Copyright or no copyright?
July 18th, 2009
by Gwyn Headley
Managing Director
It’s rare for a picture library to make the national news, but that’s what the National Portrait Gallery managed today.
In March this year a Wikipedia administrator appropriated three thousand high-resolution images from the NPG website and published them to Wikipedia.
The NPG contacted Wikipedia and asked for the removal of the images. Wikipedia ignored the request. So the NPG issued a lawyer’s letter.
A spokesman for Wikipedia, an amazing and wonderful resource which I use daily, eventually deigned to respond — in one of the most arrogant, high-handed, dismissive, patronising, offensive, overweening blogs I have ever had the pleasure to read.
The National Portrait Gallery, the repository of Britain’s heritage of people paintings, is derided as an antiquated, fusty old dinosaur of an organisation, hopelessly out of touch with spiffy new C21 ways. It wants to CHARGE for images, ferkrissake!
Well, you can read it for yourself here.
The comments are a joy, by turns placatory and inflammatory.
And what it all boils down to is this: should everything be free, or should we pay for people’s work?
To which, I guess, everyone at heart would share the same response: everything should be free for me, but I want to be paid for my work.
The Wikipedia / NPG confrontation is a no-brainer; it’s straightforward theft, it’s illegal, and Wikipedia should cease and desist instantly. No argument. Being British, the NPG is unlikely to pursue for damages.
But what I cannot understand is how Wikipedia got its hands on 3,000 hi-res images from the NPG (which, frankly, charges an awful lot of money for the use of its images, so it is no saint either) in the first place? Nor can I understand why it needs them — the NPG has indicated that it is happy to allow Wikipedia to display small lo-res copies of the images, which is all you need on a web site. Why on earth would Wikipedia want to hold on to this stolen property?
And does the NPG have no security? If anyone downloads a hi-res image from fotoLibra, they pay for it. We know all about it. How could the NPG have let three THOUSAND expensive hi-res images slip through their fingers? Or were they hacked?
I think we should be told.
“The Wikipedia / NPG confrontation is a no-brainer; it’s straightforward theft, it’s illegal….”
Actually it’s not that simple – and that’s precisely why Wikipedia believe they can do it.
I’m not defending what Wikipedia have done but this issue last came up in court in Bridgeman Art Library v Corel Corporation in 1999.
In that instance a US judge, supposedly applying elements of UK copyright law, ruled that exact copies of two-dimensional public domain items – in this instance photos of public domain paintings – could not be copyrighted because there is insufficient originality involved.
That case was very similar in many ways to the row that has now blown up and it will be fascinating to see what the outcome is.
As far as I’m aware there has been no case law since that Bridgeman case on this point – organisations such as the NPG insist their photos of two dimensional paintings are copyrighted, others such as Wikipedia claim they are not – and claim it is an attack on the very concept of public domain to argue that they are.
I suspect, but I’m just speculating, that no organisations who sell copies of public domain art and the like have tested this again in court because the repercussions of losing, however unlikely that might be, would be immense – in effect it would be open season on their photos.
Very much a case of watch this space….
The NPG may of course have an excellent case under data protection laws – that’s another matter.
Many issues are raised here and to my mind the Bridgeman / Corel case showed the law at its worst.
But my overriding concern is how did they get their hands on 3,000 protected digital files — those images? If it was done legally, I simply want to know how.
Hi Gwyn
I’m not disagreeing with you – just pointing out the legal quagmire. A lot of people were very surprised by the outcome of the Bridgeman case and some observers have suggested that Bridgeman assumed they would win in advance and perhaps didn’t prepare their case as thoroughly as they should.
It does seem astonishing they could get hold of 3000 high-res images with such ease in this instance.
Gary.
In the Bridgeman case the Corel actual did some work in digitizing the Bridgeman slides. In the case of wikipedia they have simply downloaded files.
If people were surprised by the Bridgeman v. Corel decision, they shouldn’t have been. The American Association of Museums certainly wasn’t, and desperately tried to get Bridgeman to withdraw so that they could continue with their illegal copyright scam: http://www.panix.com/~squigle/rarin/corel2.html
It is a basic tenet of copyright law that you do not get a copyright simply by copying. The Museums Copyright Group – chaired by the Head of Rights and Reproductions at the NPG, surprise, surprise – has been passing its propaganda for years now, but that doesn’t make it justified. You only get copyright in a photograph if it is “the author’s own intellectual creation”. This has been law in the UK since 1883: “‘author’ involves originating, making, producing, as the inventive or master mind, the thing which is to be protected, whether it be a drawing, or a painting, or a photograph” Cotton LJ in Nottage v. Jackson.
That the NPG claims that they should enjoy the same rights over these images as do authors over the more recent works in the collection is, quite frankly, sickening. It shows the complete moral bankruptcy of the people involved, who are willing to embezzle the nation’s property to protect their own cushy little salaries. The should cease and desist from this expensive and illegal action before they find themselves in the judicial firing line.
The images on the NPG site were on public display – tile by tile – no hacking involved. Derrick Coetzee selected exactly only those images of paintings for which the copyright had expired. To spell it for you, the images of those paintings are in the public domain, so are copies of those images. A new work originates from an author, not from a copy. The NPG added nothing new those paintings whose images are in the public domain. Derrick isn’t a thief, and didn’t do anything legal. Calling him a thief might be ruled in a court as slanderous libel.
Not everything is free. Paintings and photographs for which the copyright hasn’t expired and for which the author reserves all copyrights, are definitely not free. If your fotoLibra blog has technology to protect the downloading of copyrighted high-res images, fine for you. Maybe you can sell your technology to the NPG – to help them protect copyrighted work.
As far as I know the NPG isn’t going to push the case to court – they already realized they can’t win their case.
“Derrick isn’t a thief, and didn’t do anything legal.”
Ad, did you mean to write “Derrick isn’t a thief, and didn’t do anything illegal”?
The existing funding model for museums is heavily based around government funders saying “You must exploit the works in your possession, squeezing them until the pips rattle.” This includes keeping indubitably public domain works away from the prying cameras of others, so as to claim exclusive rights on one’s own images. The NPG is quite direct that you can’t photograph in there so that they can protect their income – ask any of the staff when you go in there.
And many people in museums – chronically underfunded almost by definition – have worked hard to come up with rickety but survivable arrangements in such a hostile climate.
So it’s entirely understandable that the mere act of questioning this arrangement, of even suggesting rocking the boat, is dismissed as “arrogant” and “high-handed.”
However, that doesn’t make it so or make the blog post wrong.
Speaking as a British taxpayer, I’m outraged that we’ve already paid for the digitisation of these works and the NPG is wasting more of our money bringing a frivolous lawsuit against someone who isn’t even in the UK and who they admit in their letter has done nothing wrong in the country he did it in.
The WMF and NPG are now in talks, and hopefully a compromise that addresses both sides’ concerns is achievable. So the unresolved legal question of copyright on fidelitous reproductions in the UK will likely remain unresolved, at least this time around. But abusive polemics such as this post of yours will not be factored into the outcome.