Chapter 2 – Ethics and practicalities of cooperative fieldwork and analysis
45
contract may be written or verbal, but using an intermediary may be the
best way to quickly establish a modicum of trust between parties, and to
facilitate communication between the research world and the commu-
nity’s world.
Issues requiring our attention with regard to consent include attending to
sufficient explanation, that is, ensuring that one’s goals are explained
clearly in a culturally appropriate manner. Additionally, participants should
anticipate as many future uses of the data as possible.
2.2.2. Some laws governing consent
Though it is not feasible to survey the consent laws of dozens of countries
here, even when laws exist on the books in countries, these laws are too
loosely defined to protect speakers and singers. Under U.S. law, for exam-
ple, though the basic law is intended to protect data producers, certain de-
tails allow for an unacceptable degree of leeway. A person may generally
record, film, broadcast or amplify any conversation where all the parties to
it “consent.” Yet the consent of data producers is presumed without asking,
as long as the recording device is in plain view.
11
Such flexibility, though
pragmatically appealing, leaves open the possibility of unethical behavior.
U.S. federal publications do recommend (but do not require) obtaining con-
sent individually from all parties recorded. We can only second that rec-
ommendation here: Permission should always be obtained except where
truly impractical, e.g. in a crowd situation with dozens of spontaneous per-
formers.
2.2.3. World Intellectual Property Organization (WIPO)
The primary concern of the World Intellectual Property Organization is to
protect the commercial value of intellectual property. When the data pro-
ducer has a solid legal contract recognized by commercial institutions (e.g.
as a recording artist would have with a recording company), then the WIPO
generally protects both the data producer and the data recordist/mediator.
When, however, the data producer–data mediator relationship is not part of
a commercial enterprise (such as that of endangered language researchers
and native speaker-consultants), the WIPO basically serves to open up lan-
guage materials to potential commercial exploitation.
46
Arienne M. Dwyer
There are various proposals by the World Intellectual Property Organization
for new sui generis rights in databases, folklore, and life forms. These in-
dependent rights essentially specify that rights can be bought and sold; thus
a film company or a pharmaceutical enterprise could even buy rights to a
certain body of folklore. Once purchased, “an utilization, even by members
of the community where the expression has been developed and main-
tained, requires authorization if it is made outside such a context and with
gainful intent” (WIPO 1998: 7; WIPO 1998–1999: 33). Critics see this as a
potential for tyranny by the governments who would be authorized to en-
force these ownership rights.
Enforcing such rights also has enormous practical barriers. “The fact
that ethnic groups do not exactly coincide with national boundaries will
make it hard to figure out which government would get to authorize activi-
ties and collect the tariffs for which body of folklore. For instance, would a
Chicago polka band need [to] get clearance from and pay royalties to the
Polish government?” (Liberman 2000 /2001).
Even if intellectual property rights are not a pressing legal issue in a
given country or society, they are generally still an underlying ethical issue.
These western, business-oriented notions must in one way or the other be
squared with indigenous knowledge systems so that “intellectual property
rights” as conceived by WIPO and other organizations do not go against the
interests of indigenous peoples.
2.3. Copyright
The preponderance of resources on ethics and rights deal with copyright as
a financial issue. Copyright refers to the ownership and distribution of a
particular work: who owns what aspects of the result, and whether it is le-
gitimate to distribute or publish the result. As a form of property, copyright
can be inherited, given away, or sold.
The focus of copyright law is monetary: if a copyright is violated, the
originator of the material will lose profits due her/him. This pecuniary focus
is irrelevant for language documentation projects, since they are generally
money-losing propositions, yet the inappropriateness of copyright laws does
not prevent documentation projects from being subject to those laws.
Copyright law applies where the copying of the work is being done, not
where the work copied was created. So if a theater piece or a story was per-
formed in Latin America but written down or reproduced in Canada, it
would be subject to Canadian copyright law.
Chapter 2 – Ethics and practicalities of cooperative fieldwork and analysis
47
There are a number of common misconceptions about copyright law, for
example:
– The publisher automatically owns the copyright. (This is not necessarily
so.)
– The language community owns the copyright for traditional material. (In
Western law, this is not so, though it could be given to a legal persona.)
– Owning the copyright to the collection means owning the copyright to
the parts. (Not so, since editing is an act in its own right, creating a
unique work.)
– The speaker owns the rights to a recorded text. (Translations are deriva-
tive works which are separately owned, but the publication of it still re-
quires the speaker’s permission; cf. Whalen /SALSA 2001.)
In a collaborative effort, deciding who owns rights can get complicated. In
some projects, one native speaker may collect and do a rough transcription
and translation of the data, another regularizes it, another person does a
translation into another language, and a fourth and fifth may add morpho-
logical annotation. Under such circumstances it is best to note each person
involved in the process.
In some countries, copyright law distinguishes being paid for doing part
of a work from being paid to do an entire work. In the United States paid
employment for part of a work is known as “works made for hire.” In this
case, the employer and not the employee is considered to be the author
(U.S. Copyright office 2004). If this route is taken and the project is subject
to U.S. law, then sub-contractors who do part of the work should be made
aware in writing of these restrictions right at the beginning of the project.
Note that the concept of “works made for hire” may be different or even
non-existent in the copyright law of other countries.
Recommendations:
– Make liberal assumptions about what copyrights may exist;
– Make copyright arrangements from the beginning of the project:
– Be explicit about what is “work for hire”;
– In other cases, explicitly assign copyrights in writing, where possible to
a single entity.
Copyright law is not a very good conceptual fit to the purposes of language
documentation, but we must use it as we can. Some have recommended
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