Continuing our series on curatorial ethics, this article begins to consider the concept and actuality of ownership in public museums and galleries, as well as thinking differently about the ethics that surround them. What do museums really own and what does that mean for the rest of us?
Museums enable people to explore collections for inspiration, learning and enjoyment. They are institutions that collect, safeguard and make accessible artefacts and specimens, which they hold in trust for society.
Museums Association definition of a museum, 1998.
There are over 1800 Accredited museums across the UK. A commitment to reaching this standard is to abide by the Museums Association’s Code of Ethics and its three main principles: public engagement and benefit, stewardship of collections and individual and institutional integrity.
The MA’s definition of a museum still stands and seems to still be in favour in spite of turmoil over at ICOM (International Council of Museums) over the international definition of a museum, which has been hotly debated for the last two years.
The critical line is, “hold in trust for society.” Collections in public museums and galleries have a complicated and contradictory history. Many collections are assumed to be owned by the governing body of the museum simply due to the longevity of possession, say around 100-200 years. Many items are on long-term and so-called ‘permanent’ loans (from named lenders) and cause curators no end of headache when owners either want their stuff back or descendants make a claim or museums are simply trying to seek permission to do something with the object like conserve or exhibit it. Much of the ambiguity stems from inadequate loan agreements or the absence of them altogether (museums having very much been ‘Gentleman’s Agreement’ kind of institutions for most of their existences).
In more recent times, Transfer of Title documentation, has fallen in line with the law to categorically move ownership from a donor to the museum’s governing body. This document acts as a receipt and guarantee that the item(s) can be used, displayed and disposed of by the museum as it wishes. Still further items have been purchased by museums from art and antique dealers and auction houses and while these transactions are legal their underlying provenances can come into conflict with ethics.
So absolute Title in collections is in fact a rare thing in UK public museums, and as museums have no statutory definition or basis, with the exception of National Museums (in other countries these are called Government Museums) we need to take a look at the ethics of how museums choose to express their relationship with collections they hold in trust for the public.
How museums assert their ownership
In spite of shaky legal ground and occasional challenges, museums have managed to keep hold of their collections and assert ownership over them quite successfully over two centuries or so.
In 2011 an English High Court ruling said that Wedgwood Potteries could legally sell the collections of the Wedgwood Museum to pay off a £134 Million pension deficit, ruling that the collections were assets of the commercial enterprise Waterford Wedgwood Potteries. Only a vigorous fundraising campaign by the Art Fund eventually kept the collections in public hands at the Wedgwood Museum.
The judge gave little (if any) weight to references in Museum Company’s accounts to inalienable property, heritage assets, restricted and unrestricted funds.
Thompson Reuters Practical Law, February 2021.
Even controversies such as the financially motivated sale of museum objects have not successfully challenged the museum’s right to sell, e.g. the case of the sale of an ancient Egyptian statue called Sekhemka by Northampton Borough Council in 2014. Much of the condemnation from the rest of the sector highlighted the statue’s status as a gift to the people of Northampton by the 4th Marquis of Northampton in 1880. However a deal was made between Northampton council and the current Lord Northampton to share the proceeds of the sale, further questioning the legal title to the statue (a few years later it was revealed that legal wrangling on ownership were ongoing between Lord Northampton and the Council prior to the sale). Throughout this case, very little was said about how the original donor, Lord Northampton, had acquired the statue in the first place, being a spoil of 19th century archaeological ‘exploration’ in Egypt.
Both these and other cases highlight that things are not always straightforward when it comes to the care and custodianship of the collections museums hold in trust for the public. Documentation in most museums is poor to fair. Most may hold a basic inventory of items they consider to be part of their permanent collections but these very often contain expired loans, long-term loans and gifts with strings attached, or there is inadequate or no paperwork confirming the museum governing body’s Title to the object. In the case of museum collections that get inherited from defunct organisations, this situation gets even more complicated.
The way museums attempt to formalise public collections is to possess them and to accession them. This might be in the form of a hand-written or typed register, each object accessioned being given a unique number that is usually also marked on the object. Museums which began to use collections management databases since the 1990s transferred or duplicated donor and lender information to specific object records. Paperwork is kept in History Files, where it exists. These accession registers and databases also contain records of objects that are now lost or missing, adding another dimension to the knotty issue of museum ownership.
Financial value, loans and insurance
Accessioning, and deaccessioning prior to removing items from permanent collections, are pseudo legalistic processes intended, on the one hand, to remove objects from the wider market economy, and on the other, to safeguard them from claims. We have to lean heavily on ethics to retain integrity in collections and cultivate public trust in museums and their purpose in society at large. Point 2.9 in the MA’s Code of Ethics says museums should “recognise the principle that collections should not normally be regarded as financially negotiable assets” and point 2.10 says museums should, “refuse to mortgage collections or offer them as security for a loan.” This last point was included in the latest edition of the Code in large part as a response to the Wedgwood case.
While our ethics emphasise the importance of avoiding placing a financial value on public collections, we have seen that the law will disregard this in particular circumstances, it’s just not been tested that often. The everyday practices of museums borrowing and lending objects also emphasise the fact that they do place a financial value on items they hold in trust for the public. Insurance plays a procedurally important role in enabling institutions to lend items from their collections to others, this enables exhibitions to take place. Any registrar or curator who has been involved in organising exhibitions will have had to determine an insurance value for loaned objects. This is usually done by a qualified valuer or auction house so a market value is very definitely placed on at least some of our public collections, even if it is a nominal value.
The UK Government Indemnity Scheme was set up to mitigate against the potentially large cost of commercial insurance premiums. Known as UK GIS, it is mostly used by non-National museums borrowing from a National museum. It is a labour-intensive process to be deemed eligible for the scheme, including gruelling and detailed risk assessments related to transport, gallery security, environmental risk (e.g. floods and fires), toughness of display cases, invigilation, food, drink and more. What is much less clear is how many claims have been made to recover the cost of items lost or damaged during the loans process or by museums making claims for items in their own collections. For, if museum objects are not meant to be financially-negotiable, why are they in the case of insurance, and why do museums ask each other for insurance in the first place? In this scenario, the museum is confident in its assertion of ownership.
Claims for repatriation and restitution
Museums have had to deal with claims for repatriation and restitution of objects for a long time. The most famous of these (unresolved) claims is the long-term call for the return of the Parthenon Marbles from the British Museum to Athens in Greece where a purpose-build museum for them has been in place for many years. More recently, particularly with accelerated calls to decolonise museums, including to return colonial loot such as the Benin Bronzes, the question of what museums have the right to own has come into the spotlight and is likely to stay there. The poor documentation kept by museums over the decades and centuries is both precipitating these calls, bringing them into the public spotlight, and encouraging new, more thorough provenance research.
However, claims contesting museum ownership are nothing new. Spoliation during WW2 and other 20th-century conflicts have also brought claims against museums who have inadvertently or knowingly bought or otherwise acquired objects, specimens, art and antiquities that were stolen, confiscated or looted, such as carried out by the Nazis against Jews and others in the 1940s. The 1954 UNESCO Hague Convention was set up to prevent spoliation and protect items deemed to be of international importance, and avoids the topic of ownership altogether, “…any damage to cultural property, irrespective of the people it belongs to, is a damage to the cultural heritage of all humanity, because every people contributes to the world’s culture…“. The biggest list of lost or stolen art, can be found at the Art Loss Register.
I have read many, many of these policies and I have not come across a single museum which has spent any time thinking about its own collections in relation to this section of their policy.
What has proved far more opaque is how claims for the repatriation of items confiscated or taken or even dubiously (unethically) sold during the era of British and European colonialism might be dealt with, and while National museums such as the British Museum are constrained by their legal foundations, and the whims of whichever Government is in power, most museums have not taken a proactive stance on examining how cultural objects, natural specimens, and the mortal remains of human beings, have historically come to be part of their accessioned collections.
All Accredited museums are required to have a publicly-available Collections Development Policy which contains a standard section on dealing with repatriation and restitution requests. The template for this policy is set by Arts Council England. I have read many, many of these policies and I have not come across a single museum which has spent any time thinking about its own collections in relation to this section of their policy. The standard recommended wording prevails, always centring the rights of the museum over any claimants, and in spite of headline-grabbing repatriation campaigns, museums continue to function as indiscriminate collections-holding institutions (with some notable exceptions who are prioritising due diligence work in researching items with dubious provenance).
(Re)appropriation of ownership through display and reproduction
Once museums have items accessioned in their collections, and the sensation of custodianship is achieved, there are other ways museums assert their moral ownership. Keep in mind, this is principally reliant on possession rather than Legal Title. The most obvious way museums can express their custodianship of public collections is to display and exhibit them in permanent and temporary galleries. You may have seen little labels explaining what an object is or the title and media of an artwork. Sometimes these also include the name of a donor.
Since the turn of the Millennium, digitisation of collections has continued in museums, although much slowed since the depletion of dedicated funds, changes in museum fashions and trends, and the precarity of long-term infrastructure.
Digitisation has usually taken the form of providing photographic reproductions of a collection item alongside its object record (or part of it). These online collections are used by many different stakeholders, albeit museums tend to neglect monitoring who these people are and what their needs have been, including researchers, teachers, students, lawyers, academics, professionals in other fields, journalists, marketeers, writers and artists. As regular users of online collections for teaching and research, it is a great boon to us to find items of interest across institutions without the middle step of having to make a collections enquiry––which can be slow or even impossible to do if there is no one at the other end to answer it.
Online collections of photographs of objects almost always carry a copyright symbol assuming legal rights over their creation. The museum has assumed ownership unless it is very clear that someone else owns the intellectual property in the item, this is especially true of fine art like paintings and modern photographs with named creators. Indeed many museums, like archives and libraries, have struggled to use collections with unknown copyright and have, unfortunately, erred on the side of doing nothing with them. In cases of photographs of objects with no known creator, or having fallen out of copyright, the rights in the photographic reproduction have been assumed and perpetuated by the museum or its governing body.
In some very notable cases, museums have chosen to waive their ‘right’ over controlling these images, such as by issuing Creative Commons licences or publishing them on Commons platforms such as Flickr Commons, and chosen to share them freely usually with a request for acknowledgement or attribution. One of the most well-known museums to realise the public benefit of openly sharing images of collections items is the Rijksmuseum in the Netherlands. Both Flickr Commons and the Rijksmuseum among many other museums and libraries make high-quality images available for free use, thereby demonstrating more clearly the link between collections held in trust for public benefit and a real sense of shared ‘ownership’.
Picture libraries, permission-giving and licensing
The way many larger and wealthier museums assert their ownership over collections is to closely control their use through licensing images via Picture Libraries or using a third-party stock image platform, regardless of who the user is or its intended use. The Bridgeman Art Library has for several decades mediated the supply of images of works of art, especially paintings, on behalf of public museums and galleries. Contractually the Bridgeman Art Library assumes ownership over the image by controlling its use, offering the holding museum or gallery a small percentage in sales of licences made.
It does not stop at image licensing. Stationery, fabrics and all sorts of merchandise deriving from museum imagery are now licensed to third-parties by the same wealthier museums as part of the turn towards prioritising brand exposure over the last 10 years. Few questions have been asked about the ethics or moral authority of the museum to do these things. A recent development in the world of museum licensing has gone further. In September 2021, the British Museum entered the world of Non Fungible [exchangeable] Tokens by selling NFTs of its recently acquired artworks by Hokusai. Incidentally, there is a middle man involved, so the actual benefit to the museum, on behalf of the public that substantially funds it, remains moot.
Apart from undermining public benefit, the control asserted by picture libraries and licensing seriously brings into question whether museums are abiding by their ethical codes. We will leave for a moment, the oft-quoted myths that income generation from the sale of images is an important source of income, or that making images available freely will mean people will not visit.
Ownership of museum procedures
But it is not just museum institutions that have a problem with the ethics surrounding their assertion of ownership. Sector bodies also closely guard their ownership over museum procedures, frameworks and policies that are intended to be a commonwealth for all museums and all who work in them. The Museums Association is guardian of the Code of Ethics for UK museums (although it does not overtly assert any ownership symbols and statements). Arts Council England owns the framework for Accreditation and Designation, the scheme intended to offer additional protection and opportunities for “the best collections held in museums.” Again, no specific statement is made to assert ownership or intellectual property rights over these vital and fundamental frameworks for public museums. However, neither is there any invitation to create a public dialogue about them, their purpose and their fitness for purpose.
The reality is, museums have developed as organisations upon the assumption that physical and intellectual possession=ownership of/over collections.
Most sector bodies seem to be quite relaxed about asserting their ownership over fundamental procedures and frameworks. Except for the Collections Trust. The Collections Trust is the successor to the Museum Documentation Association, later mda. It was specifically set up to oversee, support and develop good documentation practices in museums.
As we have seen, good documentation is a critical part of addressing the ethics of ownership in museums. The flagship set of procedures for museum documentation is called Spectrum, currently in its fifth incarnation. The Collections Trust does make an overt and stiff statement attempting to protect its ownership of Spectrum and its attendant procedures. It’s hard to imagine that procedures originally intended to help museums with their duty of care over collections held in trust for the public, could so arbitrarily by appropriated in this way.
Collections Trust owns the copyright to Spectrum Collections Trust owns the copyright to Spectrum… Under no circumstances may you develop products or services which may be deemed commercially to compete with the products or services of the Collections Trust, its partners or affiliates. For the purposes of clarity, this shall be understood to include translations, localisations or derivative works, the creation of which shall in all cases be subject to express prior written consent from the Collections Trust.
Spectrum licensing statement.
In conclusion, museums do not act like public libraries and archives, to exist as repositories of knowledge and information that are discoverable, retrievable, immediately usable, and with well-practiced ways to share these with the public at large. The reality is, museums have developed as organisations upon the assumption that ownership of/over collections=physical and intellectual possession. Even though our ethical codes champion the public benefit of collections, prioritising sharing good, accurate knowledge, and due regard for people who may know better, such as source communities, our systems and protocols have not been built to support or encourage this.
