NINCH: Copyright Town Meeting - Toronto Report 2002

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COPYRIGHT TOWN MEETING: Toronto, September 7, 2002

Creating Museum IP Policy in a Digital World

Summary
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From her experience drafting policy for the University of North Carolina, Laura Gasaway declared that good policy protects the university and faculty, clarifies the rights of faculty, staff and students and addresses issues before any disputes arise. The key element to success, she had found, is to involve all parts of the community when drafting policy. The major issues can be divided between ownership and management on one hand (who owns faculty- and faculty-student production and under what circumstances?) and use, on the other. She explained that an effective policy can encourage faculty to use copyrighted works creatively, to encourage responsible, proactive fair use and establish good-practice norms. Policy can help the university protect itself, educate its community about copyright, and help regularize the permission-seeking process.

Some universities now have "copyright officers" to work with faculty on their IP issues. While the corporate counsel represents the university, copyright officers or other staff should be available to represent the creator’s point of view. Legal counsel is critical in creating use policies but Gasaway recommended they have copyright experience and are pro-active in regard to fair use. In conclusion, Gasaway noted that the overall benefit of policy drafting is that it helps crystallize thinking about policy choices.

Turning to museums, Rina Pantalony demonstrated how intellectual property could be found in many places in a museum: in collections, technology systems, research activities and administration. Some of this has commercial value, driven historically by interest from the media and now through the potential of distance- and life-long learning opportunities. She proposed six reasons for museums to develop IP policy. It drives good management of IP assets; guides decisions on new global and commercial issues; guides fiscal management; balances the interests of users, curators and the institution; clarifies IP issues and management, averting conflict; and it enables museums to more effectively join broader IP debates.

Could a university museum be covered by a good university policy? Panelists responded that it should be, although curatorial interests might need a subpolicy to cover them.

Internationally, some of the differences between countries’ intellectual property laws could be important for museums constructing IP policy. Christopher Hale highlighted some of these, emphasizing how the copyright “bundle of rights” can vary between countries, as can rental rights, public exhibition rights, copyright term, work-for-hire provisions, and exceptions to infringement. Moral rights, for example, are of great importance in Canada but less so in the U.S. Museums need to consider patent or trademark rights, as well as their institutional liability should they infringe on someone else's patent or trademark. In summarizing, Hale noted that it is important for museum IP policy to go beyond the copyright regime, and for museums to be vigilant about laws and distinctions in countries where they conduct business.

In questions, the panel knew of no overall compilation of international copyright terms, although, while photographs are often subject to much greater term restrictions, Copyright in Photographs (Kluwer, 1999) was recommended as a start. To a question about when a museum needs to pay heed to a particular jurisdiction, Hale replied that the mere fact of material becoming accessible via the Internet may not constitute an infringement in the laws of other jurisdictions: museums need counsel to take a wider view of things.

In making intellectual property policy, the key first steps, according to Maria Pallante, are: auditing an institution’s intellectual property to discover what the museum owns, assigning value to that property and managing and enforcing the IP rights. An audit grounds policy by declaring what a museum owns and what its origin is; it can trigger and facilitate creative projects using found assets and it monitors compliance with third-party institutional agreements. An IP audit should be an on-going process and, although anyone can initiate an audit, Pallante recommended institution-wide meetings where staff can report on IP held in their departments. The scope of what is entailed in an audit was nicely suggested by a job description Pallante had recently created. She finally reminded participants of the importance of trademark as a component of museums’ intellectual property.

In questions, Scott Sayre from the Minneapolis Institute of Arts (MIA) offered a cautionary trademark tale about a funder taking possession of a project’s trademarked name, although they never used it. Pallante advised always including a funder’s affiliates in any agreement and also noted that trademarks have to be used or they are lost. When Lu Harper asked how an artist’s estate could negate an artists’ assignment of rights to the museum, she was told that rights revert (in Canada after 25 years). And to a question about defensive registration of domain names, panelists responded that this was becoming less of a problem than it had been: an institution should determine the names it really needs to ensure visitors can easily find it on the Web.

At the Royal Ontario Museum (ROM), Brian Porter noted that IP policy was integral to a major plan for physical renovation (“Renaissance ROM”) and digitization (“ROM Digital”) at Canada's largest museum. Like Pallante, Porter saw the institutional challenge as one of creating and protecting assets, providing wider access to them, helping people make personal connections through them and improving internal efficiencies. The ROM policy document was one of twenty new policies developed at the museum and was crafted by a diverse group of staff members and a professional writer.

Key items the ROM IP policy covered included: ownership and use of employee creations—both those paid for by the museum and not; the use of museum resources for external projects; the integrity of accessioned objects; and mechanisms to ensure adherence to the policy. For Porter, IP policy was a prime recognition of the fact that “your IP is an asset and a commodity,” and he proposed that it is key to the success of ROM as a venue, as an asset-holder, and a developer of educational programs.

Economic and legal concerns have to be balanced by moral values. Rachelle Browne, in exploring the sources of an institution’s values, stressed that basic moral principles of fairness and equity should measure any policy and its impact on institution and community. Core values can measure how a policy fits a museum’s mission, how it enhances educational and cultural services to the community, how it respects and supports innovation and creativity and how it is consistent with a museum’s stewardship responsibilities.

With traditional cultures, museum policy might restrict access and re-use in order to support creators and their livelihood. But, apart from a few other legitimate exceptions, Browne maintained that museums should not restrict access. Doing so, they risk their standing in the community and raise questions about their core values.

In the workshops, groups were charged to draft policy language to respond to three scenarios. One group developed a set of policy statements to address requests for copyrighted works in the museum's collection, declaring respect for the IP rights of all stakeholders, while firmly protecting and promoting the museum's intellectual assets. It provided guidelines for managing these assets and for educating both staff and users about the policy and took steps to monitor its compliance. The group also thought the museum staff should develop statements on handling museum assets, whether the underlying IP was owned by the museum or not.

Another group developed a policy on fees charged for the use of material when the museum owned the IP rights, and when it did not. The outline policy declared that: the museum has the right to recover costs (at a minimum) and to charge fees through a standard pricing schedule. It said that requests to use materials must detail proposed uses; that all requests should follow the same process; and that copyright holders had to be contacted and proof of copyright clearance be shown, before any copyrighted works be released for use.
In discussion on actual museum practice, it was noted that while users might understand a use fee for covering the cost of providing material, they typically object to restrictions on re-use, if the underlying work is in the public domain. For works not in the public domain, museums need the permission of the copyright holder of the underlying work before they exploit their copyright in a photograph of the work. Thus when they acquire work, museums need to inform artists that the work will be photographed for documentation, conservation and other internal purposes, but that photographs would not be used for commercial purposes, without the artist’s permission.

A third exercise was to develop policy to cover a museum's recording of a traditional performance by an indigenous tribe that included sacred material. General principles agreed to included respect for moral rights; making meaningful contracts where copyright resides with the creators/performers, while copyright in the aggregate work could be shared between museum and tribe; posting copyright statements and credits specific to the work whenever it is presented; and developing a profit-sharing agreement, should the work be used for commercial purposes and makes a profit.

Another group drafted position statements outlining getting permission before capturing such a work and covering all possible subsequent uses by the museum—all guided by ethical as well as legal considerations. This policy also included statements encouraging fair dealing/fair use of the material, banning commercial use, ensuring good copyright protection for its own content, and an efficient licensing operation.

In the discussion sessions, there were two questions related to copyright in compiled works. When can a museum begin to claim rights in a compiled work? Other policy statements withstanding, the response was that copyright can be claimed very early in the process, although Pantalony noted Canada defined compilation differently than the U.S. Can a web site could be copyrighted? Panelists replied that a websites is copyrightable as a compilation and that the US Copyright Office encourages the registration of web sites and recommends frequent renewal. Good practice is to archive copies of the site at regular intervals, so that, if an infringement comes to light, a record would be available.

Fair use could probably not be used to defend a museum’s use of its images to promote internal museum programs (and fundraising), when the underlying rights belong to others. However, a May 2002 Federal court case was subsequently cited that held such use could be permissible under the First Amendment.
One participant proposed that museums be more proactively for the public good, otherwise in court cases they stand a good chance of being commonly characterized as highly risk-averse when it comes to publishing material online. To this, Pallante cautioned that US copyright law is a strict liability law, and thus an institution's position does depend on how much risk it wishes to take.

Asked whether privacy protection should be a component of an IP policy, panelists responded that privacy rights issues occur in so many contexts that it should be the subject of its own policy.

In closing, David Green announced that CHIN and NINCH will be publishing a book on this subject, based upon presentations and conversation at the Toronto meeting, to be available Spring 2003.

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