What are Surrogate IP Rights?

For the purposes of this blog, surrogate rights are based in intellectual property law (especially copyright). This blog explores how cultural institutions are claiming surrogate IP rights over artworks in the public domain.

Enter Artists and Authors.

When an author (or artist) makes something new, he or she is entitled to a copyright over that original work. This means the artist can control who may and may not use or copy the work, how it may be used, and can ask for payment. This is done through a license agreement between the artist and the user. The copyright for that work exists for the artist’s entire lifetime and transfers to his or her heirs upon death. The heirs then hold that right for 70 more years. Once those 70 years are up, the copyright expires and the work is considered part of the public domain. Works in the public domain are free of copyright restrictions and the public is entitled to use them however they like. Essentially, surrogate rights can begin when copyright protections expire and a work transfers into the public domain.

Enter Cultural Institutions.

Cultural institutions are digitizing their collections and putting images of works online in an effort to generate interest and make their collections more widely available. Many of the works in their collections are still in copyright, which means the original artist maintains the rights over them and their digital reproductions (in theory). But what about the works in the public domain? Who gets a say in that? If an artwork is in the public domain, is its digital version in the public domain too? Not necessarily…

Let’s work this out through an example.

This image is in the public domain.

Take Piet Mondrian. Mondrian was a Dutch painter who died February 1, 1944. During Mondrian’s lifetime, he had a copyright over each and every artwork he created. When Mondrian died, the clock started ticking and those rights passed on to his heirs for the next 70 years. Those 70 years have now passed, so Mondrian’s artworks are (mostly) in the public domain. This means you can reuse his works or just selective elements of them, create your own art, copy them directly, or really anything else that your heart desires. You don’t have to ask Mondrian’s heirs for permission. You don’t even have to say your painted copy of a Mondrian painting is Mondrian’s. You can say it’s your own work.

Despite this, the only way to gain access to one of Mondrian’s paintings is by visiting a cultural institution responsible for its care. In this example, I’d like to use a Mondrian painting to accompany this blog post. Since I’m in the United Kingdom, I’ll use a painting from the Tate in London titled “Composition in Yellow, Blue and Red.” I can’t exactly walk into the Tate and take the painting off the wall and say, “Hey, this is in the public domain now, so I’m going to use it to make something new. Cool? Thanks.” Instead, I need to gain access to the painting and a way to reuse it through making a reproduction of it. Most often, this is accomplished by taking a photograph—a photograph that, in and of itself, serves as a surrogate for the original work. Either I must take an image of the painting myself (or not, since personal photography is often prohibited by cultural institutions) or I must find a way to get the cultural institution to provide me with an image.

With the Internet, this is now much easier. In fact, I don’t even have to visit the physical institution to see the painting—I can visit the Tate’s virtual institution instead. So I did! I went to the Tate Images website, created an account (as required), and found out exactly what it would take for me to get a hold of an image of the Mondrian painting to use for this very blog. Conveniently, the Tate website has a friendly image pricing calculator to help me along the way.

Great news! This public domain work has been digitized and it’s only going to cost me 70 pounds to use it for this specific purpose. (Can I borrow 70 pounds?)

Tate Image Price for Mondrian's Composition in Yellow, Blue and Red

That 70 pounds gets me a license to use Mondrian’s painting for an academic website for educational purposes (check and check) that is globally accessible for up three years (check). I can only use the image on page of this website that is not the home page. And for 70 pounds, the image the Tate will give me is 72dpi—this is basically the lowest quality resolution available.

And what’s even better is that the Tate has expressly claimed a copyright over the digital version of Mondrian’s painting. If you look closely, you’ll see that the Tate says the photo of Mondrian’s painting is its own original work and it claims a copyright over any use.

Tate Claim to Copyright over Image of Mondrian's Composition with Yellow, Blue and Red

Enter Surrogate IP Rights.

This, ladies and gentlemen, is where surrogate rights come in. Cultural institutions are restricting access to the reuse of digital versions of public domain items, often to offset the costs of making reproductions in the first place. To start, many institutions are claiming a copyright in the digital version of the public domain work as their own original work. Others are using the terms and conditions of their website to create rights that resemble (and go well beyond) copyright protections—terms and conditions that you somehow agree to simply by accessing the site. And copyright is not the only intellectual property right that is being claimed through surrogacy. Cultural institutions are claiming surrogate moral rights, exercising surrogate licensing, and creating surrogate rights over data (just to name a few more).

The concept of “surrogate” intellectual property rights is a new thing—and this is what my dissertation explores (thanks, Fred Saunderson, and see the footnote). However, the practice of exercising one of these surrogate IP rights over a public domain item is definitely not a new thing—and this is what my blog explores. Cultural institutions have been taking photographs of their artworks and charging for copies for decades. It is only in the past several years that digitization and the Internet have amplified this issue exponentially.

Why is this important? Well, that’s what this blog will explain. Cultural institutions aren’t specifically to blame. There’s not much legal guidance for how they should be approaching these questions, and there’s even (increasingly) less funding to help. Nor are these easy decisions for cultural institutions to make; they’re often taken after countless meetings and in full consideration of how to best honor their missions. It’s important to point out that cultural institutions are trying their best, with very limited resources, to innovate and find creative ways to avoid surrogacy.

Enter The Surrogate IP Rights Blog.

In conclusion, the surrogacy concept has a number of layers. Yet, the surrogacy practice has countless implications for the public domain. Many of these implications are already becoming apparent. This blog will draw attention to surrogate IP rights and document the various ways they are playing out and impacting the public domain.

Footnote: Why “surrogate” you ask? First, my colleague at the National Library of Scotland, Fred Saunderson, and I were having a chat one day about my research. I’d been working on all the empirical analysis for several of the topics this blog addresses. We were reviewing a giant spreadsheet of mine, where I detailed all of the rights cultural institutions were claiming over public domain items and categorized them as resembling copyright, moral rights, etc., when Fred very nonchalantly said, “it’s almost like they’re acting as surrogates.” Eureka, Fred, eureka.

Second, “digital surrogates” is actually a term already used in the field, specifically by the Getty’s Open Content Program: “Public Domain and Rights: Open content images are digital surrogates of works of art that are in the Getty’s collections and in the public domain, for which we hold all rights, or for which we are not aware of any rights restrictions.”

4 thoughts on “What are Surrogate IP Rights?

  1. So what do you propose is the answer to this problem?
    It appears that the problem you refer to, is that there is “only 1 copy” of each of these major works of art, whilst there is a copy of Othello in every library in Britain. As there is only 1 copy the institutions are preventing access.
    However, there are plenty of copies out there, whether in art catalogues, in postcard reproductions or just being painted en masse by painters in Vietnam. Once a “decent, good” copy is available it can then be placed on-line and the public are free to use as they wish. Of course someone has to get a “decent copy” but the tone of your argument is that there is only 1 (original) copy and therefore nothing can be done.
    My (provisional) answer does require someone to spend time and money in obtaining a “decent copy” worthy of uploading online ie more than 72 dpi, but if I want to buy Othello from Waterstones I still have to pay for the physical cover and printed pages inside.

    • Thanks for your comments, Terry. At the moment, I’m working through solutions as part of my PhD dissertation. However, you raise an important point in distinguishing between the original and the copy.

      When I refer to the original, I’m actually referring to the original artwork, or the public domain work, held by the cultural institution. You are correct in that there are often many copies of an artwork available on the internet. However, simply because something is available online does not mean it can be reused by the public. More often than not the individual, institution, or company who has made that copy available online has claimed a copyright in it. The presence of this copyright is meant to prevent others from using it, and it also signals to the world that the copy is someone else’s new original work. I argue this claim is inappropriate (and I am not the first to make this case), since the copy does not meet the threshold of originality as required by law to attract a new copyright. So, the copy itself is still property, but it is not someone’s intellectual property.

  2. Regarding the name and Fred’s comment “It’s almost like they’re acting as surrogates.”
    Do you think that he meant that the Institution, (like the childless parent) wants to claim the copyright in the art (the child) as their own?
    If so the analogy doesn’t quite work as the Surrogate (the Institution) actually gives up the baby (the copyright in the art) to the childless couple (??? the public ???)

    Alternatively, did Fred mean that the Surrogate (the institution) didn’t want to hand over the child (the copyright in the art.)

    I realise its only an analogy, but it helps to consider the issue.

    • Actually, I find the traditional meaning of the word more useful rather than an analogy to the medical relationship, though both are used to indicate substitution. The use of the term ‘surrogate’ to refer to a reproduction of a work of art has long been used in art history discourse (H. E. Roberts, 1994) and more recently when referring to ‘digital surrogates’ (which is a term of art commonly used in the heritage sector). Others have also raised your point, but I think it’s more useful to rely on the plain meaning of the word. This is especially true as I use ‘surrogate’ in reference to: (1) the copy, which is a surrogate for the public domain work; (2) the rights claimed, which are surrogates for the rights that expired; and (3) the author, who is a surrogate author claiming rights in the copy. As you say, it does help to consider the issue, but I’m not sure the analogy quite fits this situation.

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