This blog is part five of a series comprising a set of primers that address ten complex legal and ethical issues encountered when providing access to born-digital archival records. The guidance is grounded in two foundational beliefs: 1. There is a potential to harm individuals, communities, and institutions if access is not thoughtfully and strategically viewed through an ethical and legal lens; and 2. It is not ethical to restrict access unnecessarily. For more information see: https://osf.io/ketr7/.

Overview

Most cultural institutions that collect archival material rely on a contractual agreement (often called a donor agreement or deed of gift in academic special collections and archives) to guide the preservation and use of the collections under their care. While each agreement with a donor is likely to be slightly different and tailored to the collection and donor needs at hand, they all typically derive from a template agreement. This agreement is usually approved by organizational leadership and usually contains some stipulations that are uniform across all collections donated to the organization. Many organizations also manage addendums to these contracts, signed either at the point of donation to address special material and concerns, or added later to address preservation and access issues that were unforeseen at the time of the initial donation.

These agreements serve as a primary source for understanding how the material to be preserved was originally planned to be preserved and made available. They address known issues at the time of acquisition.

So when you’re first considering providing access to born-digital materials in a collection, your first step is always to take a look at the donor agreement.

Most likely to come up in

Any collection where the institution has a contractual obligation to preservation and access to an individual or organizational donor.

Actions for the institution to take

All cultural heritage organizations that administer contractual preservation and/or access agreements between creators/collectors and their organization (such as, but not limited to, a deed of gift) should address born-digital material in their template contract or a standard addendum. There should be language in the template contract or addendum that allows the archivist to apply digital forensics processing methods and take actions to obtain personal information required to process donated content.

Actions for the archivist to take

Include information about access restrictions interpreted from donor agreements in the descriptive record. If the access restrictions are particularly complicated, or if your finding aids are difficult for users to discover from your organization’s website, consider putting additional information on a web page or wiki about how to access the collection.(1)

If the donor is living and the archivist is able to obtain permission to take actions that were not discussed at the time of donation, execute an addendum to the donor agreement with new terms.

Technical Infrastructure

Maintain a secure paper or digital file containing donor agreements and relevant correspondence. Many archives and special collections continue to manage their donor files via paper filing. This is an effective way to capture this information and make it accessible to staff members. In this model, all action taken from donor agreements is performed by the archivist: typing access restrictions into finding aids, managing release dates, etc. While digitizing your donor files may not be the top priority at your organization, it can save a lot of time to have searchable digital access to these agreements and supplementary information for staff use.

Legal considerations

If written properly and executed properly, donor agreements are legally binding contracts between the parties to the agreement. They are also critical tools for building relationships and understanding with donors during the donation process, and for documenting the intention of both parties at the time of donation. 

Different organizations have different practices for drafting and editing their template donor agreement. In large institutions where legal counsel is available, it is important to have these forms vetted by counsel. When modifications are required, they may also require approval from counsel. The addendum is an important contractual tool for adding agreements that are not part of the organization’s template agreement.

There is a lack of case law litigating donor agreements, so archivists are unable to say how they hold up in a court of law. However, they are intended to be a legally binding agreement.

Ethical considerations

A lot can get murky between the priorities of the donor, the institution, and the archivist. There are many different interpretations of the codes of ethics.(2) What one person feels is ethical in a deed of gift may not map to another’s interpretation. It is our ethical responsibility as archivists to honor the intent in original agreement as possible as long as these intentions do not harm others.

Case study

Erika Farr, Dorothy Waugh, Emory University. (August 26, 2020). Salman Rushdie Archive. BitCurator Consortium.

Additional Resources

Briston, Heather. “Contracts, Intellectual Property, and Privacy.” In The Digital Archives Handbook, edited by Aron D. Purcell, p. 97

Sample addendum from Pennsylvania State University Special Collections Library as published in: Menzi L. Behrnd-Klodt. “Balancing Access and Privacy in Manuscript Collections,” in Rights in the Digital Era, ed. Menzi L. Behrnd-Klodt and Christopher J. Prom. (Chicago: SAA, 2015), 116-117.

Sample Addendum from UC Santa Cruz Special Collections & Archives. Available at https://docs.google.com/document/d/1XnTFEsPwR8UM7QLaVqtdEoByX_2CGP5oY-Qv4VYmXYk/edit?usp=sharing

Contributors

Primary Author of this section: Jess Farrell, Community Facilitator, Educopia Institute
Co-Authors: Jessika Drmacich, Kate Dundon, Christina Velazquez Fidler, Hannah Wang, Camille Tyndall Watson

Thank you to the many community contributors for feedback and edits to Legal and Ethical Considerations for Born-Digital Access, from which this post was derived.

DISCLAIMER: This text has been reviewed and feedback incorporated from library professionals with legal expertise, but it was not originally drafted by a lawyer and is not legal advice. Please use this as a starting point to understand the issues, but always consult your local legal counsel or other support system as you make access decisions around born-digital collections.

___

 (1) For an example, see the collection guide to the Antonin Scalia Papers at Harvard Law School Library, available at: https://guides.library.harvard.edu/scaliapapers

(2)  See the Society of American Archivists’ Code of Ethics as an example: https://www2.archivists.org/statements/saa-core-values-statement-and-code-of-ethics&lang=en