12/13/2016 CoPAR: Council for the Preservation of Anthropological Records

Co PAR Bulletin 10 Council for the Preservation of Anthropological Records

Dedicated to helping anthropologists, librarians, archivists, information specialists and others preserve and provide access to the

records of human diversity and the history of the discipline.

Ethical Use of Anthropological Records

The ethica l use of unpublished manuscript materials from archives and like sources is rarely the topic of specific training for students entering anthropology and other disciplines that work with the human record. lt is also clear that it is not something always fully considered by other individuals doing research in these materials, as, unfortunate ly, there have been cases in the past where ethical if not legal vio lations have occuned. The brief discussion that follows is intended as a reminder to anthropological researchers of some of the lega l and ethica l considerations involved in the use of unpublished materials, but also to stimulate thought and discussion among scholars about the problem in general.

Legal Considerations

Unpublished materials deposited in archives may or may not be governed by a series of legal restrictions . When an individual deposits his/her records , the donor may elect to either retain or transfer certain or all rights to those materials. If the person elects to retain rights, these may be registered as copyright in his/her name, or the name of donor's estate (see CoPAR Bulletin No. 6). The donor may also choose to transfer the copyright to his/her materials to the repository. In both cases, once registered , severa l provisions of U .S. Copyright Law (U.S . Code, Title 17, Sec. 107) govern what is called "fair use." For example, the law recognizes the right of individuals to use a copyrighted work "for purposes such as criticism, comment, news rep011ing, teaching (including multiple copies for classroom use), scholarship, or research" without infringement (Peterson and Peterson 1985 :82). Additional provisions outline fUJ1her principles for determining more about this "fair use" as follows: "(I) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantial ity of the portion used in relation to the copyrighted work as a whole; and ( 4) the effect of the use upon the potential market for or value of the copyrighted work," etc (U.S. Code, Title 17, Sec. 107). Most archives have patrons read and sign documents outlining their intended use of manuscript materials , photographs, recordings, etc ., both to make users aware of their potential legal liabilities as wel l as to keep a record themselves of intended uses. But in reality, it is very difficult for archives to police these policies, and it would probably only be determined in a court after the fact of some perceived vio lation that the researcher was at fault . In other words, the damage might have already been done before something could be done about it. It is also not presently clear under the Jaw who actually retains rights to all classes of data. In the future, some of these rights may be determined to reside with the communities of origin or with individuals within those communities (i .e., performances, texts , music; see CoPAR Bulletin No. 9, Some Ethical Issues to Consider When Depositing Your Records).

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12/13/2016 CoPAR : Council for the Preservation of Anthropological Records

• Be aware of sensitive materials within records and how to handle them appropriately. Donations of records are sometimes made without full consideration of data they contain that may have been sensitive at the time or may have become sensitive subsequently. Researchers should know their subject matter well enough to be cognizant of both circumstances. All potentially sensitive materials should be discussed with the community and/or individuals or their descendants before deciding on their appropriate use or interpretation. Users of unpublished records have the same obligations to individuals/communities to follow standard ethical practices as individuals undertaking present-day field studies. Some categories of data gathered in the past for one purpose and approved under various federal guidelines may need to be cleared under human subjects requirements for any restudies.

• Respect and maintain confidentiality, especially if that was part of the original contract between field worker and community/individual. Avoid identifying persons or revealing anything that could potentially injure the originator of the field records and/or his/her subjects or their descendants. Some types of records are subject to confidentiality standards by their vaty nature: health and other medical records, those governing work with "outlaw" groups, cases where there could be dangers of litigation, community or government reprisals , etc. However, revealing sources once held confidential , even if by fUI1her research identities can be established, could well cause emotional or personal embaiTassment or suffering. Such situations should be avoided. Again, communities and/or descendants may be the best judges of these matters .

• Stay within the guidelines of "fair use" and other restrictions established by copyright law or by the repositmy. If various types of clearances are required for publication by the originator of the records, his/her estate, or the repository, take special care to respect these. ff deposit of a completed work is required as a condition of use, be sure to comply.

Summary

In using unpublished materials , it is necessary to follow both legal and ethical guidelines.

All materials should be protected physically from harm or deterioration through your specific use. All unpublished materials are subject to proper citation, protection of intellectual property rights, full consideration of the context and circumstances under which they were gathered, and guidelines governing sensitivity, confidentiality and "fair use."

References

MacNeil, Heather 1992 Without Consent: The Ethics ofDisclosing Persona/Information in Public Archives. The Society of American Archivists and The Scarecrow Press, Metuchen, NJ.

Peterson, Gary M. and Trudy H. Peterson 1985 Archives and Manuscripts: Law. Society of American Archivists, Chicago.

Catherine S. Fowler University ofNevada, Reno

Steven J. Crum University ofCalifomia, Davis

Retum to Gu ide to Preservi ng Anthropol ogica l Records

Counci l for the Preservati on of Anthropologica l Records

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