Re: fair use and unpublished materials

Alan Divack's question regarding some library and archival repositories' requirement about signing agreements not to quote from materials without permission raises interesting issues about the intersection of copyright law and trust and estate law.  

The institutional holding of manuscript and other archival materials by authors and public figures is a negotiated rather than straightforward affair. Numerous living authors place materials "on deposit" with libraries and archives, stipulating stringent restrictions about access to the materials by researchers. At times access extends to prior vetting by the author/public figure before a researcher can even see the materials.  

Libraries and archives around the country have mixed policies regarding under what conditions they will accept collections-- whether through deposit, gift, or purchase. Curatorial instincts have generally followed the view that a conditional deposit by an author/public figure is better than nothing since it creates prestige for the library/archive and draws other collections. In the past, copyright considerations have been not considered at all (different from not considered relevant).  

When major collections are acquired by a library or archive through gift, they are often accepted through an institutional foundation or board of trustees, the attorney for which is usually an expert in trust and estate law but rarely deals with copyright, let alone fair use, issues. The attorney drawing up the donor's will is also likely to have tax rather than fair use considerations uppermost in mind.  

Only in the increasingly rare cases of acquiring collections by purchase is a library/archive likely to have an opportunity fully to negotiate terms and spell out rights and permissions. This is a process in which, despite the most careful and sensitive negotiator, the donor may balk. We were recently involved in trying to purchase a photographic archive much coveted by local faculty. We decided that we would only acquire the archive if the donor were willing to assign copyright as well as ownership to all pieces in the collection. We're still talking to the donor, but not much.  

Does anyone see any fair use differences in the unpublished materials which are 1) on deposit only, 2) gifted with restrictions, and 3) purchased? Any discussion would be helpful in drafting guidelines for staff and working with Foundation and donor attorneys.  

Deb Reilly
General Library System Admin.
University of Wisconsin-Madison
reilly[_at_]macc.wisc.edu Received on Fri Jun 24 1994 - 18:47:21 GMT