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In her fourth post in a short series, Anne Young helps you navigate the different types of licensing schema GLAMs might implement. Read the first, second, and third post. Next week Anne will dive deep into implementing Open Access at your institution!

A Stag at Sharkey’s (detail), 1917, lithograph, 18–5/8 x 23–7/8 in. Indianapolis Museum of Art at Newfields, Gift of Mrs. George Ball, 26.5. Public Domain.

As we’ve seen in previous posts, GLAM institutions must have sound Rights and Reproductions (R&R) policies and procedures set for individually processing requests BEFORE they can institute Open Access. I would bet dollars to donuts that most GLAMs have some content that cannot be made available under Open Access.

R&R policies and procedures for requests can broadly follow one of several approaches to granting access to collection content, traditionally predicated on licensing in some way, but may also include Open Access. GLAMs can utilize one or more of these approaches depending on the various intellectual property rights of its collections.

Option 1. GLAMs may license collection content when they hold the intellectual property rights to the content or have a non-exclusive licensing agreement on file that permits sub-licensing.

Option 2. GLAMs may provide access to collection content only when the party requesting the use has previously and independently received permission from the intellectual property rights holder(s).

Option 3. GLAMs may provide either full Open Access or a “Semi-Open Access” (i.e., restrictions on some uses, but broadly open to research, scholarly publications, etc.) to only collection content that is clearly in the Public Domain.

Option 4. GLAMs may enable the licensing of all collection content (whether in the public domain or still under copyright or other intellectual property rights) and explicitly state that all rights clearance and permissions work is the responsibility of the requesting party.¹

Self-Portrait (detail), about 1629, oil on panel, 17–1/2 × 13–1/2 × 3/4 in. (panel). Indianapolis Museum of Art at Newfields, Courtesy of The Clowes Fund, C10063. Public Domain.

The first three options are the least risky for GLAM institutions, but can mean that large parts of collections are inaccessible. The fourth option allows access to all the collection, but the GLAM needs to carefully outline rights clearance responsibilities of the requesting party in a licensing contract to limit the liability of the GLAM by association to a third-party use of their collection content.

Once a GLAM has determined which approach(es) they will utilize to share and license their collections (we’ll get into the Open Access opportunities more in our next post), they can put procedures into place for processing these requests in a timely and efficient manner.

Depending on the approach(es) selected, there are five more questions for GLAMs to consider internally when implementing licensing procedures.

Question 1. “Does the request meet the GLAM’s policy on permitted uses?”

Question 2. “What rights to license the content does the GLAM hold?”

Question 3. “Is the GLAM content in the public domain?”

Question 4. “If the content is under copyright, is there a non-exclusive license for the content that permits sub-licensing to a third party for the requested use?”

Question 5. “If the content depicts sensitive content (think of the “other” considerations previously mentioned) does the request meet the GLAM’s policy about distribution of the content?”²

Once a GLAM has determined the policy approach(es) to take and answered the additional questions for licensing procedures, they can develop request forms, contracts, and determine which processes they can automate (see details and examples in Rights and Reproductions: The Handbook for Cultural Institutions, Second Edition).

And this ends the explanations of R&R! Next week, I’ll be focusing on how to implement Open Access at your institution!

Disclaimer: The content of this post does not constitute legal advice nor does it refer to any particular or specific situation. If you have any doubts about your specific situation, you should consult with a lawyer.

These posts were compiled out of the set of tweets that Anne did during her curation of the @openglam Twitter account. Remember you can do it too, just sign up here!

Anne Young is the Director of Legal Affairs and Intellectual Property at Newfields and editor of “Rights and Reproductions: The Handbook for Cultural Institutions, Second Edition”, for which she received the Visual Resources Association’s Nancy DeLaurier Award in 2017.

[1] Megan P. Bryant, Cherie C. Chen, Kenneth D. Crews, John ffrench, Walter G. Lehmann, Naomi Leibowitz, Melissa Levine, Sofía Galarza Liu, Michelle Gallagher Roberts, Nancy Sims, Deborah Wythe and Anne M. Young, Rights and Reproductions: The Handbook for Cultural Institutions, Second Edition. Edited by Anne M. Young. Lanham, Maryland: Rowman and Littlefield, 2019, p. 167–168

[2] Idem, p. 171–173.

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