Surrogate IP rights in the cultural sector

This dissertation examines the history and practice of making and commercializing reproductions of artworks and the legal considerations that arise. For centuries, business models have been based on reproducing copyright-free works using the technologies available, often claiming new rights and commercializing the results, especially by those responsible for their care. In the past two decades, new technologies have made this practice both easier and more visible by the Internet. Meanwhile, the role of copyright during the digitization of public domain works has become the focus of significant legal and social controversy. Questions arise under copyright law concerning the originality, authorship, ownership and legal status of surrogates. Yet how the law might protect reproductions remains unsettled. For decades, courts and legislature have failed to meaningfully resolve the issue at, what seems to be, its most basic level: whether copyright might arise in two-dimensional photographic reproductions of two-dimensional public domain works. In the absence of binding guidance, owners continue to assert intellectual property rights in surrogates, restricting the use of material which may rightfully reside in the public domain. As technologies move toward 3D, virtual, and AI-generated reproduction, the normative functions of copyright, authorship, surrogates, and the public domain are being influenced more by industry leaders than by lawmakers due to the lack of legal clarity. This research examines the impact of these historical and contemporary practices on access to and reuse of our common cultural heritage in the public domain. In doing so, it puts forward not only a framework for discussing the function of surrogate works in society, but also terminology useful for discussing the exercise of surrogate IP rights in the cultural sector. The analysis suggests that in the absence of clear legal guidance directing otherwise, further privatization of the public domain will proceed at the cost of future innovation, cultural growth, and the generation of knowledge in an information society. For this reason, this dissertation argues a fundamental shift is necessary in how surrogates are viewed, regulated, and commercialized, exploring not only how, but why