Libraries have a long history of accepting donations from individuals and organisations to add to their collections; maintaining, preserving and making the donated material accessible.
Donations include a wide variety of material including papers and personal records documenting a family or individual history, photographs or photograph albums, records of a business, organisation or religious group and other manuscript material.
The relationship between a library and a donor should be based on a common understanding of the wishes of the donor of the material and the responsibility of the library to provide access to information to support learning and research, preserve cultural heritage and encourage creativity and free expression of ideas.
The most effective way to indicate the transfer of ownership in the donated material from the donor to the library and outline the wishes of the donor and the responsibilities of the recipient library is to use a Deed of Gift.
Purpose of a Deed of Gift
A Deed of Gift is a formal, legal agreement that transfers ownership in the materials to be donated from the donor to the recipient library and sets out any conditions attached to the donation. It is the clearest and most legally effective way to transfer ownership of donated material.
The Deed of Gift may also transfer ownership of the donor’s copyright in the materials to the accepting library or grant licences to use the material in specified ways.
A signed Deed of Gift establishes and governs the legal relationship between donor and library in relation to the donated material.
The Deed of Gift also provides protection to the library in the event that a legal issue arises over the ownership, use of, and copyright in the donated material. Additionally, it furthers positive donor relationships by ensuring donors are aware of the terms under which the donation will be accepted, made accessible and used.
Elements of a Deed of Gift
The Deed of Gift should always clearly identify the donor and the recipient library, accurately describe the material to be donated, legally transfer ownership of the material to the library, set out ownership of the intellectual property (including copyright and moral rights) in the donated material, and indicate what the library should do with unwanted material.
Name of the donor and recipient Library
The name and address of the donor and the name of the recipient library should be clearly stated on the Deed of Gift. The Deed should also require the donor to state that they are the owner of the material to be donated and have the authority to donate the material to the library.
Description of the donated material
The Deed of Gift should include an accurate description of the material contained in the donation. This could be collated by the donor prior to the donation, or in consultation with the recipient library at the time of the donation. A general description (Business records of Cox & Co.) within the Deed and a more detailed list attached to the Deed of Gift is acceptable.
Procedure for unwanted material
The Deed of Gift should provide options for the donor to state how unwanted material should be dealt with by the library. Options should include return of unwanted material to the donor or disposal at the discretion of the library. Even if the donation is carefully appraised at the time of donation and unwanted materials separated at that time, this element should still be included to allow for the possible future de-accessioning of the donated material, dependent on the policy of the library.
Copyright and intellectual property
The Deed of Gift should provide for the donor to transfer ownership of copyright in the donated material to the recipient library. It is important to note that transfer of copyright can only be accomplished if the donor is the owner of copyright in the material, or has the right to transfer ownership copyright in the donated material.
It is important for the library to make donors aware of their rights and obligations with regard to the transfer of copyright in their donations.
Many donations contain a mix of material, and the donor may own copyright in only some of the material to be donated. The Deed of Gift should enable donors to clearly state for which material they are able to transfer copyright ownership to the recipient library, if they choose to do so.
Moral rights are the right of a creator to be attributed as the creator of his or her copyright work, to take action if their work is falsely attributed as someone else’s work and to take action if the work is distorted or treated in a disreputable way. The Deed of Gift should allow for the donor, if they are the creator of the donated material, to state how they wish to be identified if the library, when using the material, is required to identify the creator.
Usage and reproduction
If the donor does not wish to assign copyright in their material to the recipient library the Deed of Gift should include a usage and reproduction element that states clearly for the donor and the recipient library, how the donated material will be used.
The Deed of Gift may fulfil this requirement by including a statement outlining the possible uses of the material by the library and its clients, for example, that the material will be preserved, organised and made available for research and education, reformatted for preservation or access purposes, including but not limited to digital formats for use by any means, and made accessible to all subject to any special conditions outlined in the Deed of Gift.
Alternatively, the Deed of Gift may include the provision for donors who do not wish to assign their copyright in the donated material to the recipient library, to grant the Library a non-exclusive, perpetual licence to use the work in certain ways; for reproduction, for publication, for promotion and for collection management.
In addition, the Deed of Gift may also include the provision for donors to license donated material in which they own copyright, using an open content licence, such as a Creative Commons licence.
Libraries are committed to the maximum possible access to their collections. The ultimate purpose of a Deed of Gift is to make materials available in a timely, fair and equitable manner. However, in special circumstances a donor may wish to make a donation subject to certain conditions. For example, restrictions on the use of material may be required to protect sensitive information and to guarantee confidentiality for living persons. There may also be restrictions on access to donated material such as secret, sacred or sensitive material.
The Deed of Gift should include the option for donors to state any special conditions to which the donation is subject. It is recommended, however, that restrictions accepted by libraries should have an end date. For instance, where a library accepts restrictions to protect a person’s privacy, or accepts restrictions on reproduction of out-of-copyright material, the Deed should set a reasonable end date to those restrictions.
It is also recommended that any special conditions be negotiated with the donor prior to the completion of the Deed of Gift to arrive at an outcome that is acceptable both to the donor and the recipient library.
Signing the Deed of Gift
Historically, deeds needed to be “sealed” by the party being bound by the deed (e.g. by the person applying a wax seal). However, legislation in most Australian states and Territories has done away with the requirement for an individual to actually apply a seal to the deed, provided the document is expressed to be a deed or to be sealed, and it is signed and attested by a witness who is not a party to the deed.
Therefore, in addition to the Deed of Gift indicating that the donor wishes to donate the material described in the Deed, and stating that they are the owner of the material and have the authority to donate the material, the Deed must be signed by the donor, witnessed, and signed by a representative of the recipient library.
The wording “signed, sealed and delivered by the donor as a Deed in the presence of the witness named below” prior to the signatures of the donor, witness and representative of the recipient Library, will meet this requirement.
These guidelines have been developed to assist libraries in understanding the significance and benefits of the use of Deeds of Gift when accepting donations. They also aim to assist libraries in the development of Deeds of Gift that are in the best interests of the goals of libraries and consider the needs of potential donors of material.
They have been developed in good faith but do not constitute legal advice. It is strongly recommended that Deeds of Gift developed by individual libraries be subject to legal review prior to implementation.