RLI 279 2
June 2012 Research Library Issues: A QuarterlLy Report from ARL, CNI, and SPARC
Digitization of Special Collections and Archives:
Legal and Contractual Issues
Peter B. Hirtle, Senior Policy Advisor, Cornell University Library
Anne R. Kenney, Carl A. Kroch University Librarian, Cornell University
Judy Ruttenberg, Program Director for Transforming Research Libraries, ARL
on behalf of the ARL Working Group on Transforming Special Collections in the
Digital Age1 A
RL libraries hold and continue to make significant investments in the digitization of their
archives and special collections. This work has included highly curated and selective exhibits
drawn from multiple sources and, increasingly, mass digitization of entire archival and
manuscript collections.
Even within ARL, the library, archives, and museum (LAM) community includes considerable
variation in its organizational structures and relationships to parent institutions, and to a great extent
in its myriad of relationships among repositories and their individual donors and collection creators.
But the community shares a commitment to increasing exposure, access, and discovery of archival and
manuscript material in the research mainstream—from undergraduates to senior scholars and across
the disciplines. Digitization is one key strategy in this movement toward expanded access, and with
it are associated complex, evolving professional practices and legal obligations with respect to donors,
intellectual property, and risk.
The ARL Working Group on Transforming Special Collections in the Digital Age has assembled
four significant documents in this issue of Research Library Issues to serve as a community toolkit for
navigating some of the decisions involved in expanding access to special collections via digitization.
With the development of network technologies, the nature of access to donated archival material has
changed. Collections that were once made available to scholarly researchers under the watchful eye of
special collections librarians in a physical reading room can now be made readily accessible to the entire
world via the Internet. Donors who were willing to allow access to materials in a controlled setting could
be taken aback by the trajectory of increased access. It is to the library’s advantage to secure, if possible,
explicit permission to make copyrighted materials available on the open web. While the recent ARL Code
of Best Practices in Fair Use for Academic and Research Libraries2 makes a strong case that a fair-use argument
can be made to support much library digitization, the issue becomes moot when formal permission has
been received.
Two ARL Model Deeds of Gift, published here, were developed to address these changes in the
provision of access to special collections. These Deeds of Gift make explicit to donors that the repository
may make the donated material available online. The Deeds of Gift also discuss in more detail than was
customary in the past the nature of the copyrights in the donated material and they seek to secure a
copyright transfer or a license grant that would allow a repository to digitize the material.
In discussions with ARL member representatives, it became clear that the staff and legal counsel
at various ARL institutions follow different approaches to deeds of gift. Some worry that legalistic
documents may intimidate possible donors and so prefer documents that are as simple as possible
(while still securing all needed rights). Others favor a document that is very explicit in laying out rights