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4.5.1 Digital rights must be negotiated with the creator, donor or lender at the time of accession.
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Digital rights must be negotiated at the time of accession of the records.
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Digital rights must be negotiated with authors and owners at the time of digitisation and loading into the digital repository.
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Agreements must be concluded with each individual author and/or owner to ensure that all digital rights are explicit. This must include digitisation service providers commissioned to undertake digitisation projects.
4.5.2 See also Policy 6 for agreements regarding ownership.
POLICY 6: Agreements for digitisation projects (foreign-funded, international or national funding agencies)
4.6.1 All governmental bodies which make use of international funding for digitisation projects must develop agreements governing terms and ownership of the digital copies concerning the records in their care.
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Any request for the digitisation of South Africa’s heritage of any form, from a foreign agency or funder, must be treated as an international arrangement and must be conducted in terms of bilateral agreements or other government-to-government structures in cases when such bilateral agreements exist.
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When no bilateral agreement exists between South Africa and another country these requests should be treated as a government-to-government initiative when this is appropriate in terms of the significance of the collection and other parameters. A set of guidelines on such appropriateness should be produced and made accessible and which are linked to existing declaration of significance of objects and collections as are identified within the National Heritage Resource Agency and its regulations.
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All foreign funded projects must be regulated by a contract that specifies the roles and responsibilities of all parties involved.
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All contracts involving foreign funding must include a set of minimum elements applicable to such agreements and will guide the process for the acceptance of agreements of this nature.
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Contracted vendor companies, contracted to supply scanning and associated services must also be governed by a contract that will specify, amongst other things: the nature of the equipment to be used, the responsibilities of technicians with regard to handling fragile historical materials, the reporting structure with regard to disputes and disagreements, etc. A clear line of reporting and communication to the institution, entrusted with the care of the historical records utilised must be established to deal with any concerns regarding the project, as they may arise. Contracted vendors may not form an unaccountable third entity within any given institution.
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Digitisation agreements and contracts with foreign funding agencies must include the following minimum provisions:
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The custodial organisation or institution’s details.
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List of collections to be digitised, details of the selection criteria identifying why these are selected and why others are excluded. An indication as to how this complies with the institution’s digitisation strategy must also be included.
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Total number of items in the collections, and the nature of the originals.
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The media and format of the completed digital products.
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The metadata to be used for description and the extent to which this complies with this digitisation policy (with specific reference to provenance and rights metadata).
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Nature of preparations to be performed on the originals prior to digitisation, for example, cutting of paper originals to support scanning.
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The rights owners of the collections and the authorisations obtained to allow digitisation.
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The manner in which the digital masters will be created and maintained.
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The intended beneficiaries and the kinds of access that they are to be provided with.
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The access available by the general public for fair and private use.
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The charges that will be levied for access to the digital resources.
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The restrictions that will be placed on access to the digital resources.
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The digital preservation strategy for these collections.
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The backup strategy for these digital collections.
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The Provincial Digital Repository (PDR) that will hold the digital masters.
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The specific rights that the funding organisation and its associate organisations will retain concerning the digitised materials.
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It is a concern that digital rights to South African heritage may, either, be lost or that access curtailed, as a result of foreign funded projects. Therefore, digital rights ownership must be clearly stated within contracts pertaining to foreign funded digitisation projects. In each instance the governmental bodies in the Western Cape must retain the ownership of the digital rights.
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The rights of any funding agency to access digital records must be limited to non-commercial “fair dealing” usage. Any additional rights can only be conferred under special license.
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Access to archival records for the purposes of digitisation must only be given to those who agree to abide by the terms under which governmental bodies grant access.
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Governmental bodies in the Western Cape Province must use the law of contract to ensure certain requirements are adhered to, including: acknowledgement of the institution and use of the correct reference coding.
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The digital masters produced by funded digitisation projects must be lodged with the Provincial Digital Repository (PDR) in a manner analogous to the legal deposit libraries. The specific formats and media used are required to comply with this policy.
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Requests for the exporting of digital rights must be treated in the same way as the export of the tangible or analogue objects and be administered by the appropriate body. The National Archives and Records Service of South Africa, the National Library, and South African Heritage Resources Agency must introduce procedures that control this and that protect the digital heritage from uncontrolled export. The necessary changes to legislation must be introduced to enable this level of control.
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