Digitizing Specimens—Legal Issues Abound

Abstract

Scanning of museum specimens has taken off. Using 3-D computed tomography (CT), specimens are scanned and, along with underlying digital data, are stored in online repositories, such as Digimorph, MorphoSource, iDigBio, and others. The material is made publicly available. But a host of legal questions have emerged, including ownership of scans, data, and the ability (or lack thereof) to copyright them. Do the people in possession of the specimen own it, and do they have permission to distribute the specimen for scanning? Who claims the rights to the digital data? Does a contract between the owning institution and the source of the specimen affect its digital reproduction and distribution? Tim White, director of collections and research, Yale Peabody Museum of Natural History, notes: “…researchers will borrow something and then realize [they] want to have these specimens scanned…often at a third-party institution and the museum may only find out after the fact.” Does Yale own the specimen or is it on loan? Is there shared ownership by a written agreement? Who scanned the specimen—the borrowing institution or another organization that owns scanning equipment? According to David Bloom of VertNet, a National Science Foundation funded project, the loaning institution owns or manages the specimen, although the scan belongs to the borrower. Intellectual property attorney and former museum curator Amanda Nelson warns that it is not so simple. In the Yale example, much depends on the paperwork between the loaner and borrower. To avoid misunderstandings, Dirk Neumann of the Bavarian Natural History Collection, suggests the owner add “a specific section on the loan form that the borrower cannot get copyright ownership in his imaging but may use the images for his research purpose, so that there is a written proof of the borrower that he is author of the images but waives his copyright.” Doug Boyer, of Duke University and founder of the MorphoSource 3-D data and imagery repository, explains that museums have release forms that state what can be done with the specimen and may include a third-party clause that limits rights to distribute the data. In the United States, unlike in most European countries, medical scans cannot be copyrighted, as the copyright office does not judge them to have creative input. But Boyer suggests organizations assert copyright for their 3-D scans, many of which are derivative, posted in online repositories. Prepping and scanning a specimen for research involves value judgments and creativity to emphasize certain parts of its anatomy. Boyer thinks copyright should be applicable to research scans: “There's no question that at least the derivative images are copyrightable.” As attorney Nelson notes, “The bar for creativity has been set so low, sometimes just merely changing [or adding] colors…is a creative choice.” Patent attorney Sarita Pickett, of Mesmer & Deleault, explains that technology has changed so quickly “the laws have not always had time to catch up….” Copyright “clerks are unlikely to have the experience necessary to recognize when additional design elements are involved in activities that were previously entirely technological,” says Pickett. Part of the problem is how scientists describe their scans. Scientists put creative thought into designing and coloring a scan, “but when they describe what they did, they don’t use creative terms, leaning too heavily on the functionality aspect [showing frog bones]—as might be appreciated by another scientist.” To Boyer's knowledge, no scientists have registered copyright of their CT scans, but the MorphoSource group encourages researchers to assert copyright and ownership of their scans. The copyright issue will likely be determined in the courts, he added. A network of US-based museums and working groups is devising best practices and guidelines for archiving and sharing 3D data, and Boyer is optimistic that this will help museums share their collections globally. Data, too, are an issue. Nelson says, generally “data can’t be copyrighted.” Identifying tags on a specimen “cannot be copyrighted because that's information; that's fact.” The basis for this policy is that sharing the data is “for the benefit of society [as] a whole” for research and study. Some institutions want to maintain the open availability of data, although others want to limit what can be done with the data. The Creative Commons licensing mechanism can leave data or scans open to all, limit use, or claim copyright worldwide. Most data put online are for noncommercial use. But, warns Nelson Rios of Yale Peabody, “There's absolutely zero enforcement behind any of that…it's too complicated to pursue; also it's too expensive.” No matter what, Amanda Nelson points to the value of paperwork: “At the end of the day, it's who signed what and what does it say.” Myrna E. Watanabe ([email protected]) is a science and grant writer in Patterson, New York.