1.0 Introduction: The Demise of the Polite Policy

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Not so long ago, the tradition for using and sharing intellectual property (IP) in museums could be best characterized as a "polite policy."Footnote 1 Those who wished to use a museum's IP could do so in return for a reciprocal courtesy or a credit line, and perhaps some small payment. The proliferation of this tradition throughout the museum world prior to the 1970s was rooted in the sentiment that museums have an obligation to foster research, assist colleagues, and make their resources available for endeavors that ultimately would serve the public good.

In truth, such altruism could easily be sustained because the volume of use of museum assets outside the museum was fairly low. Few museums had, or needed to have, rights and reproductions departments. External requests for use of museum materials were handled largely through informal contacts. A curator would lend an image of a work to a colleague; a director might approve use of an image for its publicity value in a film. Circumstances began to change in the 1970s, with the creation of the blockbuster exhibit and its push towards richly illustrated catalogues and museum store reproductions, and was boosted still further in the 1980s with the advent of compact digital storage technologies, such as laser discs and CD-ROMs, that created a demand for "content" that could be compiled, packaged, and delivered to large markets in a portable form. The creation and popular acceptance of the Internet, and its primary distribution mechanism, the Worldwide Web, pushed demand for museum IP to all time highs.Footnote 2 Commercial and educational endeavors sprouted up, eager to use museum images over networks to address special markets (such as scholars, K-12, college students, and life-long learners) or tap into the general public's increasing appetite for images that could be used for personal enrichment and enjoyment.

In the wake of this surge in demand, the "polite policy" began to erode. Museums could no longer meet the requests for their IP assets without taxing existing resources. They needed more staff, and more staff time, and began to levy fees to cover these costs. Larger economic problems also loomed on the horizon. Traditional sources of museum support were changing and new sources of revenue were needed. The increasing demand for various forms of museum IP -- particularly images -- was viewed by many as a potential new revenue source that could be used to support the museum's other activities.

In the end, what sealed the fate of the "polite policy" was the social and economic implications of new digital technologies and networks. The ease of reproducing digital materials in exact form, and making them instantly available worldwide, proved to be both an asset and a liability. By providing access to materials without regard for geographic boundaries or time zones, the very concept of a museum has been extended from the traditional notion of a "brick and mortar" institution to a virtual online resource. However, this benefit comes with some risk as the digital environment makes it easier for works to be misappropriated. Anyone can now "publish" on digital networks, and a working ethos adopted by many network users of taking what is available means IP owners and creators can easily loose control over the use of their works.

The area of law that addresses misappropriation of creative works is intellectual property law. The digital revolution has moved this legal regime from a low profile in the legal landscape to one of the foremost areas of law today. In addition, intellectual property has become an increasing important aspect of our culture, moving from mostly legal spheres to the larger arena of socio-cultural debate. Nowhere is this more apparent than in the switch we have made in our own language. Cultural industries and organizations -- museums included -- now collectively refer to their materials and holdings (i.e., their collections, publications, designs, etc.) as intellectual property assets.

So it is a confluence of circumstances -- increasing demand for museum content, costs for delivering that content, the potential of IP as a new revenue source, and the concern about misappropriation -- that has led many museums to realize they need formal policies and procedures to govern the ownership and use of IP. The "polite policy" is being replaced by the intellectual property policy.

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