Sample Deed of Gift

Introduction to Deed of Gift

(Donor name)

gives to the Alexander Turnbull Library the following material:

The Library acknowledges with thanks this generous gift presented for the purpose of enriching the research collections of the Alexander Turnbull Library. This material will be made available as a research resource for both the people of New Zealand, and the international community subject to the conditions outlined in this deed.These conditions shall also apply to further items deposited by the Donor, unless either party requires otherwise at the time any such deposit is made.

1. Gift

On the date of this Deed, the Donor gifts all title in the material described in the Appendix ( Material ) for the Alexander Turnbull Library (Library) to hold in perpetuity in accordance with the Library's governing legislation (being, at the date of this Deed, the National Library of New Zealand (Te Puna Mātauranga o Aotearoa) Act 2003) and the requirements of this Deed.

2. Access and use

2.1 Access conditions

The Donor requires that access to the Material will be subject to the following conditions and restrictions (if any).

2.2 Use conditions

The Donor requires that use of the Materials will be subject to the following conditions and restrictions (if any)

2.3 Cultural considerations

In addition to any access or use requirements set out above,the Donor requires that any use of the Material is subject to the following considerations.

(Describe any tikanga, Kaitiakitanga or other cultural considerations impacting use of the Material).

2.4 Release Dates

If a requirement under clause 2.1 or 2.2 specifies:

(a) a Release Date, that requirement will end on that Release Date;
(b) a Review Date, clause 2.5 will apply in relation to that requirement from that Review Date;
(c) a Release Date and a Review Date, clause 2.5 will apply in relation to that requirement from that Review Date and the requirement will end on the Release Date (unless earlier withdrawn under clause 2.5); or
(d) neither a Release Date nor a Review Date, the requirement will be deemed to end on the date [5 years] from the date of this Deed.

2.5 Review Date

Where a Review Date is specified in relation to a requirement, the Library may contact the Donor to request that the applicable requirement be withdrawn or amended from any date after that Review Date, in which case the Donor will have absolute discretion to accept or reject that request, provided that:

(a) if the Library makes a reasonable effort to contact the Donor at the Donor’s contact details set out above (or any update of those details provided to the Library by the Donor); and

(b) the Donor cannot be contacted or does not respond to a request from the Library within [6 months],

the applicable requirement will be deemed to have been withdrawn. For the purpose of this clause 2.5, the Donor will be deemed to include, where the Donor is a natural person that has passed away, the Donor's estate or applicable heir(s).

2.6 Access and use

The Library may access and use the Material (including for the purpose of creating and communicating digital copies of the Material) or allow any other party to access and use the Material subject to:

(a) any the Donor’s requirements described above (if any);
(b) any copyright or similar legal right in the Material (to the extent that no licence or authority has been granted under this Deed or otherwise in relation to that right); and(c) the requirements of the Library's governing legislation.

3. Copyright

3.1 Ownership

The Donor represents that, to the best of its knowledge and belief, the status and ownership of copyright in the Material described in the Appendix is correct.

3.2 Assignment and licensing

To the extent the Donor owns any copyright in the Material, the Donor assigns or licenses that copyright as described in the Appendix.

3.3 Moral rights

If indicated in the Appendix, the Donor represents that the author or creator of the Material asserts his or her moral right to have the Material attributed to the author or creator and to object to any derogatory treatment.

4. Privacy

4.1 Donor information

Unless specified otherwise in the Appendix:

(a) to the extent the Material includes any personal information about the Donor the Donor consents to the Library using and disclosing, or permitting any third party to access, use or disclose, that information subject to the terms of this Deed; and
(b) Donor agrees to being identified as the donor of the Material.

5. General

5.1 Library’s identity

In this Deed references to the Library or the Alexander Turnbull Library means the Sovereign in right of New Zealand act by and through the Chief Executive of the Department of Internal Affairs (being the department responsible for the National Library of New Zealand the Alexander Turnbull Library) or his or her authorised delegate.

5.2 Donor authority

The Donor represents that it holds all necessary rights and interests in the Material to deal with the Material as described and for the purpose of this Deed.

5.3 Date of Deed

The date of this Deed is the date the Library countersigns this Deed or otherwise indicates its acceptance of the donation of the materials, whichever is earlier.

5.4 Warranty

The Donor warrants that all of the information given in this document is true and correct.

5.5 Meaning of Deed

Any reference to Deed means this deed and includes the Appendix and any other attachment or other document expressly referenced and attached to this Deed (if any).

5.6 Further actions

The Donor will do all things and execute all documents reasonably necessary to give effect to the terms of this Deed.

5.7 Governing law

This Deed is governed by New Zealand law. The parties submit to the non-exclusive jurisdiction of the New Zealand courts in respect of all matters relating to this Deed.

Excecuted as a Deed

Name:
Position:
Date:

Witnessed by
Name:
Occupation:
City of residence:

Representative — Please complete the following if you are signing this Deed acting as an agent, under a power of attorney or otherwise as a representative of the Donor.
Name:
Authority to act on behalf of the Donor:

You certify the above information is correct and that you have not received any notice of any event revoking your authority to bind the Donor for the purpose of this Deed:

Signature

Library's acceptance

The Library accepts the donation on the terms and conditions set out in this Deed and undertakes that it will:

1. use reasonable endeavours to ensure the material is preserved, protected, described and made accessible in accordance with its legislative obligations (being, at the date of this Deed, the National Library of New Zealand (Te Puna Mātauranga o Aotearoa) Act 2003);

2. apply all accepted archival theory, practice and care to the Material at all times; and

3. only use the information provided by the Donor or its representative in this Deed for the purposes of contacting that party to seek any further permissions, access or use rights or other purposes directly related to the purposes of this Deed and will not otherwise use or disclose any personal information provided in this Deed.

For the avoidance of doubt, these undertakings are not conditions for the Donor's gift of the Material under this Deed. The gift cannot be rescinded and the Material will not be returned to the Donor due to a breach of any of these undertakings.

Signed:

Date:

Appendix

Donor details

Name:
Address:
Postcode:
Telephone:
Email:

Description of Material

Material (Donor to list the items or relevant types of material being gifted)

Copyright position — Donor to indicate if Material is covered by copyright at date of gift, if known:

• In copy-right

• Out of copy-right

• Unknown

Copyright ownership — Donor to indicate which of the following apply in relation to each item or type of Material (where Material is not out of copyright:

• Copyright owned by Donor

• Copyright jointly owned by Donor and another party(ies) (please name the other party(ies) if known)

• Copyright owned by third party(ies) (please name the other party(ies) if known) Copyright position unknown

Third-party copyright

To the extent any copyright in the Material is owned by any third party, the Donor represents:

• no licence or other right is granted in relation to any third-party copyright;

• the Donor does not know the position in relation to that third-party copyright; or

• the rights below are licenced by the applicable third-party copyright owner.

Donor to set out any licence or other rights granted by applicable third party owner (if any).

Donor copyright

To the extent any copyright in Material is owned by the Donor, the Donor (please chose one of the following):

• gifts and transfers ownership in the copyright to the Library; or

• retains ownership and does not grant any licence under that copyright;

• grants the Library a royalty-free, perpetual right to copy, adapt, communicate, perform, play or show any of the Materials or any adaptation of any part of the Material and to license any other person do any of those acts; or

• grants the Library rights separately agreed in writing; or

• grants the Creative Commons (NZ) Licence indicated and summarised below.

Creative Commons (NZ) Licence — full details of each Creative Commons (NZ) Licence.

Moral Rights

In relation to any right for the author or creator of the Material to have the Material attributed to the author or creator and to object to any derogatory treatment, the Donor represents (please chose one of the following):

• moral rights are asserted;

• moral rights are not asserted; or

• unknown.

Privacy (Donor to complete if needed)

For the purpose of clause 4, Donor requires that the following apply to his or her personal information included in the Material or in relation to the Donor being identified as the donor of the Material:

Explanatory notes

The attached Deed of Gift document provides a template for documenting the donation of material to the Alexander Turnbull Library. It can be used in a variety of situations, including where the donor is willing and able to hand over all rights in the donated material, through to situations in which the donor imposes conditions on people accessing and using the material, or limitation on the use of any copyright in the material.

Each donation needs to be considered on its own merits. In some cases completing the template will be very straight forward, in others it will take time for the donor to work through the various issues raised in the template.

Set out below is a summary of the issues to be considered in relation to each section of the Deed.

Donor details

The full name of the donor and description of the material should be set out in the spaces provided. The description of the material should have enough detailed so that the relevant material can be matched to the applicable Deed at a later date. If needed, the material can be itemised and described in more detail in the Appendix.

Clause 1 — Gift

This clause confirms that ownership of the material is being gifted forever to the Alexander Turnbull Library. The Library is, from a legal perspective, part of the New Zealand Crown and, therefore, the Library will hold the material on behalf of the Crown.

The Library will hold the material in accordance with its statutory purposes and any requirements of the donor set out in the Deed (which includes any access or use requirements under clause 2).

Clauses 2.1 and 2.2 — Access and use conditions

The donor is able to set out any conditions he or she may have in relation to people accessing or using the material. For example, the donor may want to stop people accessing the material while the person that is the subject of the Material is still alive or may want to limit use to academic research and to prevent any commercial use.

Of course, in many cases the Donor may not want to impose any special conditions on use or access and may be happy that the material is going to be held in accordance with the Library's statutory purpose.

Clause 2.3 — Cultural conditions

Any cultural considerations that should apply to the Library or any user's access or use of the Material should be set out here. Note, the Deed does not provide for any Release Date, Review Dates for these cultural considerations and, therefore, they will be ongoing.

Clauses 2.4 and 2.5 — Release dates

The Donor can include a "Release Date" or "Review Date" (or both) in relation to any condition. These are described in clauses 2.4 and 2.5. Essentially, a "Release Date" is the date the condition will no longer apply. This could be a specific identified date (such a 1 January 2025) or the date of an event (for example, the date of the donor's death). A "Review Date" is a date on which the Library can ask for a condition to be removed or changed.

It is important to note that, if no Release Date or Review Date is specified, the relevant conditions will be deemed to end (5 years) after the date of the Deed.

If a Release Date is specified, and the Library is not able to locate the donor or the donor's heirs, the condition will similarly be deemed to have ended.

Therefore, it is important that if a donor is particularly concerned that a condition should continue to apply, he or she should include a Release Date that is at an appropriate time in the future (or otherwise amend clause 2.4 and 2.5).

Clause 3 — Copyright

In clause 3, the donor says that the copyright position set out in the Appendix is correct.

In some cases a donor will know a lot about the copyright in the material he or she is donating. For example, if the material is private notes written by the donor, it is likely that the Donor will own all copyright in that material and will be in a position to decide what (if any) licence should be granted.

In other cases, the donor may know very little about the copyright position, or the copyright may be very complex, for example if the material has come from multiple sources. Where this is the case, the Donor can simply state in the Appendix that the copyright position is unknown.

However, it will be extremely useful to the Library and future researchers and users of the material to have as much information about the copyright position as possible. Therefore, donors should be encouraged to provide as much information as is reasonably possible.

Copyright options in the appendix

The Appendix provides four options for describing copyright ownership. The material can be itemised in the Appendix if needed to reflect the different copyright ownership of the individual listed items.

If the donor knows copyright in any material is jointly owned with another party or is completely owned by another party; that should be indicated in the space provided. If possible, the identity of that other party should be set out. However, in many cases a donor will only know that copyright is owned or shared with someone else, but will not know the name of that person or entity.

Space is provided for the donor to set out the details of any copyright licence granted by a third party owner – if this is known. However, very often the donor will not be able to make any statement about whether a third-party copyright owner has provided any licence. Where that is the case the donor should simply indicate in the space provide that it does not know the position.

Space is also provided for the donor to set out how the Library and others can utilise copyright in the material that is owned by the donor. The options include:

• granting a copyright licence that allows the Library and (potentially) others to do things that only the copyright owner is otherwise able to do. This includes making copies of the material, putting copies online, showing or communicating the material to the public and making translations and other adaptations of the material;

• assigning the copyright to the Library, which means the Library owns the copyright and be free to make decisions about its use; or

• retaining ownership and not granting a licence. This means the Library and any other party would need to come back to the donor to get approval to make any use of the material that would otherwise infringe the donor's copyright.

Various options are provided for licencing the copyright. The royalty free perpetual licence described in the third bullet is the simplest. However, the donor can also easily select one of the Creative Commons licence summarised in the table in the Appendix or could agree customised terms with the Library.

The assignment and licensing options in the template have been included in an effort to provide useful template that covers different donations. However, this is not an exhaustive list and donors must be happy with any licence or assignment they provide.

Clause 3.3 — Moral rights

In general terms, "Moral Rights" are rights held by authors of works that require that anyone using the work must attribute it to the author and allows an author to object to any derogatory treatment of the work (for example, this could include use of the work alongside offensive or derogatory material). An author retains his or her moral rights in a work even if the copyright has been assigned or licenced to another party.

If the donor is the author, or knows that the authors asserts (or doesn't assert) his or her moral rights, the donor can set this out by ticking the applicable box in the Appendix.

Clause 4 — Privacy

In many cases, the gifted material may contain personal information about the donor. For example, any correspondence included in the material is likely to include information such as the Donor's personal contact details through to private information about the donor's personal life. In addition, the identity of the donor as the donor of the material may also be considered personal information.

The default position in clause 4 is that this information can be used and disclosed in accordance with the terms of the Deed. In other words, its use and disclosure will only be subject to any use or access requirements under clause 2 and the overriding requirement that the material is to be held in accordance with the Library's governing legislation.

Where this is not appropriate, or any special requirements should apply to the use of such personal information, this should be set dealt with in the space provided in the Appendix.

Execution

Because the material is being gifted to (rather than purchased by) the Library, the document needs to be signed as a Deed.

This means that (if the donor is an individual) the donor's signature needs to be appropriately witnessed. Different signing requirements may apply if the donor is a company or different entity.

We have included provision for a representative of the donor signing the deed to confirm that he or she has the appropriate authority.

Please seek advice if you are unsure about the signing requirements.

Download the Sample Deed of Gift

Download the Sample Deed of Gift (pdf, 368KB)