How does this project impact the collection I donated?
Types of materials
If you donated a collection that includes materials that are about, by, or produced for Native peoples, then the collection you donated will be reviewed as part of this process. We routinely review materials donated to us for other types of private or sensitive information such as social security numbers, health information, student records, trade secrets, records sealed by judges, etc. The Protocols alignment project means that we are now also reviewing collections for materials that may be culturally sensitive to Tribes.
Frequently donors give us collections that are so large and complex that it is difficult to remember or know the nature of each item that is included. Part of what archives do is create a guide to these materials to make them findable for people unfamiliar with the collection. We may discover sensitive items during this process, although we too may not examine every individual item in a collection. In those cases, our researcher policies require researchers to notify us if they come across something that is sensitive.
Access to materials
Your collection will still be open for access, but professional standards for archives now recognize cultural rights in addition to individual rights. So, we may ask researchers to get permission from the Tribe to use sensitive cultural information that is included in the materials you donated. This is akin to our existing practices of referring people to the copyright holder for permission to publish materials whose copyright is not owned by the donor, or for requiring permission to view medical or educational records from the person who the records are about.
Who owns the content?
Most collections are a mix of things the donor themselves created (so they are the owner of the both the physical and intellectual property) and things created or using the content of others (where the donor is the physical owner, but not the intellectual property owner or cultural steward).
When you donate a collection to us, we will ask for you to transfer both physical ownership and as much intellectual property as you are comfortable with. Having the intellectual property in addition to physical ownership enables us to permit researchers to use these materials for their projects without needing to contact you for permission. It also enables us to share, to the extent allowable by Protocols and other legal and ethical requirements, these materials online. However, you can only transfer what you yourself own or are the cultural steward for.
Intellectual property refers to the copyrighted or trademarked materials that are part of your collection. Copyrighted materials are "original works of authorship fixed in any tangible medium of expression." - 17 U.S.C. § 102.
Permission to use or distribute intellectual property rests with the creator or author of the object, not with the physical owner of the object.
Physical ownership refers to legal custody and ownership of the physical materials. It does not in itself grant ownership to the content (intellectual property or cultural heritage) of the physical materials.
Certain types of information, regardless of how they are recorded, who recorded them, or where they are found, are subject to access and/or use restrictions. For example, sensitive personally identifiable information is described by the Unites States National Archives as information that, if disclosed without appropriate permission, "could result in substantial harm, embarrassment, inconvenience, or unfairness to an individual." - Controlled Unclassified Information program category entry for "Sensitive Personally Identifiable Information" (2018).
Intangible cultural heritage
Intangible cultural heritage is described as the "the practices, representations, expressions, knowledge, skills – as well as the instruments, objects, artefacts and cultural spaces associated therewith – that communities, groups and, in some cases, individuals recognize as part of their cultural heritage." - UNESCO Convention for the Safeguarding of Intangible Cultural Heritage (2003).
For archival collections, materials that are about or transmit intangible cultural heritage may include song recordings, third party recollections or description of ceremonies, and many of the other kinds of materials listed in the Protocols. The Protocols call on staff in non-Tribal archives to recognize Tribally-designated cultural stewards as the holders of permission to use or distribute sensitive cultural information.