My weekly technology law column (Toronto Star version, Ottawa Citizen version, Vancouver Sun version, homepage version) explores the issue of museums and fees associated with public domain works. As museums experiment with the Internet – many are using online video, social networks, and interactive multimedia to create next-generation museums that pull content from diverse places to create "virtual museums" – the museum community has emerged as a leading voice for the development of legal frameworks that provide sufficient flexibility to facilitate digitization and avoid restrictions that could hamper cultural innovation.

Yet as museums embrace the Internet's potential, there is concern that their advocacy and actions are not always consistent.  This is particularly true with respect to their policies on public domain works, for which the term of copyright has expired. The public domain issue has emerged as a contentious one within the museum community.  Many museums receive regular requests for copies of works in their collection to be reproduced in school texts, magazines, or other publications.  The costs associated with these requests vary widely.  Some museums levy administrative fees (for the cost associated with handling the request), reproduction fees (for the cost of reproducing the image), and notwithstanding the expiry of copyright, permission fees.

In 2006, London's famed Victoria and Albert Museum became the first museum to completely drop charges for the reproduction of images in scholarly books and magazines.   While that decision generated considerable acclaim, according to documents obtained under the Access to Information Act, the National Gallery of Canada (NGC) appears to be taking the opposite approach by treating public domain works as a profit centre.
The Access to Information Act records covered requests to the NGC for copies of public domain artworks between February 2006 and January 2007.  The NGC received approximately 250 such requests, for which it imposed contractual restrictions on use of the images and levied an average fee of $379.  While requesters were not advised of the cost breakdown, internal documents reveal that some of the price went to an administrative fee (typically $20) and a photographic fee (ranging from a low of $6 for a small slide reproduction to hundreds of dollars for new digital photographs in high resolution).

The most important determinant in the overall cost, however, was the "permission fee." Despite the fact that the images were in the public domain, the NGC often added hundreds of dollars to the total cost.  In fact, the permission costs for public domain works were actually higher than those for works still subject to copyright since the NGC reasoned that there would be additional charges applied by the copyright holder for the works not in the public domain.  In other words, the NGC saw an opportunity to increase the permission fee since no other copyright charges would be applied.

While it easy to dismiss these fees as a cost of doing business at a time when museums are struggling to make ends meet, the reality is that they represent a significant impediment to access and use of Canadian culture and ultimately undermine claims for enhanced taxpayer support.  As museums worldwide embrace the potential of digitization and the Internet, the time has come for Canada's museums to remove the cost and contractual barriers to Canadian heritage.