2.4 Crafting the Policy: The Development Process

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 Toronto^{Footnote 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:

1. collections (e.g., objects and images),
2. technology (e.g., collections management database systems, innovative online applications),
3. academic activities (e.g., curatorial and scholarly research), and
4. 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 IP^{Footnote 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.

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 Museums^{Footnote 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.

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.
Examples:
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.
Examples:
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.
Example:

• 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.

Examples:

From the McMaster University Intellectual Property Policy^{Footnote 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 Policy^{Footnote 37}

Relevant Policies

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.