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?

Filed Under: derrick coetzee, public domain, uk national portrait gallery, wikimedia

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  1. identicon
    Andrew D. Todd, 13 Jul 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.

    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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