48 Responses to “Protecting the public domain and sharing our cultural heritage”

1. David Gerard » Blog Archive » Wikimedia writes on the NPG legal threat. Says:
   July 16th, 2009 at 21:41

   [...] Möller’s posted to the Wikimedia blog on the issue. Note the correction of the NPG’s claims that Wikimedia never responded to them [...]

2. David Webb Says:
   July 17th, 2009 at 00:46

   There are a lot of questions that need to be answered by the uploader really. On his talk page (http://commons.wikimedia.org/wiki/User_talk:Dcoetzee) there is mention that the NPG images contain hidden watermarks, is this true? Were the watermarks removed? If they were removed, that is a criminal offence rather than a civil one (2003 Copyright Regulations)

   “Electronic rights management information is any information provided by the copyright owner which identifies the work, the author or any other right holder, or information about the terms and conditions of use of the work, and any numbers or codes that represent such information. Any attempt to interfere with this data, remove it or retransmit a work without it will become a criminal offence. As in the case of technological measures, this new law gives museums, archives and libraries new powers to protect their digitised collections or other material they have produced in electronic form.”

   Did the uploader use a batch tool to bypass the zoomify feature, thereby downloading directly from the server over 3,000 images, again that could easily be construed as bypassing technical measures, I’d guess that sitting down and piecing together over 3000 images would be very time consuming.

   The WMF’s own rules on the uploading of images, is they must not be in copyright in their country of origin, as far as the law in the UK currently stands, the images are in copyright in the UK, why is the WMF ignoring their own rules on this subject and keeping the images up? The WMF may say “their copyright status is in question”, so that is a “they may be copyrighted” so wouldn’t your rules on not allowing images which hold copyright prevent the images from being uploaded? Because its more suitable for the WMF to keep hold of the pictures?

   “We are open to a compromise around the specific images, but our position on the legal status of these images is unlikely to change.”

   So, if the NPG does follow through and it does go to court in the UK and the courts in the UK uphold that yes, these images are copyright under UK law, will the WMF pay the NPG for each and every copyright infringement that has taken place (i.e. every single unique page view on each individual image) or will the WMF continue with their stance of “we’re not bothering to comply with UK law on this”?

   There has been no legal case in the UK on this subject, there may be very soon, but up until that time it should be argued that the images in question are not in the Public Domain in the UK and that the WMF has no right to display them even under their own rules.

   As you posted an opinion from an American source in favour of the WMF, a balanced view would have been for you to also publish the opinion of a British copyright solicitor, which is:

   Following the report the Museums Copyright Group has obtained an opinion from Jonathan Rayner James QC, a leading copyright specialist, who has no doubt that UK copyright law protects photographs of works of art:

   “… as a matter of principle, a photograph of an artistic work can qualify for copyright protection in English law, and that is so irrespective of whether … the subject of the photographs is more obviously a three dimensional work, such as a sculpture, or is perceived as a two dimensional artistic work, such as a drawing or a painting …”

   (http://www.museumscopyright.org.uk/bridge.htm) That link also discusses the Bridgeman v. Corel case that so frequently pops up as a defence, when it doesn’t apply in the slightest in the UK.

3. Piotr Konieczny Says:
   July 17th, 2009 at 02:54

   I am almost hoping they sue – a case verdict against such idiocy would be much welcomed, worldwide. Too many institutions supposedly created for the public benefit have been overtaken by greed, and dealing with them is long overdue.

4. David Gerard Says:
   July 17th, 2009 at 03:47

   I’ve posted on my blog a call for best Freedom of Information requests to send the NPG – remember that they are not an independent charity, they’re a government sub-department. There have been some excellent suggestions so far. The salary of the person responsible for this licensing would be interesting, for example.

5. Crosbie Fitch Says:
   July 17th, 2009 at 08:33

   Given Jammie Thomas was recently given a $1,920,000 penalty for sharing 24 mp3 files on Kazaa ($80k per file), it seems that with Derrick Coetzee having shared at least 3,300 images the NPG could be looking at an award of $264,000,000. Easy money if you can get it. That might just fund the building of a new gallery for the NPG.

   What I find so astounding is that so many are saying “Oh yes, copyright is absolutely essential and must be protected with the full force of the law, but these images being of antique paintings should be exempt”, without recognising the elephant in the room that all published works belong to the public and no member of the public should be subject to prosecution (and million dollar fines) for sharing and building upon published works (even if published yesterday).

   Restore the public’s natural right to share and build upon its cultural heritage – all published works – the public domain. Abolish copyright.

6. Roger Browne Says:
   July 17th, 2009 at 14:15

   I’m pleased that the NPG’s demand is being fought. The NPG should not be using copyright law to restrict access to our cultural heritage. Even if it turns out that the NPG has the letter of UK law on their side, bringing this into the public eye is the first step towards changing it.

7. Mark Williamson Says:
   July 17th, 2009 at 15:09

   Please could you post or link to the threatening letters that were sent to the Wikimedia Foundation so that the rest of us can judge the full situation better.

8. Ruth Ivimey-Cook Says:
   July 17th, 2009 at 15:28

   There are many in this world who do not understand copyright or even wilfully abuse it. For example, you can find many people who wish to sell you copies of ancient maps and themselves claim copyright on the result… something that is clearly an abuse in my view. IIRC there is a case in the US in which a telephone directory company was denied copyright protection because all they had done was present standard information (names/numbers) in the obvious way. Copyright *requires* a significant creative step and no photograph or scan of a painting, no matter how expensive the photographer, counts (in and of itself: of course the painting might still be in copyright, and “creative” photos can be too).

   I too hope to see a landmark case in this that makes it clear to everyone where copyright protection stops…

9. John Nagle Says:
   July 17th, 2009 at 15:39

   We’ve already had that landmark case. See [[Bridgeman Art Library v. Corel Corp.]].

10. Bedd Gelert Says:
    July 17th, 2009 at 17:35

    “Even if it turns out that the NPG has the letter of UK law on their side, bringing this into the public eye is the first step towards changing it.”

    Which part of ‘breaking the law’ do you imbeciles not understand ?? The old ‘we are bigger than you, so we will do what the f**k we like. Deal with it’ bully boy tactics are unbecoming.

    Why stop at the National Portrait Gallery ?? Why not steal EVERYONE’S copyright image ??

    Oh, sorry, I forgot – you don’t want to upset American celebrities and their ‘image rights’ and take on their expensive lawyers, because you might lose…

    No, easier just to bully people who are trying to make art widely available at high quality. No, just take the ‘youtube’ route that ‘if you nick everything’ and ‘put it out low quality’ it will be impossible for EVERYONE to complain.

    Here’s a wake-up call. Your information is crap. Your amateur ‘crowdsourcing’ hype has been weighed in the balance and found wanting. You’ve been rumbled – now deal with it.

    Nobody wants to pay for anything anymore. Well guess what. You get what you pay for in life. And if you peanuts, what you get are monkeys. And whilst an infinite number of monkeys with an infinite number of typewriters would eventually type out Encyclopaedia Britannica, most of us don’t have that long to wait.

    Especially as we would have no way of knowing WHEN you had finally got to the Truth.

11. Erik Says:
    July 17th, 2009 at 17:41

    Mark, as we’ve just entered good faith discussions with the NPG to determine whether a compromise is possible, we’d prefer to not disclose any past legal correspondence so as to not inflame matters further. Suffice it to say that the letters were a request to remove the images, and didn’t include any offer for compromise.

12. C Johnson Says:
    July 17th, 2009 at 17:48

    What you’ve done is undermine the National Portrait Gallery’s programme of digitizing its collection at high resolution, which is a loss to all of us. How do you think they’re paying for this programme? With free beer?

    You could have accepted the free release of medium-resolution images, but no, you think your size and self-appointed non-profit status means you never have to pay for a damn thing. Well hello bully-boys – you’re not the freedom-fighters you think you are. You’ve just proved yourselves thugs.

13. F. Says:
    July 17th, 2009 at 18:33

    Let me guess. Bedd Gelert is employed by Encyclopedia Britannica. :) Stopped reading after “you imbeciles”…

    @C Johnson: “How do you think they’re paying for this programme?” – It has been paid mostly with government grants and donations, like anything else they do. Compared to the £16mio income from these and other sources, the £10-20thd of revenue from attempting to monetize their trusts through these scans – there’s not being undermined anything. Especially if you factor in the costs to the patrons if this goes to court. What’s really being undermined is their mission to, and funded by, the public, to make our cultural heritage as available as possible.

14. Ken Says:
    July 17th, 2009 at 19:42

    Wiki whatever is just in the wrong and in the wrong and in the wrong. The pictures are subject to copyright in the UK so why does Wikipedia think this does not apply to it. Why are they allowed to break the law. If you disagree with the law, why not campaign to get it changed? Just breaking the law is wrong and if you can’t see it, well, then go home, have a sit down and re-evaluate your life.

15. Dan Morelle Says:
    July 17th, 2009 at 19:57

    Welcome to the internetz, where everything is free.

    Interesting legal debate. Good exposure for both parties. The National Portrait Gallery (sorry I can’t say NPG – reminds me too much of the New Power Generation) just needs to assert that their images are copyright otherwise their income from the reproduction of these images in books and magazines could be at risk, Streisand will see to that if they keep commenting to journos. Just because we can now see our national treasures on Wikipedia as well as http://www.npg.org.uk shouldn’t stop books and mags paying their fees. The National Portrait Gallery are pissed because cogapp left the gate open – the horse has bolted, take it up with your web developer guys.

    To both of you: Court is a failure to negotiate, don’t waste your money with QC’s. Have a bar-b-q get drunk and get in to bed together. We’ll all love you so much more for it.

16. Harry Freeman Says:
    July 17th, 2009 at 20:55

    I live in the UK. From what I understand the images in question were in the UK with all the copyright and database rights protection that brings. I know the internet is global but what really irritates me is that an individual and an institution based in the US can justifying ignoring UK law (images owned by the UK taxpayers, held by a UK institution, digitised on a UK database etc)…

    There seems to be a really nasty theme here of “US law is the only law that matters on the internet and anyone who thinks differently is anti-’the common good’ and just greedy”.

    Wikipedia is a fantastic force for the common good but please don’t let hubris be your downfall. All this self-righteous moralising is not right and it’s not pleasant.

17. rox0r Says:
    July 17th, 2009 at 21:06

    These pictures are just photocopies of public domain work? Why would they even want to try to assert copyright? Oh, yeah. They’ve pushed the photocopy button, they deserve protection!!!

    These photos are in the public domain. Why do they want to create scarcity of something that belongs to the public?

18. Will Tacy Says:
    July 17th, 2009 at 21:48

    The legal issues here, as defined by UK copyright law, will no doubt be clarified as this situation unfolds. What I personally find more interesting is the question of the National Portrait Gallery’s mission and the ways in which their case (and their practices) undercut that stated mission.

    Based on their published material, the gallery’s aim 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.”

    In its day-to-day operations, the gallery follows this stated mission remarkably. Admission to the gallery is free, and the cost of admission to major exhibits is relatively minimal, credibly justified as offsetting the cost of staging the exhibit. The initiative to digitize the gallery’s collection would also, on its face, appear to support the mission. After all, what better way to ‘promote the appreciation and understanding of portraiture in all media’ than to make those images available in a form that can be easily distributed on a global scale?

    Based purely on its stated mission, the act of uploading those digitized images would seem to be not only permissible but welcome. Wikipedia has a global reach the NPG undeniably lacks, making it an ideal distribution platform for promoting the gallery’s collection and extending its aim to promote appreciation. So why would the gallery react to the uploading in such an aggressive manner?

    Based on the comments made by gallery representatives, there seem to be two possible answers. First, there is the legal precedent issue. If the gallery allows images to which it holds copyright to be uploaded without permission, does it knowingly diminish the strength of that copyright? If so, then the reaction is understandable, but the real legal exposure here would appear to be very minimal. If there is a barrister in the audience with a deeper understanding of the details of UK law, clarification on this point would be appreciated.

    The second explanation is that the NPG undertook the digitization project for reasons that were not directly related to the gallery’s mission. The gallery makes a good deal of money by licensing its images for publication in books and catalogs and other media. If the digitizing initiative was intended to support and extend this revenue stream, then the uploading of those images is a direct threat to that expected income.

    So, what does the gallery really want here? If they want to further their stated mission, they should embrace digital distribution while protecting the legal strength of their copyright protections. If they want to make money off their images, they should say so. At least that would be honest.

19. A Publisher Says:
    July 17th, 2009 at 22:58

    Excuse me for not posting under my real name, but I’m a publisher of academic books in the UK, and I don’t want to embarrass my employers, since I’m not speaking on behalf of the firm.

    I’d just like to say that the National Portrait Gallery is one of the worst offenders in the world in its digital practices. The terms and conditions (quite apart from the cost) associated with getting permission to use one of their images – itself a pretty offensive idea, I know – are so bad that you can’t really afford to do business with them.

    This is particularly bad because the NPG often holds the only good image of a historical figure. I’m publishing the only book in some decades about a minor 18th-century writer, for instance, whom the NPG owns the only contemporary painting of. It’s the obvious choice for a cover image. But we can’t afford the money or the legal obstacles, so it’s not on our cover. Instead we’re using an obscure etching of a sketch made towards the exact same painting.

    If I had to name one museum or gallery in the UK as the chief villain in this all-too-common story, the NPG would be the one. They contrast somewhat with the British Museum and the V&A, who are opening up a little, though insisting that they own copyright and must be credited as such, and restricting free use to scholars to print only, and “non-commercial use” only, a term which of course is a little difficult to define. But at least the BM and the V&A have some sympathy with scholarship. That cannot be said for the NPG, which seems desperate to monetise something it doesn’t and mustn’t own.

    Don’t think that US galleries or museums abide by the spirit of Corel v Bridgeman, incidentally; they frequently assert copyright exactly as if it had never been ruled. They can do this because a publisher can’t practicably restrict himself to one worldwide domain, and it’s only law in a few countries. And museums often supply images with an end user agreement containing amazing restrictions – e.g. that you must show them physical proofs, before press, which they can veto; that you cannot crop or show a detail of a painting now 200 years old; etc., etc.

    Such “agreements” – never negotiable – mean any illustrated book published today is a mass of little contracts. The result is that second editions are never worth it any longer (the time, the renegotiation, the fresh fees, etc.), and that books are frequently unillustrated just to avoid the whole nightmare. I’ve known art historians who had to pay £2000 out of their own pockets in order to show details of painters no later than Rembrandt. We’re not talking about trivial sums and a few simple emails.

    Frankly I think this particular test case is not the ideal ground for a fight, because the plundering was pretty blatant. But I’m very glad people are fighting it, all the same. If these images do somehow escape the NPG and get into anything resembling the public domain, it will be an absolute good. Indeed, it will advance exactly the cause for which the NPG was founded.

20. F. Says:
    July 17th, 2009 at 23:17

    @Harry Freeman: And if Wikipedia wasn’t ignoring Chinese law, Wikipedia would not exist at all.

    @the Publisher: Wow, that was enlightening. Indeed, if practices like these succeed, all our previously free heritage will soon be exclusively owned by someone. And that someone isn’t us…

21. SteveBaker Says:
    July 18th, 2009 at 02:22

    The spirit of the copyright law is that the government grants you protection for creative works in exchange for the public’s free access to the work once the copyright term expires. NPG are violating the spirit of that promise. It would perhaps be less bad if they allowed others to come to the gallery and take photos of the paintings – but they do not. NPG’s actions are a clear effort to take from the public their right – guaranteed under copyright law – to be allowed to copy works after the prescribed amount of time.

    Their claim to have added some kind of significant artistic content in taking their photographs is clearly untrue – indeed they appear to have gone to a fair amount of trouble to ensure that their photographs are as faithful to the original image as possible – thereby excluding any possibility that the photographic process added anything whatever – let alone “artistic” additions!

    I applaud WikiCommons for standing up for the public right.

22. carbuncle Says:
    July 18th, 2009 at 13:27

    Erik, I note that the Bundesarchiv archive donations which you cite as an example are described as “800 pixels in size on the longer side”. Much larger images are available at the Bundesarchiv, so it seems that the archive has freely shared medium resolution copies with Wikipedia.

    It is my understanding, and please correct me if I am wrong, that the NPG is willing to allow low or medium resolution images on Wikipedia. Why is it necessary for Wikipedia to host these high resolution images from the NPG (regardless of how they came to be there), when it could host lower resolution images which would serve the same purpose (i.e. illustrating articles)? Interested readers can see the higher resolution images at the NPG’s website if they so desire.

23. blog.arthistoricum.net » Blog Archive » National Portrait Gallery vs. Wikimedia Says:
    July 18th, 2009 at 16:27

    [...] bei Nichteinhaltung rechtliche Schritte an. Die Wikimedia-Foundation zeigt sich mit Coetze solidarisch, indem sie erklärt, dass das Vorgehen des Users aus Ihrer Sicht nicht zu beanstanden ist, wird [...]

24. Toon Says:
    July 18th, 2009 at 17:47

    I find the attitude that has been taken by both the Wikimedia Foundation and the editor in question to this matter pretty arrogant, to be frank. Don’t get me wrong, I pity the guy for having to shoulder the legal burdon of an unsupportive and little-concerned system.

    What seems to be being ignored here is the actual cost to another non-profit institution, the NPG; they paid the photographer, they paid for the restoration, security and digitisation of the images in question and yet the WMF did not even try to contact the gallery to negotiate an arrangement suitable to both parties. You cannot, no matter how hard you try, pretend that this is the NPG trying to profit unfairly from public domain art – they are trying to ensure that they can continue to offer digitised versions of the images to the general public. For an arrogant or ignorant person to come along, bypass security measures to display images on their own website at no cost to themselves, doubtless taking traffic and revenue away from the body who paid for all of this to be made available, without compensating them in any way is just staggering.

    Wake up. Facilitating the digitisation of the high-resolution images cost the gallery money – this isn’t a business trying to keep their million-dollar profits up, it is a gallery funded partially by the British taxpayer doing a public service, and trying to ensure that they can keep doing it. Get off your high horse, stop assuming that US law trumps everything. Do the right thing, Wikimedia, and help them keep doing their excellent work.

25. Peter Says:
    July 18th, 2009 at 20:03

    As they used to say: “Lex dura, sed lex.” The only option is to do what is legally required: the images are copyrighted in the UK and should be regarded as such.

    Wikimedia is behaving a bit like George W. Bush when invading Iraq: “We’ll do it because we want to and nobody can stop us.”

26. Richie Says:
    July 19th, 2009 at 00:32

    Regardless of the legal position, Mr Moeller and Mr Coetzee are just being arrogant. The NPG currently get money from licensing hi-res images and the NPG people decide how to spend that money to further the aims of the NPG. Mr Moeller and Mr Coetzee in their public statements are implying that they believe that the NPG should not have that licensing money and have taken sufficient steps to stop that income stream. There is a difference between ” I know better than you and I will prove it enough to convince you to change your mind.” and “I know better than you and have enough power to stop you doing what you think is right.” The latter is pure arrogance. Why cannot Mr Moeller and Mr Coetzee accept lo-res or mid-res images from NPG like they have done from the other museums and galleries? Why have they singled out NPG for special treatment? Why does Mr Moeller in his statement indicate that non-profit organisations and people should be treated any differently in matters of right and wrong? Good people and organisations are not immune from doing bad things. Mr Moeller and Mr Coetzee are doing a bad thing.

27. Physchim62 Says:
    July 19th, 2009 at 01:27

    I would say that it’s more the NPG who is acting like the playground bully here, not the Wikimedia Foundation!

    English law on the authorship and originality of photographs hasn’t changed in more than a hundred years – these images are not copyright under UK law! People like the Museums Copyright Group might wish that that were different, but it is not the case, and they should not be allowed to pervert their public role by pretending otherwise.

28. bugzappy Says:
    July 19th, 2009 at 04:33

    Thought experiment: imagine if someone downloaded 10% of all Wikipedia pages and posted them on a new server under a different name — even while keeping the attributions of authorship.

    Ignoring legal considerations, that would still be in bad taste.

    Was there an attempt made to ask the NPG if putting 3000 of their photos on wikipedia was ok with them, before the deed was done?

29. Harry Freeman Says:
    July 19th, 2009 at 11:55

    @ F. – thanks for clarifying… so basically Wikipedia is above the law – or at least laws that it doesn’t agree with or think are in the common good (presumably as defined by Wikipedia)…

30. Physchim62 Says:
    July 19th, 2009 at 14:59

    @bugzappy, there are literally hundreds of sites that do exactly that, many of them with far more than 10% of Wikipedia pages on their servers. You can find a list of them on Wikipedia, at least of the one’s somebody’s bothered to note down. These sites don’t have to ask permission before they copy Wikipedia pages, but they do have to respect the original copyright. In this case, it is the NPG who is not respecting the original copyright, by pretending that one exists where there is none.

31. Dr. Klaus Graf Says:
    July 19th, 2009 at 16:02

    More on the case:

    http://archiv.twoday.net/stories/5832086/

32. Piotr Konieczny Says:
    July 20th, 2009 at 06:37

    Mainstream media is picking the story, for better or worse:
    http://news.bbc.co.uk/2/hi/technology/8156268.stm

33. m Says:
    July 20th, 2009 at 12:58

    Taking these photographs is a very skilled process, involves a number of people/equipment/lighting (actually photographing paintings this well is one of the hardest things to photograph), and can only be done when the gallery is closed (adding to expense).

    The NPG were more than willing to share low res – web suitable / optimized images (their database even helps you to do this), but the high res ones will damage revenue – because their will be people who misuse them after downloading from WP.

34. m Says:
    July 20th, 2009 at 13:05

    Coetzee copied 3,300 high-resolution images from the NPG’s online database, some of them [high resolution]. It is common practice for museums to put some digital image in low resolution on the web. High resolution images are normally kept under much tighter control, not accessible to the public, but to employees and e.g. researchers.

    So the question is: did Coetzee have permission? How did he get access to them? Coetzee studies computer sciences. Has he been hacking, or writing a tool to harvest images from sites, unbeknownst to the owners?

    Even if NPG has been negligent, they still are the proprietors of the digital images. So Coetzee and WikiMedia may argue, but they should settle for the low-res images that NPG does want to share.

35. Wikipedia push for Ogg Theora | Open Source | ZDNet.com Says:
    July 20th, 2009 at 14:18

    [...] response by Wikipedia deputy director Eric Moeller could be summarized as “Nuts“: The NPG believes that the slavish reproduction of a [...]

36. Should there be copyright in NPG’s photos? - Harry Metcalfe Says:
    July 20th, 2009 at 18:35

    [...] Intuitively, I feel that there shouldn’t be copyright in the images that Wikimedia are using. That their importance trumps NPG’s desire to exploit them commercially: these paintings are an important and unique part of our culture’s history. This isn’t just academic: it has real impact. [...]

37. jakerome Says:
    July 21st, 2009 at 15:37

    The licensing money that NPG is the problem! That they receive hundreds of thousands of dollars each year to “license” public domain images is absurd. No doubt many of the works in the museum were donated so they could be enjoyed by the public. But by locking up the paintings, and by demanding exorbitant fees to republish the public domain images, they are depriving Britain’s citizens of some of the most important art work in her history.

    How many textbooks don’t include these images because of licensing costs and legal hassles? How many schoolchildren have been deprived of seeing this historical work because the gatekeepers want to create an unnatural monopoly on a public treasure? It’s a shame that these alleged guardians of Britain’s past culture are so blinded to the opportunities that exist in a world when each copy is free that they fail to realize that they could perform their mission much better by opening up, by embracing the digital world instead of fighting it as a buggy whip maker battled the automobile industry.

    The NPG was given a gift of these photos, the condition of that gift being a mandate to share these important images with Britain’s citizens. They have failed in that mission, and even as others work to remedy this, still the NPG fights the future and tries to claim as their own works that were created hundreds of years ago. They have no right to license these photos; they have a duty to protect them, and share them with the world. If they can’t meet those duties, then they should turn the paintings over to someone who can.

38. ttkaminski Says:
    July 21st, 2009 at 15:59

    I’m sure that everyone would agree that if the original author of a painting (or any other work of art) is alive, a photographic reproduction would definitely be a violation of copyright. When a work of art enters the public domain, then all of its unauthorized reproductions that were formally a violation of copyright, would naturally enter the public domain as well. If a high fidelity reproduction, as in the case with NPG’s images, existed during the time that the original author was still alive, then it would have been a violation of copyright. But now since the paintings are in the public domain, then reproduced images are naturally in the public domain as well (according to the current copyright law). I’m sure the original authors of the paintings would want it this way too.

    Now you can argue that a lot of human skill and effort is put into “post processing” these images, to clean the up for example. The image would still violate a copyright if the original painter were still alive, so I don’t think a new copyright should be granted on the post processed image once the original work enters the public domain.

    There is nothing wrong with and entity trying to make money from public domain works as the money can be justified by the service to make a reproduction in a form useful for the client etc. However, the business must consider the reality that these public domain images are available to others and thus there is going to be competition on the distribution of these images. If they really want to license images (and sustain this kind of business model), perhaps NPG should hire artists to create new works of art that are truly copyrightable, and let organizations such as Wikimedia handle public domain works of art on behalf of the public.

39. z Says:
    July 22nd, 2009 at 02:07

    I hate to think how many digitization projects have been set back or sent back to the drawing board because of the thoughtless actions of Coetzee and Moeller. High quality digitization projects not only make images available to the public but preserve them for future generations. I am sure individuals in those institutions had to convince different boards that it is a good idea not only to raise that kind of money but to spend it. I’m sure the chief concern would have been that these images would be stolen. Coetzee has proven them correct, now other digitization projects, not isolated to the art world, will have to work harder to convince people that it would be a good idea to put things online and available to the public. Moeller and Coetzee has set back potential projects bringing media to the public. They need to remember that without these institutions, these objects would be in the home of private owners, not available to the public.

40. sdoradus Says:
    July 22nd, 2009 at 02:21

    David Webb’s assertion that removal of watermarks is a criminal offence rather than a civil one is only of concern if the works were subject matter of copyright in the first place. The whole point of the argument is whether they are or not. Worrying about watermarks is distinctly premature.

    The opinion of the silk “that UK copyright law protects photographs of works of art” is beside the point. It only does so if the works of art in question are themselves copyrighted, and in this case they are not. It also makes points which in so far as they are true, are not on point, like the notion that a 2D copy of a 3D work is copyrightable. Here we are dealing with a 2D copy of 2D public domain works.

    Even 2D copies of 3D works is the subject of fierce dispute – see for example a Waikato Law Review article by Anne Kingsbury. In speaking of UK and NZ legislation, she notes that “Sections 73(3) and 62(3) mean that it is also not a copyright infringement to photograph these kinds of works and sell the photographs or make and sell postcards. Printing drawings or photographs on T-shirts and selling these will also not in-
    fringe. It is irrelevant that these are commercial uses; they are still permitted under the exceptions.”.

    In relation to a similar case in New Zealand (Radford v Hallensteins) the court there threw out a lawsuit by a sculptor against a maker of T-shirts which had an image of the sculpture. NZ and English law were discussed thoroughly (vol. 15, page 83);

    “… the High Court Judge held that s 73 applied and that there was no infringement. The Judge considered both s 73 and the English provision s 62 and its antecedents, and commentary thereon. He said that s 73:
    ’sets out to allow members of the public, including players in the market, to copy in two-dimensions sculptures permanently in the public domain and even for profit; and it does so by setting aside any copyright in the work that the author might otherwise enjoy’.
    However s 73 [s 62 in the UK] is interpreted, that clear policy is not for compromise. The sculptor in that case was understandably aggrieved …”

    The same academic review (on copyright law and the protection of public art and works on public display) mentioned that under both the UK and NZ legislation, which are very similar, it’s likely that working materials associated with the works (notes, sketches, designs) are also not protected. This raises the possibility that databases associated with the public domain works would likewise not be protected.

    Webb also asserts that the “Bridgeman v. Corel case … doesn’t apply in the slightest in the UK”.

    The Bridgman case applies at least as much as the silk’s opinion. There are layers of authority, some binding, some not. A UK court could disregard both. It might regard the US decision in “Bridgeman v. Corel” by Judge Kaplan as being of at least persuasive authority, particularly since he specifically discussed UK law. It is, at the least, a case decided in a recognized common-law jurisdiction, which the opinion of James QC is not.

41. Ho Shaky Says:
    July 22nd, 2009 at 12:31

    Look, I’ve just skimmed through the above, but it seems to me just about everyone is missing the point. There are 3 really important points to make here.

    1. The NPG is not saying that images of the works in its care should not be available through Wikipedia; its saying the cracked zoomify versions shouldn’t be available there, as the commercial use of large-scale images helps support their digitisation programme. The NPG is happy with its 500 pixel images being available on Wikipedia, and that’s really just in line with 99% of all other images available there.

    2. Through encouraging clickthroughs from Wikipedia to the NPG site, where the zoomify images are available, Wikipedia has the opportunity to allow its users to discover all the complex interlinking of images, artists, resources, products etc that the NPG has spent a lot of time working on, to increase both the availability and the discoverability of resources.

    3. Some people out there seem to live in a bit of a cloud cuckoo land, where all Government-funded institutions have free rein to spend whatever they like on whatever takes their fancy. News Flash. The NPG has all kinds of demands on its resources, like storage, conservation, education, research, etc. etc. The Director does not have a notline to the Chancellor of the Exchequer on his desk. They do, however, have a commitment to providing the best possible mix of publically available information and images, alongside the creation of a revenue stream that helps support their activities. How is the flagrant theft of their zoomify images any different from walking into their premises and shoplifting postcards? Both activities are done without the Gallery’s consent. Are they both ok because ‘its the taxpayer who funds production’?

    I reiterate, this argument is not, I repeat not, about the NPG resisting access to images of works in its care. It is about the NPG’s right to restrict access to large scale images, while encouraging access to lower-resolution versions of the same images.

42. National Portrait Gallery vs Wikipédia ou la prise en étau et en otage de la Culture ? « Injazz Consulting's blog Says:
    July 24th, 2009 at 18:02

    [...] Protecting the public domain and sharing our cultural heritage [...]

43. oceanwatcher Says:
    July 26th, 2009 at 20:49

    Interesting debate, and I actually think the gallery has a good case, even if we might not like it.

    There are at least a couple of different things worth mentioning here.

    1. I think nobody disputes the fact that the paintings are in the public domain with respect to copyright.

    2. If the photos hold any copyright or not will be up to UK law to decide. US law has nothing to say in this matter.

    What is in front of the lense has no bearing on if a photo has copyright protection or not. I think most people agree that even the most casual partyclicker owns the copyright to her/his images. A tree in the jungle usually do not have any copyright attached to it. Does that mean all pictures of this tree is in the public domain? And argument like that becomes absurd.

    My guess is that the photos are copyrighted no matter how little we like it. If you want to play the “creative work” card, most pictures taken in the world would be in the public domain. Little or none creativity goes into most pictures taken. It is merely documentation of the “I was there” kind.

    Also, the person downloading and then uploading the images MUST have known he was doing something forbidden by the gallery and he did it despite this fact. So there is definitely an intention behind the action.

    Here is what should have been done: Go to the gallery, take your own pictures and post them as public domain.

    Alternatively – contact the gallery, get the medium sized images and everyone is happy!

    I agree that an institution like this actually gains a lot on making the works they own available. And maybe there should even be a law that said that they has to make it available on the internet if they receive the taxpayers money. But the gallery can not be forced to use Wikimedia as their chosen way of publishing the works. Adding Wikimedia to the list would be a nice service, but Wikimedia should be the ones to contact the gallery to ask for the material.

44. NPG vs public domain @ Geraki's blog Says:
    July 28th, 2009 at 13:23

    [...] NPG με οποιονδήποτε και κυρίως με το Wikimedia. Άλλωστε όπως γράφει ο Eric Moeler του Wikimedia  για την NPG, “αρχικά έστειλε [...]

45. Kerry Webb Blog » Blog Archive » Too big for their own boots? Says:
    August 18th, 2009 at 05:36

    [...] just become aware of a right kerfuffle between Britain’s National Portrait Gallery and the Wikipedia Foundation, all because of a smart young thing who hijacked a lot of high-quality images from the NPG site and [...]

46. Vincenzo Sasso Says:
    August 19th, 2009 at 14:51

    It is digusting that you allow websites such as conservapedia to exist under your banner.
    I’m profoundly disappointed by your organization and will do whatever I can to publicize this scandal!!!!!

47. Jay Walsh Says:
    August 19th, 2009 at 17:21

    Vincenzo, Conservapedia is a completely distinct project from Wikipedia and the Wikimedia Foundation. Thousands of wikis use the same software and format/style as Wikipedia, which is an opensource project MediaWiki.

48. (UK National Portrait Gallery vs. Wikimedia) vs. the Public Domain « sethiscreative.com Says:
    September 1st, 2009 at 22:34

    [...] the high res-images from the Wikimedia Commons and on the other side we have Coetzee (backed by the Wikimedia Foundation, many wikipedians and Creative Commons) claiming that these images belong to the public domain and [...]