Surrogate Intellectual Property Rights in the Cultural Sector

Abstract

For centuries, cultural institutions have regulated access to heritage collections in the public domain using a range of methods and assertions. In recent years, this practice has become increasingly controversial alongside the rapid technological advancements that facilitate digital reproduction and media dissemination to seemingly all corners of the world. In recognition of this, more than 1,600 cultural institutions and organizations have now published digital collections for unfettered reuse as part of a thriving global movement called open GLAM (Galleries, Libraries, Archives, and Museums). But countless more institutions make new rights claims in reproduction media. It is thus unsurprising that law and policy makers have expressed renewed support for the premise that public domain works must remain in the public domain once digitized. Despite this, actors with vested interests continue to reinforce systems of control that undermine the individual and collective potential of billions of public domain works.

This Article is the first to put forward a taxonomy and framework to challenge this troubling practice. It builds on scholarship in the fields of art history, visual studies, and archival science to conceptualize the “surrogate”—or what legal scholars call a faithful reproduction—as a crucial node of communication and knowledge dissemination in an information society. It argues that the practice of claiming new rights in non-original reproduction media produces a system of “surrogate intellectual property rights,” whereby surrogate rights are claimed in a surrogate work by a surrogate author. Not only does this practice obscure information, knowledge generation, and creative reuse, but it is antithetical to institutions’ public missions and puts the vast potential of the public domain in peril. The Article then argues that the same surrogate intellectual property rights framework can be used to both disentangle surrogate claims from reproduction media and inform new digital strategies that support a more equitable and inclusive public domain.