Protecting the public domain and sharing our cultural heritage

Last week, the National Portrait Gallery in London, UK sent a threatening letter to a Wikimedia volunteer regarding the upload of public domain paintings to Wikimedia’s media repository, Wikimedia Commons.

The fact that a publicly funded institution sent a threatening letter to a volunteer working to improve a non-profit encyclopedia may strike you as odd. After all, the National Portrait Gallery was founded in 1856, with the stated aim of using portraits “to promote appreciation and understanding of the men and women who have made and are making British history and culture.” [source] It seems obvious that a public benefit organization and a volunteer community promoting free access to education and culture should be allies rather than adversaries.

It seems especially odd if seen in the context of the many successful partnerships between the Wikimedia community and other galleries, libraries, archives and museums. For example, two German photographic archives, the Bundesarchiv and the Deutsche Fotothek, together donated 350,000 copyrighted images under a free content license to Wikimedia Commons, the Wikimedia Foundation’s multimedia repository. These photographic donations were the successful outcome of thoughtful negotiations between Mathias Schindler, a Wikimedia volunteer, and representatives of the archives. (Information about the Bundesarchiv donation ; Information about the Fotothek donation)

Everybody ended up winning. Wikimedia helped the archives by working to identify errors in the descriptions of the donated images, and by linking the subjects of the photographs to accepted metadata standards. Wikipedia has driven new traffic to the archives. And the more than 300 million monthly visitors to Wikipedia have been given free access to amazing photographs of historic value they would otherwise never have seen.

More examples:

  • During the past few months, Wikimedia volunteers have worked with cultural institutions in the United States, the United Kingdom and the Netherlands to take thousands of photographs of paintings and objects for Wikimedia Commons. This project is called “Wikipedia Loves Art.” Again, everybody wins: the museums and galleries gain greater exposure for the images, Wikipedia is better able to serve its audience, and people around the world are able to see cultural treasures they might otherwise never have had access to. (See the English Wikipedia page about the project and the Dutch project portal.)

  • Individual Wikimedia volunteers work with museums and archives to restore digital versions of old images by removing visible marks such as stains and scratches. The work is painstaking and difficult, but the results are terrific: the work is returned to its original glory, with its full informational value restored. Audiences can appreciate it once again. (Restoration work is coordinated through the “Potential restorations” page, and many examples of restoration can be found among Wikimedia’s featured pictures.)

Three Wikimedia volunteers have summarized these opportunities in an open letter: Working with, not against, cultural institutions. On August 6-7, Wikimedia Australia is organizing an event to explore these and other models of partnership with galleries, libraries, archives and museums (GLAM).

Why do Wikimedia volunteers donate their time to painstaking restoration work, the photographing of art, and the negotiation of partnerships with cultural institutions? Because Wikimedia volunteers are dedicated to making information – including images of historic or informational importance – freely available to people around the world. Cultural institutions should not condemn Wikimedia volunteers: they should join forces with them in a shared mission.

We believe there are many wonderful opportunities for Wikimedia to work together with cultural institutions to educate, inform, and enlighten, and to share our cultural heritage. If you would like to get involved in the discussion, we invite you to join the Wikimedia Commons mailing list. Subscribe and introduce yourself – the list is read by many Wikimedia volunteers and by some volunteers associated with Wikimedia chapters as well as some Wikimedia Foundation staff. Alternatively, if there is a chapter in your country, you may want to get in touch with them directly. You can also contact the Wikimedia Foundation. Please feel free to send me your first thoughts at erik(at)wikimedia(dot)org, and I will connect you as appropriate.

The NPG is angry that a Wikimedia volunteer seems to have uploaded to Commons photographs of public domain paintings that are owned by the NPG. Intitially it sent threatening letters to the Wikimedia Foundation, asking us to “destroy all the images”. (Contrary to public claims, these letters did not include an offer for compromise. The NPG is possibly confusing its correspondence with a letter exchange in 2006 with a Wikimedia volunteer, which the user published here.) The NPG’s position seems to be that the user has violated copyright law in posting the images.

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.

The Wikimedia Foundation sympathizes with cultural institutions’ desire for revenue streams to help them maintain services for their audiences. And yet, if that revenue stream requires an institution to lock up and severely limit access to its educational materials, rather than allowing the materials to be freely available to everyone, that strikes us as counter to those institutions’ educational mission. It is hard to see a plausible argument that excluding public domain content from a free, non-profit encyclopedia serves any public interest whatsoever.

Erik Moeller
Deputy Director, Wikimedia Foundation

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40 Comments on Protecting the public domain and sharing our cultural heritage

Jay Walsh 5 years

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.

Vincenzo Sasso 5 years

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!!!!!

oceanwatcher 5 years

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.

Ho Shaky 5 years

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.

sdoradus 5 years

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.

z 5 years

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.

ttkaminski 5 years

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.

jakerome 5 years

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.

m 5 years

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.

m 5 years

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.

Piotr Konieczny 5 years

Mainstream media is picking the story, for better or worse:

http://news.bbc.co.uk/2/hi/technology/8156268.stm

Physchim62 5 years

@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.

Harry Freeman 5 years

@ 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)…

bugzappy 5 years

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?

Physchim62 5 years

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.

Richie 5 years

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.

Peter 5 years

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.”

Toon 5 years

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.

carbuncle 5 years

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.

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