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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.” [source]

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

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

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  1. SteveBaker says:

    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.

  2. F. says:

    @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…

  3. A Publisher says:

    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.

  4. Will Tacy says:

    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.

  5. rox0r says:

    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?

  6. Harry Freeman says:

    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.

  7. Dan Morelle says:

    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.

  8. Ken says:

    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.

  9. F. says:

    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.

  10. C Johnson says:

    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.

  11. Erik says:

    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. Bedd Gelert says:

    “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.

  13. John Nagle says:

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

  14. Ruth Ivimey-Cook says:

    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…

  15. Mark Williamson says:

    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.

  16. Roger Browne says:

    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.

  17. 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.

  18. David Gerard says:

    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.

  19. 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.

  20. David Webb says:

    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.

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