The short answer is that taking photograph of artwork (being a copy of the artwork) is likely to be copyright infringement, unless copyright in the artwork has expired or permission has been granted by or on behalf of the copyright owner. Any subsequent publication/release of an infringing photograph would also be infringement.
Analysing this in more depth, artwork, such as paintings, artefacts or sculptures, is likely to be considered an original “artistic work” protected under the Copyright, Designs and Patents Act 1988 (CDPA). S.4(1)(a) defines an artistic work as:
"a graphic work, photograph, sculpture or collage, irrespective or artistic quality." So, the photographer would require permission from the copyright owner(s) to take the photograph in the first place. The resulting photograph itself will also be considered an artistic work and subject to copyright law. The duration of copyright for artistic works is the lifetime of the author/creator plus 70 years from the end of the calendar year in which the author/creator dies - (s.12 of the CDPA). Where the work is located in another country, this term may be variable.
Where the copyright has expired, the photographer would not need permission under copyright law to photograph the artistic work. However, the photographer may be in breach of the terms of entry to the museum or gallery and may then be liable for damages on that basis (e.g. if the release of an open copy of the photograph affects the museum's ability to sell licences for reuse commercially). Care needs to be taken, therefore, where terms of entry prohibit or restrict photography.
Where the photograph has been taken by a member of staff, ownership of copyright in the photograph needs also to be considered. If the employee, within the course of his/her employment, took the photograph then s.11(2) of the CDPA provides that the employer (institution) will own the copyright in the work, unless there is an agreement to the contrary. Otherwise, the photographer will own the copyright in the work and the institution would require permission from the tutor in order to use it into another resource. This might be pertinent where a tutor takes photographs on holiday, for example, or uses photographs taken during previous employment elsewhere.
Where copyright has not expired, this is more complex. In short, the institution requires permission from the copyright owners to take the photo of the work and then to use it into a VLE and OER. So, firstly the institution must determine who holds the rights in the artwork. This may be a time consuming task particularly where you are unsure of the name or location of the museum.
The museum may own the work but this does not mean they necessarily own the copyright. The museum, or other rightsholder, may also charge a fee to allow the resource to be scanned and displayed in this way, although it may be lower where it’s for non commercial purposes.
Any permission received should be confirmed in writing in order to be relied upon. Ideally, this should contain explicit permission from the copyright owner to allow the photograph to be scanned into the VLE and OER and accessed by users. Any restrictions imposed by the rightsholder should be made clear to users of the resource.In conclusion, the simplest and less risky course of action (and best practice) would be for the institution to include in the VLE and OER only those photographs where the copyright in the artwork has expired and where an employee, in the course of their employment, took the photo. Where copyright in the artwork has not expired, and the institution wishes to avoid any potential future claim of copyright infringement, rightsholder(s) of the works must be traced. Once the rightsholders have been identified, permission then needs to be sought for the further use of their work. A clearly worded letter granting permission to use the material is a form of licence. You must be clear in your request what you intend to do with the photograph(s) as any licence that is granted will have to cover what your intended purposes are.
There is some helpful guidance available for seeking permissions on the Web2Rights project website. Specific templates can be accessed under section 3: http://www.web2rights.org.uk/documents.html.