Archival donation acceptance policies in 2024

Submission Date:

Tuesday, November 12, 2024

Question:

We have an archive in our Library. We recently got a large donation of research that was used by the donor in the process of researching a book (we have the book in our catalog).

We were hoping the research was primary and original, but upon review, it largely consisted of:

• PDFs of full books taken from Google Books 
• PDFs of book excerpts taken from Google Books
• PDFs of articles with no identifying publication information
• PDFs/Word Documents with excerpts copied and pasted from websites and articles without attribution

This set off major alarm bells!

To complicate things, we have been so busy running our institution, our policies have not been updated to address concerns about “born digital” donations. And of course, we want to keep up a good relationship with the donor, who is a local author.

Is there a disclaimer or notice we can put on the online repository to protect us from potential copyright lawsuits? Is this a situation where every PDF book and document should be researched first to determine if it is in the public domain or protected by fair use? Should we simply refuse to put any of those documents online due to the risk?

Sincerely,
Discombobulated about Donations

Answer:

Dear Discombobulated:

First, thank you from the bottom of my heart for using a “nom de Dear Abby,” so I could reply in kind. While I would love to think that the writing in Ask the Lawyer stands on the shoulders of legal luminaries like John Marshall, Antonin Scalia, and Learned Hand, the truth is, it probably draws more from reading “Dear Abby” and “Ask Ann Landers” in my formative years.

Which is fine, because above all, Ann and Abby strove to provide guidance that was readable, and useful.

So, what is a useful guidance here?

First (and I know you know this), it is critical for your library’s board to update the policies that have left you without guidance on this matter.

While it is of course the work of library employees to actually apply the policies during the difficult work of processing archival donations, it is the responsibility of a governing board to adopt (and as needed, revise) the policies that guide them.

In the case of “born digital” donations, this is particularly critical.

Many authors are now collecting their research and arranging their drafts entirely electronically. This means entire works that once took boxes and boxes to hold might be on a single thumb drive. This change in the medium, however, doesn’t lessen the impact of a writer’s archive, which can show us the sources, the inspiration, and (gloriously) the mess[1] behind the smoothly finished product.

The ability to store seemingly infinite data does not mean a library can simply accept and archive everything it is given. In fact, it means exactly the opposite. This is because an archive is not storage; it is a curated collection of information gathered for a specific purpose.

A good example of this is in the public-facing description of the New York Public Library’s Manuscripts Division,[2] which says in part:

While the policies for “born digital” content will generally not be in the public-facing part of an online archive’s website, behind the careful description of the scope of an archive will be the many rules it has for evaluating donated content.

Part of that evaluation will address the concerns the member has posed in their questions: Is the content already “out there?” Is it protected by copyright? Did the author gather the material and further manipulate it in a relevant way (for instance, gathering articles to show who was publishing on a particular topic), or is the information simply gathered for what it offers at face-value?

If the content of a donation fits within the scope of an archive, but largely gathers material that is readily available via other sources, it is unlikely that a policy will support an archive taking the time to re-enter that material. The sole exception would likely be if the unique gathering of material shows something special about the project, in which case it could be archived as one thing, and not a collection of singular objects.

For example: Let’s say I write a best-selling mystery novel mostly set in Grace Church in Utica, New York.[3] To make sure my story is authentic, I make a digital copy of every book and newspaper article I could find about Grace Church, linking events in my novel to events that occurred in real life. When I hit the New York Times bestseller list, I donate my archive (on an external hard drive, for security) to the Utica Public Library.[4]

Upon review, it is very likely the library would conclude that much of the material[5] would be too redundant to separately archive. If, however, I not only made a copy of the material, but then made digital notes on it—showing my thought process as the book was developed—that would be a different thing, and separate cataloging would be warranted.

This would be true even for more recent works that were still protected by copyright, but again, only if the digital copy somehow transformed the work from its state in another catalog.

So, with all that as background, let’s look at the member’s questions:

Is there a disclaimer or notice we can put on the online repository to protect us from potential copyright lawsuits?

Is this a situation where every PDF book and document should be researched first to determine if it is in the public domain or protected by fair use?

Should we simply refuse to put any of those documents online due to the risk?

The answer to this is:

The institution’s policies should be applied to assess if the entire donation is within defined scope of the archives.

The institution’s policies should be applied to assess if any of the materials are generally or easily available in other repositories (whether or not under copyright); if they are, they should not be separately cataloged, because they are redundant.[6]

The institution’s policies should be applied to assess if an array of information, because of its unique combination, is valuable to archive as a whole, even if the separate items are redundant. This means the collection of information could be saved as one item to provide insight into the research or creative process, even if the various items comprising it aren’t separately cataloged and available on an online archive. For copyright concerns, however, it may be better to have such content available for review (in digital format) on-site, only.

I appreciate that the world has (and is) changing rapidly, and many institutions cannot keep up with donations and cataloging, let alone policy review.

This is where the leadership structure of a library, museum, historical society, or archive comes in handy. As we know, at NYSED-chartered institutions, the trustees govern, while the employees manage the institution day-to-day.

Policy starts with governance: ensuring an institution is updating its policies to fit present needs is the responsibility of the board. Applying that policy, once it is established, is the responsibility of employees.

If the policies of an institution aren’t up to evaluating “born digital” donations, it’s time for a policy update. A good method for such an update is an ad hoc committee of board members, employees with relevant expertise, and maybe even a special member like a local scholar or IT specialist, from outside the institution.[7]

To start such a committee, a governing board could pass a resolution such as:

WHEREAS the [institution]’s archives are maintained to gather, catalog, preserve, and provide access to a defined scope of content; and

WHEREAS recent changes in technology require the [institution] to evaluate and refine its approach to digital content (both as donated, and as available via the archives);

BE IT RESOLVED that [NAMES] shall be formed into an ad hoc “Archives Policy Review Committee” for purposes of researching, evaluating, and drafting recommended policy updates to confirm the scope, criteria, manner of evaluation, manner of acceptance, manner of cataloging, methods of preservation, and methods of providing access; and

BE IT FURTHER RESOLVED that such Committee is requested to have a recommended update to current policies by the DATE board meeting; such date to be extended if warranted.

In closing, I have to say to “Discombobulated about Donations”—you are not discombobulated at all! The question shows orderly thinking about how to best use the limited resources of an archive and how to protect your institution from risk.

I’d say you’re “Acing it in the Archives.”

Thank you for a great question.

Tag:

Digitization and Copyright, Donations, Policy