Copyright issues -Reply

[Sally Shelton]

This particular policy at the NHM has been brought up to me several times in
personal correspondence with several outraged researchers, so it's good to
get this into open discussion. I personally believe (and nothing I say here
should be construed as representing the stance or policy of my institution)
that it will not in fact be resolved until it is tested in a court case.

I am not familiar with copyright law outside the US, and am not a lawyer,
but I've researched museum policies and intellectual property for several
years now, and the NHM policy on photos or other images is a new and
potentially highly problematic development. I am not endorsing or rejecting
this policy, but personally I would have called for more work on the legal
fine points before allowing it to go into effect.

If one assumes that use of the collections is a one-way flow of benefit from
the museum to the user, and that the museum's rights need to be asserted and
its resource use compensated in order to balance the situation, then one can
see the NHM's argument here. In fact, that's the argument that many
institutions use when addressing the issue of commercial use of collections.
Research use, however, is not in most cases a one-way benefit, and I think
that's the issue that has been overlooked. There are provable intellectual
and educational benefits that come back to the museum from responsible
research use, and that is one of the principal reasons for maintaining
collections in the public trust.

Reproductions of museum collections can be misused. The museum has a right
to spell out contractual obligations for use of images or other
reproductions made by researchers: they can't be sold or otherwise used for
monetary benefit, the museum must be credited, the museum should be asked to
review works intended for publication to ensure that its images and name are
used appropriately, the museum should receive a copy of the product gratis,
etc. Likewise, the museum does, as has been pointed out, have ownership
rights when its own reproductions are being used. But pre-asserting
ownership rights to the actual images or reproductions made by someone else
for research use, or requiring the assignment of such rights before the
images are made, is very problematic indeed.

I have seen problems that developed when the good will system allowing
essentially unfettered research use has been abused. You wake up to find
that commercial interests have misrepresented themselves as researchers, or
that your specimens are featured in a textbook antithetical to the museum's
philosophy (odd how you are ALWAYS credited in situations like that), or
that your visiting researchers have interpreted academic freedom as absolute
license and are in fact selling works incorporating images of your
collection with no notification to you....it happens. You face an
institution-wide financial crisis and are challenged to make your collection
pay its own way, and right away someone proposes a fees-for-research system.
(In my experience, these fare very poorly.) You have a two-tier system which
charges for commercial use but not for research use, and someone decides to
combine the concepts.

All of these are legal even if you find them distasteful. I am not sure that
pre-asserting rights to what is someone else's work is legal. Charging for
the photography is legal. Contractually spelling out what can and can't be
done with an image is legal. But pre-asserting actual ownership of the image
is highly questionable and really is going to take a legal challenge to
resolve. I'm sure we'll all be watching this issue closely.

In the meantime, the real victim is the research use of the collections.
Charging fees has not resulted, in most cases that I know of, in any money
coming into a museum. Instead, it's often resulted in a drastic drop-off of
research use of that collection, which does nothing to halt a downward
spiral and may even accelerate it. Claiming ownership in advance of images
could have the same effect, and that would be a true loss.

Cheers,
Sally Shelton