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Re: Intellectual Control/Third Party Negotiations



A donor can exercise two kinds of control.  Intellectual control can be
deemed access or use of the materials, where such copyright is indeed
the property of the donor.   Physical control is the transfer of title or
ownership of the materials.   Your (1) seems confusing in that it mixes
these...thus you may be simply talking about permanent loan status.

The pros of this are it gives you materials for users and preserves the
materials.  The cons are that as a loan it can be withdrawn unless you
specific such conditions in the loan agreement, for example, upon
30 days notices....can individual items be returned or is it the whole
collection?    I worked for one boss who felt we should not do a thing
with a permanent loan--no acid-free folders, calendars/lists, etc. because
it was not ours.   I worked for another boss who agreed with me that while
we were incurring expense in providing preservation and cataloging, that
the donor was more impressed by this and it would aid in making the
permanent loan a permanent gift.

I have written one permanent loan agreement where we put in a clause
that "while this is a permanent loan, it is agreed by both parties that the
intent of this agreement is to turn it into a permanent gift to the library
in the future."

I frankly don't like third-party agreeements.  We have enough problems
dealing with heirs of donors, tracking them down, squabbles among family
members--at least one congressional records collection is locked up between
fights among the wife, second wife, daughters, etc.

Go back to basics.  You want the materials to preserve, catalog and share
with researchers.  What does the donor want?   Are they afraid that materials
will be sold at the library book sale?   Then specify that materials not needed
or duplicates will be returned.    Is the donor afraid of someone using certain
materials?  How about a restriction on that portion.   Is the donor concerned
about plagiarism?   Then restrict reproduction and be sure that users sign a
user form specifying the limitations.

Dean


At 01:01 PM 4/15/2002 -0400, Robert Russell wrote:
A Question for All on the Listserv:

We are currently in negotiations with a prominent resident of the city and
have encountered some unfamiliar territory.  I am hoping someone can be of
assistance.

Two issues have arisen:
1)  This person is uncomfortable about transfering intellectual control of
their materials.  They are hoping to establish a long term or permanent
loan status, but not transfer ownership.  Does anyone have experience with
this type of situation, and if so would you be willing to share the
pros/cons of the transaction?  Also, the wording of the agreement reached
would be invaluable.

2)  This is the larger of the two challenges.  This individual has
proposed the establishment of a  foundation to act on their behalf in this
matter.
Until now, we have not dealt with a third party in negotiations re. a
collection.  We are concerned with potential legal issues arising, in
addition to a very complex transfer of materials.  Does anyone have
experience dealing with a third party negotiation involving a long term or
permanent loan?  What are the pros/cons you encountered in this transaction?

I am hoping for some personal experiences or possibly references to
articles in professional literature that may apply.


Thank you in advance.  Feel free to respond on or off the list.


Robert M. Russell
Archivist, Conservation Collection
Denver Public Library
RRussell@denver.lib.co.us


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Dean DeBolt
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Or to do *anything* (and enjoy doing it!), use the web interface at
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Problems?  Send e-mail to Robert F Schmidt <rschmidt@lib.muohio.edu>