Developing Intellectual Property Policies:
A How-To Guide for Museums
1.3 A Primer on Policy
A policy is a set of statements of principles, values, and intent that outline expectations and provides a basis for consistent decision-making and resource allocation in respect to a specific issue10. The word policy comes to us from the Middle English word policie, which means the art of government (and from which our modern word police is derived). Indeed policies are one of the chief tools of governance for an institution. Museums have long relied on them for acquisitions, collections, loans, deaccessions, personnel and other areas that require institutional oversight.
How do policies provide governance? They articulate institutional respect and responsibility about a particular issue. They protect institutions from accusations of wrongdoing and allow them to address issues before disputes arise. They inform staff of institutional "do's" and "don'ts". They hold institutions accountable and set a high standard for an institution to follow. They enable institutions to manage relationships that will enhance the institution's role and perception, as well as its productivity. And they allow institutions to craft practical mechanisms that address issues that the law does not address.
As a high level articulation of principles, a policy focuses on general statements, not details. Good policy is clearly written, inclusive and holistic in its approach to the topic it addresses, acknowledges institutional culture and values, and is technology-independent11. It can be easily followed by everyone in an institution and is revised/updated periodically to accommodate changes in institutional philosophy, mission, or newly emerging issues. Good policy conforms to all laws relevant to the policy issue, but is not merely a rehash of legal requirements. It often can and should set a higher standard than federal, provincial, or state statutes. The area of moral rights provides an example of how this may occur. Both Canadian and U.S. law address the concept of moral rights: Canadian law follows the broader model of moral rights that are articulated in the Berne Convention, while U.S. law follows a more limited application (as outlined in the Visual Artists Rights Act12. in U.S. copyright law). While the "letter of the law" (i.e., the scope and application) is very different in both countries, the spirit of the law -- that artists have rights to their creations that are independent of economic rights -- is the same. A U.S. contemporary art museum that places great value in its relationship with artists may wish to embrace the spirit of the law by adopting as its institutional policy a broader interpretation of moral rights (such as that outlined in the Berne convention) than U.S. law requires.
Although the elements included in a policy will vary depending upon the needs of an institution, sound policy will always include the following components:
- Statements about what is allowed and disallowed
- Statements about how the institution will ensure policy is being followed (monitoring)
- Identification of the consequences for failing to follow the policy (enforcement)
- Links to other relevant policies
- Links to procedures and practice
Although this Guide focuses on IP policies, it is important to understand procedures and their relationship to policy. It is not unusual for institutions to confuse the two, although they are very distinct in purpose, development, and use (see Table C). A procedure is a particular method of accomplishing a task that is usually implemented in sequential "steps". Procedures provide the "who," "when," and "how" details that policies do not address. They outline the way one conducts day-to-day operations. Procedures are malleable and can be altered easily, often in response to specific operational needs such as staff changes, departmental reorganization, new technology implementation, or new projects. They are easier to develop and approve, as they require input only from those involved in the particular "step" that needs modification.
Museums are laden with procedures -- from the initial process of acquiring an object through each of the activities that involves its use. Often these procedures are maintained and followed through "checklists" that articulate each step, but they may also be implemented less formally through guidelines.
Ideally procedures should emerge from policy, but the reality in museums is that many procedures are created in the absence of policy. (The pressure of meeting day-to-day needs favors a quick and systematic response that a procedure provides.) Few museums, for example, have IP policies, but most have IP procedures of one sort or another: for example, rights and reproduction checklists; fee and usage schedules; and gallery filming and photography procedures.
Table C: Differences Between Policies and Procedures13
| Policy | Procedure |
| Describes principles |
Describes processs |
| Addresses the "what" and "why" |
Addresses the "how," "when," and "who" |
| Purpose is to facilitate governance |
Purpose is to facilitate operations |
| Broad application |
Narrow application |
| Expressed in broad, inclusive manner |
Expressed in detailed manner |
| Changes in response to alterations in institutional mission/philosophy, relationships, or newly emerging issues |
Changes in response to operational needs of the institution |
| Changes infrequently |
Changes frequently |
Although policies and procedures have very different purposes and roles, they work together to achieve the overall goals of an institution. In effect, policies are implemented through procedures. For example, a museum may have a policy that states it will properly acknowledge and credit the ownership of all IP, but it is the procedures that spell out exactly how the museum staff will do this (e.g., through the use of credit lines, attributions, copyright notices, or trademark symbols).
