Legal protections and constraints

Under the Copyright, Designs and Patents Act (1988) two separate copyrights are created when a recorded interview takes place:

• The words spoken
• The recording

The words spoken by a respondent in an interview remain the intellectual property of that respondent. If the interview is recorded by a researcher the recording remains the property of the institution in which they are employed. Words transcribed from a recording also remain the copyright of the interviewee. In order for the content of recordings to be reproduced in any analysis or subsequent publication the interviewer must ensure that the respondent assigns copyright over to the institution responsible for the recording. Normally this can be done via gaining informed consent which should also include provisions for the transference of copyright from the respondent to the interviewer’s institution. Without the transfer of copyright the researcher has no legal right to reproduce the words spoken by the interviewee.

Moral rights also have to be considered as part of copyright. These are best considered as the authors’ rights to be acknowledged as the creators of the work. Moral rights also protect authors’ works from being subjected to derogatory treatment. Such rights belonging solely to the authors of the work. In the case of a tape recorded interview the interviewee and researcher are co-authors and so both have moral rights over the work. Whereas ownership of copyright can be assigned moral rights cannot. However, moral rights can be relinquished meaning it is still possible for a researcher to seek a waiver from participants before or following an interview.

When considering the potential storage and reuse of data researchers need to be cognisant of these issues and need to include special provisions when requesting the reassignment of copyright and the waiver of moral rights. When the transference and relinquishment of rights are discussed respondents must be made aware that the words they speak and any opinions expressed become the property of the researcher’s institution and that the data may be used at the discretion of the institution working within the constraints of defamation and other relevant laws.

Legal protections relating to photographic and video data

The legal position with regard to still photographs and video recordings is quite distinct from copyright issues with sound recordings. With regards to photographs copyright remains with the person taking the image (although not if the photograph was taken for 'private' purposes). A research participant who agrees to have their photograph taken has no rights over the subsequent use of their image. Copyright remains with the researcher’s institution of employment. Video recordings of consenting research participants would be treated under the law in the same way as films where copyright would remain with the 'producer' or 'director'. Again research participants have no legal rights over their video image or any subsequent use (unless the use contravenes defamation laws). However, in a video recording of an interview a case could be made in favour of the respondent retaining copyright over their words spoken. In light of this it is worth while requesting that the respondent assigns copyright over to the researcher’s institution. Unlike with audio recordings however, the producer/researcher retains all moral rights over the video recording. On the whole, contrary to audio data, the laws governing photographic and video formats favour the researcher and their employing institution over respondents’ rights.

The crafting of the Copyright, Designs and Patents Act privileged mainstream media and arts productions and their creators. This focus has resulted in the clear disparity in legal rights certain media afford research participants. As a consequence the details above are an extrapolation and should be taken as a general guide for researchers to avoid any legal ramifications. More recently privacy laws have been emerging that may afford the researched with more rights across a range of media. Article 8 of the European Convention on Human Rights has had some clear impacts upon the rights of individuals within the UK. In part the article states that “Everyone has the right to respect for his private and family life, his home and his correspondence”. Over the next decade or so it is probable that UK laws will take privacy more seriously dramatically changing the rights of research participants and research practice. This was recently evidenced in the introduction of the Data Protection Act (1998) and the Freedom of Information Act (2000) both of which require new data management procedures of researchers and their institutions.

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