II.

copyright in the deposit materials; other agreements contain restrictions which continue to apply even after the materials have entered the public domain. On the one hand, an archive may not wish to be burdened by contractual restrictions on public domain material; on the other hand donors may hesitate to donate public domain material (or material about to enter the public domain) absent some restrictions on the possible commercial use of the materials by the archive or the archive's patrons out of concern that the deposited materials could be used to compete with the donor's on-going commercial use of those materials.

Neither approach is right for every situation. The best solution, as with all provisions discussed in this checklist, is for both parties to be aware of the issues and to negotiate the approach that best serves that specific concerns of the individual donor and archive.

One specific note of caution: A motion picture produced in the United States will enter the public domain in certain countries long before, and, in others, long after it enters the public domain in the United States. Therefore, where the restrictions are limited to the term of copyright the agreement should specify exactly which term of copyright is intended to control.30

Deposit agreements for a loan of film materials frequently provide that the donor has the right to terminate the deposit agreement and retrieve the deposit materials if the archive violates the terms of the agreement. This termination right may be limited by a "cure" right, which permits the archive to correct the violation before the deposit is terminated."

If the agreement contains an unrestricted termination right, where the loan may be terminated at any time for any reason, the right is generally mutual: either the donor or the archive may terminate.

Access to the deposit materials

The core of every archival deposit agreement are the provisions dealing with access to and use of the materials. As discussed above in section I, the deposit agreement should carefully describe the permissible uses of the deposit materials by the archive and its staff and the types of distributions and public screenings that the archive is authorized to undertake.

In addition, these provisions should spell out in clear detail the conditions under which both patrons of the archive and the donor herself may access and use the deposit materials.

III.

A. Access to the materials by patrons of the archive

Perhaps the most important part of any deposit agreement are the provisions setting forth the restrictions on the use of the materials by patrons of the archive. 32

The agreement should specify who has access to the materials (e.g., the general public, public school systems, researchers or scholars engaged in serious research, etc.), and whether the use of the deposit materials is limited to the archive premises."

The deposit agreement may also require the archive to take steps reasonably necessary to protect the donor's copyright interests in the deposit materials.

B. Access to the materials by the donor

As a general rule, archives prefer to minimize loans of deposit materials to the donor because the risk of damage when outside of archival custody defeats the original preservation intent of the deposit arrangement."

However, where the donor is depositing her only copy of the deposit materials either as a loan or a gift, it may be important to the donor to retain the right of access to the deposit materials. This right of access must, however, be balanced against the archive's goal of preserving the materials for future generations, to minimize the archive's administrative costs for retrieval and copying of the material, and to protect against over-copying which can harm the physical property. One compromise is to permit the donor to request that the archive prepare copies of the deposit materials, at a mutually approved lab and at the donor's own expense."

Role of the archive

All deposit discussions should address the role of the archive, including storage, preservation, restoration, and cataloging of the deposit materials, as well as insurance and indemnification arrangements, security arrangements, prohibitions on transfer of the deposit materials, and de-accession procedures. As discussed below, these roles will vary greatly depending on the needs of the donor, the capabilities of the archive, and the availability of funding and administrative support. Absent a clear understanding on these issues, it should not be assumed by the donor that the archive will undertake any of these roles.

A. Types of archival care

The archive may assume the obligation to store deposit materials and endeavor to conserve them. Duplication onto newer film stock or full restoration (the effort to compensate for past decay and return the work to its former state), however, requires considerable financial investment. Depositing parties should not assume that the archive will be able to fund storage, duplication, or restoration projects without outside financial and administrative assistance.

1. Storage

Deposit agreements are frequently site-specific. In other words, the donor and the archive agree in advance where the deposit materials will be stored.

With a major institutional archive, it is sufficient to state that the deposit materials will be stored at the usual storage facility(ies) of the archive. If the agreement restricts the storage location of the deposit materials, the agreement should allow the archive to move the materials to another location at a later date, if deemed necessary by the archive, after written notice to the donor giving the donor the opportunity to raise questions about the proposed move and voice any objections."

The issues of the costs of storage, whether the archive or the donor will pay (or share the costs), and how to pay for and accommodate handling and shipping of the deposit materials should also be addressed in the agreement.

The archive may agree to endeavor to conserve and safeguard the quality and condition of the deposit materials. This is generally only an undertaking to stabilize and protect the materials, and should be distinguished from the duplication or restoration of deposit materials (as discussed below).

Any such provision should, however, contain an express acknowledgment of the fact that all film materials deteriorate over time. Where the deposit agreement involves unstable materials, particularly nitrate film stock, it may contain an acknowledgement of the volatile nature of the deposit materials and provide the archive with the right to destroy unsafe materials where necessary."

It is extremely important for potential donors to be aware that film materials may already be in a state of deterioration at the time of deposit in an archive, and it may not be possible for the archive to stabilize such materials. For example, materials may have been treated or repaired in such a way that deterioration, such as vinegar syndrome, increases. In addition, existing damage and deterioration, which may not be detected at the time of deposit, may exist. Donors should, therefore, understand that, regardless of technical capabilities and funding sources, a commitment by an archive to conserve and safeguard the deposit materials is never an undertaking to guard against pre-existing or normally occurring damage and deterioration to those materials.

Occasionally, where special funding is available, an archive will agree to go beyond merely stabilizing the deposit materials and will endeavor to

B.

copy and repair those materials." For example, an archive might agree to undertake preservation work including the expensive transfer of nitrate materials to safety film or the even more expensive restoration work which would add film materials to restore a film to its original release condition or to repair color fading. Even where the deposit materials are only on loan, archives require that materials which the archive creates shall remain the sole property of the archive (but subject to any contractual access restrictions imposed on the original deposit materials).

In light of the substantial expense of such efforts, coupled with the limited financial resources of most archives, this type of commitment can generally only be undertaken by an archive where supplemental external financial support is available.

If the archive assumes an obligation to duplicate or restore the deposit materials, the agreement may contain an acknowledgement that, where the materials are in an unstable condition (and thus most in need in duplication and restoration), it is possible that the original materials will be damaged or destroyed in the process."

Cataloging

The agreement may provide that the archive will catalog the materials in accordance with its standard practices and procedures. This provision is more for the benefit of the donor than the archive: an archive does not need permission to catalog its collection.

Although many deposit agreements do not delineate obligations of either party to insure the deposit materials, this does not mean that insurance is unimportant. If the donor has a continuing financial interest in the deposit materials (for example, the deposit may involve preprint material for a film that the donor is still distributing), the donor should consider insuring against possible financial harm which could result from loss, damage, or destruction of the deposit materials.

It may also be advisable to purchase insurance coverage for times during which the deposit materials are at the greatest risk of loss or damage: while in transit from the donor to the archive or from the archive to a laboratory. Even where the materials may be covered by the archive's insurance, the donor may wish to purchase additional coverage if the donor desires more than replacement-value coverage.

While insurance provisions are rare, indemnification provisions are not. These provisions frequently provide for cross-indemnifications in the result of claims or liability arising from breaches of the agreement." It should be kept in mind, however, that certain archives are financially unable to assume indemnification obligations, and archives of the federal govemment are prohibited by law from assuming such obligations.

IV.

Since archives are generally not in a financial position to assume liability for the loss or destruction of deposit materials, the agreement may limit liability to instances of negligence or willful misconduct on the part of the archive, and exclude any claims for damages resulting from losses of artistic or historical value in excess of the replacement cost of the materials."

Piracy and unauthorized duplication of motion pictures, particularly in video cassette format, is a constant concern of copyright owners. When the donor has reservations about the archive's security, the donor should discuss her security concerns with the archive prior to the deposit and satisfy herself that the necessary protections are in place. Where security issues are addressed in the deposit agreement, it is usually phrased as a general undertaking on the part of the archive, as opposed to a laundry list of requirements.

E.

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Prohibition on transfer of the deposit materials to other parties

The decision of a donor to deposit her materials with an archive is frequently based on the nature (ie., non-commercial and scholarly) and reputation of the specific archive, including its conservation and/or preservation facilities, its prominence among film scholars, etc. The donor may, therefore, specify that the archive's rights under the agreement are non-assignable and the deposit materials may not be transferred to any other party (including another archive) absent the her permission.*

F.

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De-accession of deposit materials

Since all archives are faced both with growing financial and storage constraints, deposit agreements frequently contain clauses permitting the archive to deaccession material. (The de-accession provisions differ from the termination provisions, discussed in section I.D.3, because they do not involve a breach situation or the termination of the agreement.)

There should be nothing objectionable about these provisions, provided that there is a mechanism for notifying the donor of the planned de-accession and giving her the right to recover the deposit materials or specify a new recipient of those materials.

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Publicity and confidentiality

Where control over publicity regarding the deposit or the deposit materials, or regarding the confidentiality of proprietary information, is a concern, the limitations should be expressly set forth in the agreement to avoid later misunderstandings.

A.

Publicity regarding the deposit agreement and materials

Particularly when the donor is still distributing copies of the deposit materials to the public, the donor may wish to control publicity regarding the deposit