Gathering Legal Information for Digitizing Projects: Part 2

Questions to Answer and Documentation to Provide

Nature of material

Describe what the material is, media, subject matter, age of material, volume (amount), significance, use (high, low, who and why). If you have written this up as part of the Digital Project Proposal Short Form, please refer to that document - no need to duplicate it here.

Is material well documented or not? In either case, will digitizing help develop documentation? Will it be easier to use because it is already well documented?

Questions regarding ‘documentation’ are catch-all questions. For example this could mean metadata, indexing, cataloguing, item or collection-level descriptions or even other kinds of documentation. Poorly described materials will be of low scholarly use - unless the point of making them available is to improve documentation and utility. It may be that there are preservation reasons to scan material and keep them secured - and that having those scans available to authorized persons to work from makes it feasible to do metadata creation and rights determination needed for possible broader access.

Is material published? Sold, distributed widely, offered for sale, lease, lending.

Why is digitizing important in your case?

Some common purposes and access levels: preservation-only, preservation with global access, on campus access?

Describe the relevance to mission and goals or goals of consortia, demand for materials (wear and tear concerns as well as access for improved use). If you described this in the initial Digital Project Proposal Short Form, feel free to refer to that description rather than duplicate here.

Provenance

Where did the material come from? If it's an MLibrary collection, how did it end up there?

Provide copies of any documentation, acquisition agreements, or general information about ownership:

  • physical ownership of materials (be sure there was an effective transfer, don’t invest in digitizing projects of materials not in the collection except in rare circumstances)
  • copyright in component parts of collection (donor/seller may not have had copyrights, just ownership of physical materials).

If project involves recordings in an oral history project, are there release forms? Permissions? What was context of interview?

As a general matter, consider legal questions at time of new acquisitions. Document. Collect any possible information about the material at time of acquisition. File and retain in a consistent location.

Known restrictions

Are there any donor restrictions or gift agreements to be reviewed?

Is the material believed to be in copyright?

Provide any known rights information and agreements.

Privacy, political sensitivities, trademark

These may be a non-issue but may warrant awareness or context:

  • Are children depicted or identified in any way? How?
  • Is there any nudity? Medical information? Information regarding criminal convictions? Note.
  • Are there private persons (not famous) who are reflected in a way that might be embarrassing? How?
  • Are there any famous people who might have commercial rights in their name, likeness, etc.?
  • Trademarks? What?
  • Sensitive political content or the like?

 

Are there any models like your collection?

Are there similar materials online from other cultural institutions? Is your project unique? Does your project complement other material online elsewhere?

Are there other projects online that provide a model for addressing legal questions (e.g. museum has similar 20th century photo collection online that compliments our proposed project – theirs has been online without complaint for 8 years even though rightsholders could not be identified.)

Some materials warrant particular attention to possible rights issues

Please describe any of the following kinds of materials that may be part of your proposal:

  • Contemporary literary papers. For example, is the creator still alive or deceased, say, in the 20th century? Personal and literary papers may have more privacy concerns, copyrights may be held by different people or entities, there may be publishing or similar contracts between the creator or heirs that otherwise affect the use of the materials.
  • Material with sensitive information, such as social security numbers or medical data.
  • Materials likely to have been created with commercial intent that may be more likely to have economic value. Very recent materials not intended to be made public (common in archives). Even materials with commercial intent may be perfectly appropriate for a library to make available online in some way; it depends on the facts which in turn allow us to consider different approaches appropriate to the situation.

 

Context of the materials and how you want to present materials

What are you doing and why? If you described this in the initial Digital Project Proposal Short Form, feel free to refer to that description rather than duplicate here.

Is this publishing in the sense that its selected and contextualized? Is it more of a database of content? Is permission needed for the intended use?

Is there a fair use or other exception to copyright that applies? This will depend on the nature of the material and the use. We are interested in you thinking on this item; evaluating fair use involves a case by case examination of particular facts - the Copyright Office can help you with this question. It may not be possible to answer this in your initial information gathering process - which is fine. But we would welcome your opinion and reasons if you have formed them.

Will material be presented as a body (a collection or exhibit) or as individual items - or both? The way material is presented can affect a fair use analysis.

Next step

Return to the "Starting a Digitization Project" page and go on to step 3.

Page maintained by Kat Hagedorn
Last modified: 01/22/2013