The ethical use of unpublished manuscript materials from archives and like sources is rarely the topic of specific training for students entering anthropology and other disciplines that work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as a reminder to anthropological researchers of some of the legal and ethical considerations involved in the use of unpublished materials, but also to stimulate thought and discussion among scholars about the problem in general.

Unpublished materials deposited in archives may or may not be governed by a series of legal restrictions.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 conduct.

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 guidelines.

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 "fair use."

References

MacNeil, Heather
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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