2.4 Crafting the Policy: The Development Process
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2.4.1 Multiple Approaches
There are multiple ways to reach the same end when developing an IP policy. This is particularly true for museums which, despite being grouped together as one class of cultural organization, are an extremely diverse, eclectic lot. Comparing the methodologies used to develop IP policy in just a few museums illustrates some of the varied approaches used to date:
- The Indianapolis Museum of Art used a committee approach to develop its IP policy. The process was started by the Museum's rights and reproductions coordinator and slide librarian, who put together a group composed of registrars, publication designers, librarians, and marketing representatives to sort out some of the copyright issues in the Museum. A rough draft of an IP policy emerged from this committee. The rights and reproductions coordinator polished the draft and then submitted it to the Museum's Collections Management Advisory Committee, where it underwent discussion and further revisions. This Committee ultimately approved the policy.Footnote 20
- For Toronto's Royal Ontario Museum (ROM), the impetus for IP policy stemmed from the board of trustees move to implement a new governance model that mandated executive authority for policy development and monitoring (over 20 issues requiring formal policies statements were defined during this process). The IP policies were drafted by an external consultant and contract policy analyst in consultation with a ROM working group that included the Museum's Director of New Media Resources, Assistant to the Chief Operating Officer, and a senior curator representing the Vice-President of Collections and Research. A formal review process allowed input from all staff and board committees before final board approval in April 2002. Related policies on publications, trademarks, curatorial research and information management were also developed and approved as part of the larger effort of a museum-wide policy creation and revision.Footnote 21
- The Experience Music Project in Seattle, a museum devoted to American popular music, recognized early in its development -- while it was still in the planning stages as an institution -- that IP management would be a critical part of its day-to-day activities. Since music is a key IP asset used by the Museum, and one which has a long tradition of rights administration associated with it, the Museum hired an IP attorney who had worked in the music business to lead its IP policy development and implementation. This individual conducted an audit of the museum's IP assets, reviewing carefully those materials that would be used in exhibits and displays, drew up policies and procedures to guide curatorial staff, and worked on implementing and monitoring the policy. The Museum granted this individual the authority at the outset to research, draft, and implement the policy throughout the organization.Footnote 22
The methodologies used by these museums range from solo efforts conducted by an appointed individual to group efforts conducted by committees of museum and outside representatives. There are, however, common elements among all these approaches: the need for resource discovery and background research, approval from administration both at the beginning of the process and at the end, evaluation and discussion, and drafting of the policy. These elements are discussed further in this chapter.
2.4.2 Steps in the Process
126.96.36.199 Step 1: Information Gathering or Doing Your Homework
Policy emerges from an understanding of your institution's needs. For this reason, one of the first steps in the creation of a new policy is to undertake background research (often called "resource discovery"), to uncover all the information you need to know in order to make informed decisions. Adequate resource discovery will involve activities internal and external to an institution.
188.8.131.52.1 Internal Activities
Identifying and Examining Existing Policies and Procedures
A review of departmental IP policies and procedures will give you a gauge of the IP needs, usage, and concerns identified by particular sectors of the museum. For example, curatorial departments may have less stringent policies for image use than an image/photo services department, with the former being more favorable to a fair use argument for academic research and the latter being inclined toward rights and permissions procurements for all uses. When studying these departmental statements look for areas of consistency, discrepancy, and coverage. Together this information will give you important insights about what areas of IP are important throughout the museum.
What if departments don't have formal policies? Review the forms, licenses, and agreements that each department uses. These template documents frequently include language that articulates specific policy positions, or give clues as to policies already in place that have not been formally articulated. A review of these documents (a forms audit) can help you "tease out" policies or policy issues that are important to your museum. The following list (Table D) identifies some of the most frequently used museum forms that should be reviewed when conducting a forms audit for the purposes of identifying existing IP policy statements or perspectives:
- Deed of gift or other acquisition documents
- Loan forms
- Independent contractor agreements (e.g., author/publisher agreements; curator agreements; IT software/web development agreements; other freelancer agreements)
- Sponsorship agreements
- Photo/imaging forms (e.g., rights and reproductions agreements)
- Retail agreements from the museum store (e.g., forms that clear rights for products; vendor or purchase invoices for premanufactured products)
- Gallery use forms (e.g., permission for personal photography, drawing/painting in galleries)
- Special event photography forms (e.g., work for hire photographer contracts; photo releases)
- Archives and library use forms
- Education department forms (e.g., docent, guest lecturer, and school group agreements)
- Marketing forms (e.g., permission to reproduce for publicity purposes)
- Research use forms
Identifying the IP in Your Institution (The IP Audit)
Complementing the review of departmental policies/procedures is an examination of the actual IP assets themselves, or more appropriately, the information that documents the rights status of those assets. This review is known as an IP audit. It is a methodical examination and review of all the IP assets owned by an institution, where they reside, how they are used, and what documentation exists about their IP ownership.
The IP audit serves many functions. It tells you exactly what IP you have and where it came from. It also triggers actions that make a museum more accountable for its assets and helps facilitate creative projects using "rediscovered" assets. In addition, it helps an institution monitor compliance with IP laws and avoid infringements.
Even when a museum has a good understanding of its IP assets, an IP audit can yield surprising results. Maria Pallante-Hyun, in a paper presented at the NINCH Copyright Town Meeting in TorontoFootnote 24 relates an instance in which she and her legal colleagues discovered during an IP inventory that the Guggenheim Museum was bequeathed the IP rights to the Roy Lichtenstein painting Grrrrrrrrrrr!! This information unleashed a torrent of new ideas about how the Museum could now use the work (from publishing it on the Museum's website, to developing new retail and license uses).
Who should conduct an IP audit? Anyone with a vested interest in IP issues should take the lead. Frequently, staff involved with rights and reproductions start the process, but a curator, administrator, registrar or other staff member can also begin the effort. Every department in a museum has its own IP assets that need to be accounted for. Registrar's files often have valuable documents such as artist assignments. Curators' files may provide evidence of an artist's intent to provide an assignment, which may be useful to know. Museum retail stores often have global distribution agreements, while publication departments may have image rights clearances or author copyright information. A museum's legal department will have trademark filings, license agreements, and other legal papers that document assets. Because individual departments are most knowledgeable about their operations, they are best equipped to uncover and identify their assets and should be charged with doing so. The IP audit is a museum-wide undertaking that is initiated and coordinated by one person and assisted by individual departments whose representatives meet periodically with the audit project leader to report on findings and evaluate results.
What should one look for when conducting the audit? The process is a fact-finding mission and the goal is to identify IP assets and the information that documents those assets. The assets themselves exist in four general areas of a museum:
- collections (e.g., objects and images),
- technology (e.g., collections management database systems, innovative online applications),
- academic activities (e.g., curatorial and scholarly research), and
- administration (e.g., institutional policies, statements, forms, etc.).
In determining what constitutes an IP asset, a reviewer needs to consider the scope of works that fall under the various IP legal regimes of copyright, trademark, patent and trade secret. The majority of museum IP assets will fall under copyright and trademark.
The work involved in the audit process involves extensive review of various documentation sources: combing through files of one sort of other, from paper files that contain official licenses or contracts to informal correspondence that indicates IP rights ownership or intent (such as letters that often accompany donations, or artist/curator correspondence). It may also include digital files such as email correspondence or database records, although the extent to which IP information exists in museum computer files is still limited. The purpose of the documentation review is to find information about IP ownership, permissions, contact information, trademark registrations, licenses, or other agreements that might reveal insights about the use and ownership of an IP asset.
Because the audit can easily take on a life of its own, it is important to set parameters and organize the process according to the scale of your organization. A small historic house does not need to (and likely could not) invest the same time and resources as a larger institution. Before proceeding, it is useful to identify all the areas in your institution where IP may be found (e.g., archives, exhibition and education departments, registrar's office, curators' and director's offices, marketing or public relations offices, the museum's store, etc.). The location of IP will vary in each institution. A brief follow-up survey with each department often helps to reveal which departments can be quickly audited versus those that might require extended time and planning. In addition, department staff may need assistance determining just what qualifies as IP in their department. Exhibition staff, for example, may not consider their work from an IP perspective, although exhibit titles, organization, mounts, graphics, and other materials they develop do, in fact, qualify as IP.
Developing an inventory form to use when conducting the audit can help you capture information in a consistent manner, so it can be entered into a database and analyzed more systematically. A sample inventory form is shown below. (Museums should consider this sample as a starting point and modify their form to accommodate local needs.)
Form - type checking Museum IPFootnote page25
Once the audit has been conducted, analyze the results in the context of your institution. What assets does the museum have rights to? Does the museum exploit these rights now? Will it wish to do so in the future? How? For those assets whose rights are owned by others, does the museum wish to seek assignments? For what uses? Are there gaps in the documentation of any assets? How should the museum address this? The audit's findings, and the museum's assessment of them in light of its institutional needs and activities, will help determine what areas of IP policy need to be developed.
One important factor to consider in the IP audit analysis is value. To whom are the assets valuable? Is the value financial, or does the value lie in control over access to the asset? Would it be more valuable to develop one set of assets over another (e.g., develop financially lucrative assets and make less financially promising assets more freely accessible)? The Massachusetts Institute of Technology (MIT), for example, recently concluded that its faculty-developed course materials would offer greater value if made freely available to the public than if they were made available for a fee.Footnote 26 The Institute recognized that the financial value in these materials lies in the teaching and faculty expertise that accompanies them, which can only be gotten if one registers and attends (and pays) for the full course. MIT loses very little financially (and gains a lot in "good will") by making the course materials available separate from the courses themselves.
How do you determine the value of an IP asset? The only sure way to determine financial value is to "see what you can get" for the asset in the open market, but there are several ways you can determine relative value (both financial and other) to help you make decisions about asset use and policy. Reviewing the value of similar assets that have been licensed by others can give you indications of potential market value. Also consider the value in the scope of rights conveyed against the terms and condition of use. For example, if one rights owner gives you a blanket assignment to use a particular asset for educational purposes, but another requires specific permission for each and every use, you may weigh the former asset as more valuable (because it is more readily available for use) than the latter.
Assessing Your Institution's Level of Risk Aversion
Identifying your institution's level of comfort with risk-taking activities, and the sophistication of its risk management strategy, is a critical third component in an internal review. Museums frequently face instances where they want to use materials, but cannot identify a rightsholder. Or they may use a work without seeking permission because they believe it falls within one of the exemptions in IP law (e.g., fair use, fair dealing, etc.). When such circumstances occur, how comfortable is your institution with taking risks? Does it "push the envelope", take a "better safe than sorry" perspective, or fall somewhere in between?
To gauge risk, an institution first needs to clearly understand what may occur if it uses IP that is not in the public domain or has not had its rights cleared for use. IP attorney Leslie Ellen Harris, who has reviewed risk management issues for museums,Footnote 27 succinctly identifies these risks as follows:
- Substantial fees or fines if the use is challenged by the creator or in a lawsuit
- Public embarrassment
- Expensive and time-consuming delays and even cessation of activities resulting from the withdrawal of the work from any product where it is used (e.g., removing it from a website; ceasing production of publication, education, or publicity materials in which the work was scheduled to appear, etc.)
- The Origin of the Work
- Is the rightsholder well known?
- Does the right holders have a reputation for enforcing his/her IP rights?
- If so, is s/he more likely to pursue legal action or try to negotiate a copyright fee?
- If the rightsholder is more likely to pursue legal action, is s/he known to pursue this action all the way through a trial?
- Access to the Work
- Who has access to the work?
- Is access available to a few (a scholarly monograph) or multitudes (a website)?
- Your Institutional Budget
- Can you afford "after-the-fact" royalty payments, out-of-court financial settlements, court-related fees, and/or legal advice for dealing with an alleged infringement of copyright?
- Political and Public Relations Consequences
- What would be the public and political consequences of using the IP without permission?
- Threats to public [or private] funding?
- Public disapproval about lack of respect for the law?
- Liability Protection
- Do you have liability insurance that covers IP infringement?
- If so, how might an infringement claim affect your coverage and premiums?
- Internal Effects
- What are the internal effects of a copyright infringement claim?
- How would this affect your employees? Your governing body?
The more problems your institution identifies under each factor, the greater the risk you are taking in using materials without permission. Museums also must remember that IP laws are strict liability laws: despite any good faith efforts you may have made to identify a rightsholder, use of a work without permission still constitutes an infringement. (In other words, "good faith" efforts do not constitute a defense). In the end, a museum must balance the potential for problems (e.g., lawsuits, negative publicity, etc.) with their desire to use the materials. Harris concludes that, in assessing risk, an institution "must make a decision [it is] comfortable with, [that is] is consistent with other policies of [the] organization, and is justifiable" considering all the circumstances.
184.108.40.206.2 External Activities
Reviewing IP Policies from Other Museums and Organizations
Examining IP policies from other institutions provides important insights into the types of issues that other organizations face (which may or may not parallel your institution's issues). It also offers insights into wording, format, and layout that you may wish to consider (or avoid) for your own policy. Dozens of university IP policies are available on the Web; museum policies are harder to come by because there are fewer of them in existence and most are available as internal documents only. This state of affairs is sure to be temporary: as IP policies become more common in museums, the level of apprehension about making them publicly available will diminish. In the meantime, museums need to "ask around" and individually request policies from institutions that have developed them.
Participating in Professional Development Activities
Professional development opportunities offer a structured way to become more informed and educated about IP law and the specific aspects that are important for your institution. Because IP issues are a relatively recent concern for museums, most museum employees lack formal education in this area and face a learning curve that professional development opportunities can help address.
Professional development activities are dispersed throughout the cultural heritage sector, and individuals looking for such opportunities need to search beyond their immediate discipline to find all that may be available. Courses on museum IP issues can be found in offerings by the American Association of MuseumsFootnote 28 and the American Law Institute - American Bar Association's (ALI-ABA) yearly course on legal problems in museums.Footnote 29 Free or fee-based online courses are periodically offered by organizations such as CHIN,Footnote 30 as well as by many university IP offices.Footnote 31 IP-related workshops are frequently offered at national and regional association meetings. Less formal events, such as NINCH Town Meetings, topical sessions at conferences, and periodic lectures also provide useful learning opportunities, and introduce you to individuals who can be sources of advice in the policy development process.
Discussing IP Issues, Policies and Practices with Colleagues
Nothing can substitute for practical advice and the wisdom borne of experience that is conferred by one's colleagues. Opportunities for such collegial exchanges are more prevalent than ever thanks to email and listservs such as Cni-Copyright, Musip, MCN-L, and Digital-Copyright.Footnote 32 These virtual exchanges, combined with traditional face-to-face meetings at conferences and other professional venues, are invaluable ways of learning and keeping informed.
220.127.116.11 Step 2: Analysis and Discussion - An Iterative Process
18.104.22.168.1 Analyzing Your Mission
A museum should begin the analysis phase of policy development by taking stock of its mission. Georgia Harper of the University of Texas notes that institutional missions now must be reviewed in the context of the electronic environment that has made IP such a prominent issue. In this environment, a museum that interprets its mission as protecting the quality and use of its collections will have a different policy than one that sees its mission as aggressively exploiting new opportunities to use its assets. The former may take protectionist measures such as watermarking, pursuing infringements, or intentionally restricting content, while the latter may actively pursue partnership opportunities to make their collections available in digital form, or allow for liberal interpretations of fair use in a digital environment. Harper notes that "as important as it is to clarify ownership and carefully manage work.... it may be even more important to clarify where an institution is headed, so that its policies help it get there."Footnote 33
The Royal Ontario Museum (ROM) recently followed this approach when developing its own IP policies. ROM's policies were developed as the Museum was undertaking several major initiatives, including a Museum-wide effort to digitize its collections. This move into the digital arena was seen as an opportunity for the Museum to pursue the economic aspects of its IP, and ROM has crafted policies that will help it achieve this goal.Footnote 34
Reviewing one's mission in the electronic environment helps a museum clarify how it wishes to position itself for the future. With this understanding, and a clear knowledge of the IP assets it owns and uses (as determined from the resource discovery effort outlined above), a museum can make the necessary policy choices that will help it achieve its goals.
22.214.171.124.2 Analyzing the Findings of Your Research
Once a museum has completed its resource discovery efforts, the next step is to identify the key issues to be addressed in a policy. The review of departmental IP policies and practices, and the IP audit, should reveal the areas of IP important to your institution.
This phase of policy development requires analysis and evaluation. One way to begin is to start broadly by legal regime. Which legal regimes protect your museum's IP assets? Which are you concerned with? Most museums will focus on copyright and trademark, with a smaller percentage also needing to address patent issues and possible trade secrets.
Once you have identified the regimes, consider the specific issues that each regime addresses. This is the point where the external aspects of your earlier resource discovery efforts will come to fruition. If you have successfully educated yourself about the "basics" of IP law, and the areas of the law that are of concern to most museums, you will be better positioned to go through this step. When considering copyright issues, for example, you may want to start by examining all the rights your nation's copyright law grants to creators, which of these rights your museum exploits or wishes to exploit, and how it should do so. Consider also the exemptions that your country's copyright and related laws include, if those exemptions pertain to your museum, and if and when you wish to exercise them. U.S. museums, for example, will want to consider fair use and the exemptions offered in the TEACH Act, while Canadian museums will wish to consider fair dealing and specific exceptions awarded to educational institutions, museums, libraries, and archives.
Consider too the broader issues that crosscut laws and museum mission such as artists' moral rights, the importance of the public domain, and the museum's role and reputation as an educational institution. Your museum's risk aversion level also should come into play here, particularly when evaluating usage issues that fall into legal "gray zones." Equally important is the need to address the museum's dual role as IP rightsholder and user. Policies should not be unduly lopsided, addressing only the museum's rights and not its responsibilities.
Ownership issues are likely to have a more prominent role now than in the past. Although work produced by museum staff is generally considered to be owned by the museum, many new circumstances are arising that challenge this assumption. The phenomenon of "celebrity" curators, the use of consultants, skilled volunteer contributions to exhibits, websites, and computer programming, all create situations where a museum will need to clarify its previously assumed ownership position. The Royal Ontario Museum's Copyright Policy focuses heavily on ownership issues, clarifying ownership vis-à-vis employees, volunteers, and third party contractors in both museum and externally sponsored projects.Footnote 35
As you go through this process of identifying issues within and across legal regimes, you need to identify the scope of each issue for your museum, i.e., the particular aspects of the issue that your institution should consider and perhaps address in the policy. In some instances the scope will be quite limited. The Tech Museum of Innovation, for example, knowing that it did not wish to pursue rights for its patentable exhibits IP, needed only to clarify the reasons why it did not want to exercise these rights and then decide how it wished to acknowledge a grant of these rights to others. If the Tech Museum had taken an opposite position (i.e., deciding to patent its exhibits and assert its rights under patent law), the issue would need to be considered in much more detail -- delineating rights, royalty and ownership divisions, uses, etc.
The process of identifying issues and their scope must be documented, or it will soon become unwieldy. Recording and writing the information also helps to evaluate and analyze it in a more systematic fashion. When a reasonable first effort is made to identify, define the scope, and analyze each issue of concern to the museum, the information should be circulated to a broader audience than just those individuals that have been involved in the evaluation process thus far. Depending upon your institution, this might be other extant committees, department heads, or the entire museum staff. Comments should be solicited from these broader audiences and then reviewed again by the evaluators.
Analysis and evaluation is an iterative process, and possibly the most time-consuming step in the entire policy development effort. The number of back-and-forth reviews undertaken depends upon the results of the initial analysis and each institution's circumstances. If the initial analysis is exceedingly comprehensive, and a review by other audiences reveals no major issues, then one review instance may suffice. In larger institutions there are likely to be more voices and thus more comments that require further refinements and reviews before consensus is reached. The primary goals in any review process are to seek broad input and to reach consensus so that the end product -- the policy -- will reflect an institution's real needs. An unstated but equally important goal is to solicit "buy-in" for the policy, by virtue of its having been crafted by those it will govern and those who have experience and vested interests in the issues it addresses.
126.96.36.199 Step 3: Writing the Policy
Before you write the policy, you'll need to consider the following questions:
- Who should write the policy?
- The analysis process is likely to yield a long, detailed document that must be condensed and culled into a statement of policy, which is traditionally a short, concise document. People have different strategies for achieving this step (think about how you cull research into a written paper), although nearly all methods require identifying priorities, merging and synthesizing, and invoking disciplined editing. Usually someone in the museum -- an editor, a scholar, an educator -- is expert at these skills and is chosen to write the various policy drafts. However, the policy writer need not be a museum staff member: the Royal Ontario Museum hired an external consultant and contract policy analyst who did the actual writing, in consultation with ROM staff.
- At the risk of offending legions of legal counsel, the consensus of policy developers is that lawyers should not write your IP policy. Legal counsel cannot be expected to understand a museum's needs as well as the museum's staff does. They are not trained in the various areas of museum administration and management, nor are they aware of the day-to-day IP issues that confront museum staff. Their obligation to safeguard the legal welfare of their client also makes them more risk averse than your museum may wish to be. And the writing skills necessary in the legal profession tend to be the very skills you do not want applied to the writing of policy (see below).
- What style of writing and prose are appropriate?
- Policy writing guidelines stress the importance of using clear and simple language. Avoid legalese and jargon; in instances where they must be included, explain the meaning of legal terms/phrases in a "definitions" section of the policy. Because the policy is a guideline, not a regulation, avoid using words that imply a mandate, such as "will" or "must". (Many policies choose the term "shall" in lieu of these words, or "may" when discussing options.) In general, select words carefully and use as few words as necessary to convey your point.
- The prose should guide the reader through the document. Avoid long, convoluted sentences (they are easy to misinterpret) and keep the policy itself as short as possible. Group similar concepts together (e.g., all ownership issues in one section) whenever possible. A constant challenge for those writing policy is to keep firm distinctions between policies and procedures (see Section 1.3), and to try to keep the latter out of the policy except by reference (e.g., "See Procedures for Requesting Reproductions of Collections"...)
- Who should review policy drafts?
- Legal counsel should be part of the group that reviews the policy in its various drafts, as should a pre-selected group of museum staff who are astute about the issues and have been involved in the policy development process. If your museum is part of a larger infrastructure, such as a university or state/federal government system, you will want to have the draft reviewed by an authorized representative from that system (a copyright officer, for example) to ensure that it is broadly compliant with policies of the larger "parent" organization or agency.
- What format should be used?
- The policy's organization, structure, and components are largely your choice and preference. In your external review of policies from other museums and related institutions, you will have seen a variety of formats and organizational structures, some of which work better than others. If you are part of a larger organization, you may already have a policy format prescribed by your "parent" institution. There are some format conventions that are now considered "standard" in most policies. These are identified in the following chart.
Policy Format Guidelines
It is standard for all policies to include the following format elements:
1. Policy Title
A short and succinct name for the policy. It is not necessary to include the institution's name if the policy is printed on museum stationary.
Intellectual Property Policy
Copyright, Trademark and Patent Policy
2. Policy Section Headings
Policies should be organized by section headings comprised of key words that reflect the content in each section. Sections should be logically grouped and be uniform across policies when appropriate.
Purpose Monitoring and Enforcement
3. Common Numbering System
Policies that have sections and subsections should use a uniform numbering schema to make the document more readable. If the policy is very long, a table of contents may be added to help readers identify specific areas of the policy at a glance.
- 2.0 Ownership
- 2.1 Employee Ownership
- 2.1.1 Consultants
4. Related policies, procedures, documents
References to other documents may be included directly in the section of the policy where they are relevant, or may be listed in a general heading about related documents.
From the McMaster University Intellectual Property PolicyFootnote 36
4.3 Intellectual Property shall not include: ... (c) any matters dealt with in the Policy for the Distribution of Income from the Sale of Instructional Materials...
From the Royal Ontario Museum Information Management and Library PolicyFootnote 37
The ROM addresses many of the above issues in several of its Board Policies, including:
- Public Access Policy
- Collections Policy
- Communications Policy
- Copyright Policy
Reality Checks: Questions to keep in mind as you write.
When writing various pieces of a policy, it is easy to inadvertently stray from the broader purposes of the policy or to draft statements that are not tenable. To prevent this from happening, there are certain questions you should ask yourself at frequent intervals during the writing process.
- Is the content within the Museum's and the Board's authority?
You cannot make policy in areas outside the control of the Museum or the purview of the Board: you have neither the right to do so nor the means to enforce policy in areas outside your institution.
- Is it consistent with local, state/provincial, and federal law?
Although policy can propose practical mechanisms to handle issues that law does not address, your policy cannot advocate measures that are illegal. A surprising number of policies breach this rule, either through ignorance or use of unclear language that results in ambiguously worded statements. For this reason it is important to have legal counsel review your drafts in the earliest stages to ensure you are crafting policy that is clearly within the law.
- Does it hold up in an international context?
IP assets are routinely used in an international arena, where local laws do not prevail. If you rely heavily on exemptions that exist in your nation's IP law (such as fair use in the U.S., or fair dealing in Canada), how will your policy accommodate IP from nations whose laws do not recognize these exemptions? Does your policy violate international agreements? Legal counsel is critical for examining the viability of a policy in an international context.
- Does it support the organization's mission and core values?
Each element of your policy should promote your museum's mission and core values. It often helps to keep your museum's mission statement nearby as you draft the policy, and refer to it frequently as you proceed with writing. Similarly, it is useful to draft the policy's core values statement first, before you write out other portions of the policy, so that it is first and foremost in your mind as you proceed.
- Is it reasonable and practical?
When institutions have a policy that nobody follows it is often because nobody can follow it, even when they try, because the policy is overzealous or unrealistic. Assigning responsibilities to individuals or departments who cannot assume them, or making capricious statements, are two examples of how a policy can be rendered useless because it is not realistic.
- Is it consistent with the museum's business practices and current or potential business deals?
Will the policy conflict with any ongoing practices or potential licensing deals the museum has in place or is considering? Find out about such practices or potential business deals before you proceed.
188.8.131.52 Step 4: Adopting the Policy
Some type of formal adoption process for the IP policy is critical to its acceptance and use. "Adoption" makes the policy official, providing an imprimatur that lends institutional credence to the policy, the work behind it, and its use in the museum. Generally policies are approved at the highest possible administrative or governance levels of an institution: usually the Board of Directors or Executive Director of an institution. Among the few museums that have developed IP policies thus far, the authorizing bodies have tended to be internal committees charged by the museum's administration with overseeing policy development. However, the stakes involved in IP ownership and use are increasing greatly, warranting review and adoption by the highest governance authority in a museum - usually the Board of Directors.
184.108.40.206 Step 5: Implementing the Policy
Having your policy officially adopted is a major accomplishment and the culmination of a long, arduous process. While it marks the end of the development effort, it also signals the beginning of an implementation process. Implementation is a long-term commitment that involves education and training, promotion, use, monitoring and enforcement. It also requires monetary and human resources, which a museum's administration must be prepared to provide or else the policy will lie fallow and serve no ultimate purpose.
Among the various statements included in any policy is the appointment of a person or committee responsible for policy oversight. This overseer's role is varied (further information about the role of a policy overseer is presented in Section 220.127.116.11), but one of their first duties is to organize a method for implementing the policy throughout the institution. Included in any implementation effort are the following tasks:
Announcing the Policy
The policy must be promoted, and the standard way to start this process is by announcing the policy's adoption to museum staff, and more broadly to the museum's board of directors (if they were not involved in the process), volunteers, museum members and other museum professionals. An official announcement serves several purposes:
- it emphasizes the policy's importance (mundane news does not merit an official announcement),
- it presents a public relations opportunity to showcase the museum's latest efforts in developing and setting high professional standards for the institution,
- for museum staff, volunteers, and independent contractors, it is a signal the further events will take place as the policy is slowly integrated into the museum, and
- it gives the museum a more public opportunity to acknowledge all the efforts that went into developing the policy.
Museums seeking specific guidance on how to promote a policy within their institution may wish to examine guidelines developed by The University of Minnesota.Footnote 38 Although created for a university context, these guidelines offers insights applicable to museums and other institutions, including a checklist on how to develop a promotion plan for a policy.
Disseminating the Policy
Copies of the policy must be disseminated to all staff, as well as made available in easily accessible locations such as the museum's intranet, employee handbook, staff bulletin board, etc. The easier it is for staff to locate the policy, the more likely it will be referenced and used.
Museums should also consider posting their policies on their websites. Although most museums are apprehensive about doing so, they are among the last holdouts on this point. Universities, other cultural organizations, and even K-12 schools now routinely post their policies on the public portions of their websites. They do so for two basic reasons: 1) it is the quickest and easiest way to refer people to the policy, 2) it allows institutions to use the superb linking abilities of the Web environment to expand their policy into a broader educational document. The Groton School District's Copyright Implementation ManualFootnote 39 for example, offers an excellent example of how a policy placed on the Web can link to various sections of the copyright statute, case law, and other resources to educate its employees about specific details of IP law.
Informing and Educating Staff
Disseminating the policy to employees is important, but dissemination alone is not sufficient. You can't be certain that staff will read the policy or that they will understand its relevance, especially if they work in areas of the museum where IP issues are not paramount or are a relatively new consideration (e.g., security, events staff, docents, volunteers, etc.) Therefore after the policy is announced, a museum needs to make a concerted effort to educate staff in the application of the policy. All employees need to be informed about their responsibilities and liability under the policy, and the procedures for reporting problems, violations, or seeking further clarification.
Possible educational forums include all-staff orientations, department meetings, workshops or seminars. Some institutions require new employees to attend intensive one-on-one meetings with the IP policy overseer or equivalent, to get an overview of the policy and related procedures. Training should be more extensive for staff who confront IP issues routinely in the course of their daily activities.
Tailoring policy education sessions to the context of particular museum tasks or activities is a practical way to show how the policy plays a role in the daily activities of the staff. For example, information sessions conducted in the education department might focus on areas where the policy affects educational programming and development, while sessions in the exhibit department might focus more extensively on how the policy affects the IP commonly used in exhibitions and displays.
The IP policy should be reviewed periodically with staff to retain employee awareness and to announce and describe any changes or circumstances that affect the policy. Some institutions report that periodic use of emails describing the policy in light of some recent circumstance are effective ways to "remind" staff about particular policy aspects and keep it in their sphere of attention.
The best policies include some method for policy enforcement. Enforcement is critical to implementing the policy and making it effective. Many corporations have their employees sign and date a document stating that the employee has read and understood the policy. This procedure emphasizes the importance of the policy and, in large corporations, is key to enforcing the policy should an employee violate it.
Although museums tend to be less stringent, enforcement should nonetheless be a critical component of their IP policy and its implementation. If, for example, after significant discussion, training, and time, you find that an employee in your retail department is still violating policy by not seeking permissions for reproductions of products, you must have some method in place to exert the museum's authority in order to correct the problem. This may be something as simple as a statement in the policy that describes employee compliance and penalties for violating compliance (such as official reprimands or, in extreme cases, dismissal).
The implementation of any new policy frequently faces internal political and social challenges. An institution may have a particular culture and history that makes them less receptive to a new policy in this area, or employees may resent what they perceive as interference in the activities they know best. The most effective way to minimize or eliminate challenges of this type during the implementation stage is to take steps before implementation. By making the policy development process as inclusive as possible at the beginning -- i.e., by communicating the policy development committee's work at periodic intervals and providing opportunities to comment at various points in the process -- you significantly reduce the possibility of stridency and resistance once the policy is ready for implementation.
18.104.22.168 Step 6: Policy Evaluation and Revision
As previously mentioned, policies need to be reviewed at regular intervals to ensure they remain relevant over time. The IP arena is particularly vulnerable to changes brought about by new information technologies and these changes may have policy implications. Museums are also changing rapidly, as they develop new business relationships and define new roles for themselves that involve creating and using IP assets.
How frequently should a policy be reviewed? The review cycles cited in existing IP policies typically range from once a year to every five years. Although a policy review process is not as arduous as the policy development process, it does require a dedicated amount of time to conduct a thorough evaluation. A yearly policy review is probably unrealistic for museums, given the time constraints faced by most museum staff. Yet the rapid pace of change in the IP arena makes a five-year review cycle seem unreasonably long. A compromise strategy followed by many institutions is to conduct an initial policy review after one year, and periodic reviews every two to three years thereafter.
Initial and periodic reviews can be as formalFootnote 40 or informal as an institution deems necessary. The important point is that the policy is reviewed at defined intervals, so that it remains relevant with ongoing changes and ethical considerations in the museum, and in the broader arena of law, technology, and society.
22.214.171.124.1 The Initial Review
An initial review is a first-time examination of a policy after it has been in operation for a designated period of time (usually one year). A year is generally considered long enough to implement the policy and assess its utility against real world issues, and short enough to identify and correct any problems before they become entrenched. In essence, the initial review period is an opportunity to evaluate the use of the new policy in your institution, examine its consequences, and make necessary changes.
Each museum must decide which individual or group will conduct their policy review, although it makes sense to have some of the individuals who helped craft the policy also serve on a review committee. The individual or committee should, during this one-year period, carefully observe and monitor policy usage, and actively solicit suggestions for policy changes from staff. When evaluating the policy, the following questions about clarity and use offer starting points for examination:
- Is staff adhering to the policy? If not, is more training needed? More promotion and awareness of the policy? More enforcement?
- Were there frequent questions, or requests for clarification, about the policy?
- Did these requests occur in the early part of the year (when the policy was still "new") and taper off as the year progressed? Such a pattern suggests that staff need more training and experience before they became comfortable and familiar with the policy.
- Did the requests occur at a consistent rate throughout the year? A constant rate of requests may indicate a need for greater clarity in the policy document.
- Do certain aspects of the policy get questioned or require more frequent clarification than others? These sections may need to be rethought and rewritten.
- Is the policy having an overall positive impact on the institution? Is it fostering new ideas or promoting new initiatives?
- Does the staff have a better understanding of the importance of IP to the museum, as evidenced by more communication, better "follow-through" of process and procedures, and more thoughtful questions?
- Is the policy fostering procedures among staff that are more coordinated and consistent throughout the museum?
- (For museums which are part of a larger organization) Has the policy come into conflict with any other areas of your parent institution?
Rachelle Browne, Assistant General Counsel at the Smithsonian Institution, in a presentation that examined values in IP policyFootnote 41, also suggests that a museum examine the consequences of its policy in the broader context of the museum's mission and values by considering the following questions:
- How does the policy fit in with the museum's mission?
- How does the policy enhance museum delivery of educational and cultural services or another public good?
- Does the policy respect and support innovation and creation, as evidenced in the level of fairness in which it treats artists, donors, source communities, users and visitors?
- Is the policy consistent with the museum's stewardship responsibilities?
126.96.36.199.2 The Periodic Review
After the initial review has taken place, subsequent reviews should occur at routine intervals (two to three years are suggested). These periodic reviews may revisit some of the internal issues discussed in the initial review, but are likely to be more outward looking, examining the policy in light of changes in IP law, current technology trends, and user relationships.
188.8.131.52.3 Amendments and Changes
All policies are eventually amended or (if drastic changes are warranted) rewritten. Whenever amendments or changes are made to a policy, approval needs to be sought from the same authority that approved the initial policy. Revised policies should be identified as such (usually by affixing the word "amended" and the date either at the beginning or end of the policy document). This helps establish "version control" (ensuring that people are following and citing the most recent version of the policy) and makes it clear that the amended policy has been officially sanctioned.
Once changes have been approved, staff should be informed about the revisions and receive copies of the newly revised policy. If the changes are significant the museum may wish to hold an all-staff orientation or departmental meetings to update staff and make sure the newly revised policy is clearly understood.
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