National Portrait Gallery and Wikimedia Foundation copyright dispute

In July 2009, lawyers representing the National Portrait Gallery of London (NPG) sent a demand letter threatening possible legal action for alleged copyright infringement, to an editor-user of the free content multimedia repository Wikimedia Commons, a project of the Wikimedia Foundation. The letter claims that Wikipedia editor Derrick Coetzee obtained more than 3,000 high-resolution images from the British National Portrait Gallery in March 2009 and posted them on Wikimedia Commons.^[1][2][3]

The NPG letter stated the claim that while the painted portraits may be old (and have thus fallen into the public domain), the high-quality photographic reproductions are recent works, and qualify as copyrighted works due to the amount of work it took to digitize and restore them,^[2][4][5] that the action of uploading the images infringed on both the NPG's database rights and copyrights,^[3][4][6][7] and that the images were obtained through the circumvention of technical measures used to prevent downloading of the prints.^[8] The NPG also stated that the public availability of the images would affect revenue acquired from licensing the images to third parties, revenue also used to fund the project of digitizing their collection,^[7] an effort that the NPG claims cost the organization over one million pounds.^[1] The NPG had requested a response by July 20, 2009 from Coetzee, and also requested that the images be removed from the site, but noted that the NPG was not considering any legal action against the Wikimedia Foundation.^[2][3] The NPG announced that Mr. Coetzee had responded via his legal representative by the requested deadline.^[4][9] Coetzee's legal representation is provided by the Electronic Frontier Foundation.^[2][10]

Coetzee publicly posted a copy of the legal letter from the NPG, indicating that he desired to "enable public discourse on the issue".^[1] On July 17, 2009, NPG gallery spokesperson, Eleanor Macnair, stated that “contact has now been made” with the Wikimedia Foundation and “we remain hopeful that a dialogue will be possible.”^[2] The NPG has stated that it would be willing to permit Wikipedia to use low-resolution images, and that it hoped to avoid taking any further legal action.^[1] The NPG had previously attempted to contact the Wikimedia Foundation in April 2009 regarding this issue, but did not receive an immediate response.^[1]

The British Association of Picture Libraries and Agencies (BAPLA), an image industry trade group, has expressed support for the gallery.^[5]

In early 2010, an NPG spokesperson reported to heise Open, a division of German publishing house Heinz Heise, "We had a constructive discussion in December and are now considering how best to come to an agreement."^[11] In November 2010, Tom Morgan, Head of Rights and Reproductions at the National Portrait Gallery addressed a conference attended by both Wikipedians and representatives of cultural institutions. Mr. Morgan's presentation was entitled “Wikipedia and the National Portrait Gallery – A bad first date? A perspective on the developing relationship between Wikipedia and cultural heritage organisations”.^[12]

Background

The 1999 United States District Court case Bridgeman Art Library v. Corel Corp. (in which Bridgeman Art Library sued the Corel Corporation for copyright infringement for distributing copies of digital reproductions of public domain paintings sourced from Bridgeman on a CD-ROM) established that "a photograph which is no more than a copy of a work of another as exact as science and technology permits lacks originality. That is not to say that such a feat is trivial, simply not original."^[13] As a result, reproductions of works that have fallen into the public domain cannot attract any new copyright in the United States.^[13] As such, local policies of the Wikimedia Commons web site ignore any potential copyright that could subsist in reproductions of public domain works.^[5] However, British case law can take into account the amount of skill and labour that took place in the creation of a work for considering whether it can be copyrighted in the country.^[5]

As a ruling made in a US court, Bridgeman v. Corel is not a binding precedent for any court in the UK (though it may be influential). The letter from the National Portrait Gallery implies that the case should be determined using UK law and not US law. The issue of jurisdiction is complicated as the National Portrait Gallery is located in England, but Wikimedia Commons, and the uploader, are both located within the United States. The letter also claims that by making the images freely available on Wikimedia Commons, Coetzee would also be liable under the British Copyright, Designs and Patents Act 1988 for any copyright infringement committed by other users who download and use the images.^[1][8]

Reaction

Response by the Wikimedia Foundation

Erik Möller, deputy director of the Wikimedia Foundation, made a statement on the issue, clarifying the stance of the Wikimedia Foundation on the incident.^[6][14] Möller stated that although the NPG has agreed that the images are in the public domain, the NPG had contended that they own the exclusive rights to their reproductions of the images, using this to monetize their collection and assert control over public domain content.^[14] Möller also stated "It is hard to see a plausible argument that excluding public domain content from a free, non-profit encyclopaedia serves any public interest whatsoever."^[6] Möller further described the agreement that other cultural institutions have made with Wikipedia to disseminate images: two German photographic archives donated 350,000 copyrighted images, and other institutions in the United States and the UK have made material available for use.^[6] The NPG stated that the images released by the German archives were medium resolution images, and that the NPG had offered to share images of the same quality.^[6]

A reporter for the BBC reported that the NPG made a total of £339,000 from licensing images for use in traditional publications in 2008.^[6]

Response by the EFF

Fred von Lohmann, an attorney with the Electronic Frontier Foundation (EFF) remarked that the situation comes down to asking whether US companies and citizens would be "bound by the most restrictive copyright law anywhere on the planet, or by U.S. law?" ^[15] In a legal analysis, Lohmann contended that under US law, the NPG's "browse wrap" contract was not enforceable, database rights are not implemented at all, and that "using Zoomify on public domain images doesn't get you a DMCA claim."^[16]

NPG seems to think that UK law should apply everywhere on the Internet. If that's right, then the same could be said for other, more restrictive copyright laws, as well (see, e.g., Mexico's copyright term of life of the author plus 100 years and France's copyright over fashion designs). That would leave the online world at the mercy of the worst that foreign copyright laws have to offer, an outcome no U.S. court has ever endorsed.

—Fred von Lohmann^[16]

See also

• Copyright law of the United Kingdom
• Copyright law of the United States
• LICRA v. Yahoo!, a French court case involving the subjection of a primarily US-based web site to French law
• Bridgeman Art Library v. Corel Corp., decision on the status of reproductions of public-domain images in the U.S.

References

1. ^ ^{a b c d e f} "Gallery in Wikipedia legal threat". BBC News (British Broadcasting Corporation). July 15, 2009. http://news.bbc.co.uk/2/hi/entertainment/arts_and_culture/8151989.stm. Retrieved 2009-07-27. 
2. ^ ^{a b c d e} Cohen, Noam (July 19, 2009). "Wikipedia May Be a Font of Facts, but It’s a Desert for Photos". New York Times. http://www.nytimes.com/2009/07/20/arts/20funny.html. Retrieved July 28, 2009. 
3. ^ ^{a b c} Kennedy, Maev (14 July 2009). "Legal row over National Portrait Gallery images placed on Wikipedia". guardian.co.uk. http://www.guardian.co.uk/technology/2009/jul/14/national-portrait-gallery-wikipedia-row. Retrieved July 28, 2009. 
4. ^ ^{a b c} "Wikipedia vs. Portrait Gallery: the Line is Crossed". Artnet News (artnet Worldwide Corporation). July 21, 2009. http://www.artnet.com/magazineus/news/artnetnews/wikipedia-vs-portrait-gallery7-21-09.asp. Retrieved July 27, 2009. 
5. ^ ^{a b c d} "NPG and BAPLA at war with Wikipedia". British Journal of Photography. July 22, 2009. http://www.bjp-online.com/public/showPage.html?page=866109. Retrieved 2009-08-01. ^{[dead link]}
6. ^ ^{a b c d e f} Cellan-Jones, Rory (July 17, 2009). "Wikipedia painting row escalates". BBC News (British Broadcasting Corporation). http://news.bbc.co.uk/2/hi/technology/8156268.stm. Retrieved July 28, 2009. 
7. ^ ^{a b} King, Leo (July 16, 2009). "UK National Portrait Gallery in legal fight with Wikipedia". Computerworld. http://www.computerworld.com.au/article/311294/uk_national_portrait_gallery_legal_fight_wikipedia?fp=39&fpid=29725. Retrieved July 28, 2009. 
8. ^ ^{a b} Orlowski, Andrew (July 13, 2009). "National Portrait Gallery bitchslaps Wikipedia". The Register. http://www.theregister.co.uk/2009/07/13/wikimedia_npg/. Retrieved 2009-07-27. 
9. ^ Cheesman, Chris (July 21, 2009). "Wikipedia man beats gallery's legal threat deadline (update 21 July)". Amateur Photographer. http://www.amateurphotographer.co.uk/news/Wikipedia_man_beats_gallerys_legal_threat_deadline_update_21_July_news_286529.html. Retrieved July 28, 2009. 
10. ^ Andrews, Robert (July 16, 2009). "Gallery Threatens To Sue Wikimedia Admin Over Portrait Uploads". Reuters UK. http://uk.reuters.com/article/idUK72238411720090716. Retrieved July 28, 2009. ^{[dead link]}
11. ^ Kleinz, Torsten (2 February 2010). "UK museums open up to Wikimedia". Heinz Heise. http://www.h-online.com/open/news/item/UK-museums-open-up-to-Wikimedia-920612.html. Retrieved 3 February 2010. 
12. ^ Wikimedia UK blog post, "GLAM-WIKI Schedule Announced", 14 November 2010. Accessed 28 November 2010
13. ^ ^{a b} Filler, Stephen C. (December 9, 2006, from Internet Archive)). "Copyright Protection and Subject Matter in Photographs". Archived from the original on 2006-12-09. http://web.archive.org/web/20061209234905/http://www.nylawline.com/articlephotog1.htm. 
14. ^ ^{a b} Möller, Erik (July 16, 2009). "Protecting the public domain and sharing our cultural heritage". Wikimedia Foundation. http://blog.wikimedia.org/2009/07/16/protecting-the-public-domain-and-sharing-our-cultural-heritage/. Retrieved 2009-07-28. 
15. ^ Davis, Wendy (21 July 2009). "Art Museum Threatens Lawsuit Over Public Domain Gallery Images Uploaded To Wikipedia". Mediapost. http://www.mediapost.com/publications/?fa=Articles.showArticle&art_aid=110207. Retrieved 3 August 2009. 
16. ^ ^{a b} von Lohmann, Fred (August 3, 2009). "EFF Defends Wikipedian's Right to the Public Domain". Electronic Frontier Foundation. http://www.eff.org/deeplinks/2009/07/eff-defends-wikipedi. Retrieved 2009-08-04. 

Further reading

• Guadamuz, Andres (July 19, 2009). "National Portrait Gallery copyright row". Technollama. http://www.technollama.co.uk/national-portrait-gallery-copyright-row. 
• "Copyright in Photographs of Works of Art". Museums Copyright Group. 2004. http://www.museumscopyright.org.uk/bridge.htm.  A brief outline of copyright issues for United Kingdom museums.
• Wienand, Peter; Anna Booy; Robin Fry (2000). A Guide to Copyright for Museums and Galleries. London: Routledge. ISBN 978-0415217217.  (A guide for United Kingdom copyright law.)
• Hamma, Kenneth (Executive Director for Digital Policy, J. Paul Getty Trust) (November 2005). "Public Domain Art in an Age of Easier Mechanical Reproducibility". D-Lib Magazine 11 (11). doi:10.1045/november2005-hamma. ISSN 1082-9873. http://www.dlib.org/dlib/november05/hamma/11hamma.html.