OpenSpeaks/Chapter 1

While making audio and video documentations of language, you encounter questions related to consent, rights and copyright, and licensing. Some of the most asked questions can be:

How do I take permission for an interview?
Do I take permission from an interviewee in writing or verbally?
Who owns the rights when I make an audio or video recording?
What kinds of ownership rights exist?
What is copyright and who owns copyright when I make a recording?
Do I need to register for copyright?
Is there a license for publishing the recording?

You might not find direct answers to each such question. Because there is no easy answer to any of these questions. Such situations are unique. So, in this chapter, you will find ways to address. There are different contexts and backgrounds provided below. They will hopefully help you assess your own situation and make a judgement.

Here are some of the common terms you will encounter below:

Documentation: Recording any information so that it can be used later. Reciting a poem to someone (who can remember it later), writing it in a paper and making an audio/video recording of the narration are different kinds of documentation.
Media: Channels and tools for sharing information. The same information can be printed in a book (print media) or shared over a chat application like WhatsApp or Signal (digital media) or written in a CD (an old digital media) or a cassette tape (a much older and analog media).
Content or media content: Information and experiences for end users. Content is often documented in different mediums (e.g. physical mediums include a paper note or a book and digital mediums include a SD card or internal memory of a phone).
Consent: Voluntary agreement by a person to the proposal of another person. It happens verbally, by other physical gestures and in writing. Consent is generally taken before legal, medical (e.g. vaccination), research and sexual relations.
License or licence: An official permission or permit or the proof of the same that allow someone to use or own something. That "something" can be a manuscript of a writing, recording of a narration or even a doctor's medical license. A software developer (individual) can provide a license if they create a new software or a medical board (organization) can provide a license to a doctor.
There are more terms like copyright, moral rights, open licensing. But you will learn about them in detail below.

Consent for documentation

In the context of language documentation, consent is often given voluntarily by the interviewee to the interviewer. It indicates a prior approval for the recording. The interviewer would request the interviewer their permission for the recording. The interviewee will need to understand the request. Then they would give explicit permission for the recording and the subsequent publication of the recorded media content. This chapter discusses the how, when, where and who for acquiring consent.

In many interviews, an indirect consent is assumed when the archivist sets up the recording equipment like camera and microphone. It is assumed that a person who is being interviewed is aware of the recording by looking at those equipment. But this is not universally applicable. The interviewee might be visually impaired or they might be unaware of the recording process. Also, it is hard to prove legally or ethically at a later date that such a consent is good enough in case of a conflict.

Written consent

It is always recommended to use a written or a printed consent form. If using a printed form, make two copies: one for the interviewer and the other for the interviewee. The interviewee should be an adult literate who can understand the text in the form to provide consent by signing it. If the interviewee cannot provide consent then please discuss who should provide consent on their behalf. An adult parent or guardian in case of a minor can provide consent for a minor. A caretaker or a family member can provide consent for an interviewee with physical disability. It is strongly advised to not interview a person with mental disability for ethical reasons.

See an example form below. You can also copy the content, modify if needed and translate into your preferred language (preferably an official language used in the respective jurisdiction).

                            RELEASE FOR CONSENT AND RIGHTS

CLAUSES:

• I agree to publish the "WORK" under the LICENSE below.

• LICENSE: I acknowledge that by doing so, I grant anyone the right to use the work in all permissible ways the chosen License (Creative Commons Attribution-ShareAlike 4.0 International
(CC BY-SA 4.0 - https://creativecommons.org/licenses/by-sa/4.0/) allows which might include use in a commercial product or otherwise, and to modify it according to their needs, provided that they abide by the terms of the license and any other applicable laws.

• I am aware that this agreement is not limited to the "PRODUCER".

• I am aware that the copyright holder always retains ownership of the copyright as well as the right to be attributed in accordance with the license chosen.

• I acknowledge that I cannot withdraw this "Agreement".

• I am aware and I agree that this Agreement document can be annotated, subtitled, translated, published, distributed and broadcast, without any further approval from myself or my representatives.

• I affirm that: (a) I have the full power and authority to grant the rights and releases set forth in this Release. If any third party claims that the use of the Content violates its rights, I agree to cooperate fully with the PRODUCER to defend against or otherwise respond to such claim.

Share the name and/or explain about the "WORK" *
(If it is an interview, you can write "My interview on TOPIC-NAME" whereas "TOPIC-NAME" is what you spoke about.; If you submitted a video/audio/picture, you can share the name of the file or describe what the video/audio/picture is about)

• Place where this was signed:
• Date of signing*
• Language(s) spoken:
• Media kind (digital audio, video, photograph):

                        INTERVIEWEE DETAILS

• Full name:

• Email or other contact information: 

• Do you agree to the aforementioned CLAUSES explained?*
- Yes, I AGREE to all the above ☐

• Signature:

                        INTERVIEWER DETAILS
• Full name:

• Email or other contact information:

• Do you agree that:
a. you will provide open access to the content, especially to the native speakers?
b. you will use the content primarily for the promotion, protection and preservation of the language?
d. you will never claim ownership over the wisdom shared in the content but will attribute the interviewee and/or their community?

- Yes, I AGREE to all the above ☐

• Signature:

A document like above becomes a mutual agreement of consent. It might not be a legal document. It also contains terms like "Open Access" and "Creative Commons" which are explained later in this chapter. If a written consent is not feasible for any reason, a verbal consent in a recorded form can be asked for.

Verbal consent

It is not always possible to acquire consent in many cases. For instance, the interviewer and the interviewee might speak different languages. The interviewee might be illiterate or have a disability to understand a written consent. In such a case, it would not be ethical to acquire a written consent even if the interviewee is willing to sign. Let us look at some scenarios that will help while acquiring consent.


Recording scenario	How	Consent type (verbal, written)
Large group activity either in public or in a closed space (more than four-five people) like singing, dancing or even having a meal	Interviewee can plainly ask if it is okay to record and publish, and record the collective verbal agreement	Verbal recorded (optional if the group is very large and the activity is public)
Small group activity (four-five or less number of people)	Each consenting adult has to provide consent	Verbal recorded or signed written consent
Individual interview	a) interviewee of they are adult and can consent b) a parent or guardian (when a parent is unavailable) if a minor c) a guardian if interviewee is not eligible for their own physical/mental disability	Written preferred
Video/image not showing human faces or exposing any personal information (name, address, location and other personal data; applicable to audio exposing personal information)	A consent is generally not required	A verbal agreement (good to keep on record) is recommended if the recording includes religious/culturally sacred sites/rituals and other such elements of a society that are guarded carefully

There can be endless scenarios beyond the above. There can also be situations while acquiring prior consent would not be possible. In such a case, keep the recording very private and acquire consent as soon as possible. If needed, mention about the delay in the consent form for transparency. If you cannot acquire the consent, you should not use the content in your final production. You should destroy the recording immediately instead. If the recording is vital to your production, then you have to ensure all personal information is redacted. With many modern tools, it is now easier to find personal information in digital content. So, it is strongly advised to not publish content that is acquired without consent.

It is important to note that consent is not just a legal matter, but it is very much a social, ethical and moral subject. It has to be done in a careful manner with mutual agreement.

Rights: Copyright, Moral Right and Other Ownership Rights

Copyright is the legal ownership of content. It empowers the legal owner of any work (e.g. text, image, audio and video, data and software) so that they can decide how others could use that work. In simple words, copyright protects the content from unlawful use. Copyright is a really complex subject. In language documentation, there are often confusions on the ownership of the documented content. There are different levels of rights. Moral rights and copyright are two levels of rights that are often discussed. Moral right is the right that the original creator of a content has over their work.

Case study: Recording of folk songs in Colombia

“Who Owns The Content” is a short film which rotates around a central question on ownership of oral culture.

Let us take the example of an incident that happened in Colombia to understand more about the rights over a work. A young guy discovered cassette tapes that included recordings of folk songs sung by his late father. A European researcher made the recordings. The songs are known to his local community. After finding the tapes, the guy made digital versions of the songs and uploaded them on the internet. But this made the siblings furious. There are three – four levels of "ownerships" that exist here:

a) moral right co-owned by the community where the folk songs are sung and the late father (as the singer/narrator of the songs that provide evidence of the songs)

b) copyright of only the recordings owned either by the researcher (if he self-sponsored) or by the late father (who might have commissioned the recording) or by the institution that might have employed the researcher

c) the physical copies (cassette tapes) of the recording owned by the young guy and his siblings who are the legal heir of the father

In the above case, the copyright is unknown. One has to investigate further to find out any evidence to support the copyright claim.

Short film "Public Domain Day" explaining how Public Domain works.

Copyright generally lasts for the lifetime of the original creator and a certain number of years after their death. After that, the work goes to Public Domain. Different countries have different number of years as their respective copyright terms (see list here). There is no registration required to acquire copyright. Any work with originality becomes a copyrighted work by default. The symbol "©" is usually used to denote a copyrighted work.

A legal contract or agreement helps decide who the copyright owner will be. Simply put: if an employee of an organization is paid by the employer to do a certain original work, then the employee has a moral right over the produced work whereas the employer has the copyright. Most organizations include a blanket agreement with their employees for a right over all the work produced by the employee in the latter's official capacity. Similarly, a commissioned work would be copyrighted by the individual/organization who commissions the work.

Originality is a grey area. Taking a picture of a natural landscape will result in an "original work" and hence copyrighted whereas taking a picture of a painting will not be counted as original work. Look at the examples below to get some insights on copyright in the context of language documentation.


Content	Owners (both copyright and moral rights)
Video/audio recording of a individual singing a folk song	Multiple owners: a) if the original author of the song is unknown then the copyright of the song will be assumed as Public Domain b) the narrator or singer will have a moral right c) copyright of only the recording will be owned by the archivist (in case of non-commissioned work) or the individual/organization that has commissioned
Video/audio recording of a cultural or social event	a) the people involved in the event and/or the larger community has a moral right b) copyright of only the recording owned by the archivist or the commissioning individual/organization
Photograph of an artwork, painting, mural, etc.	Original artist of the artwork

During the production of audio or video, supporting content (e.g. newspaper clippings, stock images, audio or video footage) are generally used. It is a must to acquire permission from the copyright holder for using such works if you are creating something for commercial purposes. Many use such supporting works copyrighted by others under "fair use" (in the United States) or "fair dealing" (in countries outside the U.S.). However, it is a considerable grey area and involves copyright infringement risks.

The sample release here has a provision to include clarity on copyright. While recording an audio/video in a language, you can seek for written permission (or verbal permission recorded preferably as video) to use and distribute the work. The form has included the Creative Commons Attribution-ShareAlike 4.0 International (CC-BY-SA 4.0) License as a suggestion. But you can use a license that works in your particular case. More details on the "open" (meaning that allow for a wider and open dissemination of information) licenses are discussed in the next section.

Licensing: Public Licenses and Open Licenses

In the previous section you read about how content is protected by copyright. Generally, you need to take permission to use it. Languages are usually documented for public use. Most importantly, such documentation must be accessible to all the native speakers. Imposing strict copyright restrictions might not allow open and public access to recorded content in a language. Not all users know about the legal terms of using copyrighted content. Similarly, not all copyright owners (artists, authors, performers, etc.) also do not know which license to use for their work. If a specific license is not mentioned during publishing the work then the work is automatically copyrighted. "All Rights Reserved" is popularly written for such works. However, copyrighting language documentations accidentally might restrict many native speakers to access. This would also hamper the growth of low-resource languages. So, you are encouraged to use different open licenses whenever possible. There are also some non-open public licenses. But let us learn about these license definitions first.

Public Licenses

Public licenses or public copyright licenses are for the general public. By using such a license, the copyright owner grants a universal permission. Any permission that is specific (for some individuals or some organizations or only for legal residents of a country) cannot be called public licenses. Open Knowledge Foundation has recommended the use of Open Licenses for creative work which is guided by the Open Definition.

Free/Open Licenses

These licenses are commonly known as open licenses. They are inspired by the Four Essential Freedoms of Free Software. Such licenses allow everyone to use, modify, share and improve. Different open licenses have different degrees of these four freedoms.

Creative Commons Licenses

A set of licenses known as Creative Commons licenses (acronymed as "CC" licenses) are generally used for copyrighted works. CC licenses apply to all such works including text, image, other multimedia content like audio and video, and even datasets. There are seven main Creative Commons Licenses. The table below gives more clarity about what these licenses are.

License logo, name and shortened name	What is allowed	What is NOT allowed	Commercial use allowed
CC-Zero or CC0	Copyright Owner allows others to use, distribute, remix and use this work to create other works A user can re-distribute for free or make money The user does not need to give credit to the Original Owner	There are no such restrictions for users	Yes
CC Attribution or CC-BY	Copyright Owner allows others to: use the work distribute it adapt or remix or create derivative works and re-distribute such works both for free or for money The user MUST credit the original Copyright Owner for the above use. This is the most accommodating of licenses offered. Recommended for maximum dissemination and use of licensed materials.	The user cannot claim the original work as their own. This means the user has to give credit to original Copyright Owner in all places where they use the work. This applies to all the licenses below in this table.	Yes
CC Attribution-ShareAlike or CC-BY-SA	Copyright Owner allows others to: use the work distribute it adapt or remix or create derivative works and re-distribute such works both for free or for money The user MUST credit the original Copyright Owner for the above use and they must release the new creations under the license the Owner used.	User cannot release works derived from original work under a different license (than the one used in the original work)	Yes
CC Attribution NoCommercial or CC-BY-NC	Copyright Owner allows others to: use the work distribute it adapt or remix or create derivative works and re-distribute such works ONLY for non-commercial purposes (user can NOT earn money from the original work or new works using the original work) The user MUST credit the original Copyright Owner for the above use.	User cannot make money from new works derived from original work	No
CC Attribution-Noncommercial ShareAlike or CC BY-NC-SA	Copyright Owner allows others to: use the work distribute it adapt or remix or create derivative works and re-distribute such works ONLY for non-commercial purposes For the above use, the user MUST credit the original Copyright Owner MUST share the new creation under the same license the original Copyright Owner had used	User cannot release works derived from original work under a different license (than the one used in the original work) User cannot make money from new works derived from original work	No
CC Attribution-NoDerivatives or CC Attribution-NoDerivs or CC BY-ND	Copyright Owner allows others to: use the work re-distribute it both for free or for money The users must credit the original Copyright Owner for the above use.	User cannot re-distribute new creations using original work	Yes
CC Attribution-Noncommercial-NoDerivatives or CC BY-NC-ND	Copyright Owner allows others to: use the work distribute it For the above use, the user MUST credit the original Copyright Owner	User cannot use original works to create new creations or re-distribute such creations using original work	No

The above table is inspired by the "seven regularly used licenses" section of Wikipedia.

Here are some recommended tools and other resources that you can use to identify which Creative Commons License you need to use:

CC Chooser (see legacy version): a form where you can fill the options to find an appropriate license for your work. You can simply copy the License text (or code if using in a website) and use it.
Internet Archive: a free repository that is strongly recommended for uploading your language documentation work. It supports a wide range of file types (images, documents, audio and video) and formats apart from Creative Commons Licenses. If you want your file to be used for Wikipedia and other Wikimedia projects, you need to upload them to Wikimedia Commons. Only CC0, CC-BY and CC-BY-SA licenses are allowed there.

Creative Commons Licenses are not the only kind of free/open licenses. The GNU Free Documentation License is a popular free license that is used for many text materials like books and manuals. It generally allows a user to use the original work, make a copy, redistribute, and even modify it. However, the original document or source code MUST be included in the new work if more than 100 copies of the same are published.