Who Owns Your Collections?


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Speaker: Alex Dawson, Programmes Manager: Standards, Collections Trust

This seminar will look at the legal status of the ownership of collections, with a
particular focus on the implications of moving to Charitable Trust status and how to
work with private owners, donors and benefactors to clarify long-term ownership.
Alex Dawson is the author of Charitable Status: A Practical Guide, published by the
Collections Trust in April 2011.

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  • Good morning Welcome – next seminar in the CT Collections Mgmtn strand of seminars at the M&H show AD Title Share with you a journey that I have been on over the last couple of months The journey has helped me to understand governance of museums better, and understand the links between governance and collections, and how that impact on curatorial practice
  • - Different types of governance model, including Charitable Trusts - The effect of different models on the ownership, acquisition & stewardship of collections - How to approach the transition to a new governance model with confidence - Identifying and exploiting new income streams from your collections This seminar is drawn from the first two areas of the publication – I am going to be talking about ownership of collections with reference to governance models.
  • Aware – I needed to set – newer context - Also want to set this research into a context Changed context
  • Look at these structures – as I go through these I am going to try to unpick what the structure means for the ownership of the collections To get a feel for the kind of governance structures we are talking about
  • Going to look at a specific example for the first type of charity Topsham Museum in Devon In 1967 local philanthropist Dorothy Holman started a small local museum in her house.  When Dorothy died, she willed the collection and the seventeenth century buildings to Exeter City Council, on the condition that they were used for the purposes of developing Topsham Museum. In 1984 members of the local community formed a charity, the Topsham Museum Society, to support the provision of a museum service, housed in Dorothy Holman’s buildings and grounds.
  • Topsham is an UA Explain unincorporated – means that it has not been incorporated with companies house as a limited company Unincorporated associations are relatively straightforward to run and cost little to set up and are widely used in the cultural heritage sector. They make their own rules for running the organisation and set these down in a constitution. A management committee is elected to run the organisation on behalf of the members, if there are any. The membership is key
  • The unincorporated association does not have a legal identity which is separate from its members – which means that they are legally responsible as individuals for the activities of the entire association.             The holding trustees – is confusing because it implies that there is an element of “holding in trust” ie in perpetuity (holding on trust is better) – in actual fact the use of the collections is determined by the Society, and the holding trustees is really a device for getting around the fact that the UA is not a legal body and therefore cannot own anything therefore the Trustees “own” the stuff on behalf of the society. The collections at Topsham – although much treasured by the community and the society – have no special status, and can be used and disposed of legally as the Society sees fit. Trading undertaken by a trading arm – ltd company
  • Topsham is not a Charitable Trust Numerically – in our sector more museums are UAs(?) A trust is a relationship between three parties: The donor The trustees The beneficiaries This relationship is formed because the donor has given assets of some kind to the trust. It is the duty of the trustees to manage those assets so that they can deliver benefit to the beneficiaries. So, for example, a family may hold some of their assets in a trust, for the benefit of their children. The trust would be managed by trustees, who would oversee the distribution and use of the assets of the trust. A trust can also be a charitable trust . In this case the trust will be administered as a charity and will have to meet the legal requirements of a charity that were explained in Chapter 2. The purpose of the charity would be a charitable purpose and the assets of the charity would be administered for public benefit . Explain characteristics Both types of organisation look fairly similar - The difference is that it does not have a membership
  • The Trustees hold the collections on trust – and I really can’t see much difference between this situation and that for an UA. However - In a charitable trust the status of the collection depends on the terms of the Trust Deed or a Dec of Trust. that governs the Trust – for some older CTs the Trust Deed may set up “special trust” status for the collection or for parts of the collection – which established the collection as part of the permanent endowment to be used to further the CT’s aims. “ special trust” - come back to later…………
  • If a new charity plans to own property or employ staff, or a small established charity finds that its financial dealings are becoming more complex, it is advisable to think about incorporation, or forming a charitable company with limited liability. The Charity commission for England and Wales has noted that there is a growing trend towards using incorporation in recently established charities. The collections – I need a case study for this one – if anyone here knows of a CC ltd by Guarantee and you could help me out with a case study – please do contact me The collections – I think in this case the collections are defined as “corporate property” –they are owned by the incorporated body
  • 1753 and we see the formation of the first national – The BM – created in the British Museum Act Which formed what is best described as a “parliamentary trust” – an Act of P defines the limits and extent of their powers, is specific to an indiviual bodym and indicate an important national purpose First indication of Parliament committing itself to the free public provision of museums
  • These are corporations with a legal personality – and special trusts were created particularly in the early Victorian Acts of Parliament Gettign slightly outsoide the terms of my publication with these trusts
  • 19 th 20 th centuries - National commitment to national free public provision mirrored at a local municipal level A not-for-profit corporation is an incorporated organization created by statute , government or judicial authority and registered at the Registry of Commerce, that is not intended to provide a profit to the owners or members. One of the problems experienced by such corporations is their inability to fund growth from profits in the way that conventional businesses can. Local authorities work within the powers laid down under various Acts of Parliament. Their functions are far-reaching. Some are mandatory, which means that the authority must do what is required by law. Others are discretionary, allowing an authority to provide services if it wishes. Own “corporate property” – not subject to any trust – unless it’s a special trust – some local authorities are trustees of special trusts – and parts of their collections may be of special trust status.
  • A Special Trust is……has the potential to give special protection to the object – this is where the MA “do you have the legal right to dispose” is referring to.
  • Special trusts Again – I am looking for an example – I have Wedgwood and one other – but ould really like an example – possibly from a local authorty of a Spectila trust held as part of a larger organsiation
  • Special trust status is illustrated in the case of the Wedgewood Museum The Wedgwood Museum in Stoke on Trent is facing the threat of forced sale of the collections £134 million pension liability of the Wedgwood Group Pension Fund which vecam insolvent in 2009. The museum has fallen foul of legislation intended to penalize companies which go into liquidation and try to evade their pension obligations. Under this legislation in the Pensions Acts, if there is a subsidiary company still trading it can be liable for all the pensions of the parent company-- the doctrine of the “last man standing”.  Timeline: The Wedgwood Museum became a museum in 1906. The museum was always kept separate, contained, to prevent it being used as a realisable asset by any future predator. and the family and managers always firmly had the intention that it would never be part of the public company. 1962 the Wedgwood Museum Trust, was created and ownership of the collection was transferred to the Trust.  In 1998 that it became a charity.  The museum is arguing that the collections form part of a special trust that was created by Trust Deed as part of a permanent endowment. Museum is seeking a Court ruling as to whether the transfer of the collections from the Wedgewood company to the museum consitiruted a “special trust” – the Charity Commission believes not. Judge to the Administrator to determine whether the prize winning collection can be sold off to pay the pension creditors.
  • If governance doesn’t hold collections together – and what implications does that have for the way we develop our collections? Looking back In a way – this is good news – we are in a legal situation regarding ownership of our collections that it chimes with the newer less risk averse attitude that e are seeing reflected in our ethical codes – we can legally dispose of objects unless they are “special trust” But we don’t want to dispose of our collections – if we don’t have governance structures to hold them together – what does hold them together? Curatorial level Ethics and standards Good curatorial practice – including knowing the status of your collections, and reflecting that in your organisational policies and record keeping The community – Topsham, the community - memberships, volunteers, users
  • So, we are talking about: Changing ethical landscape regarding collections Moving towards more clarity about the legal status of our collections Do we need to reflect both of these more clearly in the dialogue and the vocabulary we are having with our donors and users - thinking about the conversation we have with a donor (I always sent a letter thanking a donor for their donation to the “permanent collection” I have over the last week asked around 10 people if they assumed that a donation to a museum was “permanent” – yes – they were all assumed the special status that I assumed at the beginning of my work, and throughout most of my museum career. So – TO CONCLUDE what I am arguing for here is: More clarity on the curatorial side Changing the dialogue that we have with donors Once we have done that I think e will be in a better position to be less risk averse with our collecitons and develop them more creatively
  • I’ll write it – just need you to contact me, tell me a bit about it and ok the text
  • Who Owns Your Collections?

    1. 1. Who owns your collections? Alex Dawson Collections Trust
    2. 2. The journey – where I started <ul><li>Last two months working on a new publication for the Collections Trust </li></ul><ul><li>Collections and Governance: </li></ul><ul><li>a practical guide </li></ul><ul><li>- Different types of governance model, including </li></ul><ul><li>Charitable Trusts </li></ul><ul><li>- The effect of different models on the ownership, </li></ul><ul><li>acquisition & stewardship of collections </li></ul><ul><li>- How to approach the transition to a new </li></ul><ul><li>governance model with confidence </li></ul><ul><li>- Identifying and exploiting new income </li></ul><ul><li>streams from your collections </li></ul>
    3. 3. The journey – where I started <ul><li>This presentation – opportunity to discuss my findings (so far) with you </li></ul><ul><li>Where I started……… </li></ul><ul><li>- as a curator and advisor </li></ul><ul><li>- who had accepted 100s (1,000s?) of objects into collections of many different types, and into 4 museums with very different governance structures </li></ul><ul><li>- believed I was conferring a certain status onto the object as a result of accessioning it into the collection – a permanent status connected to governance? Acts of Parliament? Trust Deeds? </li></ul>
    4. 4. The journey – where I started <ul><li>“ in perpetuity” “in trust” “for the nation” and of course “strong presumption against disposal” </li></ul>
    5. 5. The context <ul><li>Talking about ownership – inextricably bound up with the powers of disposal </li></ul><ul><li>Recent thinking about “freeing up” collections </li></ul><ul><li>- recently revised MA Ethics of Disposal </li></ul><ul><li>- Nick Merriman, National Gallery yesterday, role of “financially motivated disposal” </li></ul><ul><li>- the “lifecycle of a museum object” </li></ul>
    6. 6. The context of the journey <ul><li>MA Ethics of Disposal </li></ul><ul><li>Pre-amble - “Collections need to evolve in response to the needs of today’s society and to stop them becoming a burden on the collecting institution. In certain instances disposal of objects may be necessary.” </li></ul><ul><li>and digging a little deeper into the guidelines </li></ul><ul><li>Under the Making the Decision to Dispose checklist… </li></ul><ul><li>“ ensure the museum is legally able to remove the item” </li></ul>
    7. 7. So…… <ul><li>I had: </li></ul><ul><li>A publication to write </li></ul><ul><li>Preconceptions about the relationship between governance and collections </li></ul><ul><li>Changing context surrounding the permanence of collections </li></ul><ul><li>Thanks to Adrian Babbidge, Egeria Heritage Consultancy </li></ul>
    8. 8. Some museum governance structures <ul><li>The charities </li></ul><ul><li>The Parliamentary Trusts </li></ul><ul><li>The local authority museums </li></ul>
    9. 9. The charities <ul><li>Mainly found in the independent sector – although recently local authority museum services are seeking to establish charitable trusts – eg Wakefield, Carlisle and Worcester </li></ul><ul><li>Unincorporated Associations </li></ul><ul><li>Charitable Trusts </li></ul><ul><li>Charitable Companies limited by guarantee </li></ul>
    10. 10. Topsham Museum – an Unincorporated Association
    11. 11. Unincorporated Associations <ul><li>Topsham is an Unincorporated Association: </li></ul><ul><li>A group of individuals who have come together for a purpose </li></ul><ul><li>Topsham has a charitable purpose and is therefore also registered with the Charity Commission </li></ul><ul><li>Unincorporated </li></ul><ul><li>Governed by a management committee who runs the organisation on behalf of the members </li></ul><ul><li>Governing document – a Constitution </li></ul>
    12. 12. Unincorporated Associations <ul><li>BUT – the Unincorporated Association is not a legal body (its unincorporated), and therefore it cannot: </li></ul><ul><li>Start a legal action </li></ul><ul><li>Employ people </li></ul><ul><li>Borrow money </li></ul><ul><li>Enter into contracts in its own name </li></ul>
    13. 13. Unincorporated Associations – the collections <ul><li>At Topsham the collections are the property of “holding Trustees” </li></ul>
    14. 14. The Charitable Trust <ul><li>The characteristics of a charitable trust are: </li></ul><ul><li>Its an unincorporated body – no separate legal identity </li></ul><ul><li>Assets are held and managed by a body of trustees for the benefit of the beneficiaries </li></ul><ul><li>The trustees take full liability for all contractual and financial responsibilities </li></ul><ul><li>Governed by Board of Trustees, governing document is a Trust Deed </li></ul><ul><li>Regulated by the Charity Commission </li></ul>
    15. 15. The Charitable Trust – the collections <ul><li>The Trustees hold the collections on trust </li></ul><ul><li>A Trust Deed – or Declaration of Trust may set up a “special trust” status for the collections or part of the collections </li></ul>
    16. 16. Charitable Company Limited by Guarantee <ul><li>Incorporated body – limited liability for trustees </li></ul><ul><li>A legal entity with full financial and contractual capabilities, and limited liability </li></ul><ul><li>Managed by directors/trustees </li></ul><ul><li>Restricted from non-charitable activity </li></ul><ul><li>Regulated by the Charity Commission and Companies house </li></ul>
    17. 17. The Parliamentary Trusts <ul><li>1753 the British Museum Act </li></ul><ul><li>“ a Museum or collection may be preserved and maintained not only for the inspection and entertainment of the learned and curious, but for the general use and benefit of the public” </li></ul>
    18. 18. The Parliamentary Trusts <ul><li>Corporations with a legal personality </li></ul><ul><li>Not regulated by the Charity Commission – “exempt” </li></ul><ul><li>Funded by government not controlled by it </li></ul><ul><li>Trustees acting independently from Parliament </li></ul><ul><li>Disposal regulated by Act of Parliament </li></ul>
    19. 19. The local authorities <ul><li>1845 the Museums Act allowed local authorities to levy a rate to finance local museums </li></ul><ul><li>A Local Council is a body corporate with a legal personality with perpetual succession and a name. </li></ul>
    20. 20. To summarise…….the organisations
    21. 21. To summarise….the collections <ul><ul><li>Different types of property in different types of governance structure: </li></ul></ul><ul><li>Property of “holding trustees” </li></ul><ul><li>“ Corporate” property </li></ul><ul><ul><li>Idea of “special trusts” </li></ul></ul>
    22. 22. Who owns our collections? <ul><li>Museums own collections </li></ul><ul><li>The collections they own can be divided into two types of “property” </li></ul>
    23. 23. “ Special Trusts” <ul><li>Can exist in charitable companies, unincorporated associations, charitable trusts, local authority museums, nationals </li></ul><ul><li>If they are also charitable they are perpetual </li></ul><ul><li>Can be created on acquisition – by agreement with the donor </li></ul><ul><li>Can be created by a Trust Deed </li></ul><ul><li>Can be created under an Act of Parliament </li></ul><ul><li>Can be acquired along with other collections </li></ul>
    24. 24. “ Special Trusts” and “Everything Else”
    25. 25. “ Last man standing” – Wedgwood Museum
    26. 26. The journey – where I ended up <ul><li>Most collections fall outside the “special trust” status which means there is no legal bar to their disposal </li></ul><ul><li>The “in trust” status that puts a legal hold on disposal is actually quite unusual </li></ul><ul><li>The governance structure is important for the collections but it is not the primary mechanism for ensuring that collections are kept together </li></ul><ul><li>The governance structure particularly the charitable structure is more important for allowing independence and freedom to generate income </li></ul>
    27. 27. So what does hold collections together? <ul><li>Ethical codes and standards </li></ul><ul><li>Good curatorial practice </li></ul><ul><ul><li>Knowing the status of your collections </li></ul></ul><ul><ul><li>Good organisational policies, processes and record keeping </li></ul></ul><ul><li>The community that cares about them </li></ul>
    28. 28. What about the implications for curatorial practice? <ul><li>Clarity about the status of collections </li></ul><ul><li>The dialogue we have with donors and users of our collections </li></ul>
    29. 29. Case Studies please!! <ul><li>A Charitable Company limited by guarantee </li></ul><ul><li>An example of a “special trust” particularly one held as part of a larger collection </li></ul><ul><li>[email_address] </li></ul><ul><li>01600 780275 </li></ul>