An Analysis of Economic Models for Administering Museum Intellectual Property

II. Museum Intellectual Property

Museums hold vast collections of materials that are available on display at museum premises and that are available on a more limited basis for researchers to consult in vaults and other storage devices. Access to the collections is generally made with certain restrictions relating to the handling of the individual items in the collections and the making of reproductions of such items whether by photography or by drawing or painting. The collections principally consist of artifacts, documents, crafts and works of art of both a contemporary and historical nature. A museum's collection may be widely known in the public and readily associated by the public with the name of the museum or name that the museum applies to a segment of its collection.

There are various intellectual property rights that may arise in connection with the items in a museum's collection. Of principal importance is any copyright that may subsist in a document, craftwork or work of art in the collection. Copyright subsists in Canada for a finite term in every original literary, dramatic, musical and artistic work provided that certain requirements concerning the citizenship or residence of the author and the place of first publication of the work, if published, are met. As a general matter, it is unlikely that copyright would subsist in an artifact, although there may be some contractual or other restrictions relating to the use of the artifact, particularly artifacts of significance to native communities.

It is unlikely that a museum will own the copyright in any of its documents, craftworks or works of art in its collections unless the museum acquired the copyright from the owner by written assignment. As a general rule, the first owner of copyright is the author ¹ of the work and a sale or transfer of possession of a work does not involve a conveyance of any copyright that might subsist in the work without an express assignment of copyright in writing. Also as a general rule, and with the principal exception of photographs, the term of copyright is for a period of the life of the author, the remainder of the calendar year in which the author dies and fifty years from the end of that calendar year.² Upon the expiry of that term, the copyright falls into the public domain and the work may be reproduced without infringing copyright.

The term "artistic works", one of the categories of works in which copyright may subsist, is defined in the Copyright Act to include photographs.³ Copyright subsists in a photograph for a period of fifty years from the making of the initial negative or plate, or the photograph where there is no negative or other plate, and the owner of copyright is usually the person who owned the negative, plate or photograph, as the case may be, the time the photograph was taken.⁴ It is, therefore, possible that copyright would subsist in a photograph of an item from a museum collection including an artifact. The museum would likely own copyright if the museum was the owner of the negative, plate or photograph, as the case may be, at the time the photograph was taken, subject to any agreement to the contrary with the photographer. The museum is able to secure value in a photograph of an item in its collection by restricting the circumstances in which photographs of the item may be taken and the quality of the photographs taken.

It is at least arguable that copyright would subsist in a digital photograph of a work, even a digital photograph of a photograph. This issue has not, however, been tested in the Courts in Canada.

Although a museum may obtain copyright in a photograph of an item in its collection, the photograph, by reproducing the item photographed, may infringe any copyright that subsists in the item. Therefore, in order to avoid infringement of copyright museums only take photographs of works that are in the public domain or of works for which the museum has the consent of the owner of copyright and the use made of the photograph is within the scope of the consent. By assembling photographs of the items in its collection, a museum is able to compile a series of potentially valuable intellectual property rights in such items.

In addition to copyright, a museum may have valuable trade-mark rights in its name or the name of its collection. There may be value to a commercial entity to be able to use the museum's name in association with the marketing of a product which comprises or includes images of items in the museum's collection. A discussion of the licensing of a museum's trade mark rights is beyond the scope of this paper.