Robert,

you make some very good points, and I'd like to follow up on some of
them.  I think this is an are where more discussion is needed --
particularly in respect to globalisation of intellectual property rights
protection and the Internet --

I would like to add two point before I continue this thread further.

1) I'm not a lawyer, so I encourage any members of the legal profession
to correct or revise any errors in law I might make.
2) I speak from the position of someone working in a Canadian museum.
(In the US, 'your milage may vary'.)

Robert A. Baron wrote:

[snip]

> 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.

I am sorry for being unclear in my reply.  For the record, I do not
believe that the author (i.e. photographer) acquires full copyright in
all cases where s/he creates a new work based on an existing one.  (The
author may well infringe on the original author's copyright or moral
rights in the original work.)  What I am saying is that in the case of a
museum which holds or is assigned the copyright to a work (and the moral
rights have been waved), or where the rights to the work is in the
public domain, there is a copyright created in the reproductive/surogate
image.  The copyright may be vested in either the photographer or the
institution depending on the relationship between them (e.g.,
employer-employee, or contractual assignment).  We seem to agree on the
substance of this point.

> 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.

I can not find the term "thin copyright" in the Canadian Copyright Act
or Copyright Rules.  Perhaps this is a US legal concept?  My concern as
a copyright administrator/user is this, how "thick" does a copyright (or
moral right) have to be to end up in a civil litigation over its alleged
infringement.  I think it would unfortunate if my museum to become a
citation in a legal text as a test case for this allegation.
Unfortunately, in Canada, "fair dealing" is an extremely limited range
of activities and may be used as a legal defence in a case of alleged
infringement and not a right enshrined by law.  (This may change if they
ever pass the Phase II changes to the Copyright Act [Bill C-32]
currently before Parliament. As there are certain specific exemptions in
C-32 for the use of copyright protected material in museums, libraries
and archives.)

> 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)

If museums are not the sole stewards of the physical and intellectual
property placed under our care, who is?  (We certainly are under law --
in that we are held directly accountible for our actions.)  I agree that
there should be (in the best of all possible worlds) free and simple
access to works held in trust for the public benefit.  Unfortunately, we
seem to be living in a time where "[t]he meek shall inherit the earth,
but not its mineral rights." -- J. Paul Getty (from Dickson, P. [1978],
_The Official Rules_, Dell: NY).

Richard Gerrard