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Securing Permission to Digitize and Display Collections Online

This document is intended to provide guidance to librarians and archivists who wish to digitize and deliver via the Internet primary source collections that may not be in the public domain. For information on when published and unpublished works pass into the public domain, see Peter Hirtle's Copyright Term and the Public Domain in the United States.

Securing Permission from Collection Donors

Libraries and archives regularly accept donations of personal papers and other primary source collections, including letters, diaries, photographs, organizational and business records, scrapbooks, art works, and literary manuscripts. As a part of such a donation, it is important to document the transaction using an instrument called a Deed of Gift that serves as an agreement between the donor of the collection and the repository that receives it. The Deed of Gift defines the terms of the donation.

A Deed of Gift may serve to transfer intellectual property rights for the collection from the donor (to the extent that the individual(s) or organization holds copyright), or in many cases the Deed of Gift may transfer only ownership of the physical items in the collection. In the latter case, the repository may own the objects in the collection, but not duplication or publication rights.

The authority of the repository to duplicate or publish (or to grant permission for others to do so) also may be unclear if there is no Deed of Gift.

If copyright has not been transferred to the repository via a legal document, and if the items in the collection are not clearly in the public domain, it is important to secure permission from the intellectual property holder before digitizing collections for Internet publication.

It is helpful if a repository can include a clause in its Deed of Gift that provides express permission for the repository to digitize and display objects from the collection online as a part of the repository's digital collection building activities. This actually may be attractive to donors who wish the widest possible access to their collection.

In many cases, however, repositories may want separate instruments for conveying ownership of the physical objects in a collection and for securing permission for online display. A librarian or archivist may have concerns, for example, that a potential donation will fall through if digitization permission is part of the bargain. Donors may feel more secure about the limited use of their papers in the controlled setting of an archive than they are about their widespread publication via the Internet. They may have an interest in protecting their intellectual property rights for monetary reasons. For such donors, librarians and archivists may want to pursue digitization permission as a follow-up question, as opposed to part of their initial request.

Another reason for a separate permission form is that repositories are likely to want to digitize collections that they already hold, but for which they have not yet secured permission.

The document templates provided below may be helpful in addressing permissions issues:

  • Permission to Display Online Form (PDF): Template for securing permission from collection donors to digitize materials from their collections. This instrument may be used for a single-use request where the donor retains copyright, but permits use of the collection for a digital project. It may be used at the time of donation or to request digital conversion permission for collections the repository already holds.
     
  • Permissions Request Letter (PDF): Template letter to be used in association with the Permission to Display Online Form. It was designed for a project to digitize materials from collections that a repository already holds, but for which the donor retained copyright. It helps to explain the project and the terms under which the repository wishes to use a collection.

Locating Rights Holders

Another possibility (and an added complication) is that individuals or organizations besides the donor may actually have intellectual property or privacy rights associated with materials in a collection. A letter from an individual to the donor, for example, may be the intellectual property of the letter's author. For such items, it may be necessary to adapt the Permission to Display Online Form (PDF) to secure permission from the rights holder.

Often, it is difficult to locate individuals or organizations that may hold intellectual or privacy rights to materials that a repository wishes to digitize. In such cases, a Letter of Inquiry (PDF) may be helpful used in conjunction with a Response Form (PDF).

It may, in fact, be impossible to locate all rights holders, but a library or archives may still be justified in digitizing and displaying an object if it can document that it made a reasonable effort to locate the rights holder. In documenting this effort, a Permissions Checklist (PDF) may be helpful.

As an added measure, a repository may post the names of potential rights holders that the repository could not locate on a special section of its Web site. This gives the individuals or organizations an opportunity contact the repository, either to offer consent or to express their desire to have the materials removed from the site.

The templates and processes described above were developed by the McCain Library and Archives, University of Southern Mississippi for the "Civil Rights in Mississippi Digital Archive." They are adapted for use on the Digital Library of Georgia Web site with the permission of the McCain Library.

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