The question has been put to the museum-l readership as to what rights the
Smithsonian may retain in data and copyrighted materials generated by or
for them.  Some on this list have maintained that the information is
public, can be freely published, and is not subject to copyright
protection.  Others have noted that the Smithsonian is not per se a public
institution, but is independant with governmental governance.
 
I cannot provide a definitive answer to the issue, but can, I think, cast a
light on how they treat information and copyrightable materials created for
them.
 
The standard Smithsonian contract for projects let to bid contains the
following stipulation:
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H.8. Rights-In-Data
The term "Subject Data", as used herein, includes but is not limited to,
writings, photographs, pictorial reproductions, films, videotapes, sound
recordings, sculpture, painting, drawing, or other graphical reproductions,
and works of any similar nature (whether or not copyrighted) which are
included in the material to be delivered under the contract.
 
H.8.1.
The Contractor agrees that all subject data first produced in the
performance of this contract, shall be considered "work made for hire" and
the copyright thereto, shall be the sole and exclusive property of the
Smithsonian Instituion, may be copyrighted by the Institution in its own
name, and may not be published or reproduced in whole or in part, or in any
manner or form, other than by the Smithsonian Instituion or with its
express written concent.  The Contractor further agrees that no right at
common law or in equity shall be asserted, and no claim to copyright by
statute shall be established by the Contractor in any subject data first
produced in the performance of this contract without the express written
consent of the Smithsonian Institution.
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My understanding of these conditions leads me to conclude that the
Smithsonian asserts its copyright control over works made in their behalf
both from without, and (by extension) from within the instituion. I don't
see how such works would naturally and without dissent fall into the public
domain or can be covered by the doctrine of fair use.
 
 
______________________________________
Robert A. Baron
Museum Computer Consultant
P.O. Box 93, Larchmont, NY 10538
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