1.1 Goals and Objectives of the Guide
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1.1.1 Background and Context
In 1997, the National Initiative for a Networked Cultural Heritage (NINCH) began a series of Copyright Town Meetings to educate the cultural heritage community about copyright issues, and correct some misconceptions about copyright and fair use in the community. Over the next few years, the level of knowledge and discourse about the topic became much more sophisticated and informed. The Town Meetings began changing their focus in response to both the community's growing sophistication, as well as its request for practical assistance to address issues at an institutional level. The result was a series of "how to" meetings on topics such as practical guidelines for addressing rights challenges in digital publishing, creating and using the arts online, and developing and changing institutional IP policy.Footnote 3
At the same time that NINCH was offering the Town Meetings, the Canadian Heritage Information Network (CHIN) was undertaking extensive work among the Canadian museum community and had determined that IP issues were a rising concern. In response, CHIN created its IP publication seriesFootnote 4 to address various aspects of the IP arena critical for museums (such as licensing, copyright, and rights administration). Because a guide on policy creation was being considered for the IP series, CHIN approached NINCH about their mutual interests in this area. The two organizations agreed to collaborate on a Town Meeting that addressed museum IP policy development and to use the results of the meeting as a starting point for a joint publication.
The result was a Town Meeting entitled Creating Museum IP Policy in a Digital World, which was hosted by NINCH, CHIN, and the Museum Computer Network (MCN), and held in Toronto, Canada in September of 2002.Footnote 5 In many ways this Town Meeting was a corollary to an earlier NINCH event that explored IP policies in universitiesFootnote 6, but with important distinctions: museums and universities have very different IP policy needs and, unlike universities, museums are quite new to the IP policy arena. The need for resources on IP policy development in museums became glaringly apparent.
This Guide, sponsored jointly by CHIN and NINCH, is an effort to address this need. Its purpose is to identify general principles for developing intellectual property policies in museums. A central tenet repeated throughout the Guide is that a museum must craft its IP policy around its own needs, circumstances, and values. Key factors that will influence policy development include the type of museum (usually characterized by size, staffing, collecting area, and governing authority), its activities (research, exhibition, publication, etc.) and the ethics it promotes and fosters. Surrounding these factors are the less tangible but nonetheless real constraints imposed by financial, technical, political, time, and other practical considerations. This amalgam means that no one policy — and no one policy development process — can work for all museums.
The first chapter of the Guide begins with a basic discussion of intellectual property, the legal regimes that govern it, and the kinds of IP that museums own and use. It also explores the concept of policy, how policies differ from procedures, and why museums need an IP policy. The second chapter delves into the mechanics of IP policy development: raising awareness of the need for a policy in an institution, identifying who should participate in developing the policy, and outlining general aspects of the development process and the multiple ways one can undertake it. Chapter 3 examines key elements in museum IP policies, including standard statements found in every policy and those specific to museums.
1.1.2 What Is, and Is Not, Covered in the Guide
1.1.2.1 Scope
The areas of IP addressed in this Guide include all those covered under the legal regimes of copyright, trademark, patent, and trade secrets. The Guide only briefly addresses areas that are frequently associated with IP, such as information management, privacy and publicity rights, or computer use. These areas often intersect with IP issues, and many institutions include them in their IP policies for this reason. However, these areas also occur in enough non-IP contexts (e.g., use and misuse of museum computer systems, employer access to employee email, the sale of personal information gathered from retail transactions, etc.) to warrant their own separate policies, which can be linked or referenced to sections of an IP policy when relevant (e.g., one could insert into an IP policy a statement such as "see also: XYZ Museum's Computer Use Policy, Section 3.a."). The bibliography at the end of the Guide includes references on developing privacy, publicity, and various information management policies for those who wish to create these policies for their own institutions.
1.1.2.2 Audience
The Guide offers a strategy for developing IP policy, which can be used in whole or part by any museum. Efforts have been made to define concepts and outline processes as broadly as possible, but there is a North American bias in the selection of examples, and a common law bias when referring to certain elements of law that often generate policy decisions in Canadian and American museums (e.g., "fair use" and equivalent concepts, "exhibition and display" rights, etc.). Readers need to consider specific elements of their own national laws when developing policy at their institutions.
The Guide is intended for museums of all sizes and types, and for museum professionals regardless of specialization. Because policies are statements of principles, values, and intent that outline expectations and provide a basis for consistent decision-making in an institution, all museum professionals have a vested interest in policy development, whether they help create it or help carry it out.
Many institutions leave policy development, particularly in the IP arena, to their legal counsel. This Guide does not endorse such an approach. Although policy must operate within the confines of law, it exceeds legal provisions by incorporating institutional needs and perspectives, and ethical considerations. For this reason, policy development warrants a collaborative effort between senior administrators and staff, and legal counsel. This Guide is intended for all partners in that collaboration.
1.1.2.3 Caveats
Museum IP policy development is in a nascent stage. Few museum IP policies exist at the moment, and even fewer are available for public review. The reasons for the latter are complex, but generally museums have been reluctant to share their policies in a public forum because they are concerned about increased exposure to risk (especially in today's highly volatile IP environment) or feel their current policy is inadequate to address today's IP issues.
This Guide is informed by several museums that graciously allowed their policies to be used for research purposes, as well as by published literature on IP policy development in other nonprofit sectors such as universities, libraries, and K-12 educational communities. When possible, the Guide makes liberal use of examples from actual policies to illustrate key points in the narrative and to demonstrate variable ways institutions address common issues. Use of these examples does not imply endorsement: each institution's policy reflects its own needs, so no one policy can be seen as preferable to another. Readers also should be aware that the examples presented in the text are excerpts from larger policies and are presented here in a narrow, illustrative context: they should not misconstrue an excerpt as reflecting on the policy as a whole.
Recognizing that museums run the gamut from art to zoology, and may be staffed by volunteers or by hundreds of paid professionals, this Guide outlines a broad approach to developing IP policy that reflects the scale and need of different institutions. The IP assets of a large natural history museum and a small historical society are bound to differ; so too should their IP policy and the process they use to create and implement it. Steps and processes suggested in this manual are broad guidelines that each institution must adapt to their own circumstances.
Finally, the Guide offers advice on policy, not law. Those who need advice on the laws that govern intellectual property should consult legal counsel. The bibliography also offers general resources on basic IP law, and legal terms or phrases that appear throughout the text in bold print are defined in a glossary at the end of the Guide.
Contact information for this web page
This resource was published by the Canadian Heritage Information Network (CHIN). For comments or questions regarding this content, please contact CHIN directly. To find other online resources for museum professionals, visit the CHIN homepage or the Museology and conservation topic page on Canada.ca.
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