FOR CENTURIES, BUSINESS models have been based on reproducing copyright-free works usingthe available technologies, often claiming new rights and commercializing the results. In part this is why the public domain exists: to copy or make new works that attract new copyrights, so long as they are sufficiently original. In the past two decades, however, new technologies have made this practice exponentially easier and its products much more available. Meanwhile, the role of copyright during the digitization of public domain works has become the focus of significant legal and social controversy.

There is no better artwork to illustrate how these phenomena have played out than Leonardo da Vinci's Mona Lisa, a painting recently valued at nearly one billion dollars, and said to be the most reproduced, written about, referenced, and parodied artwork in the world—a work that in its five centuries of existence has never once been protected by copyright.

When Leonardo set out to capture Lisa del Giocondo's likeness in 1503, copyright did not exist. Privileges, the precursor to modern copyright, were granted as a means to protect investment in the technologies necessary for reproduction in the book trade and printing industry. When modern copyright debuted in England with the 1710 Statute of Anne, it inherited its rationale for protecting reproducible subject matter from the privileges system. Yet, paintings lacked protection for centuries—not until the end of the 18th century in France, the 19th century in Italy, and in some countries like the Netherlands not until the 20th century. Similarly, no legal protection would have been awarded to Leonardo's sketches of Lisa del Giocondo, had any been made. The irony is, therefore, that printed reproductions generally received some form of copyright protection centuries before the masterpieces they reproduced.

For a work as captivating as LaJoconde, as she is called in France, or La Gioconda in Italy, this meant anyone with access to da Vinci's painting could attempt its reproduction—attempt, of course, being the operative word.