CoPAR Bulletin 10
Council for the Preservation of Anthropological Records
Dedicated to helping anthropologists,
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The ethical use of unpublished manuscript materials from archives and like sources is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. It is also clear that it is not something
always fully considered by other individuals doing research in these materials, as,
unfortunately, there have been cases in the past where ethical if not legal violations
have occurred. The brief discussion that follows is intended as a reminder to
anthropological researchers of some of the legal and ethical considerations involved in
the use of unpublished materials, but also to stimulate thought and discussion among
scholars about the problem in general.
Unpublished materials deposited in archives may or may not be governed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, several 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 reporting, teaching (including multiple copies for classroom
use), scholarship, or research" without infringement (Peterson
and Peterson 1985:82). Additional provisions outline further principles
for determining more about this "fair use" as follows: "(1)
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 substantiality
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 well
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
violation 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 law 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).
If copyright is not registered, or has not been considered at all in the process of
records transfer, repositories may still hold general rights of "fair use." They
may also have developed specific policies and guidelines that govern their own
collections. It is the repository's responsibility to successfully communicate these to
the patron, along with any other restrictions that apply to a specific collection of
records. But it is also the responsibility of the individual patron to inquire in advance
of the use of materials about all of the details that govern the situation. However, in
ambiguous cases, it is scholarly ethics more than the law that needs to be considered in
the use of unpublished materials. All individuals should think seriously about these
matters, discuss them with experienced researchers, and develop guidelines for their own
Various ethical principles apply with reference to the use of manuscript records. Some
are related to the physical preservation of the materials themselves; others govern their
intellectual content. More principles govern the conduct of research into unpublished
materials in ethnology, linguistics, and aspects of biomedical anthropology than perhaps
archaeology, although certainly some are all-pervasive.
Physical Preservation. All records preserved in archives are fragile, and should
be treated as such. Archivists usually scrutinize patrons' conduct with materials, but
cannot always be watching. Therefore, every effort should be made by the patron not to
damage or jeopardize the materials in any way (do not write on them, write on other
materials on top of them, crumple, fold, remove from protective coverings, fingerprint,
smear ink or pencil, demagnetize, etc., any physical materials). Many collections of
records have an order that was imposed either by the originator or by the archive, and
this must be maintained. Rearranging to your convenience is not acceptable behavior. Most
archives also have specific policies governing reproduction by photocopy or photography,
and these are often designed with preservation in mind. They may have rules as well as to
what percentage of any one file may be copied, which are related in part of preservation
and in part of the larger issue of fair use.
Several cardinal rules apply with reference to the intellectual content of records and
any use or interpretation of them by the researcher.
- Always take care to properly cite unpublished materials. Citations should include the
name of the field worker, an accession or collection number where possible, the full name
and location of the repository, and where possible, file numbers and/or pagination. It is
only fair that other individuals should be able to access unpublished information in a
researcher's finished works in the same way that they access published sources.
- Recognize the full intellectual property rights of the originator of the records. This
includes full credit in the form of citation for his/her ideas as well as data. In some
cases, this may extend to the persons within a community in which a field worker gathered
the data--if issues of privacy or confidentiality are not violated (see below).
- Respect the context and circumstances under which records were gathered, as well as
under which specific comments contained in the records were made. This means being aware
of the use of language in former times that may now have different connotations, items
that might have been considered "gossip" more than fact within a community,
intellectual and theoretical biases on the part of the field worker, etc. Failure to not
fully consider all such parameters can lead to misinterpretation of the materials (and the
field worker) through "presentism," or through not fully understanding either
the larger or the specific context of the work. While it may be fashionable to
"trash" former field workers for perceived inadequacies, is not ethical to do so
without irrefutable evidence--if then.
- 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 vary 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 further research identities can be established, could well cause
emotional or personal embarrassment 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 repository. 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. If deposit of a completed work is required as a condition
of use, be sure to comply.
In using unpublished materials, it is necessary to follow both legal and ethical
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
1992 Without Consent: The Ethics of Disclosing Personal 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 of Nevada, Reno
Steven J. Crum
University of California, Davis
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