1.4 Museum IP Policies

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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 CHINFootnote 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.

1.4.2.1 The Dual Aspect of Museum IP Policies

The dual role of museums as IP owner and user presents a source of tension in museum IP management, as museums seek to maximize the economic potential of their own assets while minimizing the (usually financial) impact of using third party assets. One of the most frequent areas where this tension surfaces is with collections that are physically owned by a museum, but whose IP rights are owned by others. Museums cannot economically exploit the rights in these materials in ways that could help them recover the costs of caring for and interpreting them. Because a large proportion of museum collections fall into this category, museum policies are largely efforts to achieve a balance between museum needs, the rights of others, and the values that the museum wishes to express.

1.4.2.2 One Policy or Many?

Some institutions address IP in several, separate policies that they collectively refer to as the "IP policy". Because IP issues come into play in a number of distinct instances, and some of these circumstances are more important for certain institutions than others, museums may choose to create policies by different areas of law (e.g., a copyright policy, a patent policy, a trademark policy) or different activities where the law applies (e.g., image access and use policy, website policy, publication policy, etc.)

The choice of one encompassing policy or many separate policies is the subject of some debate. However, the more IP-related policies in place, the more likely it is that a museum will inadvertently drift away from an institution-wide, unified perspective and philosophy about IP issues. A broad-based, "umbrella" IP policy is critical to ensure that the institutional perspective and values about IP creation and use are clearly stated and understood throughout the museum.

1.4.2.3 Differences Between Museum and University IP Policies

Why Look at University IP Policies?

When developing IP policies, museums frequently turn to universities as models. Universities have more experience with creating and implementing IP policies. Their education and research missions are similar to the mission and goals of most museums, and they frequently have museums and collections on their campuses that are governed by their policies. A review of university IP policies can provide great insight into the key IP issues that are addressed by other nonprofit cultural and educational entities.

The Limitations of University IP Policies for Museums

  • Universities and museums have different activities and perspectives on IP ownership and use, and it is important to note these limitations. At universities, faculty have traditionally been granted ownership rights to the works they create in the course of their employment at the institution. Lately this tradition has been questioned because of the development of online courseware and the economic potential this work holds for universities. Often faculty want to take their courses with them if they move to another institution, or enter into collaborations with commercial entities to use the courseware outside the university where it was developed.
  • Universities have more instances of joint copyright ownership than do museums, because faculty frequently develop works with industry, governments, or inter/intra-university partners.
  • Universities have a high volume of patentable works (the result of large-scale scientific and industrial collaborations) that are the subject of IP policy.
  • Universities will often craft their policies to accommodate values engrained in the university ethos, such as free speech and privacy rights, which increasingly surface in the context of IP issues.

In the end, museums are advised to consult university IP policies to inform their own policy development process. There may be some overlap in policy needs between the two types of institutions, such as in the area of staff ownership (particularly in university museums, whose curators are often faculty members). However, the predominant IP issues in museums center on the collections they own and use, and the surrogates or reproductions (such as images) that they make of these collections.

1.4.2.4 All Policies are Local

The late United States Congressman Tip O'Neill famously quipped that, ""all politics are local."" This same bit of wisdom applies to policy development. A policy is rooted in a specific institution's mission, history, organizational culture, activities, and values. Institutional size and scale (in terms of staff, resources, and collections) also will have an affect on policy. Smaller institutions with fewer IP assets and lower volumes of IP use often need a less elaborate policy than larger organizations with diverse IP assets and heavy usage volumes. A museum's collecting area also affects policy: archaeological museums, for example, need not address artists rights issues for their collections, while contemporary art museums certainly would want to do so. Even organizational charts and staff responsibilities will affect policy outcome and perspective: a museum is likely to develop a different policy statement if its IP is centrally managed than if it is dispersed among different departments and different personnel.

Other factors that play a role in crafting IP policy include institutional values and pragmatic concerns. Both these factors were behind The Tech Museum of Innovation's policy statement about its exhibits and related multimedia.Footnote 18 The Tech Museum grants nonprofit science centers, museums, and similar institutions the right to copy and use the Museum's exhibits and associated multimedia programs free of charge. This generous contribution of IP to the community is partly the result of the Museum's belief that, ""it has benefited from much help and advice freely given to it by other science centers, and is pleased in its turn to make its own contributions to the field."" However, the Museum also notes that the goal of "giving back" to the community was only one factor that led to this policy. Other considerations include staff limitations and market realities. The Museum acknowledges that its ""staff has no time available for dealing with sales of exhibit designs, software, A/V programs or other intellectual property, and especially for providing the backup service required by the expressed or implied warranties entailed in such sales"". From discussions with several other science centers' staffs, The Tech Museum concluded that, ""the trouble involved with these sales is poorly compensated by the prices realized."" Thus the Tech Museum's IP policy statement about its exhibits emerged after consideration of many complex factors: institutional values ("giving back"), assessment of capabilities (limited staff time), market realities (limited financial return), and the type and nature of the IP itself (resource-intensive exhibits and associated A/V materials).

Museums that are part of a larger organization (such as a state or federal government, university, corporation, or association) have an additional factor to consider with their IP policies: the larger authority that governs them. A university museum, for example, is governed by the policy of its parent university, but it may go further with the parent policy by developing "sub-policies" in areas that are specific to the museum, as long as these sub policies do not conflict with the broader parent policy.

Ultimately, the process of developing an IP policy must take place within each museum: reviewing other policies is good practice, but it is unwise to partially or wholly adopt them for one's own use because local factors and circumstances are critical in shaping an IP policy statement. Shortcuts will not force an institution to confront policy choices, nor will it focus attention on the good of the institution over individual or departmental interests. By going through the IP policy development process, an institution uncovers information about its own IP and IP usage, engages its staff and administration in an effort that addresses IP institution-wide in a positive, pro-active manner, and assures greater acceptance of the policy by those it is meant to govern and guide.

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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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