Developing Intellectual Property Policies:
A How-To Guide for Museums
1.2 What is Intellectual Property (IP)?
1.2.1 What Kinds of IP Reside in Museums?
1.2.2 What Kinds of IP Do Museums Create?
1.2.3 What Kinds of IP Do Museums Use?
Intellectual property is a phrase used to define "a concept in which tangible expressions of intellectual/creative pursuits -- such as inventions, designs, creative works, etc. -- are treated in legal and social spheres as property, with all its attendant implications (e.g., ownership, use, economic transactions, etc.)."7 It is governed by the legal regimes of copyright, trademark, patent, and trade secret law. Each of these regimes addresses specific types of IP:
- Copyright protects original works of authorship that exist in a tangible (i.e., physical) form, such as literary, artistic, musical, dramatic, and architectural works. The protections conferred by copyright (e.g., right to copy, distribute, display, etc.) and the period of time that a creator has the exclusive rights to those protections, varies from nation to nation.
- Trademark protects distinctive words, phrases, symbols, and designs that identify and distinguish specific goods and services in the marketplace. The protections afforded by trademarks, and the period of time the trademark holder can claim a trademark, vary considerably by country and by whether the trademark is common-law or federal.
- Patent protects inventions -- usually described as new, useful and "non-obvious" processes, machines or chemical compositions. It grants inventors the right to prevent others from making, using, offering for sale, or selling their invention for a specific period of time and within a specific national territory.
- Trade secret protects information that confers value and competitive advantage in the marketplace by virtue of its being a secret. Trade secrets can be formulas, a business or industrial method, processes, programs, source code, a list of clients, marketing plans, or any other information that gives an organization economic value or advantage over other organizations who do not have this information.
These seemingly simple distinctions among regimes mask a tremendous amount of complexity, for each regime has its own means of offering legal protection to the IP it governs. Registration is mandatory for trademark and patent, but not for copyright. International conventions govern the treatment of copyrighted works across nations, while trademark and patent operate within strict jurisdictional boundaries. Trade secret may straddle different legal areas, such as contract or patent, and is governed by state and provincial law. The intricacies of each regime can only be adequately understood with the assistance of legal counsel.
Museums have intellectual property that falls under the jurisdiction of all four of the legal regimes described above. Historically, museums have focused most of their attention on materials protected by copyright: the majority of their IP assets are protected under this area of law, and their activities center on the use of these materials. Over the last five years museums have increasingly established trademarks for names, logos, and designs associated with their activities, services, and reputation. Patent, formerly the domain of science and technology centers and natural history museums, is now found in all types of museums largely due to locally developed techniques and technologies such as conservation or exhibit installation methods. Trade secret has emerged as an important regime for museums entering into business partnerships, where it is used to protect assets such as donor lists, software code, exhibit concepts, etc. via nondisclosure agreements.
The following table identifies some of the IP that museums own, create, or care for, categorized by the legal regimes that govern them:
TABLE A: The Types of IP a Museum May Own
| Copyright | Trademark* | Patent | Trade Secret |
| Object collections | Museum name | Exhibit setups | Donor lists?8.
|
| Publications | Logo | Scientific processes | Marketing plans |
| Website | Exhibit name | Designs | Software code |
| Multimedia works | Educational program name | Casting techniques | Business ventures |
| Public relations materials | Building or architectural feature of a building | Mounts | Exhibition concepts |
| Images | Slogans | Hardware | |
| Film | Retail store name | | |
| Video | Cafeteria name | | |
| Manuscripts, maps, architectural drawings | Publication name (catalogue, newsletter, magazine) | | |
| Educational materials, e.g., handouts, work exercises, gallery guides, teacher materials | Public program name | | |
| Public programs | Domaine name9.
| | |
| Software | | | |
| Databases | | | |
| Administrative and cataloguing materials e.g., checklists, catalogue cards, loan agreements, acquisition forms | | | |
| Sound recordings (CD's tapes, phonographs) | | | |
Although museums are warehouses of rich and diverse IP, their ability to use these assets is complex. From an IP perspective, museums assets are viewed according to the relationships that exist between the asset's creator, physical owner, and rights owner. The variations on this relationship are outlined in the following matrix (Table B):
TABLE B: Matrix of Relationships between a Museum and Various IP Assets
| Created by | Object Owned by | Rights Owned by |
| Museum | Museum | Museum |
| Others | Museum | Museum |
| Others | Museum | Public Domain |
| Others | Museum | Others |
The distinction between ownership of an object and ownership of its IP rights is critical, and has important implications for museum policy. Although museums have free rein to use materials that fall into the first three groups listed in the above table, they can only use the materials in the fourth group -- which comprises the bulk of many museums' holdings -- if explicit rights have been granted from the rights owner. IP policies thus must address two dichotomous perspectives: the "museum as IP owner" and the "museum as a user of IP owned by others". Museums frequently fail to acknowledge this duality and create policy as owners that they themselves would not wish to follow as users.
Museums have traditionally defined themselves as owners and caretakers, rather than creators, of IP. Museums do, however, create a great deal of IP and should recognize and acknowledge this strength at every opportunity, since other groups clearly perceive museum IP as important and value its availability. For example, curriculum packets and other materials developed by museums are highly sought after by teachers. The public eagerly purchases museum catalogues, and the entertainment and advertising industries seek museum association for the cachet it lends to their production or advertising promotions.
Perhaps the most visible IP developed by museums comes from its educational and public programming activities: the publications, websites, virtual exhibitions, databases, brochures and public relations materials, educational paraphernalia, public lectures, etc. that all museums develop. Less clearly defined, but no less important, are items like labels, drawings, or images created by a museum and used over time in a way that leads to an association with specific services and a reputation for high quality -- what the business world refers to as "brand." IP created and identified with a museum in such ways includes its name, logo, exhibition program names, etc.
Many of the activities conducted by museums have a more amorphous aspect to them that may also result in the creation of an IP asset. For example, the creation of an exhibition is akin to a compilation: the works in the exhibit may belong to others, but the research, organization, and layout are unique and qualify as a creative work (in this instance, a copyrightable work). Museum websites are another example. They may contain IP owned by others, but the organization, design, layout, navigation, research, etc. are all value-added aspects that makes the site as a whole an IP asset created by the museum.
Museums are frequent users of materials whose IP rights are owned by others (often referred to as "third party IP"). In the course of their day-to-day activities, museums likely use software and computers that were created by others; develop exhibits using art, publications, photographs, manuscripts, music, film, or video that they themselves did not create; and conserve collections using materials and techniques developed by others. In truth, museums, like all institutions, are dependent upon third party IP in order to operate.
Museum use of third party IP can legally take place in one of two ways: via licensing from a rightsholder or by claiming an existing exemption in IP law. Licensing is becoming extremely common throughout museums: the use of music in a museum cafe is licensed from ASCAP or another music licensing collective; reproductions of a 20th century art work is licensed through the artist, his/her estate, or a designated artists' rights organization; software is licensed via a site license between the software company and the museum. Some licenses are "implied" rather than formally developed. "Shareware" -- software or other items made freely available by their creators -- are of this type, as are verbal agreements.
Exemptions in IP law are also commonly invoked by museums when using third party IP. In North American museums, fair use or fair dealing are common exceptions in copyright law which allow the use of third party IP without the copyright holder's permission, as long as the IP is used in the specific contexts outlined by the exemption.
