The battle over Wikipedia’s use of images from a British art gallery’s website has intensified.
The online encyclopaedia has accused the National Portrait Gallery (NPG) of betraying its public service mission.
But the gallery has said it needs to recoup the £1m cost of its digitisation programme and claims Wikipedia has misrepresented its position.
The NPG is threatening legal action after 3,300 images from its website were uploaded to Wikipedia.
The high-resolution images were uploaded by Wikipedia volunteer Derrick Coetzee.
Now Erik Moeller, the deputy director of the Wikimedia Foundation which runs the online encyclopaedia, has laid out the organisation’s stance in a blog post.
‘Empire building’
He said most observers would think the two sides should be “allies not adversaries” and that museums and other cultural institutions should not pursue extra revenue at the expense of limiting public access to their material.
“It is hard to see a plausible argument that excluding public domain content from a free, non-profit encyclopaedia serves any public interest whatsoever,” he wrote.
He points out that two German photographic archives donated 350,000 copyrighted images for use on Wikipedia, and other institutions in the United States and the UK have seen benefits in making material available for use.
Definitely worth a read is Erik Moeller rebuttal to NPG and his defence of wikipedia here. I will post a relevant excerpt below:
Both the NPG and Wikimedia agree that the paintings depicted in these images are in the public domain – many of these portraits are hundreds of years old, all long out of copyright. However, the NPG claims that it holds a copyright to the reproduction of these images (while also controlling access to the physical objects). In other words, the NPG believes that the slavish reproduction of a public domain painting without any added originality conveys a new full copyright to the digital copy, creating the opportunity to monetize this digital copy for many decades. The NPG is therefore effectively asserting full control over these public domain paintings.
The Wikimedia Foundation has no reason to believe that the user in question has violated any applicable law, and we are exploring ways to support the user in the event that NPG follows up on its original threat. We are open to a compromise around the specific images, but our position on the legal status of these images is unlikely to change. Our position is shared by legal scholars and by many in the community of galleries, libraries, archives, and museums. In 2003, Peter Hirtle, 58th president of the Society of American Archivists, wrote:
“The conclusion we must draw is inescapable. Efforts to try to monopolize our holdings and generate revenue by exploiting our physical ownership of public domain works should not succeed. Such efforts make a mockery of the copyright balance between the interests of the copyright creator and the public.”
Some in the international GLAM community have taken the opposite approach, and even gone so far to suggest that GLAM institutions should employ digitial watermarking and other Digital Restrictions Management (DRM) technologies to protect their alleged rights over public domain objects, and to enforce those rights aggressively.
COMMENTS
I will say that NPG stands on the wrong side of history here. Not only that, it is doing serious damage to its PR and it barely has a legal leg to stand on. Indeed it is trite law that indirect copying is still copying and you can indeed infringe copyright indirectly (Interlego v Tyco [1989 AC 217). For example, the painting is the original copy. Assuming it is copyright protected and a photographer takes a photograph of that painting, the photographer gains a valid copy right of the photo. If you then scan and reproduce multiple copies of said photograph, not only do you directly infringe the photographer’s copyright in that photo, you also indirectly infringe the copyright of the painter. Thus both the painter and photographer can sue you for copyright infringement, the former for indirect copying.
So far so good. But the problem is that the painting itself does not have copyright. It is undisputed that the paintings have already passed into the public domain. What NPG seeks to assert is that by “digitising” the paintings, it somehow has renewed copyright over these digitised versions and can therefore prevent your from reproducing such pictures. In short, it is akin to the photography example listed above, only this time the photographer has taken a picture of a painting in the public domain and seeks to now prevent people from copying his photos. The practical effect of this, especially since NPG has the sole right to digitise the paintings is to gain a de facto monopoly over the images. If one assets that NPG has copyright over such digital reproductions, it only begs a further the question of who has copyright over the product. This is because it is essential to identify the copyright holder for the purpose of determining the length of the copyright. Depending on where you are copyright protection can last anywhere from between the life of the author plus 50 years to life of the author plus 70 years.
Clearly, NPG as an organization cannot be said to own the copyright, because if it did the organization could theoretically last forever and consequently the copyright can be perpetual. Instead, it is more accurate that NPG’s employee has copyright over the digitisation (by virtue of doing the digitising) and NPG by virtue of being the employer owns the benefits of the copyright. Now, one can easily see as a matter of policy the dangers of allowing such an easy copyright to be asserted, because it would defeat the purpose of having public domain. Imagine if tomorrow the Louvre decided to “digitise” the Mona Lisa and block everyone from using the photo of Mona Lisa.
Indeed even in Interlego v Tyco, the court rejected the “sweat of the brow” effort in Walter v Lane [1900] AC 539. Instead the test of whether a copied work (in this case a digitised copy of the painting) can gain a new an independent copyright is whether there is a
“material embellishment” that makes the copy different from the original. The mere fact that there was skill and effort in digitising (copying) is not enough. Granted, this position set our in Interlego is not entirely uncontroversial and Hyperion Records v Sawkins [2005] RPC 32 recently preferred the approach in Walter v Lane. But Hyperion should better be seen as crafting a limited to its exceptional facts and can in any case be distinguished from the Wikipedia case which is far closer to the situation of Interlego.
I can do no better than to cite the words of Lord Oliver in Interlego v Tyco why NPG firmly stands on the wrong side of history, and of the law:
Originality in the context of literary copyright has been said in several well known cases to depend upon the degree of skill, labour and judgment involved in preparing a compilation. Macmillan & Co. Ltd. v. Cooper, 40 T.L.R. 186 was such a case. So was G.A. Cramp & Son Ltd. v. Frank Smythson Ltd. [1944] A.C. 329 . Similarly in the speeches of Lord Reid and Lord Hodson in Ladbroke (Football) Ltd. v. William Hill (Football) Ltd.[1964] 1 W.L.R. 273, 277 (Lord Reid) and at pp. 285 and 287 (Lord Hodson) it is stressed that the amount of skill, judgment or labour is likely to be decisive in the case of compilations. To apply that, however, as a universal test of originality in all copyright cases is not only unwarranted by the context in which the observations were made but palpably erroneous.
Take the simplest case of artistic copyright, a painting or a photograph. It takes great skill, judgment and labour to produce a good copy by painting or to produce an enlarged photograph from a positive print, but no one would reasonably contend that the copy painting or enlargement was an “original” artistic work in which the copier is entitled to claim copyright. Skill, labour or judgment merely in the process of copying cannot confer originality. In this connection some reliance was placed on a passage from the judgment of Whitford J. in L.B. (Plastics) Ltd. v. Swish Products Ltd. [1979] R.P.C. 551, 568-569, where he expressed the opinion that a drawing of a three-dimensional prototype, not itself produced from the drawing and not being a work of artistic craftsmanship, would qualify as an original work. That may well be right, for there is no more reason for denying originality to the depiction of a three-dimensional prototype than there is for denying originality to the depiction in two-dimensional form of any other physical object. It by no means follows, however, that that which is an exact and literal reproduction in two-dimensional form of an existing two-dimensional work becomes an original work simply because the process of copying it involves the application of skill and labour. There must in addition be some element of material alteration or embellishment which suffices to make the totality of the work an original work. Of course, even a relatively small alteration or addition quantitatively may, if material, suffice to convert that which is substantially copied from an earlier work into an original work. Whether it does so or not is a question of degree having regard to the quality rather than the quantity of the addition. But copying, per se, however much skill or labour may be devoted to the process, cannot make an original work. A well executed tracing is the result of much labour and skill but remains what it is, a tracing.
