Claiming Surrogate IP Rights: When Cultural Institutions Repossess the Public Domain

Author: Andrea Wallace (University of Glasgow)

Abstract
With digitization becoming the norm, cultural institutions are faced with increasingly difficult problems, especially when it comes to copyright. In theory, when cultural institutions digitize public domain works, legal issues become more manageable. In reality, gray areas still cloud these works, such as what quality to make the works available and whether the digital reproductions themselves are protected by copyright or fall in the public domain. Even if a work has no legal strings attached, financing digitization becomes problematic.

Through efforts to find sustainable solutions for these issues, the premise that ‘an item in the public domain remains in the public domain’ is increasingly not the case. To offset costs, many institutions condition permission to use digital reproductions of public domain works through certain restrictions or revenue producing agreements—agreements imposed either through a license or a website’s terms as a copyright-by-contract and which function as a contract of adhesion.

Consequently, practices are becoming accepted that reassign certain rights to a work, as well as its digital surrogate, that have long expired—rights that are being claimed by a surrogate party. This paper explores such trends and addresses the relevant implications for the public domain.

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