National Portrait Gallery Threatens Wikimedia Developer For Downloading Public Domain Images

from the what-public-domain? dept

Derrick Coetzee, a software developer and an administrator of Wikimedia Commons, the media repository for Wikipedia is being threatened by the National Portrait Gallery in London. Coetzee admits that he downloaded about 3,000 high-resolution images from the site, but notes that they are all of paintings that are in the public domain (nearly all are over 100 years old). Coetzee is in the US, where he notes Bridgeman v. Corel suggests that photographs of public domain paintings do not carry any copyright, since the photograph does not add any new expression. However, such issues are not settled in the UK, and the National Portrait Gallery is insisting that the photos are covered by copyright.

On top of that, the Gallery is claiming a violation of its database right. Database rights are an unfortunate mistake in European law, that allows a copyright-like right to be held on a database, even if the entries in that database are uncopyrightable -- such as a collection of facts or a collection of public domain works. Finally, the Gallery is also claiming that Coetzee unlawfully circumvented protection methods designed to keep folks like himself from downloading the content -- and thanks to the UK's own anti-circumvention law, that too could make him guilty of infringement. Of course, that last one shouldn't apply if the content isn't actually covered by copyright, as Coetzee argues.

The whole thing, frankly, seems rather ridiculous, and a huge black mark on the National Portrait Gallery in the UK. Here was a chance to help educate the public and give people more reasons to go to the Gallery to see the actual photos, and they're trying to stomp out that kind of education through abuse of copyright law. The people who run the Gallery should be ashamed of themselves. They ought to go back and read their own mission statement:
Founded in 1856, the aim of the National Portrait Gallery, London is 'to promote through the medium of portraits the appreciation and understanding of the men and women who have made and are making British history and culture, and ... to promote the appreciation and understanding of portraiture in all media'.
How, exactly, does suing someone for getting those portraits more attention achieve that goal?


Reader Comments (rss)

(Flattened / Threaded)

  1.  
    identicon
    Richard, Jul 13th, 2009 @ 9:06am

    The Judge in Bridgman V Corel gave an opinion based on UK law as well as US law to prevent legal complications (Bridgman was a British Company)

    The National Portrait Gallery has no leg to stand on and should indeed be ashamed of itself

     

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  2.  
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    Stephen, Jul 13th, 2009 @ 9:19am

    rights fees

    The National Portrait Gallery could more properly be called the National Biography and History Bookcover Illustration Repository. How would having the photos be in the public domain impact the money they get from licensing the images?

     

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  3.  
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    Anonymous Coward, Jul 13th, 2009 @ 9:28am

    Actually, it depends how you look at it.

    The paintings themselves are in the public domain. However, photographs of those paintings are in fact copyright images.

    If Mr Coetzee had taken the images himself, there would be no issue - that of course if he could arrange to have the paintings made available to take photographs. Otherwise, he would appear to be using copyright images of public domain paintings.

     

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  4.  
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    RD, Jul 13th, 2009 @ 9:30am

    Simple

    "How would having the photos be in the public domain impact the money they get from licensing the images?"

    It wouldnt, it doesnt. They are simply trying the "nu media" 21st century tactic of attempting to lock up PD content under a new copyright by any means possible.

    A Museum should not be in the business of copyright exploitation. They should exist as a PUBLIC SERVICE, not a business concern (assuming they are funded by the govt).

     

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  5.  
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    Anonymous Coward, Jul 13th, 2009 @ 9:40am

    "Here was a chance to help educate the public and give people more reasons to go to the Gallery to see the actual photos"

    Actually, I would think the opposite. It would appear to give people all the access they need to specifically NOT go to see the portraits. Certainly presenting them without context isn't going to help the NPG to attract new visitors.

     

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  6.  
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    Tor (profile), Jul 13th, 2009 @ 9:41am

    Database protection in the US

    According to wikipedia the EU database directive covers databases for which "the selection or arrangement of their contents, constitute the author's own intellectual creation". However, the Bern convention says that "selection and arrangement" requirering creativity also makes the corresponding contents copyright-protected.

    Besides the differenct conjunctions ("or" vs. "and") does this mean that the USA has or ought to have some kind of database protection? - since it has signed the Bern Convention I mean.

     

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  7.  
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    Ryan, Jul 13th, 2009 @ 9:58am

    Re:

    The Mona Lisa is probably the most well-known painting in the world, and its a fairly bland portrait. You can see it pretty dang easily on the Internet. Odd that such huge crowds always come to see it in the Louvre, no?

    And either way, their actions are completely, 100% at odds with their mission statement.

     

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  8.  
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    Richard, Jul 13th, 2009 @ 10:02am

    Re:

    "However, photographs of those paintings are in fact copyright images."

    WRONG - read the Bridgman-Corel case.
    Provided the photographs are intended to be an accurate representation of the original - as opposed to a derivative work no new copyright is created by taking a photograph.

     

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  9.  
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    Richard, Jul 13th, 2009 @ 10:09am

    Re: Re:

     

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  10.  
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    Richard, Jul 13th, 2009 @ 10:12am

    Re: Re: Re:

    Sorry about the blank comment - what I mean to say was that the Louvre seems to be quite happy for you to take your own photos of their paintings. Presumably this is not true of the NPG - otherwise locking up their own versions would be pointless

     

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  11.  
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    Ron (profile), Jul 13th, 2009 @ 10:12am

    Too Bad

    ... the National Portrait Gallery management are being such pricks. It is a great museum and will only benefit from the additional exposure.

     

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  12.  
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    Mike Masnick (profile), Jul 13th, 2009 @ 10:34am

    Re:

    The paintings themselves are in the public domain. However, photographs of those paintings are in fact copyright images.

    Well, the Bridgeman case says exactly the opposite. And I think many would argue that is the right result. If the photographs add no new creative expression, then there is nothing to cover by copyright, since it only covers new creative expression.

     

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  13.  
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    ethorad, Jul 13th, 2009 @ 10:40am

    I thought that Birdgman vs Corel was US law, whereas it is UK copyright that is being breached here. I am guessing that if someone in the UK breached a US company's copyright then they would be right onto the case (or is that riaa-ght onto the case?), even if the article wouldn't have been covered by UK law

    Whether you agree with the law or not, pictures of PD works in the UK are protected by copyright. As I understand it on each page of the NPG website it also states that the photos he downloaded are copyright. The Berne convention as I understand it should mean that the copyright also exists in other countries?

    To me, it seems obvious that he is guilty of a breach of copyright (or course, I'm not a lawyer and don't have all the facts ...)

    On the other side, the NPG should perhaps not be defending this too vigorously, after all if you can see the pictures on their website why not share the load?

    I was interested by the closing comment in the article: "How, exactly, does suing someone for getting those portraits more attention achieve [the promotion of the pictures]?" - Haven't you heard of the Streisand effect? ;-)

     

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  14.  
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    Richard, Jul 13th, 2009 @ 11:17am

    Re:

    "Whether you agree with the law or not, pictures of PD works in the UK are protected by copyright. As I understand it on each page of the NPG website it also states that the photos he downloaded are copyright. The Berne convention as I understand it should mean that the copyright also exists in other countries?"
    Bridgman V Corel was decided under BOTH UK and US law - (Bridgman was a British company) so pictures of PD works are NOT copyright
    AS for what the NPG says on its website - well anyone can say anything it doesn't make it true- ( you did know that I own copyright on the letter O didn't you)

     

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  15.  
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    Eo Nomine, Jul 13th, 2009 @ 11:35am

    "Bridgman V Corel was decided under BOTH UK and US law - (Bridgman was a British company) so pictures of PD works are NOT copyright."

    Actually, Bridgeman v. Corel was a US case decided by a US court, and consequently it is not binding on UK courts.

    The US court stated the following (at para. 26):

    "While the Court's conclusion as to the law governing copyrightability renders the point moot, the Court is persuaded that plaintiff's copyright claim would fail even if the governing law were that of the United Kingdom."

    However, (a) as the court itself notes, this observation was rendered irrelevent by the court's determination that the law governing copyrightability in that case was US law, so the comment is obiter, and (b) even if it was not obiter, a UK court is under no obligation to follow a decision of a US court, even if the decision is about UK law.

     

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  16.  
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    NullOp, Jul 13th, 2009 @ 12:19pm

    UK

    Tell the UN to "Pound Sand", we won!

     

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  17.  
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    Richard, Jul 13th, 2009 @ 12:38pm

    Re:

    Whilst the Corel case did not set a legal precedent in the UK it did constitute an informed opinion of what UK copyright law actually says. Although it did not (and could not) modify the UK law it did not need to since UK law says the same as US law - i.e. no new creativity = no new copyright. Otherwise I could photocopy a page of Shakespeare and claim a new copyright.
    Actually the NPG is in the process of shooting itself in the foot - since whatever doubt currently exists, allowing them to lock their collection behind a paywall and "claim copyright" would be blown away if the case came to trial.

     

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  18.  
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    Andrew D. Todd, Jul 13th, 2009 @ 1:47pm

    The United States Should Not Recognize Crown Copyright.

    The National Portrait Gallery is a department of the British Government. We may raise the broader issue of whether a sovereign government can legitimately receive, or hold, or assign, American patents and copyrights. The constitutional justification for patents and copyrights is to encourage writers, artists, and inventors by rewarding them for their efforts. However, a government has the power to tax, and its interests are so broad that it profits from almost any economic activity. In practice, the United States Government behaves with restraint, so the issue has not been raised head-on. In the Copyright Acts, the United States Government has voluntarily surrendered the right to copyright in in government documents, so the courts have not been forced to address the issue. Boundary cases tend to involve government employees who produced works incidental to their duties, and then attempted to claim copyright for their personal enrichment. In fact, the emerging tendency of the United States Government is to stipulate that entities which want government funding have to make their product freely available. The United States Government is followed in such practices by the larger and more autonomous state governments, notably that of California. When a government attempts to exercise copyrights and patents, it does not do so for purposes of revenue-raising-- that is what taxes are for-- it does so for the purpose of controlling the content.

    If you look at the Slashdot thread on this issue, you may not that Coetzie was supported by Benjamin Crowell, the author of a well-known open-source physics textbook. The National Portrait Gallery came after him for using a portrait of Issac Newton in his book. The National Portrait Gallery has become accustomed to the idea that it should have a veto on the text of physics textbooks.

    http://yro.slashdot.org/comments.pl?sid=1299515&cid=28660417

    The British Government's assertion of Crown Copyright is part and parcel of the British legal system's poorly developed constitutional protections. This shows up in a whole series of more serious matters, such as the actions of the Home Secretary (their equivallent of the Attorney General), Jacqui Smith, who is commonly known as "Whacky Jacqui." The British Anti-Terrorism laws have been used for such purposes as investigating where children truly live, and whether they are eligible to attend particular elementary schools. Then there are the Anti-Social Behavior Orders (ASBO's). Britain has been called a "fifty-one percent dictatorship," in the sense that its principle difference from a real dictatorship is that it hold periodic elections. Britain does not have the kinds of checks and balances against the abuse of power that the United States has.

    Possibly, what we need is a legal action to address the principle of foreign government copyright. Some party would sue the American Attorney General (along the lines of Eldred v. Ashcroft) for a declaration that works of foreign governments were not eligible for copyright protection.

     

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  19.  
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    AC, Jul 13th, 2009 @ 1:54pm

    Re: Re: Re: Re:

    Cory Doctorow had a fun column in 2007 describing the NPG's approach to copyright at an art exhibition at http://www.guardian.co.uk/technology/2007/nov/13/pop.art.copyright:

    Apparently they cut up magazines, copied comic books, drew trademarked cartoon characters like Minnie Mouse, reproduced covers from Time magazine, made ironic use of a cartoon Charles Atlas, painted over iconic photos of James Dean and Elvis Presley - and that's just in the first of seven rooms. ...

    Despite this, the programme does not say a word about copyright. Can you blame the authors? A treatise on the way that copyright and trademarks were - had to be - trammelled to make these works could fill volumes. ...

    There is, however, another message about copyright in the National Portrait Gallery: it is implicit in the "No Photography" signs prominently displayed throughout its rooms, including one by the entrance to the Pop Art Portraits exhibition.

    These signs are not intended to protect the works from the depredations of camera flashes (otherwise they would read "No Flash Photography"). No, the ban on pictures is meant to safeguard the copyright of the works hung on the walls - a fact that every member of staff I asked instantly confirmed.

    Indeed, it seems every square centimetre of the National Portrait Gallery is under some form of copyright. I wasn't even allowed to photograph the "No Photographs" sign. A member of staff explained that the typography and layout of the signs was itself copyrighted. ...

    Does this show - paid for with public money, with some works that are themselves owned by public institutions - seek to inspire us to become 21st century pop artists, armed with cameraphones, websites and mixers, or is it supposed to inform us that our chance has passed and we'd best settle for a life as information serfs who can't even make free use of what our eyes see and our ears hear?

    Perhaps, just perhaps, this is actually a Dadaist show masquerading as a pop art show. Perhaps the point is to titillate us with the delicious irony of celebrating copyright infringement while simultaneously taking the view that even the "No Photography" sign is a form of property not to be reproduced without the permission that can never be had.

     

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  20.  
    identicon
    Anonymous Coward, Jul 13th, 2009 @ 5:06pm

    Re: Re:

    Mike, will you ever learn that US law doesn't apply outside of the US? For such a smart guy, you often seem to trip over the really, really simple stuff.

     

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  21.  
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    marek, Jul 13th, 2009 @ 5:42pm

    "We may raise the broader issue of whether a sovereign government can legitimately receive, or hold, or assign, American patents and copyrights."

    You can raise it all you like, but it is totally irrelevant to the issue at hand. The National Portrait Gallery is a UK entity operating in and storing its data in and making that data available from the UK. Not unreasonably, they feel that UK law is relevant here. Whether any judgement is enforceable in practice against a US resident who chooses not to present himself to the jurisdiction of the UK courts is another matter, but that doesn't change the applicability of the law. More interestingly (and perhaps harder for the US courts to resist, though IANAL on either side of the Atlantic) there is a potential criminal issue here: data was downloaded in a way which was specifically unauthorised and which circumvented measures in place to stop it. That's potentially an offence regardless of the copyright status of the data concerned (and arguing that it shouldn't be one does not of itself change the law).

    All of which may tend to show that the law is an ass, but it doesn't stop UK law being what it is or stop the NPG rightly choosing to consider UK law to be what is relevant.

     

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  22.  
    identicon
    NPG former fan, Jul 14th, 2009 @ 4:58am

    I emailed the NPR and this is their reply

    The National Portrait Gallery is very strongly committed to giving access to its Collection. In the past five years the Gallery has spent around £1 million digitising its Collection to make it widely available for study and enjoyment. We have so far made available on our website more than 60,000 digital images, which have attracted millions of users, and we believe this extensive programme is of great public benefit.

    The Gallery supports Wikipedia in its aim of making knowledge widely available and we would be happy for the site to use our low-resolution images, sufficient for most forms of public access, subject to safeguards.

    However, in March 2009 over 3000 high-resolution files were appropriated from the National Portrait Gallery website and published on Wikipedia without permission.

    The Gallery is very concerned that potential loss of licensing income from the high-resolution files threatens its ability to reinvest in its digitisation programme and so make further images available. It is one of the Gallery’s primary purposes to make as much of the Collection available as possible for the public to view.

    Digitisation involves huge costs including research, cataloguing, conservation and highly-skilled photography. Images then need to be made available on the Gallery website as part of a structured and authoritative database.

    To date, Wikipedia has not responded to our requests to discuss the issue and so the National Portrait Gallery has been obliged to issue a lawyer’s letter. The Gallery remains willing to enter into a dialogue with Wikipedia.

    This statement will be published on the National Portrait Gallery’s website in due course.

    Once again, thank you for your feedback.

    I do hope that you will be able to visit the National Portrait Gallery both online (www.npg.org.uk – where visitors can freely view more than 60,000 low resolution digital images of works in the Collection) and in person in the near future.

    Yours sincerely,

    Helen

     

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  23.  
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    juan sin nada, Jul 18th, 2009 @ 7:10am

    control is the key

    "It would appear to give people all the access they need to specifically NOT go to see the portraits". - Anonymous Coward.

    that's just bollocks an ignorant who can't appreciate art would say.

    i have reproductions of van gogh's work and it doesn't stop me from going to the museum to see the real thing. as a matter of fact the controversy and the "illegal" images have caught my attention and interest to see them in real life. it's the same rationale for sharing music. i discover, i like it, i buy it.

    when your head is inside RIAA's bowel tunnel it's hard to distinguish the grass from the manure.

    this is just another case of copyright for the sake of control and repression.

     

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  24.  
    identicon
    bodnotbod, Jul 23rd, 2009 @ 7:25am

    Re:

    People will still want to see portraits in the flesh. Viewing a painting on a screen, no matter the resolution, is still a different experience to seeing a painting in all its splendour. THAT is the gallery's unique selling point and that is what they must use to sustain visitor numbers in the internet age.

    Of course the NPG is greatly effected because so many of its works are in the public domain. Galleries displaying more modern works have no cause for alarm.

     

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