Workbook on Digital Private Papers > Working with record creators > Donation and deposit agreements
Donation and deposit agreements
Introduction
Drafting an appropriate deposit agreement was one of the earliest tasks Paradigm undertook. It proved impossible to find other examples of deposit agreements drafted for personal digital archives, so the project team began by looking at the kind of donation and deposit agreements in use for traditional archive material and thinking about how these should be adapted and augmented to meet all the requirements of the digital environment.
The project deposit agreement was produced for a very specific purpose; participating politicians agreed to loan their digital archives to the Bodleian and JRUL on the basis that the content was treated as confidential and access was limited to project staff. However, many of the concerns raised by the Paradigm participants are pertinent to personal digital archives more generally, particularly the issues of: privacy, confidentiality and data protection; access by third parties, especially by means of freedom of information requests; and IPR (Intellectual Property Rights) in the content of the archive.
Paradigm therefore explored some of the major issues which should be covered in any donation or deposit document dealing with hybrid or digital personal archives, with a view to drawing up a model agreement.
Issues which should be covered in a donation or deposit agreement for personal digital or hybrid archives
Any agreement needs to be legally sound, yet easily understandable by donors or depositors. It should clearly set out the obligations of both donor/depositor and archive repository. The content and extent of the archive should be set out in the schedule to the agreement, indicating (in the case of a hybrid archive) the relative proportions of hard copy and digital material. Different conditions may apply to hard copy and digital material (e.g. in relation to access by third parties) and where this is the case it should be clearly stated in the body of the agreement.
Some of the issues which should be covered in an agreement include:
- Establishing unequivocally the current ownership of the archive itself.
- IPR: the donor or depositor of the collection may be a primary copyright holder in its content, but there are also likely to be many third-party copyright holders represented in the archive. The donor or depositor should be asked to clarify conditions relating to the material in which they hold copyright, both in relation to:
- Preservation: the repository should seek explicit permission from the primary copyright holder to undertake preservation actions on the digital component of the archive; these can range from simple backup procedures to format migration and involve making multiple copies.
- Access: the copyright holder may be offered a range of options. For example, they may choose to: grant licence to the repository to carry out certain actions (such as making copies for researchers in accordance with fair dealing regulations, granting permission for the publication of short quotes, or making the copyright material accessible remotely rather than limiting access to researchers in the reading room); or request that all requests for copies (other than those for non-commercial research) be referred to them for permission. They may also choose to transfer copyright into the ownership of the repository, which would then be responsible for all decisions relating to the material.
- Data protection and confidentiality: the donor may wish to place closures on confidential or sensitive material in the archive, to ensure that it is not made available to third parties for a stipulated period of time. It is useful to record both closure periods and reasons for closure in order to assist the repository in dealing with future freedom of information requests (although it should be noted that deposited collections are not necessarily subject to the Freedom of Information Act). It should also be made clear that whilst libraries have certain exemptions from the Data Protection Act, all personal and sensitive personal data about living individuals represented in the archive will be treated in accordance with the Act, and in particular will not be used in any way which might support decisions about or cause substantial distress to individuals. This may mean imposing lengthy closure periods on some material.
- Other access-related issues: the agreement should make it clear that the repository is acquiring the archive in order to make it accessible to researchers in the future and establish the conditions for this (lengthy closure periods will usually apply). There should be a clause establishing the right of the repository to claim legitimate exemptions under the Freedom of Information Act while material is closed to readers.
- Exclusive ownership: because accessioning a digital archive may involve taking copies of records rather than the 'originals', it is crucial to ensure that the donor/depositor grants the collecting institution the right to hold (whether by gift or loan) the sole complete research copy of each digital record in their archive. This is particularly pertinent in the case of archives which are likely to be of high monetary value (e.g. the papers of a well-known writer).
- Appraisal: the agreement should establish the right of the repository to appraise and weed material in the archive; the donor/depositor should be given the right to decide what happens to weeded records. See Chapter 04 Appraisal and disposal for more information.
- The agreement should make it clear that the collecting institution will catalogue the archive and create the (often extensive) metadata required for long-term preservation; copyright in catalogues and other metadata will be held by the institution, as distinct from the copyright in the archive material itself.
- The collecting institution should give an undertaking to look after the archive material responsibly and securely (in perpetuity, in the case of a gift).
- If outsourcing the storage or processing of digital materials to a third party, permission should be sought for this from the donor/depositor.
- The schedule to the agreement may establish how accruals to the material will be managed and the frequency of any future accessions. The detail will depend on the selected approach to collection development (see Chapter 02 Collection development).
Deposit and gift agreements produced by the Paradigm Project
In order to simplify the administration and management of its holdings, ideally an archive repository should base all its donation and deposit agreements on a single template which is uniform within the institution. However, in reality some flexibility is likely to be necessary, as is the case with traditional archives, and agreements will often have to be tailored to a specific individual or situation.
Paradigm produced a model gift agreement for use with digital and hybrid personal archives (see Appendix A: Model gift agreement). This might form a basic template for other collecting institutions to build on and adapt to their own requirements. Please consult with your legal team to ensure that the agreement is appropriate to your context.
Paradigm also developed a short-term Deposit Agreement which was specifically designed for use with the politicians participating in the project. For the purposes of the project, digital archives were deposited on the understanding that their content was confidential and that the archives would be closed to third parties; access was restricted to project staff and individuals accredited by the depositor.
