Is The National Portrait Gallery Lying About The Cost Of Its Digital Archives In Fight With Wikimedia?

from the might-be... dept

Last week, we wrote about how the National Portrait Gallery in the UK was threatening a guy who uploaded a bunch of photos from the Gallery's site to Wikipedia and defended his upload by noting that the portraits in question were all in the public domain. The Gallery insists that the photos of the portraits are not in the public domain, and that's where the heart of the legal dispute lies -- though, there are some side issues. In the US, it's pretty clear that a photo of a public domain work remains in the public domain (assuming no additional creative expression is added). In the UK, it's unsettled law. However, as the situation gets more attention, some interesting facts are coming out.

The National Gallery is claiming that a big part of the reason for why it's doing this is that it has cost £1 million to digitize the photos, and removing the ability to license the images makes it less likely that others will digitize their own collections. That's not a bad argument (though, there isn't necessarily a legal basis that copyright should be based on how much it costs to create the work in question). However, someone decided to check on those numbers, and put in a Freedom of Information request, and discovered that the actual costs to digitize and put the collection online was significantly lower than what the Gallery is claiming:
The Gallery spent £18,000 to put its collections online in 1999. During a ten year period up to 2008 another £10,000 was spent on minor developments and adjustments and in 2008 and 2009 a further £11,000 was spent. This gives a total figure of £39,000.
Now, that's not nothing, but £39,000 is significantly lower than £1 million, yes?

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

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  1. identicon
    UK Pedant, 22 Jul 2009 @ 1:16am

    UK Copyright Law

    Your comment about UK law is wrong. The UK legal position on this question was settled in Sawkins v Hyperion Records.

    In UK law that expert reproductions of pre-existing works give rise to their own copyright. The principle was set out in Walter v Lane more than a century ago and upheld in Sawkins v Hyperion by the Court or Appeal.

    The US decision (Bridgeman Art Library v Corel) misinterpreted a decision of the UK Privy council, Tyco Industries v Interlego. This case related to very particular facts and has since been "confined to its facts". In UK Legal speak this is a polite way of saying that it is a peculiar decision that should not be applied beyond the specific facts which gave rise to it.

    Copyright subsists in those photgraphs. Under UK law this is straightforward copyright infringement; Coetzee has stolen the fruits of someone elses labour. If you care about a free market and people receiving just reward for their labour (as opposed to forcible collectivisation) Coetzee's actions are objectionable.

    In fact the Wikimedia policy on 2D reproductions of copyright works is dishonest and risks undermining the credibility of the movement. Quite apart from the moral case, it is disgustingly arrogant to expect that US law should apply to the entire world - it does not.

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