At 12:05 PM 2/25/97 -0500, on museum-l Richard Gerrard wrote:

>Robert,
>
>I would like to comment on a few things you said.
>
>Robert A. Baron wrote:
>[snip]
>> Yes, indeed, but there is a difference between a museum's obligations to
>> the "object" and its right to administer the "intellectual property" that
>> exudes from that object.
>
>As a Registrar I see no difference between the management of an
>institutions physical assests (i.e. the collection) and its intellectual
>assets (i.e. surrogate images, research reports, etc.).  Each has
>significant "real world" value, both in the cost of creating
>them/acquiring them and in managing them.  Even as a publically funded
>organization our intellectual property belongs to the Corporation of the
>City of Toronto -- I assure you they take their rights to manage these
>assets quite seriously.

Richard caught me in a misstatement.  I should have said "and its
[exclusive] right to administer the "intellectual property" that exudes
from that [public domain] object."

Obviously museums feel a responsibility to present their images in a light
which best reflects on their institution and which interprets their objects
in a fashion they consider appropriate, reasonable, accurate and
profitable.  Yet, museums are just stewards, and in the long run perhaps
just temporary caretakers for works of art.  The intellectual property of
public domain works, by law -- even in Canada -- is not given over as sole
posession of the holder of the physical object.  While museums have custody
of the object and certainly feel obligations toward the image of that
object, they are nonetheless not endowed with the right to possess that
intellectual property as if they held a monopoly interest in it.  Indeed,
until a works arrives at that moment at which it enters the public domain,
the copyright, itself, may not belong to the museum, but to the creator and
his or her heirs.

Now to some of Richard's points.  He quotes me:

>> The former needs attention to its physical
>> welfare, the latter, once copyright is no longer an issue, the law of
>> public domain frees to wander where it might.
>
>This passage into "public domain" is a significant assumption on your
>part.  The US Copyright office has recognised Corbis' copyright to
>digital files (see _The Art Newspaper_ No. 60 [June 1996] page 6), these
>may well represent surrogate images for original images which may have
>passed into the public domain.  Being sure something is public domain
>might be more difficult than we currently suppose in a digital realm.

Richard is mistaken when he suggests that the creator of a reproductive
work given copyright status owns full rights to that which it copies.  If
reproductive images are copyrightable (and I have argued elsewhere that
they are), that does not necessarily give copyright holders the exclusive
right to manage that part of the image that copies the underlying public
domain portion.

This is a difficult concept to entertain for some people.  It is best
described, I think, via the term "thin copyright."  The "thin copyright"
refers to that portion of a reproductive image that differs from the
underlying public domain source.

When Corbis scans an image -- even though many people think of this
activity as an aesthetically neutral endeavor -- it is not.  Decisions are
made all the time by the aesthetician-technicians working the machinery.
The code word here is their intent to make the resulting image "look good,"
rather than seem accurate.  Indeed, even if they work believing that
accuracy is their intent, their decisions, described as the working of
technique, are but attempts to make the scan conform to our current
aesthetic.  So we can agree that the photo or scan has copyrightable
portions.  (At the recent meeting of the Visual Resources Association, the
University Attorney for Johns Hopkins, took the opposite view: that most
reproductive images are not copyrightable and probably can't win copyright
registration from the US copyright office.)

And yet, depending upon the circumstance, certain reproductions will have a
lesser chance of exhibiting the "original" treatment that the law requires
for copyrightability.  (Canada, incidentally, does not require
"originality.")  But in the U.S., reproductive photographs will have more
or less originality, with more being exhibited for three dimensional works
that require lighting, posing and photographic composition, and less for
works such as two-dimensional art or graphic items.

Those who read my original post carefully will note that I did not deny
that reproductive photographs of public domain objects were copyrightable.
I only suggested that they hold within them public domain images which the
public may, under certain circumstances, have the right to extract and use
as it sees fit.  (Fair Use is another issue.)

Finally Richard notes:

>I guess what I am trying to say is this, as a Registrar I have a broader
>stewardship obligation to both the physical and intellectual property
>under my care.  I seek a ballence between the needs of all user groups
>and those of the collections.  Given limited resources helping one group
>may mean (regretably) that it will deny or delay access to another
>group.

No one can deny that registrars and rights and reproduction personnel do
have the obligation of stewardship about which Richard speaks.  The point I
make is that the museum may not elect itself as the sole such steward and
need not always be obliged to mediate between the demands of the museum and
its clients. For works out of copyright, the public domain serves as the
ultimate repository of the accumulated works of human achievement.  Museums
have the unique obligation and right to serve these objects to today's
viewers using today's technology.  The results of these endeavors can be
licensed, but the core intellectual property within these products, I'm
glad so say belongs to whomever may need it.

(with thanks to Mario the Postman)


================================================
Robert A. Baron,
Museum Computer Consultant
P.O. Box 93, Larchmont, N.Y. 10538
mailto:[log in to unmask]
See "Copyright and Fair Use: The Great Image Debate"
http://oregon.uoregon.edu/~csundt/vrcfu.htm
================================================