Legal and Ethical Issues

Site: Postgraduate online research training

Course: Module 3: During the Research

Book: Legal and Ethical Issues

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Date: Thursday, 12 November 2020, 8:34 PM

 Description

Legal and Ethical Issues

 Table of contents

1. Why this is important for historical data management

2. Copyright and Intellectual Property

2.1 Copyright for individual researchers
2.2 Copyright for collaborative projects/derived data
2.3 Copyright and other legal restrictions on source materials
2.4 Further Reading and Resources

3. Ethics: consent and privacy

3.1 Personal and con dential information
3.2 Further Reading and Resources

4. Informed consent and ethics

5. Anonymising data

6. Open Access
 1. Why this is important for historical data
management

You cannot assume that just because your research is historical these issues do not apply to you! They are
important issues for data management and sharing because they can create restrictions and conditions
on what you can do with data, with whom you can share it, and how you store and preserve it. There are
two main areas for consideration:

1. Copyright and intellectual property (in data itself)

2. Informed consent and privacy (of the subjects of research)

Archives and repositories will be unlikely to accept data for deposit if there are any question marks about
the copyright status of the data or the ethics of the data collection methods used, which could harm your
long-term preservation strategy.

Many historians need to consider ethical concerns at some point during their research, even if they are
not concerned with recent history or living people. For example, you might need to use personal papers
held privately by your subjects' descendants, and you should ensure you have their agreement before
publicly sharing data and materials you obtain from this research. Copyright issues and other restrictions
are likely to a ect many historians working with digitised sources, or any kind of 20th-century materials.

For some general resources, primarily in the UK context:

JISC Legal 
UK Data Service 
Web2Rights (JISC) 
 2. Copyright and Intellectual Property

Copyright is a legal concept giving the creator of an original work the exclusive rights to it and to who may
use it and for what purposes, to prevent unauthorised copying and publishing of an original work. This is
usually for a limited period only and ensures that the copyright holder is credited for his or her work. The
duration of copyright restrictions varies for di erent kinds of material.
 2.1 Copyright for individual researchers

In the case of individual researchers, data that you have created is your own (i.e. you own the copyright).
Most research outputs (including data organising les such as spreadsheets and databases as well as
publications and reports) falls under copyright as 'literary' works. Thus you are again protected. The
creator of any data is automatically the rst copyright holder unless a contract re-assigns this or has it
transferred.

In an academic context the employer (often the university) is, in theory, the owner of copyright for any
work made during the employee’s employment. However, many academic institutions re-assign the
copyright of research materials, data and publications to the researchers themselves. This should be
checked with your home institution.
 2.2 Copyright for collaborative projects/derived data

When work is produced collaboratively or is derived from elsewhere then the copyright is usually held
jointly by the various researchers or institutions. On these occasions it is important to assign copyright
correctly at the start of a project to avoid later complications. For a project this may be done as part of a
collaboration agreement between the partners. Your institution will be able to advise you on how to go
about this.
 2.3 Copyright and other legal restrictions on source
materials

While 'facts' cannot be copyrighted, you should be aware that most source materials used by historians
are original works in their own right and, unless old enough to have entered the public domain, are likely
to be covered by copyright law. Copyright does not merely apply to printed or formally published works: it
includes, for example, manuscripts, letters, and recordings of interviews. Public records in the UK are
generally covered by crown copyright.

Similarly, unless they have been explicitly placed in the public domain, you are likely to encounter
restrictions on sharing digital content obtained from online resources or repositories - especially, but not
only, subscription resources. In many jurisdictions, it has been established that 'exact' photographic
reproductions of public domain material cannot be copyrighted due to lack of originality (see Bridgeman
Art Library v Corel). However, copyright is not the only source of legal restraints on copying.

Owners of non-copyright content may impose restrictions on redistribution or publication of copies as

part of their terms of service. The use of datasets from some data repositories, such as the UK Data
Archive, is restricted to speci c purposes governed by an 'end user licence', and researchers requiring
access to the data must be a liated with a known institution or provide identifying information for
registration.

It is your responsibility to know what you are permitted to do with digital copies of content that you have
collected, and to store, archive and share them in accordance with copyright or any contractual
conditions. It may be easier to keep track of this information if it is stored in administrative metadata.

Archivists are liable to err on the side of caution if there is any uncertainty about the copyright or access
status of content. If you are recording interviews for oral histories, for example, you need to ensure that
copyright is accounted for in the release forms signed by participants, or you may be unable to deposit
copies for preservation with repositories.

Finally, if you share your own data you should also make clear to other users what conditions, if any, apply
to their re-use of the material: this helps to reduce uncertainty and as a result, facilitates sharing and re-
use. This may also be recorded in documentation accompanying or embedded in the data itself. If the
data is published online, consider using a standard Creative Commons license or similar.
 2.4 Further Reading and Resources

UK Data Services: Copyright

JISC: Intellectual Property Rights guide

JISC Legal:

Copyright and IPR

Video on Licensing Educational Resources

University of York: copyright guide for researchers

Web2Rights:

free online course on IPR and licensing

IPR and legal issues toolkit

Open Data Commons

Examples of licenses
UK Data service

Guidance on access to datasets

UK Data Service User licence

The National Archives (UK): Terms of Use

More open data licenses

http://opendatacommons.org/licenses/
http://data.gov.uk/codeofconduct 
http://creativecommons.org/ 
http://www.nationalarchives.gov.uk/doc/open-government-licence/ 

Web 2 Rights: templates for licenses and release forms

 3. Ethics: consent and privacy

Data collected during research can hold personal, sensitive or con dential information. Often historians
do not have to worry about this as many of the people and events they study occurred beyond anyone
still living. That is not always the case, however, especially with historians focused on the twentieth or
twenty- rst centuries. Even when dealing with periods before this, some degree of thought might be
necessary regarding ethics and consent.
 3.1 Personal and con dential information

The UK Data Service de nes the di erences between personal data, con dential data, and sensitive
personal data. This is well worth reading and taking on-board as it will be useful to you whenever you
come across information that may fall under these categories.

Personal Data:

 data which relates to a living individual who can be identi ed from those
data or from those data and other information which is in the
possession of, or is likely to come into the possession of, the data
controller...

Con dential Data:

 data given in con dence or data agreed to be kept con dential, i.e.
secret, between two parties, that are not in the public domain such as
information on business, income, health, medical details, and political
opinion.

Sensitive Personal Data:

 data on a person’s race, ethnic origin, political opinion, religious or

similar beliefs, trade union membership, physical or mental health or
condition, sexual life, commission or alleged commission of an o ence...

See: Legal and ethical obligations in research: de nitions; Managing and Sharing Data booklet, p. 23

 3.2 Further Reading and Resources

For full information look at the legislation documents that may impact on the sharing of con dential data
(this relates to the UK only).

Data Protection Act 1998 

Freedom of Information Act 2000 
Human Rights Act 1998 
Statistics and Registration Services Act 2007 
Environmental Information Regulations 2004 

Data Protection

JISC Legal: Data Protection

Warwick University: Guidance for researchers (pdf)
National Archives of Scotland: Guide for researchers

Freedom of Information

JISC: FOI and research data Q & As

 4. Informed consent and ethics

Research data – even that which is sensitive or con dential – can be shared if researchers pay attention to
ethics and legal requirements. Often this is made much easier if the issue is considered right at the
beginning. In any case, if you are conducting any kind of research that involves asking questions of living
participants, including oral history interviews or questionnaires, you will almost certainly have to submit
your research to your institution's Ethical Review panel before you can begin gathering any data, and this
will be expected to include provision for data management.

When gaining informed consent, include provision for data sharing

Make data anonymous (when needed)
Consider the possibility of restricting or controlling access to the data (if needed)

Remember that to ensure consent is informed it must be freely given with su cient information provided
on all aspects of participation and data use. Thus always ensure that participants are informed how the
research data will be stored, preserved and used in the short and long-term; how the con dentiality will
be ensured (i.e. anonymising data). Always ensure that you have gained written consent for data sharing
but even then, consider carefully implications of how that material is then used.

Historians research and ethics

Further Reading
UK Data Service: Consent
 5. Anonymising data

If you need to anonymise data be aware that it can often be a costly and time-consuming task. Make sure
you plan adequately at the beginning of the project. The UK Data Service guidance explains that a
person’s identity can be disclosed from:

direct identi ers e.g. name, address, postcode information or telephone number.

indirect identi ers - when linked with other publicly available information sources, information that
could identify an individual, e.g. workplace, occupation, or "exceptional values" of characteristics like
salary or age

The process of anonymisation will di er to some extent depending on whether the data is qualitative or
quantitative: qualitative data is likely to be more di cult to anonymise without losing important
information (oral historians should note that they do not usually have to anonymise interviews!).
Aggregated quantitative data may already have had an e ective layer of anonymisation applied - but this
should not be assumed. Particular attention should be paid to geographical data or to relational data
(which can supply 'indirect' identi ers).

Further Reading
UK Data Service: Anonymisation

Information Commissioner's O ce: Anonymisation Code of Practice

 6. Open Access

New rules are ensuring that open access plays a much larger part in the production and process of
academic work. At the time of writing, this is a constantly changing process, and policies are still in
formation, but it is likely to have a wide-reaching e ect on how you go about managing your data. In
essence data management is likely to become more important to your research than ever before. As
requirements and best practise for open access are currently in a state of ux you will need to keep up to
date with the latest information and advice.

Further Reading
RCUK Policy on Open Access 
Open access: an information resource for historians in the UK