Acquisitions and Appraisals
This chapter covers acquisitions, donations, deeds of gift, sale deeds, loans, copyright licenses and copyright assignments.
Scenario: An archive of an institution is in possession of the papers of a former employee of the institution, which includes work manuals, classroom teaching material and correspondence. The archive is faced with several questions: Who has ownership over the papers? Which records are legally permissible to include in the archive? How can ownership be transferred from one party to the other?
The circumstances and laws around the acquisition and disposal of archival records are a helpful starting point to understand legal considerations of archival practice. Private archives receive a large number of documents through internal and external acquisitions, including as institutional repositories, or through gifts or donations from people or institutions.
The acts of acquisition and appraisal raise many legal considerations. For example, are archival records the property of the archival institution that hosts the records, or property of the individuals or institutions that held the records prior to their acquisition? How does the ownership of records change hands, and what are the implications of using different methods to transfer ownership in archival records? This chapter will briefly examine the legal implications of acquisition and disposal of archival records.
The process of acquisition of archival records begins with the appraisal of records suitable for archiving. For public institutions like the National Archives of India or other institutions covered under the Public Records Act, there are specific legal considerations to follow for appraisal and accessioning as laid down in various laws and governmental circulars and manuals.
For the most part, there are no legal mandates for preservation for the records of private institutions. As such, appraisal and accessioning of records should ideally be determined through an established process and policy of appraisal and documentation of its institutional records, including the creation of records retention schedules.1 One area where such appraisals may raise legal issues is in the determination of institutional records, as distinguished from the personal papers of employees. In general, for all records and material created in the course of employment, title and ownership rests with the employer.2
According to the Copyright Act, copyright of all records and material authored by employees as part of their duties and obligations as an employee would vest in the employer. A key question in appraising the papers of an employee would therefore be to determine whether the record in question can be construed as a part of their contractual duties, or within the scope of their employment. If the record in question does not pertain to their duties as an employee, the record and the copyright therein may fall outside of the scope of institutional records, and the title and copyright over such records would have to be cleared separately by the institution. For example, if a person employed as a scientist happens to create a painting or artwork unrelated to the terms of their employment, the institution or employee cannot claim ownership over such work.
Determining whether a particular work has been produced in the ‘scope of employment’ depends on the nature and degree of control exerted by an employer over the creation of that particular work, which has to be determined on a case-by-case basis. For example, if a lecturer is directed by their employer (say, an academic institution) to prepare a presentation on a particular subject, in a particular place and in a particular manner (or ‘what, how, when and where’), it may be construed to be a relationship of employment, where the ownership of the presentation could vest in the institution. Determining whether particular copyrighted material was produced ‘in the course of employment’ is a contextual exercise. However, the law generally favours the authors of the work over the employer, unless the contract or context indicates to the contrary.
In the absence of a relationship of employment, for example, in the case of works created by independent contractors, the copyright will vest with the creator or author of the work, in the absence of a written agreement to the contrary, made between the creator of the work and the person or institution for which they are working.
Archivists conducting the appraisal of institutional documents where there may be some ambiguity over claims of ownership should consult the terms of the contract according to which the work was created, and should encourage institutions to make the ownership of works created by employees or contractors clear in the terms of contract.
Going back to the example this chapter begins with, the archive of a scientific institution, in possession of an employee’s papers, must first examine the nature of the records and distinguish between personal papers and institutional papers. In doing so, it should document the process by which this distinction was made, ideally with reference to contractual terms, the records retention schedule and the appraisal policy of the archive.
Scenario: The archive of an institution receives a ‘donation’ of records from the legal heirs of a former scientist who was an employee. The records contain manuscripts, photographs, film and other material owned by the scientist. The archive would like to add these records to its collection, and obtain title and ownership over the records to provide access to researchers. How might the archive go about obtaining title to the records, and what are the legal mechanisms for acquisition that they should be aware of?
Once records have been appraised and determined to be suitable for accessioning, the archive must determine whether and how it should obtain the custody, title and rights over the record.
Types of acquisition
Archives acquire records through a variety of practices, means and legal instruments. Briefly, these might include:
Internal acquisitions involve the transfer of custody of records from within the institution that created them, to the archive of that institute itself. While this usually does not involve the transfer of ownership, it may involve a change in custody of the documents, and it may imply a change in the status of the record from current to non-current records. However, these changes in custody generally do not have any significant legal repercussions. For example, a corporate institution might transfer records from an employee or a department’s office to its institutional archive, as a matter determined by its record retention schedule and archiving policy. This acquisition would generally be governed by institutional policies and schedules relating to record retention.
Records may also be acquired from outside of the institution in which they were created. These generally involve both a change in the ownership as well as in the custody of the record. The change in ownership may be temporary (as in the case of a loan) or permanent (as in the case of a gift or a purchase). In some cases, the records may merely be deposited, without any transfer of ownership. For example, an archive might receive a donation of records relevant to its repository, or might seek to purchase additional records to supplement its collection. Such acquisitions often involve not only institutional policies relating to record retention, but must also meet specific legal requirements.
The acquisition of records by an archive that does not already have title or rights over the records involves the legal transfer of title and other rights to the archive. Title can only be transferred by persons having ownership, or the rights to transfer ownership, over a record.
Transfer of Title:
The transfer of title or ownership of a record to an archive may involve the transfer of only the tangible or physical property rights associated with a particular record, or may also involve the transfer of intangible rights, including intellectual property rights like copyright, associated with that record. The legal circumstances and processes surrounding the transfer determine the scope and extent of rights that are transferred to an archive.
Transfer of Intellectual Property:
As indicated above, transfer of title or the physical ownership of a record does not always entail the transfer of all the copyrights that may be associated with that record. Apart from the transfer of title and rights over the tangible, physical record, archivists must keep in mind the requirements for the transfer of the intangible rights associated with a particular record, including the copyright that may vest in a particular record.
Use of Copyrighted Works and their Transfer
If an archive wishes to make use of any copyrighted work, such rights must be cleared through the processes of acquisition described below, unless they are covered by current exempt use preservation copies of the work (review Chapter 2 for notes on access and use of an archival object already in the custody of an archive). However, if the archive does not intend to use the work for display or for making copies, and only provides the original copies to researchers (or falls under the exemptions for copyright detailed in Chapter 2), it may not require the acquisition of copyright in the records.3
Indian copyright law does allow the purchaser of a physical record to further transfer that particular copy without the permission of the copyright owner (for example, through resale or loaning that copy).4 But this right is limited to the use of the same copy of a record that is owned by the archive.
Apart from the right to freely transfer the specific record (the copyrighted ‘work’) that has been purchased, a number of other rights may need to be cleared for acquisition of a work, which collectively make up the copyright in that work. For example, in the case of a private institutional archive, an archive may have validly purchased or acquired a record that is copyrighted (for example, a manuscript), and has the implied right to transfer or loan that particular physical copy of the record as per the terms of the acquisition. However, the archive would not be able to freely copy, distribute or display the acquired record without clearing copyrights associated with the record, including the right to copy the manuscript, to publish it or make it publicly available, or to adapt it into some other form. If the archive wishes to reprint the manuscript, digitise it, copy it into another format (for example, a microfilm or an audio record), it must separately acquire copyright over that work.
When an archive seeks to make use of a work – for copying for preservation, for making it available for display, or for digitising – it will generally have to acquire both physical title as well as copyright. The subsequent section describes how copyright may be acquired by the archive.
Scenario: An archive seeks to acquire records of a writer in order to provide access to these records to researchers, as well as to copy these records for preservation, digitisation and for wider access to the records. If it only seeks to hold and provide the original physical record for research and inspection, it may do so only with title to the physical record. For the use of any copies of a record, including digitisation of the record, or for publishing or displaying the records to a larger audience, the archive will need to take into consideration the copyright to the work, and either acquire copyright or avail of relevant exemptions.
Identifying the Rights Owner
At the outset, when seeking to acquire copyright, the archive must be able to identify who is the valid owner of copyrights and from whom such rights should be cleared. The owner of copyright depends on a number of considerations, including the medium of the record, as well as the context in which it has been made.
As a general rule, copyright rests with the person or persons who created the work (the first author(s)). In the case that the original rights owner is deceased, in the normal course, the copyright will transfer to their legal heirs or legal representatives as specified in their will. However, ownership of copyright in a work depends on the context in which it is created, as well as the subsequent transactions relating to ownership of copyright. Section 17 of the Copyright Act provides for some of these exemptions, including that:
- For works created under contract for a magazine or periodical, the proprietor of the magazine will be the first owner.
- For Government Works (works published by or under the direction and control of the Government, legislature, or court), or works made or first published under the direction and control of a public undertaking (an undertaking owned and controlled by the Government or a Government Company or a statutory body), the respective Government or Public Undertaking will be the owner of the work.
- Additionally, as detailed earlier, in the case of a work made in the course of the author’s employment, the copyright would vest in the employer.
Scenario: An archive receives a request for donation by the family of a deceased playwright, for manuscripts and personal papers of the playwright. If the playwright was the original owner of these records, and subject to any contrary terms in the will of the playwright, the playwright’s heirs would be the legal owners of the records and would be in a position to legally donate them to the archive.
In some forms of work, the attribution of ownership to individuals is not always possible. For example, certain cultural traditions attribute authorship of works to collective authors or to communities. In such cases, copyright law in India does not provide any clear indication of how legal rights should apply, and archivists should examine the procedures for ethical review of such works through guidance provided in Chapter 6. For instance, an organisation working with indigenous communities may wish to record and preserve certain cultural traditions and heritage, through material records and oral histories. Some of the material records, such as cultural artefacts or certain manuscripts, may not be attributable to individuals, and copyright law would not be an applicable framework to determine ownership or access. The archive should consult ethical guidelines for the use of such material.
Obtaining Permissions to Use Copyright
Under the Copyright Act, 1957, permission to use or exploit copyright in a work can be obtained in two ways:
Licensing of a copyrighted work
A license is a contract enabling a licensor (the owner of a copyright) to give the licensee (in this case, the archival institution) the limited rights to use a record without transferring the ownership of the copyright itself. Licenses may be exclusive or non-exclusive to the licensor: the owner may choose to license the copyright in the record to multiple parties (multiple archives and individual users, for instance). And licenses may be for any period or jurisdictional scope, which is determined by the terms of the license. Additionally, licenses must follow the conditions laid out under Section 19 of the Copyright Act, as described below.
Assignment of copyright
A second manner of acquisition of copyright in any record is through acquisition – which entails a change in the ownership of the copyright. Akin to a ‘sale’, as distinguished from a license, the assignee of a copyright has the right to further license that work or to further assign the copyright in a record, or to sue for infringement in case of its unauthorised use. The owner of copyrights in a work may assign either all of the copyrights associated with the work or part of it, and the assignment may be for any period of jurisdictional scope, as determined by the terms of the contract. An assignment of copyright is a particular form of contract that must adhere to the conditions under Sections 18 and 19 of the Copyright Act. According to Section 19, an assignment (as well as a license under Section 30) would only be valid if:
- it is in writing and signed by the assignor or licensor.
- the written contract stipulates the rights to be assigned or licensed, along with the duration and territorial extent; and,
- the assignee must utilise the rights granted to them within one year of the assignment, unless explicitly stipulated otherwise.
Forms of Acquisition
Once an archive has determined that it needs to acquire title to particular records, as well as copyright in order to use the records, it has to think about how to execute it. Such acquisitions generally need to be done through specific legal or contractual forms for transfer of title and ownership, which are described in this section. Some sample clauses for instruments of acquisition such as gift/donor agreement and loan agreement are provided in the Appendix: Further Reading and Resources.
Gift or Donation Agreement
The most common form of external acquisitions for records is through donations or ‘gifts’ from the owners of particular records. The legal form of a donation agreement is known as a ‘gift’ under Indian law.5 The essential element of a valid gift is an offer of moveable property (which can be any kind of record or other material or immaterial rights) by a donor, voluntarily and without consideration, which is accepted by the donee, and the property is delivered from the donor to the donee. The transfer should be indicated in a clear and unambiguous fashion and is completed upon the delivery of the property, or upon the registration of a gift deed. Delivery, here, takes place when the records are put in the possession and control of the archive. The transfer of property through a gift may be conditional, that is, the donor may indicate certain conditions or restrictions on the use of the record which need to be complied with by the donee.6 However, a gift once made, is irrevocable. In general, a gift may be made in any form, including orally, but it is advised that archival institutions securing a donation have a written instrument of gift, which specifies the following:
The donor and the donee: The transfer can only be made by the person with valid title to the record, and the archive should ensure that the name of the donor is the person (or entity) which has ownership of the records being transferred. The legal entity responsible for the archive (whether an individual or an incorporated entity) should be named as the donee.
The date of the transfer and the details of the property conveyed: The property conveyed should be detailed in its archival description as specifically as possible, and such description should ideally be annexed to the deed of gift or the donor agreement. As specified above, the transfer of movable property (the physical record) does not automatically convey all the copyrights which may be associated with it. If the archive wishes to acquire the copyright over the record (for purposes documented in Chapter 2), it must ensure that the copyright is assigned or licensed as indicated above. In the event that the donor is the owner of the copyright in the record, the same may be transferred along with the written deed of gift, provided the conditions of valid assignment are fulfilled.7
Any restrictions or conditions on the use of the records that the donor wishes to place on the archive should be clearly documented in the deed of conveyance. In particular, the deed should note the temporal and jurisdictional restrictions on the use of the record, as well as to whom these restrictions may apply. Similarly, the authorisations of the archive in handling the records should be clearly mentioned. For example, restrictions on display or communication of the record should not prevent the routine preservation activity by the archive and its staff. Similarly, the right of the archive to return any material not adjudged of archival value should be mentioned in the deed.
Another common means of acquisition of records is through the use of deposit agreements of ‘loans’. Deposit agreements may either signal intent to transfer title of certain records at some later date to the archive, or might simply be the temporary change of custody over records without transferring the ownership. A deposit agreement should unambiguously indicate the parties to the agreement, including the responsibilities of both parties, the archival description of the records to be transferred, the period of the transfer, and the conditions attached to the deposit. If the transfer is for an indefinite period, the conditions on which the records will be transferred back to the custody of the depositor (or a third party) should be clearly mentioned.8
Acquisition of ‘Orphan Works’
Often, archives may wish to acquire or make available certain records, but the original author or rightsholder of these records cannot be identified. They might be deceased or ownership of the record cannot be identified. For that reason, there is an obstacle in obtaining the necessary rights to exploit the work as an archival record. These works are known as ‘orphan works’, and the Copyright Act makes specific stipulations to deal with such situations.
Generally, resorting to licensing orphan works through the Copyright Act presumes that the archive has already conducted a ‘diligent search’ to find the owner of the work, including contacting possible heirs of a deceased author, researching the provenance of the work, etc.
Section 31A of the Copyright Act allows the Government of India to issue compulsory licenses for published or unpublished works in cases where the author is dead or unknown or cannot be traced, or the owner of the copyright in such work cannot be found. In order to obtain the clearance to publish such a work, the following procedure must be followed by the archive hoping to acquire such rights:
They must apply to the Commercial Court, which are special courts established for commercial and copyright matters at the District level, for a license to publish the work or communicate the work to the public, in the form mentioned in Chapter V Rule 11, of the Copyright Rules, 2013 of the Copyright Rules.
Prior to making such an application, they must publish an advertisement of the proposal in one issue of a daily newspaper in the English language having circulation in the major part of the country. A copy of this advertisement must be enclosed with the application.
After receiving the application, the Commercial Court will take a decision and direct the Registrar of Copyrights to grant the licence to the applicant according to the directions of the Commercial Court, which may include the deposit of royalty with the Commercial Court.
The procedure and forms for the application to license orphan works are mentioned in Chapter V of the Copyright Rules, 2013.9
Scenario: The archive of a scientific institution would like to acquire the personal papers of an administrator formerly employed by the institution. Once it has determined which papers are not owned by the institution, it must obtain the ownership rights in the personal papers. First, it must identify the rights owner, which in most cases would be the administrator who wrote the papers, or their legal heirs (if the administrator is deceased). Next, it must identify whether copyright subsists in the work, and determine whether the archive must also acquire copyright in the papers. If the archive wishes to acquire the material (physical) record as well as the copyright in the record, it will have to acquire them through a contract that specifies that the copyright is either being licensed or being assigned from the rights owner, to the archive, and which follows the stipulations of the Copyright Act described above. If the papers of the administrator include records not authored or owned by the administrator, but which are of archival value and the archive would like to acquire copyright in such records, it should conduct an additional search to find the owner of these records. If the owner cannot be found after a diligent search, the archive may treat these records as ‘orphan works’, and seek to acquire the works through the process described above.
- That said, particular kinds of documents or institutions might have different legal requirements to preserve records, such as corporate records mandated by the Companies Act, or financial records requisitioned for audit purposes.↩
- As per Section 17(c) of the Copyright Act 1957,“[I]n the case of a work made in the course of the author’s employment under a contract of service or apprenticeship, (...) the employer shall, in the absence of any agreement to the contrary, be the first owner of the copyright therein...” Retrieved from https://copyright.gov.in/documents/copyrightrules1957.pdf↩
- The third section within this discussion on Copyright Works (titled “Obtaining Permissions to Use Copyright”) details the cases in which copyright clearance may be required by archives.↩
- According to the Delhi High Court in Warner Bros. Entertainment Inc. v VG Santosh, “The doctrine of exhaustion of copyright enables free trade in material objects on which copies of protected works have been fixed and put into circulation with the right holder’s consent. (...) Exhaustion is decisive with respect to the priority of ownership and the freedom to trade in material carriers on the condition that a copy has been legally brought into trading. Transfer of ownership of a carrier with a copy of a work fixed on it makes it impossible for the owner to derive further benefits from the exploitation of a copy that was traded with his consent.” Retrieved from https://indiankanoon.org/doc/67850614↩
- The terms of a deed of gift are governed by Section 122 of the Transfer of Property Act, 1882, which states:“Gift is the transfer of certain existing moveable or immoveable property made voluntarily and without consideration, by one person, called the donor, to another, called the donee, and accepted by or on behalf of the donee.” Retrieved from https://www.indiacode.nic.in/handle/123456789/2338?sam_handle=123456789/1362↩
- S Sarojini Amma v. Velayudhan Pillai Sreekumar  SCC OnLine SC 2200. Retrieved December 20, 2022, from https://indiankanoon.org/doc/173119126↩
- There is some ambiguity on whether copyright can be assigned without consideration, as a gift, as a contract without consideration is void, except when it is a gift of moveable property. To resolve such ambiguity, it is recommended that the terms of copyright assignment specifically note that the assignment is ‘for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged’. In general, a promise to preserve and utilise the work as an archival record may be construed as sufficient consideration.↩
- For more specific guidance on terms of the deposit agreement, please refer to National Archives, Government of UK, Loan (Deposit) Agreements for Privately Owned Archives. Retrieved from https://www.nationalarchives.gov.uk/documents/archives/loanagreement.pdf↩
- Copyright Rules 2013. Retrieved from https://copyright.gov.in/Documents/Copyright_Rules_2013_and_Forms.pdf↩