Stealing Artworks from the Public Domain

When a work’s copyright expires and the piece transfers into the public domain, it means the general public should have unqualified access to reuse the work and create derivative works. But what happens when that work is a unique piece of art or cultural property valued at millions of dollars? And how is access made possible when a cultural institution holds the piece in its collections or vaults?

One way a cultural institution expands access to its collections is through digitising and uploading the digital reproductions to its website. In doing so, many cultural institutions claim new rights over photographs of public domain works—works that the general public often has no way of accessing other than through the online website. And, in some cases, cultural institutions charge exorbitant amounts for use of these photographs. A new paper, presented at the European Policy for Intellectual Property (EPIP 2015) conference in Glasgow, organized by CREATe (Research Councils UK Copyright Centre), analyses these increasingly common practices, their rationale and impact on the public domain.

The study, by Andrea Wallace, presents empirical evidence of several UK institutions’ policies for online collections, bringing in other examples from the EU and the US. It finds that cultural institutions are creating new rights in the digital realm that mirror traditional copyright and other related rights, but are claimed as a surrogate party. Not only do these rights greatly undermine the rationale behind the public domain, but they vary dramatically by institution regarding the level of restriction and obligations imposed on the public. In some cases, these policies even extend to a visitor’s experience at the physical institution.

The study focuses on museums, libraries and archives of national significance in the United Kingdom. All but one, The National Library of Wales, claims a copyright in the photograph of the public domain work and expands the scope of such rights through their online terms and conditions. As a result, a member of the general public becomes guilty of stealing images of public domain works when he or she does not use an image according to the online terms. Yet, in order to decipher these terms, that individual would be required to read through a number pages on a website that address different relevant issues in often very convoluted legal language. The question thus becomes, who, really, is stealing artworks in the public domain?

The study also examines the recent Orphan Works Registry launched by the Intellectual Property Office, where several public domain works are registered online as licensed by the IPO. It analyses the impact the Orphan Works Registry has or has not had on policies providing access to orphan works in an institution’s collection.

Yet, in presenting these trends, the study balances the conversation by addressing the reasonable rationale behind the conception of such policies: the lack of guidance in legislation and industry standards, the shrinking budgets in support of the cultural sector and the growing need to monetise collections, as well as the increasing responsibility to digitise collections and make them available online. The author estimates that without future guidance, these practices and the new rights they create are at risk of becoming perpetual in both the physical and digital realm. The author proposes alternative solutions for policies that further access to public domain works while generating revenue through other preferable business models.


Notes for editors: ‘Claiming Surrogate IP Rights: When Cultural Institutions Repossess the Public Domain’ by Andrea Wallace is a paper presented at the European Policy for Intellectual Property (EPIP) Conference, University of Glasgow, 2-3 September 2015. For more information visit:

Andrea Wallace is a licensed attorney of the United States currently pursuing a PhD in Cultural Heritage Law at CREATe (Research Councils UK Copyright Centre), School of Law, University of Glasgow.

For further information contact Andrea Wallace at +44 (0) 798 324 4770 (email:

New research presented at the EPIP 2015 conference will be shared on social media using the hashtag #epip2015