Shifting Paradigm-Intellectual Property Issues

A Shifting Paradigm:
Intellectual Property Issues for Oral History in the Digital Age

by Sheldon Halpern

With binary coding, electrons as messengers, and the hard-fought mathematical adaptation necessary for control, we can now do almost everything in regard to information…. And because potential has always been the overlord of will, and as the new machines hunger for denser floods of data, images have gradually displaced words.[1]

The meaning and implications of the term “oral history” have been long understood–, at least, by those who are actively engaged in the field. Concomitantly, for those concerned, there has also been a fairly clear understanding of the intellectual property and related issues attendant to the collection, maintenance, and distribution of oral history. These issues, — including such matters as the nature and rather limited scope of copyright protection, the problem of “sound recording” copyright, and the appropriate means of dealing with matters of ownership and privacy, — have been rather thoroughly examined and dealt with.[2] Oral historians are conversant with these issues and how to deal with them, or are at least fully aware of the resources available to them for these purposes. That familiarity and capability, however, is subject to an overriding qualification: They exist in the context of a pre-digital conception of oral history. That is, the paradigmatic image of the oral historian is that of an individual, armed with a tape recorder and microphone, conducting an interview, the result of which will be a “sound recording” embodied in a physical object that is then stored, archived, and, periodically, made available to others (who mechanically play back the sounds), the definitive and authoritative record of which is to be found in a written transcription. What makes the examination of intellectual property and related issues as they affect oral history in the digital age both new and complex is the shift away from this fundamental paradigm.

The shift is a rather simple one. With the ubiquity, ease of use, and portability of video technology, instead of interviewer-with-microphone we have interviewer-with-camera. The product of the interview is not a sound recording but rather, in technical terms, an “audiovisual work.” Moreover, the product of the effort, even when it is exclusively aural, is not a tangible physical object, but a digital file. While this would seem to be a simple advance in the physical act of recording, for purposes of intellectual property and related privacy issues, it is an enormous change, requiring oral historians to deal with a complex array of new questions. The principal impact of digital technology on oral history, in short, is that oral history is no longer simply oral. Digital technology, allowing for the creation of rich, highly textured audiovisual works, with little, if any, increase in the burden of the recording task itself,[3] may also implicate rich and highly textured issues that now need to be dealt with. Of course, digital technology has a significant impact on the traditional, sound-based, view of oral history. For example, with digitized sound recordings, rather than analog tape, questions of storage and access and dissemination must all be approached differently, just as the primacy of a written transcript may have to be reconsidered. An important task is to differentiate between those issues that represent changes in degree from those amounting to significant changes in kind, requiring re-examination of accepted practice. It does seem clear, in considering the intellectual property implications of digital technology for oral history, that the shift in focus from the “sound” to the audiovisual model is a significant change in kind.

An audiovisual work, with its combination of sounds and images, can pose complex questions of ownership not attendant to the usual sound recording. Following traditional practice of oral historians, for example, the complete audiovisual work would normally be itself copyrightable, with the copyright ownership vested in the creator of the work. The subject of the interview would not have an ownership interest in the totality of the work. However, unless the visual content of the interview consists exclusively of images of the person being interviewed,[4] the camera may well capture a variety of images, some of which may in fact be another’s copyrighted material− a visual analogy to a sound-recorded interview of someone who might be singing someone else’s copyrighted song. In short, although the creator of the audiovisual work would be the copyright owner of the work as a whole, there may well be a number of elements in the work owned by others and as to which permission to incorporate into the work, to reproduce, and to disseminate, will be required. A contextual analysis of the finished product may be far more complex than a similar analysis of the sounds contained in a sound-recorded interview. In short, the existence of visual images– whether incidental, background noise, or primary– can create complex issues of ownership and permission not ordinarily encountered by the pre-digital exclusively oral historian. The rather straightforward procedures relating to permission that have been well understood by the field of oral history, have now become considerably more complex.

Related to the complexity of copyright and ownership issues, is the complexity attendant to the significantly increased possibility of a multiplicity of uses of a digital file. Indeed, just as digital files containing copyrighted material not firmly anchored in something that might be called a “copy” or “phonorecord” was not at all anticipated when Congress enacted the 1976 Copyright Act, so too there will be inevitable uses of digital files collected and stored by oral historians that we simply do not now contemplate.[5]

Similarly, as compared to the rather straightforward privacy issues raised by the possibility of public exposure of someone’s recorded voice (digital or analog) the possibility of digital manipulation and widespread mass distribution of an individual’s image potentates the possibility of harm to privacy and related issues. At the very least, the conventional wisdom as to the nature and extent of releases must be re-examined and considered, given as noted above, the newly enhanced array of possible uses of digital images.

The record created by the oral historian, whether containing simply sound, or both sounds and images, will today, and in the foreseeable future, be a digital, rather than analog record, ultimately in the form of some kind of electronic file rather than a physical object. For the archivist this represents a radical change in the way matter is stored and retrieved. The implications for the law, particularly with respect to intellectual property and privacy concerns, arise from the more difficult problems of controlling use and dissemination of these digital files. If, and to the extent, that public access is afforded to any material, the reproduction and electronic distribution of the content− a task that required some effort and skill in the pre-digital era and is now essentially trivial− requires re-examination of their intellectual property implications and reconsideration of standards and policies.

These are but a few general instances of how digital technology requires us to re-examine what we have long accepted as the legal and policy requisites for dealing with the various aspects of oral history. Our task is to try to determine and articulate those situations in which the need is simply to extend into the digital world what we already know about how intellectual property and related issues bear upon the collection, maintenance, and dissemination of oral history and those in which we need to make significant change.