TRAC: A3.3: Permission to preserve

A3.3 Repository maintains written policies that specify the nature of any legal permissions required to preserve digital content over time, and repository can demonstrate that these permissions have been acquired when needed. 

Because the right to change or alter digital information is often restricted by law to the creator, it is important that digital repositories address the need to be able to work with and potentially modify digital objects to keep them accessible over time. Repositories should have written policies and agreements with depositors that specify and/or transfer certain rights to the repository enabling appropriate and necessary preservation actions to take place on the digital objects within the repository.

Because legal negotiations can take time, potentially slowing or preventing the ingest of digital objects at risk, a digital repository may take in or accept digital objects even with only minimal preservation rights using an open-ended agreement and address more detailed rights later. A repository’s rights must at least limit the repository’s liability or legal exposure that threatens the repository itself. A repository does not have sufficient control of the information if the repository itself is legally at risk.

Evidence: Deposit agreements; records schedule; digital preservation policies; records legislation and policies; service agreements.

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ICPSR has a standard agreement that is uses for all deposits.  This agreement grants ICPSR the non-exclusive right to replicate the content for preservation purposes and to deliver the content on our web site.  This language resides inside of our Deposit Form web application.

This works very well for deposits that come from a known source, such as a government agency with whom we have an agreement to preserve and deliver content, or an individual researcher with whom we have been corresponding.  In this case we have a good sense for who the depositor is, the role they play with regard to the data, and the mechanisms by which we can contact him/her.

Things become a bit messier what I will call a "drive-by deposit."  This is an unsolicited, unexpected deposit, and in this case the depositor agrees to give us permission to make copies of the content for digital preservation purposes and to deliver the content via our web portal.  That said, ICPSR does not require strong identities to execute a deposit, and so one could ask the question:  How does ICPSR know that the depositor himself/herself has the authority to grant us rights to preserve and redistribute the content?