RLI 279 2 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 drawn from multiple sources and, increasingly, mass digitization of entire archival andRL libraries hold and continue to make significant investments in the digitization of theirarchives and special collections. This work has included highly curated and selective exhibits 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 June 2012 ReseaRch LibRaRy issues: a QuaRteRLy RepoRt fRom aRL, cni, and spaRc