Jenny

I fear you are in danger of confusing two distinct areas of law, copyright and confidence. Copyright gives the owner, for a limited term, the right to prevent certain uses of his or her work, notably copying, publication, communication to the public (eg on the internet), rental and lending. Confidence gives a person to whom a duty of confidence is owed the right not to have the relevant information revealed if the person who has received it knows, or ought to know, that it is confidential. A duty of confidence is also for a limited term, but unlike with copyright that term is not fixed; once a person to whom the duty is owed has died the duty is likely to die too and it in any case diminishes over time. There is no duty owed if the information is not in fact confidential (eg it has been legitimately published by other means).

1. An assignment of copyright does not mean a surrender of the right to confidentiality, unless that is otherwise explicitly or implicitly surrendered. So, yes a person who has assigned the copyright may impose access restrictions.

2. I should say clearly yes. The catalogue is more public than the document; if the name is disclosed there it is disclosed to all.

3. There is no infringement of copyright by holding original copyright material, nor by making it available to the public on the premises (which does not amount to 'lending' for copyright purposes). There are strict limits on the copying that may be done for educational purposes, so although there is no infringement by allowing educational use you should be wary of supplying copies for that purpose unless your consent form covers this. Publication on the internet is a 'communication to the public' in copyright terms; if the consent form does not permit it then yes you need separate clearance. Since this is a new right anyway, not introduced in the UK until 2003, your consent forms from the 1990s cannot have mentioned it; they would have had to have permitted either all acts or 'inclusion in a cable programme'.

4. Yes the interviewee can, under the law of confidence. A copyright owner who was not the interviewee owns no right to confidentiality and cannot prevent mere access (but can prevent copying) under copyright law.

5. Yes, if they are owners of the copyright. If the interviewee did not assign the copyright and has not mentioned copyright in his or her will, it will have gone to the residuary legatee(s), the person or people who got 'everything else'. In most cases, as you know, this would normally be a widow/er then sons/daughters. You can ask him/her/them for an assignment. Be sure that you get an assignment from all owners if there is more than one.

Tim

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Tim Padfield

Copyright Officer
Secretary of the Lord Chancellor's Advisory Council on National Records and Archives
Curator of Photographs

The National Archives
Kew
Richmond
Surrey TW9 4DU

Tel +44 (0)20 8392 5381
Fax +44 (0)20 8487 9219

E-mail [log in to unmask]
Website http://www.nationalarchives.gov.uk
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Please note:
Although I have some legal training and qualifications, any advice I give on copyright or archival issues is not to be taken as legal advice. If you need formal legal advice you should consult a solicitor with expertise in the appropriate field. 
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-----Original Message-----
From: Archivists, conservators and records managers.
[mailto:[log in to unmask]]On Behalf Of J Duffy
Sent: 01 November 2006 10:09
To: [log in to unmask]
Subject: Copyright and Oral History Interviews


Hello

I know that this topic has been discussed in the forum quite recently and 
I have found all the comments really helpful, however I have some 
additional queries:

1. Some of the examples of copyright consent forms confused me - if an 
interviewee hands over their copyright are they still entitled to impose 
access restrictions such as closure periods?

2. If interviewees ask for their name not to be disclosed, does this 
include in the catalogue?

3. I am currently cataloguing a large collection of oral history 
interviews conducted in the late 1990's.  Interviewees were asked to sign 
a release form but this only asks for permission for the interview to be 
kept in the archive and used for educational purposes - It is my 
understanding that we are entitled to do this anyway under copyright law.  
Is this the case? and does this mean I should contact interviewees again 
for permission to publish on the internet?

4. One interviewee specifically requested on their release form that the 
interview should not be made available to researchers - can copyright 
holders make such a request?

5. Can relatives hand over copyright if the interviewee is now deceased?

Any thoughts on any of the above greatly appreciated.

Many thanks
Jenny Duffy
Archivist
Scottish Traditions of Dance Trust
[log in to unmask]

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