1.4 Museum IP Policies

1.4.1 Why Do We Need Them?

Why do museums need a policy that specifically addresses IP? The short answer is that museum assets now have an economic component that make them valuable in a financial, as well as in an aesthetic, historical, or scientific sense. A recent study commissioned by CHIN^{Footnote 14} identified the greatest potential commercial markets for museum IP in the broadcasting, publishing, advertising and multimedia development industries. There is also a growing commercial potential in product licensing, as well as in the educational community, where museum IP could be a driving force in research and development investment for distance and life-long learning applications. In an era of "belt-tightening" and decreased support from traditional sectors, museums understandably may wish to explore these areas as new sources of revenue.

Doing so, however, requires prudent management and understanding of these assets, as well as consideration of an institution's values and goals. Universities have long understood that the economic potential and high level of private sector investment in their assets behooved them to administer these assets and investments carefully. Although the diversity and lucrative nature of university IP assets lie largely in the areas of patent, increasingly copyright and trademark assets are proving important as well. The advent of information technologies has made the university's traditional relationships with faculty, administration, and students increasingly complex, leading to a groundswell of IP policy development in this community.^{Footnote 15}

Although the museum scenario differs in many respects from universities, the changing nature of IP and how it is perceived compels museums to understand and responsibly manage these assets. IP policies are the first step in fulfilling this obligation. They set the standard by which the museum will act when dealing with IP, as well as the criteria by which its actions will be judged.

In a discussion that specifically addressed the question of why museums need IP policy,^{Footnote 16} Rina Pantalony, Legal Counsel for CHIN and Justice Canada, identified several issues for museums to consider:

• IP is a museum asset, equivalent to other museum assets such as buildings and grounds, collections, staff, etc. Boards and museum administrators have legal and fiduciary obligations to manage these assets prudently.
• Museums increasingly interact with global audiences. This communication involves use of IP assets internationally, which introduces a host of new issues such as jurisdictions, commerce, etc. In effect, the ease of global communications has pushed museum management requirements and burdens to a new level of complexity.
• IP has commercial potential; this potential requires fiscal management.
• The educational potential of IP requires a forward-thinking, balanced strategy between users, the academic side of museums (e.g., curators), and institutions. Such a strategy must also take into account educational exceptions such as fair use and fair dealing, making sure these exceptions are not disregarded because of the current protective environment.
• Conflicting administrative pressures within an institution dictate a need for clarity about IP and its management. Staff in different museum departments have different needs, some of which may be at odds with one another. Without a policy that clarifies the institutional perspective, a museum can place itself at increased risk of liability and inadvertently foster conflicting in-house activities in the treatment and use of IP.
• Policies provide an opportunity for museums to add their voice to broader IP debates. These debates (e.g., fair use in a digital environment, term extension, the diminishing public domain, etc.) are becoming increasingly important, as rights once assumed are now frequently challenged. Because policies bespeak accountability, they lend credibility to those who develop them. Museums who have their own IP policies are highly informed of the issues as a result of the policy development process: they can enter the debates with knowledge and authority, and be considered serious partners in the larger sphere of government policy.

Some museums feel that IP policies can be used against their institution, putting them at increased risk of litigation. Because policies cannot encompass every possible contingency, these institutions opt to have no policy at all. Instead, they address IP issues in a less formal manner, particularly if they don't have enough administrative support to monitor or properly manage a policy.

Such a perspective misunderstands the true nature of policy. It is not a rule-making instrument: rather, like a "best practices" document, it is an institutional effort to set the highest professional standards possible given the needs and limitations of the institution. A belief that policy can be a liability implies a very passive, forensic view of policy as a tool that addresses legal actions. Good IP policy is, at its best, "about respect for innovation," a progressive, forward-looking statement that enables and manages relationships to enhance the mission of the museum.^{Footnote 17} Institutions that fail to draft an IP policy are ignoring an opportunity to craft mechanisms that will use IP assets to further their institutional mandates.

No policy will cover every contingency, nor should it, or it would be too rigid and cumbersome to manage. Museums will always encounter situations that challenge a policy or that require exceptions to a policy. In such circumstances, a museum needs to practice due diligence and document why it followed a certain course of action so it can show that it acted responsibly and thoughtfully to whatever out-of-the-ordinary situation occurred.

1.4.2 What is a Museum IP Policy?

A museum IP policy is a statement of principals, values, and intent about the IP assets owned and used by a museum. Ownership and use are critical components of these policies, and are considered from two different perspectives: IP assets created by museums, and IP assets created by third parties.