Intellectual Property Rights ('IPR') policy
1) Introduction and background
The National Portrait Gallery owns, generates and makes use of a range of items protected by IPR legislation. Diligent conduct in respect of these rights, as well as the protection, active use and careful development of the revenue-generating potential of the Gallery's IPR, are essential to the Gallery's functioning, good reputation, authority, sustainability and the achievement of its core objectives.
The aim of this policy is to ensure all Gallery staff are aware of their responsibilities and obligations in relation to IPR, including rights owned by the Gallery as well as those owned by others, in order to minimise risk of infringement. The policy also aims to improve the understanding of the asset value of the Gallery's IPR. It aims also to inform members of the public how the Gallery complies with IPR legislation.
Intellectual Property Rights are a group of legal rights relating to ‘intangible' property. The IPRs most immediately relevant to the Gallery are as follows: Copyright is the exclusive legal right to control reproduction of certain specified categories of creative work for a given period of time (currently in the UK for the creator's lifetime plus 70 years after the end of the calendar year they die).
Database right arises from the investment involved in obtaining, verifying and presenting the contents of a database. Duration is 15 years from the end of the calendar year in which the making of the database was completed.
Moral rights relate to the individual creator's honour or reputation and the principal ones are concerned with the right to be identified as a work's creator; the right to object to derogatory treatment of a work; and the right to object to false attribution.
Publication right is a right equivalent to copyright, acquired by the first person to publish a previously unpublished literary, dramatic, musical or artistic work or film after copyright has expired. The duration of publication right is 25 years from the end of the year in which the work is first published.
A trade mark is a word, name, symbol or device used to identify and distinguish the source of goods or services.
Performers' rights relate to both live and recorded performances and provide certain rights to both amateur and professional performers.
4) Legal Basis
- Copyright, Designs and Patents Act 1988 (as amended), effective from 01 August 1989;
- Earlier Copyright Acts, such as those of 1911 and 1956, may still be relevant in certain situations;
- Case history in this field is vast; many cases have established precedent in accordance with usual common law principles;
- Berne Convention (1886);
- Universal Copyright Convention (signed in 1952 and amended in 1971);
- World Intellectual Property Organisation (WIPO) Treaty (1996).
- Trade Marks Act 1994
- Public Sector Information (PSI) Directive, 2013
- The Copyright and Rights in Performances (Licensing of Orphan Works) Regulations 2014
- Other statutes such as the Data Protection Act 2018 and the Human Rights Act 1998 also have a significant bearing, particularly in the areas of confidentiality and privacy.
5) Statement of principles
The National Portrait Gallery
- is committed to complying with all relevant IPR legislation;
- exceeds its legal duties in the interests of good relationships and reputation;
- is committed to driving and promoting best practice in IPR administration within and beyond the Gallery;
- aims to facilitate, appropriately, the use of its own and others' IPR assets;
- aims to acquire IPR and IPR licences in respect of its activities and the objects in its possession;
- is committed to delivering subsidised access to its IPR assets, in respect of non-commercial research activities;
- is committed to protecting, enhancing and realising the commercial value of its IPR, in support of its Public Task;
- aims to provide the very highest quality IPR content, including the Gallery's published research, definitive photography of items in its collection and authoritative captioning;
- aims to empower its staff skilfully to administer their responsibilities in respect of IPR through the provision of training, resources, consultancy and supervision.
The Board of Trustees of the National Portrait Gallery is the legal entity which owns the Gallery's IPR and the body ultimately required to ensure compliance with the Act and other legislation.
The Director of Commercial is responsible for recommending policy to the Board of Trustees, for implementing policy, for setting and supervising procedures, and for setting fees in relation to the licensing out of Gallery content.
The Intellectual Property Officer, under the guidance of the Rights & Images Manager and the Head of Commercial, is responsible for administering and communicating policy and procedures.
Individual members of staff are responsible for ensuring they act within the scope of the law, and seek further advice firstly from the Intellectual Property Officer where necessary.
Responsibility for clearing rights rests with each individual project manager and should be done in consultation with the Intellectual Property Officer or Picture Library Manager.
This policy document is available to all staff, on the Gallery's internal network, and to the general public, via the Gallery's website.
IPR provisions are written into the Gallery's contracts with staff and freelancers, and into the Gallery's procedures for the acquisition and commissioning of works for the collections.
The Intellectual Property Officer provides all staff with a basic introduction to IPR principles, focusing on copyright. Subsequent job-specific inductions to individuals and groups are provided, and enhanced with further training as necessary.
A number of resources are provided for the consultation of Gallery staff, including a database of copyright in works in the Gallery's Collections maintained regularly by the Intellectual Property Officer. These resources, which include a number of authoritative websites and books, are added to and / or amended from time to time.
Strategic and operational advice on IPR and licensing is readily available from the Intellectual Property Officer, and the Picture Library Manager.
The Gallery's practice in commercial and educational image licensing, and in policing its copyright, is regularly reviewed and kept in line with industry best practice. The Gallery advises and consults with organisations such as the Museums Intellectual Property Network, National Museum Directors' Council, Museums Copyright Group, Collections Trust and the British Association of Picture Libraries & Agencies, among others.
The Communications and Development Departments, and the Commercial teams, control and promote the use of the Gallery's brand within and beyond the Gallery, developing the Gallery's reputation and the value of the brand, in addition to realising this value through a variety of revenue streams, including sponsorship and licensing.
The Publications and Retail Departments create IPR content, in support of the Gallery's public task in the work they commission and contract from leading writers, historians, designers, artists, photographers and other contributors for books and paper product. The Departments also add value to the Gallery's brand by improving its reputation through the quality, authority and appeal of its work, and through international distribution. Procedures for the clearance and contracting of others' rights model the highest standards of practice. In addition, the Publishing, Retail and Rights & Images Departments exploit the value of the IPR they generate and manage, raising income through trading in product and licensing content, in support of the Gallery.
All records created by Gallery staff in the course of their official role as employees of the Gallery, including writing, photographs, videos, slides and electronic data, are Public Records according to the Public Records Acts of 1958 and 1967. As such they belong to the Gallery and the Gallery owns copyright. In instances where the boundaries of what constitutes an individual's official role may be slightly unclear, the onus is upon employees to agree with their line manager any rights they wish to reserve, in order to avoid confusion of ownership at a later date. The Human Resources Department and the Intellectual Property Officer will advise further, if appropriate.
The Gallery operates a notice and takedown procedure for all materials available on its website. More information about this procedure is available here.
8) Breach of Policy
Breach of copyright and other IPR laws may render both the Board of Trustees and individuals liable to both civil and criminal proceedings. The Gallery will regard wilful or reckless breach of this IPR policy as a disciplinary offence and such breaches will be subject to the Gallery's disciplinary procedures.
This policy will be reviewed periodically. Next review: November 2023
10) Date of Approval
Approved at the 782nd meeting of the Trustees on 4 November 2020
Anna Starling, Director of Commercial
Mark Lynch, Picture Library Manager
Gudrun Muller-Wells, Intellectual Property Officer