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You should have a written procedure that explains the steps to follow when managing rights associated with your collection. This suggested procedure is useful starting point. It is given as text and also as a workflow diagram. However you do it, your own procedure should meet the minimum requirements of the Spectrum standard.
Researching rights associated with your collections
Research the rights associated with objects, reproductions and information in your collection.
It is very unlikely that your museum will have complete and up-to-date information about the rights associated with material in your collections. Your rights management policy should set out the steps you will take to address the backlog, and how you will prioritise the work (eg focus on material you know you want to use in a forthcoming exhibition or online project).
It is important you do not build up a new backlog of material with poorly-documented rights information. Therefore one priority should be to research and record the rights associated with new acquisitions as soon as possible. Another priority should be to record the rights associated with any new reproductions or other content (eg publication text) created by your museum or commissioned by it (eg from freelance photographers, who might retain copyright in their work but license you to use it).
For each right, record information about the right and its holder.
After research, for each right, record the:
Object identification information
- Reference number of the object with the right – Object number.
And/or
Reproduction information
- Reference number of the reproduction with the right – Reproduction number.
And/or
Object use information
- Reference number of rights-managed text – Text reference number.
Rights information
- A reference number for the right being described – Right reference number.
- Type of right – Right type (use a standard term source).
- Name and contact details of the holders of the right (there may be more than one):
- Right holder (use a standard form of name).
- Right holder’s contact (use a standard form of name).
- Address.
- Start date of the right – Right begin date (use a standard format).
- End date of the right – Right end date (use a standard format).
- Reference to any documentation associated with the right, including licences or waivers granted to and by you – Right note.
Reference information
- The Document location of any filed documentation, so that you and others can find it in future.
If the rights holder is not known, record them as ‘unknown’ and keep a due diligence file of your research.
Record:
Rights information
- Details of the holders of the right – Right holder (with ‘unknown’).
- Summary of your due diligence research – Right note.
The due diligence file should contain details of your research, and copies of all enquiries you have made. Record:
Reference information
- Location of the file – Document location, so that it can easily be found and referred to.
Maintain your rights records.
Review this information on a regular basis, and update when necessary (eg when copyright expires or rights holders change).
Getting permission from other rights holders (Rights in)
This will usually be prompted by a proposed use of an object or reproduction (see Use of collections) when you know who holds the relevant rights and are able to contact them or their representative (eg an agent or the relevant collecting society, such as the UK’s Design and Artists Copyright Society, DACS).
Ask the rights holder, or their agent, for permission to use their material in the way you want.
If they refuse, or propose terms you cannot meet (eg a licence fee beyond your budget), you may not use the material in question.
Record information about the permission (which might be a formal licence).
If the rights holder does agree to the use, you should always get this in writing. This might be anything from a brief exchange of emails to a formal licence agreement signed by both parties. For each permission or licence granted record:
Object identification information
- Reference numbers of the objects covered – Object number.
And/or
Reproduction information
- Reference numbers of the reproductions covered – Reproduction number.
And/or
Object use information
- Reference number of rights-managed text – Text reference number.
Rights information
- Name and contact details of the holders of the right (there may be more than one):
- Right holder (use a standard form of name).
- Right holder’s contact (use a standard form of name).
- Address.
Rights in information
- The reference number – Rights in reference number.
- The rights being acquired by you – Rights in type (use a standard term source).
- The start date of the permission or licence – Rights in begin date (use a standard format).
- The end date of the permission or licence – Rights in end date (use a standard format).
- Other details – Rights in note. (See Note 1).
- Status of the record – Rights in consent status (use a standard term source).
- Rights in consent status date (use a standard format).
Reference information
- Location of the licence agreement – Document location, so that it can easily be found and referred to.
Authorising use where the rights holder is unknown
In some cases you may want to use material likely to be in copyright, but do not know who the rights holders are or how to contact them, even after reasonable attempts to find out. Your rights management policy should set out what to do in such circumstances, and who within your museum should authorise any use of such material. (See Note 2 for additional guidance).
If the use is authorised, record the following information:
Object identification information
- Reference numbers of the objects covered – Object number.
And/or
Reproduction information
- Reference numbers of the reproductions covered – Reproduction number.
And/or
Object use information
- Reference number of rights-managed text – Text reference number.
Use of collections information
- The person who authorised this use – Use authoriser (use a standard form of name).
- When the use was authorised – Use authorisation date (use a standard format).
Licensing your rights to others (Rights out)
These steps apply if someone wants to reproduce material for which your museum holds some kind of intellectual property right, or if you decide to make such material available (eg by publishing digitised collections online). This might be the case when:
- Copyright has been explicitly assigned to you when acquiring an object.
- You have images of objects and claim copyright or publication right for those reproductions (ie rather than in the original objects).
- You have text for which you claim copyright.
- You have an agreement to act on behalf of relevant rights holders.
Remember that:
- Owning an item does not automatically mean you own the copyright.
- While you normally own rights in material created by paid employees during the course of their work, this is not automatically the case with material created by contractors (eg freelance photographers) or volunteers. Your contracts and volunteer agreements should either assign copyright to your museum, or grant you a licence to use the material (and to sub-license it to others).
- There may be separate rights (and different rights holders) in an original object and a reproduction of it.
- It is currently unclear whether exact reproductions of two-dimensional objects (eg photographs of paintings or scans of documents) would meet the ‘originality test’ needed for copyright to apply. However, in some circumstances you may be able to claim a ‘publication right’ in such reproductions.
Do you agree to the proposed use?
If not, or if the relevant rights are not yours, you should inform the person requesting the use in writing. Your rights management policy should set out the extent to which you will help enquirers make contact with third-party rights holders, always following your data protection procedures.
Propose the terms of the licence you offer.
If you agree to the proposed use, you should also inform the person requesting it in writing, setting out the terms of the licence offered. These might include any fee proposed, any specific limitations (eg print run or period of time for online use) and other conditions (eg the credit to be given).
If the proposed use comes from within your museum (eg for online publication of digitised collections) your rights management policy should set out how you will license such use (eg a bespoke licence or an off-the-shelf one such as one of the Creative Commons options). Note that some of the off-the-shelf options (including Creative Commons) are irrevocable, so should be properly authorised by your governing body to avoid inadvertently giving away rights you might later wish you had kept.
Record information about the licence.
For each licence record:
Object identification information
- Reference numbers of the objects covered – Object number.
And/or
Reproduction information
- Reference number of the reproductions covered – Reproduction number.
And/or
Object use information
- Reference number of rights-managed text – Text reference number.
Rights information
- Name and contact details of the holders of the right (there may be more than one):
- Right holder (use a standard form of name).
- Right holder’s contact (use a standard form of name).
- Address.
Rights out information
- The reference number of the licence – Rights out reference number.
- If applicable, name and contact details of the organisations or persons being granted by the licence:
- Rights out requester (use a standard form of name).
- Address.
- The rights being granted by the licence – Rights out type (use a standard term source).
- The start date of the licence – Rights out begin date (use a standard format).
- The end date of the licence – Rights out end date (use a standard format).
- Other details – Rights out note. (See Note 1).
- Status of the record – Rights out consent status (use a standard term source).
- Rights out consent status date (use a standard format).
- Who authorised the licence – Rights out authoriser (use a standard form of name).
- When the licence was authorised – Rights out authorisation date (use a standard format).
Reference information
- Location of the licence agreement – Document location, so that it can easily be found and referred to.
Guidance notes
Note 1: Rights in/out notes
These might include:
- The copyright status of the original work where a reproduction is being created (eg a photograph of a modern art work).
- Sub-licences granted to third parties.
- Warranty and indemnity clauses in the licence.
- Past history (eg date previous rights granted).
- Restrictions to the rights licence granted.
Note 2: Using material when you cannot trace potential rights holders
It is worth noting that, although there is a potential risk attached to using so-called ‘orphan works’, you may be able to insure against any financial liability that might arise if a rights holder successfully challenged the use. In the UK there is currently an official Orphan Works Register that licenses the use of such material, though it has been little used to date.
