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 , 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

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