Progress: State-Owned Journal Transfers Among
Libraries in the Western Regional Storage Trust
Print Archive Network Forum
Center for Research Libraries
June 28, 2013
Jeanne Richardson
“ In 2009-2010, research libraries, colleges and university libraries, and library
consortia in the western region of the United States joined together, with
support from the Andrew W. Mellon Foundation, to plan for a shared print
archiving program known as the Western Regional Storage Trust. The goals
established for WEST are to:
1) “Preserve and provide access to the scholarly print record,
2) Facilitate space reclamation in WEST libraries and storage facilities”
Archive Holders: WEST members that have agreed to maintain
materials on behalf of WEST
Archive Donors (Builders): WEST members that have agreed to
transfer requested print materials to WEST archive holders on
behalf of WEST
Deed of Gift: Binds the transfer of materials between WEST
Archive Holders and Donors
WEST Gifting – Arizona
• Arizona Constitution, Article IX, section 7:
Neither the state, nor any county, city, town, municipality, or other
subdivision of the state shall ever give or loan its credit in the aid of,
or make any donation or grant, by subsidy or otherwise, to any
individual, association, or corporation . . . .
• Interpretation:
The gift clause restrictions apply to ASU transactions because the
Arizona Board of Regents is a public entity. The clause prevents the
State and its agencies and instrumentalities from gifting state
assets. Hence, it could be applicable to the types of gifts regarding
Arizona libraries and WEST.
WEST Gifting – Arizona
The Arizona Supreme Court
applies a two-part test when gift clause challenges are asserted under Article
IX, section 7:
•
the transaction must serve a public purpose; and
•
the value to be received by the public must not be far exceeded by
the consideration being paid by the public.
WEST Gifting – Arizona
Legal Opinion
Facts:
 ASU is part of a consortium of approximately 130 libraries at
institutions in the western U.S.
 The consortium is building an archive repository to which all
members of the consortium will have access.
 ASU is primarily a archive holder institution due to the fact that it has
an off-site storage facility; ASU will, however, be giving up some
materials to other archive holder institutions.
WEST Gifting – Arizona
Legal Opinion
Facts:
 ASU patrons will continue to have access to the items that ASU
gives up; such items will be available for retrieval from the archive
holder of the items.
 As a result of its participation in the consortium, ASU has access to
a much larger collection of materials than it would otherwise be
able to compile on its own.
WEST Gifting – Arizona
Legal Opinion
Conclusion
“Based on the foregoing, it is my opinion that ASU’s
gift of certain materials as part of its participation in
the consortium will not violate the gift clause as the
value that ASU receives in return will equal or
exceed the consideration that it is giving up.”
WEST Deed of Gift -- Donor
Major Points:
• DONOR desires to transfer the Materials as a gift to WEST HOLDER
for the benefit of the WESTern Regional Storage Trust for inclusion
in the archives.
• DONOR hereby irrevocably assigns, transfers, and gives all rights,
title and interest, exclusive of copyrights, to the Materials of WEST
HOLDER.
• Title of the Materials shall pass to HOLDER upon the
acknowledgement of receipt by the local WEST Project team.
• “Fair Use Rights” apply (US Copyright Law, Title 17, U.S.C.).
WEST Deed of Gift -- HOLDER
Major Points:
• HOLDER will consolidate, preserve and make accessible by the local
project team in accordance with the provisions set forth in the
WEST print archive program.
• HOLDER is authorized to the disposition of materials and may
dispose of any duplicates or other material not relevant or suitable
to the collection.
• HOLDER will not return any duplicates or materials not included in
the archive.
DRAFT OKLAHOMA/ASU
CONTRACT FOR TRANSFER OF CERTAIN LIBRARY MATERIALS
BETWEEN THE BOARD OF REGENTS OF THE UNIVERSITY OF OKLAHOMA AND THE
BOARD OF REGENTS OF ARIZONA STATE UNIVERSITY
THIS AGREEMENT (Agreement”) is made between the Board of Regents of the University of Oklahoma,
Norman, Oklahoma (“OU”) and the Arizona Board of Regents for and on behalf of the Arizona State University
(“ASU”).
RECITALS
1. OU is an Oklahoma constitutional state agency, with the power and duty to enter into contracts on its
behalf, and to acquire property and dispose of the same.
2. ASU is an Arizona constitutional state agency with the power and duty to enter into contracts on its
behalf, and to acquire property and dispose of the same.
3. OU and ASU, through their respective library programs, are member organizations of the Western
Regional Storage Trust (“WEST”), a distributed print repository program, with its membership limited
to academic libraries, research libraries, and library consortia serving the western region of the United
States.
4. Pursuant to its contract with WEST, ASU has been designated as an archive holder/builder institution.
ASU has accepted the responsibility of assembling, validating, , archiving, preserving and making
available physical or digital copies of materials transferred to ASU by other WEST institutions.
5. OU and ASU benefit from the pooling of resources, which makes many more titles available to the
member schools than would be obtainable on an individual basis..
DRAFT OKLAHOMA/ASU
TERMS
1. ASU acknowledges and agrees that it is an archive holder/builder in the WEST program, and that OU is
a member organization. In order to fulfill its responsibilities as an archive holder/builder, ASU accepts
OU’s transfer of the library materials listed on Addendum 1 to this Agreement (“the Materials”).
2. In consideration for ASU’s work to assemble, validate, archive and preserve, , the Materials in such a
manner that they are accessible to OU upon reasonable notice and request, OU agrees to transfer
ownership of the Materials to ASU.
3. ASU’s obligation to make the materials reasonably available to OU shall be separate and apart from the
parties membership in the WEST program and their respective obligations to the WEST program;
therefore, if one or both of the parties terminate membership in the program, OU’s rights to access the
Materials shall not be affected.
4. OU’s right to access the materials from ASU shall terminate upon the earlier of 1) ten years after either
party ceases to participate in WEST, or 2) the WEST Retention Date in effect at the time of the signing
of this agreement [December 31, 2035].
5. OU shall provide ASU with all reasonably available information and documentation regarding the
provenance of the Materials, including any information relating to intellectual property rights.
6. ASU is authorized to dispose of the Materials and dispose of any duplicates or other material not
relevant or suitable to the collection.
The parties recognize that from time to time, one or more items believed to be available and listed as part of the
Materials may be lost or otherwise unavailable. The parties agree that any such circumstance shall not amount
to a breach of the terms of this Agreement
DRAFT OKLAHOMA/ASU
TRANSFER
Upon the execution of this Agreement, OU shall cause to be delivered, by U.S. Mail or common carrier,
the Materials, to ASU at the following address:
WEST Regional Storage Trust
c/o Joel Smalley
Hayden Library
Arizona State University
300 E Orange Mall
Tempe AZ 85287-1006
Upon execution of this Agreement by both parties, OU transfers all its rights in and to the Materials, whether of
ownership, license, or interests in property, to ASU, and this Agreement shall serve as the sole document
required to affect the transfer. The transfer of OU’s rights in and to the Materials shall operate as a quit claim
of said rights, subject to the conditions of this Agreement; this provision shall not be construed as a warranty of
OU’s interest in the materials.
Signed:(OU) _________________________________________________________
__________________________________________________________
this _______________________day of___________________, 20____.
Signed:(ASU) _________________________________________________________
__________________________________________________________
this _______________________day of___________________, 20____.
Observations/Comments
• DRAFT
• Contract, rather than deed of gift, between two entities,
yet mentions responsibilities of WEST membership
• ASU’s obligation to OU is “separate and apart”
• No mention of fair use
• Would prefer a template rather than individual contracts