Who Owns It? How can I Access It? What Can I do With It?

A grieving father decides he doesn’t want his young daughters to see pictures of the face of his mortally wounded soldier son, so a photo journalist can only publish a few of her pictures.  An archivist decides to redact the personal information of a group of students who were part of a medical experiment and turned up in a collection, while another archivist decides that the explicit information in a diary should be held privately until ten years after the second party has died, denying historians access to important information for their work.  The family of a famous civil rights leader decides there is money to be made and they closely hold the rights to their father’s name, causing headaches even for those trying to honor him with a national memorial.

Historians and the institutions that are charged with collecting and maintaining historical documents face changing legal requirements and serious ethical concerns about what to reveal when and to whom.  Not only do historians and archives, museums, universities and auction houses have to find ways to keep up, work around or sometimes make it up as they go along, they have to do so knowing that the law and ethical standards may be shifting under them as they are making those decisions.

These are issues that come up before we even get to the new complications caused by material created and collected during our digital era.  Technological capability is improving with greater speed than privacy law and archival rules can keep up.  In addition, for research institutions, it is necessary to not only meet the capabilities of new technologies, but to be able to convert records that have been kept in older technological methods.  While recently going through a collection, I came across 16 floppy discs that contained a plethora of documents to which correspondence and memoranda had referred.  Fortunately, the archivist had access to technology that could read that decades old method of creating documents.

Even as a novice at this work, as I research material for my thesis I have encountered some of these ethical conundrums.  While researching the records of an organization for which one of the women who is a subject of my thesis was working, I discovered that half a box of files were personnel records. I knew this particular box was one that had not yet been reviewed by the archivist.  Should I look through them and see if there was anything of interest regarding this woman or her colleagues that might affect my work?  This was an easier decision for me because of the nature of the questions I am trying to answer.  I did not go through those files and I pointed out to the archivist that material in the box looked like it contained personnel information on the employees of the organization.  Would I have reviewed that material and used it if I were attempting to answer research questions for which this might have been useful information?  I would like to hope I would not.  However, it is too easy to answer that question honestly in the hypothetical, so I will not.

I have also bumped into the mirror opposite of the above problem.  I wanted to access the archives of the primary organization of the women I am researching.  I was denied access because those archives have not been reviewed by a professional archivist and the administrator was concerned that I would encounter medical and other sensitive personal information if I had open access.  The agreement – I could ask questions that would require archival search and they would get back to me with the answers and the cites.  Because I am collecting oral histories from the women, most of my questions will be answered by them, but it is not likely to be as objective or complete as getting original documents.

The answers to these questions as they involve living targets of our research or their close living family members – who owns what intellectual and other property and how do historians get access – are clearly complex, involving law, ethics and ultimately people’s privacy.  Failure to consider all aspects of the legal, ethical and technological challenges we face can have a substantial impact on our work, our professional lives and on the people whose lives we are examining.

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