “good faith” effort was made to contact them. Use of the 1890 Passamaquoddy recordings must be approved by the Passamaquoddy people, as well as the heirs of the original performers.

Many people mistakenly assume that folklife archives have recordings that are all in the public domain, when, in fact, these recordings are protected under copyright laws. Field recordings are not treated in exactly the same manner as commercially produced albums, however. For example, there is no time limitation to the IP Rights attached to ethnographic recordings. Especially for recordings of indigenous peoples, the moral issues related to unauthorized use of traditional cultural documentation supersede the formal legal rights of U.S. copyright law.  Recently, folklorists, archivists, museum curators, librarians, and other cultural custodians have recognized the necessity to participate in the international fora that deal with traditional culture and intellectual property rights. The World Intellectual Property Organization (WIPO) has recently published an excellent guide to these issues, entitled Intellectual Property and the Safeguarding of Traditional Cultures: Legal Issues and Practical Options for Museums, Libraries and Archives.[ii] This publication arises out of seven years of ongoing negotiations at WIPO’s Intergovernmental Committee on Genetic Resources, Traditional Knowledge and Folklore.

As we enter the digital age of archiving, it is fitting that OHDA is bringing together folklorists, oral historians, and other documentarians to grapple with the complex issues surrounding intellectual property rights as they apply to our growing archival holdings.