Who Owns these Records? Authority, Ownership, and Custody of Iraq’s Baath Party Records

Abstract

Archives acquire records through a variety of circumstances. While they often have a direct and ongoing relationship with record creators (such as government records and national repositories), archives may also accept donations from record creators that align with the mandate of their organization. Less commonly, archives also face the possibility of acquiring records or objects from an entity that did not create them, which raises questions about title and the authority to act. Research notes, for instance, may be owned by the funder if conducted as work-for-hire, or the intellectual property rights might be held by a university. There may be issues of consent from human subjects of research, particularly Indigenous communities, that affect whether and how records may be donated and used. Although donors may be acting in good faith, they create dilemmas for archivists about whether they can accept those records and, if they do accept the records, what limitations are imposed by the nature of the donation. Such dilemmas are also informed by the challenges of what archivists can or should do with records they already possess that have unclear or unknown ownership. The case of Iraq’s Baath Party records has an international character and exceptional circumstances that likely places it outside the experience of most archives, but the core questions of who owns the records and who has the authority to take actions in regard to those records is relevant in a wide range of circumstances. It is particularly informative when considering whether and how the principle of inalienability can complicate determinations of ownership.