[NHCOLL-L:98] Re:Copyright issues

[Jessica Johnson]

I forwarded Sally Shelton's message to the archivist in our office and she
offered this comment.  

Jessie Johnson
Conservator
Museum Management Program
National Park Service
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        While I greatly applaud the London Natural History Museum's             
        entrepreneurial efforts I don't think they would transfer well to U.S.  
        public museums.   Why?  
        
        Because:
        
        First off, In the U.S., copyright belongs to the records creator, the 
        photographer for the photographer's life plus 70 years, not to the 
        repository.  If a museum allowed photography and the photographers 
        refuse to cede copyright what legal recourse would the repository have? 

        
        If the photographer refuses to sign the form before the photography 
        session, museums that receive federal funding will still have to provide

        access to existing collections documentation (photos, labels, records) 
        as these records fall under the provisions of the Freedom of Information

        Act and perhaps under state sunshine laws. In the U.S. private 
        non-federally or state-funded museums could deny access to everything 
        and federally funded museum could deny access to the 3-D object (but not

        to the documentation) if they were willing to face the resulting bad PR.
        
        In the U.S. federally held documentation, is accessible via the Freedom 
        of Information Act.  Much state-held documentation material is 
        accessible via state sunshine laws.  When museums get a FOIA requests we

        have to justify why materials are restricted (there are a series of 
        specific exemptions for things like classified military and intelligence

        data and records of financial institutions) and must follow established 
        FOIA fee schedules.
        
        Second, this proposal attempts to "copyright" uncopyrightable items.  
        Copyright doesn't protect:
        · specimens
        · works created by U.S. Government employees and federal contractors 
        · ideas or concepts (patents protect ideas or concepts)
        · facts (most of the object documentation is facts, not creative        

                writing) 
        · systems, procedures, or methods of operation
        · common or standard works, such as:
                - height and weight charts
                - blank forms
        · works with little creative authorship, such as
                - slogans
                - names and titles
         - variations in typographic lettering, coloring, or                    

                ornamentation
 
     Collections documentation would, I believe, be viewed by the          
     courts as a work of "little creative authorship." Sadly, although     
     collections documentation requires much effort and skill; it          
     requires little or no "creative" or non-fiction writing.  
     
     For the record, generally federal collections created by federal 
     staff or produced under federal grants or contracts CAN'T Be 
     copyrighted. Works produced by federal employees within the scope 
     of their employment are not protected by copyright because they are 
     considered works-for-hire.  Works-for-hire are those produced by 
     employees as part of their responsibilities.  Federally produced 
     works are in the public domain as federal works-for-hire. So, by 
     law no federal collection documentation would qualify as 
     copyrightable.
     
     I should state that I'm not a lawyer, so any comment I make on this topic 
     is not made with the intention of offering legal advice or to indicate my 
     institution's position on anything.  This is just my best read on this.
     
     Best wishes.
     
     Diane Vogt-O'Connor.