Sue and be damned.

For several years, the National Portrait Gallery has claimed copyright over public domain images in their possession. Wikimedia has ignored these claims, occasionally laughing. (Bridgeman v. Corel. Sweat of the brow is not creation in US law; go away.) Our official stance in this time has been “sue and be damned.”

So the National Portrait Gallery has tried. Here’s their letter. A lollipop for every misconception or unlikely or impossible demand. This was sent after (so they claim) the WMF ignored their latest missive. The editor they sent the threat to is … an American.

A UK organisation is threatening an American with legal action over uploading images that are public domain in the US to an American server — unambiguously, in established US law, not a copyright violation of any sort. I wonder how the case will go.

It’s most unfortunate that the National Portrait Gallery considers this in any way sensible behaviour, considering how well we’ve been going with museum partnerships for Wikipedia Loves Art — the V&A were fantastically helpful and lovely people, who realise that spreading their name and exhibits far and wide is much more likely to get them money and fame than claims of copyright over works hundreds of years old.

I can’t see this ending well for the National Portrait Gallery, whatever happens. Anyone who could speak on their behalf at this level won’t be in until Monday; I wonder if they’ll be surprised at the people politely queueing with pitchforks and torches.

I’ll be calling them first thing Monday (in my capacity as “just a blogger on Wikimedia-related topics”) to establish just what they think they’re doing here. Other bloggers and, if interested, journalists may wish to do the same, to establish what their consistent response is.

46 Responses to “Sue and be damned.”

  1. David Gerard says:

    It’s possible they actually have a cause of action under UK law, if they throw enough money at arguing such.

    Of course, there is the minor detail that the publicity for them surrounding such a case would be radioactive. It would be arguably worse for them the better they did legally. Do you know how much London galleries rely on American tourists?

  2. Chris Owen says:

    I have to say my feelings on this are rather mixed. I do actually have some sympathy for the NPG – they’ve doubtless incurred a fair amount of expense creating these reproductions, and the fees they charge for using them contribute to the cost of running the gallery. Though of course there’s a good argument for saying that their public subsidy should be increased so that they wouldn’t have to draw on image licensing for their funding.

    Their copyright claims probably wouldn’t work in the US, after Corel vs Bridgeman, but they may well have a case on the violation of their database’s terms and conditions – contract law is a different kettle of fish from copyright law. It’s for exactly this reason that when I’ve needed to use reproductions of historic images, I’ve scanned them in from printed works rather than downloading them from databases. (See for instance the images in http://en.wikipedia.org/wiki/Fox_tossing ) The quality is admittedly lower, but you don’t run into problems with terms and conditions.

  3. David Gerard says:

    Their side would be a little more reasonable if they didn’t actively prevent anyone else from taking photographs, and didn’t fraudulently claim copyright over any picture taken in the gallery. Copyright just doesn’t work like that.

    Satisfactory negotiation is the preferred outcome – we have our deals with every other museum in the world to work out. Cross fingers there’s someone there who’s not the art gallery equivalent of Gen. Jack D. Ripper.

  4. Physchim62 says:

    The whole affair reminds me of our problems with the Chemical Abstracts Service last year (see http://en.wikipedia.org/wiki/Wikipedia:Wikipedia_Signpost/2009-05-18/Chemistry_data). For those who don’t know it, CAS is one to three orders of magnitude bigger than the NPG, depending on whether you count budget or sales.

    The Signpost article didn’t mention it, for obvious reasons, but our negotiations had a “hardball” side to back up the “softball” side which eventually reached the compromise. There is plenty of “hardball” that could be played against the NPG, if necessary in order to force the compromise which would benefit both sides.

    In the meantime, I’m dusting off my porkpie hat to ask a few difficult questions to the NPG tomorrow morning. I’m also sharpening the pitchfork, but that can wait until the fools have had a chance to see light.

  5. David Gerard says:

    @Physchim62 – I’m taking it very gently with occasional prodding. Keep in mind also that the NPG is actually a government department. So every individual action has to be defensible – you can be sure they didn’t expect their lawyer’s threat to effectively become a press release read by a million Slashdotters.

  6. Physchim62 says:

    I think it’s a Corporation under Royal Charter, a similar status to UK universities (the exact status would depend on the charter, obviously).

    If they didn’t expect their personal threat to a Wikimedia administrator be read by millions, then they really are idiots. Even if nobody at the NPG thought about that, their solicitors should have warned them. Farrer & Co., of course, are solicitors to the Royal Family, and so hardly newbies when it comes to high-profile cases!

    My own feeling is that the NPG wants to make a point – UK museums and galleries absolutely hate the Bridgeman judgment, to the point that this is noted in legal discussion of it. They’ve found a case they think they can get their teeth into, and so they’ve gone for it. I hope that doesn’t prevent them from seeing sense once they realise the consequences of pursuing their current line. And I hope nobody has to spell those consequences out to them in words of four letters!

  7. Physchim62 says:

    Quick correction there, the Board of Trustees of the National Portrait Gallery is a statutory corporation under the Museums and Galleries Act 1992. As such, its status is more like that of a local authority. It also means that its actions are subject to judicial review…

  8. David Gerard says:

    I don’t plan to threaten them with anything at this stage. However, I know they’ve had (well-written) emails from aggrieved individuals asking them to explain themselves, I’ve had the cc’s. If those people wrote the same letters on paper with a cc: to their MP and the newspapers, it would also be interesting.

  9. Surely, they are sincerely concerned that the property of the photographers has been stolen.

    So surely they would be happy for another photographer to capture the entire collection on the public’s behalf, by appointment if necessary.

    If they allowed the original photographers to use a flash, they should extend the same courtesy again.

    Anything else would be a gross misrepresentation of the real concerns and motives here.

  10. David Webb says:

    As pointed out in the email, the servers are located in the UK so copyright theft (and it is theft) occurred in the UK and not in the US so it is liable under UK law. Gary McKinnon will be an all too familiar face on this subject, in the UK and broke into US computers, facing extradition to the US even though he was in the UK at the time of his offence.

    The images themselves are public domain, but the photographs of the images (the reproductions) are not in the public domain, they are copyrighted, you are quite welcome to pop along and take your own photos to submit them if you so desire. Whilst in the US it has been shown that you cannot copyright a photograph, that rule does not apply in the UK.

    Copyright lawyers over here are not looking at this as “copyfraud”, they are stating quite clearly that is copyright theft and instead of Wikipedia going for the “lets give them bad publicity over this” why doesn’t Wikipedia do the right thing and remove the images? They are not public domain, they are not copyright free, they should be removed.

    And yes, I will be emailing my MP with my views on this subject, thank you for suggesting it.

  11. [...] by cabalamat on 2009-Jul-14 The National Portrait Gallery is claiming copyright over photographs of works of art that’re hundreds of years old: For several years, the [...]

  12. Physchim62 says:

    It’s not theft, it’s embezzlement. Embezzlement of a part of British culture by a minute group of people who wish to decide how the plebe can view these artifacts which belong to all of us.

    The photographers have already been paid for their painstaking work, as employees of the Board of Trustees of the National Portrait Gallery. The Trustees have a statutory duty to “promote the public’s enjoyment and understanding of portraiture of British persons and British history through portraiture […] by means of [the] collection”, and have wisely decided that digitalizing a part of that collection is one way of fulfilling that duty.

    The Museums and Galleries Act 1992 does not give the Trustees a monopoly on the promotion of the public enjoyment and understanding of portraiture, but certain individuals seem to wish that it did. The fact that they are willing to spend a substantial amount of money on trying to enforce this non-existent monopoly is, quite frankly, sickening.

  13. cverrier says:

    #david webb

    Agreed – you can’t have it both ways. If the US wants to prosecute Gary McKinnon, a UK citizen, for actions he undertook IN THE UK against US-based servers, then morally at least they should accept that the NPG have a right to assert that UK laws can apply to US citizens acting against UK based servers.

    Of course being morally right isn’t the same as being legally right, and the US tends to start from an assumption that nothing external to the US can override the authority of its own courts (preumably on the grounds that this would be unconsitutional – and I can see the merits in that argument).

    This tends to mean, of course, that other countries get the shitty end of the stick in extradition treaties….

  14. David Webb says:

    The NPG are not taking away any of your rights to view the works of art, you are able to go there and view them, for free. In correction to my previous point though, you will not be allowed to take photographs.

    The NPG made the images available on their website for you to view whenever you feel like it, posting these images apparently cost over £1million in taking the photos etc.

    Yes, the photographer was paid for their work, but are you suggesting that once a person has been paid for work they can hold no rights to copyright on that subject? That is utter nonsence.

    WMF has removed the ability for the person in point to “remove” (although not remove, just hide) the images in question, the NPG gave the WMF a very acceptable compromise which the WMF decided was against their interests so they would ignore UK law and label it as copyfraud when copyfraud would be the NPG claiming copyright on the *original* images, that is not something the NPG has done, they are claiming copyright on derivative works (the photos) which under UK law *is* allowed, and under the WMF’s own rules (they will not allow uploads of images with copyright in their home country) they blatantly ignored this and claimed that UK copyright law does not exist in this matter.

    What is a shame is that the NPG will now not host the high-res images on their website any longer, as they will be stolen and hosted on wikipedia.

    I really do hope this goes to court, the legal experts over here generally agree that the photos in question are copyrighted so the uploaded is committing copyright theft, and what will the WMF’s response be then? Will they ignore it totally with a “we don’t care, we’re in the US you can’t touch us, we’re keeping them up” response that they seem to be using now?

    I don’t think this is actually giving the NPG as much bad press as the WMF seems to hope it is giving them, and museums around the UK and Europe will be watching carefully, not only to the results of the case, but also to the way the WMF is handling the case, and it would appear that they are handling it with a “we don’t care about your countries laws, everything you have belongs in the PD and we can use it” not a good way to bring the museums in the UK/Europe into favour now, is it.

  15. Physchim62 says:

    “All records created by Gallery staff in the course of their official role as employees of the Gallery, including writing, photographs, videos, slides and electronic data, are Public Records according to the Public Records Acts of 1958 and 1967. As such they belong to the Gallery and the Gallery owns copyright.”

    From the “Intellectual Property Rights (‘IPR’) policy” of the National Portrait Gallery.

    I think that answers your claim: “re you suggesting that once a person has been paid for work they can hold no rights to copyright on that subject? That is utter nonsense.” This is utter hypocrisy on the part of the NPG.

    The images might have cost a million pounds to obtain, I don’t know. If they did, good on the NPG for spending that money in doing the job they are supposed to be doing. Those images generated £378,000 in income in the 2007–08 tax year, from which you must subtract the costs of at least two staff members. They don’t make much profit, and in a single year they make less profit than the cost of a single High Court case to protect a bogus copyright.

    The NPG’s action is purely political, it has nothing to do with the statutory obligations of the gallery. It is not just ultra vires, it is bordering on Wednesbury unreasonableness. I can only hope that he person who approved the hiring of the Queen’s solicitors in order to perpetuate this madness only gets a severe shouting at, rather than the P45 that they deserve.

  16. David Webb says:

    The images in question cost a lot more than £1 million to obtain. The NPG spent £1 million on the project of obtaining the photo’s, sticking them into a database, categorising them etc. The museum will then use the sale of the high definition prints to slowly claw back their investment. An investment which is now proved moot because they have been forced to take down the images so that the public can no longer enjoy them on the internet.

    The simple fact is, under UK law the photographs in question *are* copyrighted. The NPG has no choice but to protect their copyright, and their investment in this project.

    They offered the WMF a very sensible offer, the WMF could host lower resolution images with correct copyright information and a link to the NPG, but rather than take this course of action which would have allowed the WMF to have these pictures legally, the WMF is going the route of “sure, sue us!” which, when the WMF loses in the courts, will only result in the WMF having to remove all the pictures in question.

    The NPG has been very reasonable over this, they have offered to enter into talks, they are trying their hardest to avoid any civil action. The only people who are being unreasonable in this matter is the WMF, they are not following their own rules on copyright and instead label it as copyfraud, they are basically accusing the NPG of fraud. I’m sure they will use the safe harbor provisions to protect themselves from any legal recourse in their description of the NPG.

    So far only one publication has been seen in the main stream press, the WMF declined to comment, the “tech” sites are split with sites that have taken legal advice (the register, which admittedly isn’t wiki’s favourite fan) stating it is copyright theft.

    When it reaches the rest of the main steam media, it will be played as a US entity (wikipedia) stealing our national heritage and claiming it for itself, there will be a huge backlash against the WMF in the UK over this case. The NPG will have its “luvvies” out in force, they will have the ear of the editors of the main stream press (times, guardian, mail, sun, bbc, itn, sky) which will help to slant public opinion in their favour.

    All in all though, the guys at NPG have done everything right, they have tried to enter dialogue, but are now banned from wikipedia, in a couple of days time, if no agreement is reached, they will start legal proceedings, and I really hope the judgment goes the way a recent RIAA judgment went, where the RIAA was awarded $80,000 per song, a nice $240m+ award for the NPG would show the WMF that they *have* to respect other countries copyright laws, no matter what their opinion on the subject may be, and yes, their “take” on UK copyright law is pure opinion, if they were following legal advice they would have taken the images down straight away.

  17. Physchim62 says:

    That’s your opinion, and you’re entitled to it, just as I am to mine.

    I hope that at least one person at the NPG gets the sack for playing politics with benefactors’ money and with complete disregard to that person’s statutory and moral duties.

    I also hope that the Trustees of the NPG get a huge wake-up call that they are exactly that – trustees, not private owners. If they cannot realize this, they are unfit to hold the office which has been bestowed upon them.

  18. David Webb says:

    I agree with you there, the NPG have a statutory duty to protect their copyright, which is what they are doing. The money that they are playing with, as a tax payer, is *my* money, and the money of every other tax payer in the UK, and I’m quite sure I would like them to protect my investment, if you want to go morality, where is the morality in a foreign company claiming ownership on copyright images, then passing their own copyright onto said images?

    The crux of the matter is really simple. The actual works of art *are* public domain, that is not in question and never has been, the photographs taken however are *not* public domain and are copyright images, the morality lies in how the WMF treats other countries laws when they don’t agree with them, they class them as “copyfraud”, do not recognise the copyright and basically say “sue us, we’ll give you a ton of bad publicity”.

    Keep looking out for copyright experts to put in their 2p’s worth, I doubt there will be *any* that say NPG do not hold copyright.

  19. cverrier says:

    I think, actually, the trustees ARE acting as trustees

    They have been given the job of holding, preserving, and encouraging access to a lot of unique objects.

    The preservation and protection of those objects is not cheap. but nevertheless they provide physical access to them, free of charge at the NPG.

    They’ve attempted to provide EVEN MORE levels of access to them by engaging the services of specialist photographers with expensive equipment to generate extremely high quality images – this is not some bloke with a digital camera from Dixons here. A lot of the paintings cannot be exposed to high levels of light, for example.

    This work (along with the general costs of cleaning, repair, etc) has to be paid for, and the money has to come from somewhere – they decide that they can do this by selling stuff (directly or online). You can argue that the NPG ought to get more taxpayers money so that it didn’t need to seek funds from selling stuff, but they have to deal with ths situation they find themselves in, which is that they don’t have enough cash to pay for everything they feel they should be doing.

    The alternative is to NOT raise those funds, and then they would be forced to think about letting some works degrade and disintegrate, or else sell some things to private collectors to raise money to protect the rest. In either event, this would REDUCE the public’s access to the collection as a whole – which arguably means they’d be failing in one of their prime responsibilities.

    If you’re going to raise funds by selling stuff, you have to protect that income from those who would seek to obtain it for free. One follows from the other, or you may as well not bother.

    So – they protect their revenue-generating assets (the photographs) in various ways – and put that revenue back into the trust (NPG is a non-profit organisation, so the trustees don’t get any of that money, or indeed ANY money – its an unpaid post with reimbursed expenses for 2007-08 of about £330 for ALL the trustees combined!).

    The specifics here are that someone hacked the NPG website to download the high-res images (all 3000 of them) and then posted them in Wikipedia. This is despite the fact that there is very little practical value in posting such large images to an on-line encyclopedia when low-res would have worked just as well as an illustration of the article.

    You can argue all day about whether photos of original works are copyright – it appears that they are not in US law and they are in UK law – so we’ll all have to see if this results in a court case to clarify things. But back to the reality of this situation right now is that the NPG has been deprived of revenue by the hackers actions, and we, the British people and ultimate owners of the originals – all suffer a little bit as a result of the NPG’s loss of revenues, and resultant loss of funds to preserve the collection and expand it in future.

    In the end – the result of this can only serve to HARM our interests, by forcing institutions to withdraw from activities such as on-line galleries and reducing access in the long term.

    Final point – comment has been made that NPG prevents photography in the building itself – there I think they are on shakier moral ground. They may have an argument about wanting to protect fragile works from flash photography, but I don’t see how they can demand copyright of images taken by visitors – provided that no damage is done.

  20. David Gerard says:

    @cverrier – don’t believe the NPG hype. No-one “hacked” the NPG site, no-one broke a DMCA anti-circumvention mechanism. Apart from such mechanisms being no legal protection against PD works, Zoomify state themselves in their FAQ that the mechanism is only a viewer, and is expressly not a protection mechanism.

  21. Physchim62 says:

    The NPG picture library (120,000 images) generated a grand total of £378,000 in the 2007–08 financial year. From that, one should deduct the salaries and office costs of six staff members. This is not a major revenue source: in fact, the NPG raised more money from catering and corporate functions than it did from its picture library.

    No commercial organization would waste money on an expensive High Court action – uncertain to succeed, and even less certain to produce an effective reimbursement of costs – over such a sum. The action is politically motivated, and that is what makes it not only sickening for the waste of money, but also potentially actionable against those involved.

    Finally, not even the NPG is publicly suggesting that anyone “hacked into their computers”. All these images were obtained from the NPG website using facilities made available to the public by the NPG themselves.

  22. Matt says:

    Seeing as people seem to be reading and responding to this post more than the more recent one…

    “Additional data point: the NPG has removed the hi-res versions. Thus, the Wikimedia copies are the only copies currently available. This makes it actually culturally important for us to keep them up!”

    Congratulations, the Wikimedia Foundation’s refusal to accept that the images are protected under copyright in the United Kingdom has resulted in the National Portrait Gallery (quite reasonably) deciding that it can no longer host high resolution images due to the risk of infringement. Give yourselves a round of applause. This isn’t a reason to hastily disseminate the infringing images, but a key example of the damage that ignoring another nation’s laws for convenience can lead to.

    As a British taxpayer, I’m fully with the National Portrait Gallery on this. They own the rights to those images, have attempted to find a reasonable solution with the Wikimedia Foundation, and have gone to this legal stage after exhausting the other avenues. They seem to have acted entirely honourably in this case, and I suspect could have used much larger legal hammers to crack this particular nut.

    Calling the images ‘public domain’ does not make them public domain, no matter how much you may wish it. The images are protected under copyright in the United Kingdom.

  23. David Webb says:

    Mr Gerard, there is “no hype”, from the zoomify FAQ:

    “It is important to note, however, that no image presented on the web can be completely protected – if you can see an image, the data is on your computer and it can be retrieved by someone sufficiently determined. For this reason, we provide Zoomify as a viewing solution and not an image security system.”

    Seems quite logical to me, if the image is displayed it can be copied so they can’t really go around listing it as a “security” product, they do however expressly state that it does make it more difficult to obtain images:

    “Zoomify’s zoom-and-pan viewing solution makes copying images much more difficult than other viewing alternatives. Zoomify is viewed using Flash Player and the Player does not present a right-click Save As option as is standard with any large image in a web page. Second, Zoomify’s display approach uses many small pieces – like a mosaic. These image ’tiles’ are downloaded only as needed, so the entire image at full resolution is not displayed at full resolution. Using ‘screen shots’ to capture an image would therefore require assembling many small images in a photo editor – an inexact and time consuming process.”

    One could easily deduce therefore, that the museum used zoomify because they did not want the images taken, afaik a script was wrote which bypassed zoomify and downloaded the images directly from the server, so that would be circumventing the measures in place (zoomify) and unathorised access to a webserver (the script).

    @Physchim62 – Of course there is reason for the NPG to take this through the courts system, for one, they will win (and they will then be able to go through the US court system to recover costs), but they also have to protect their rights, not only now, but future rights. They will want to know that if they should continue with their process, someone from the US can’t just run a script and download another 3,000 images, slap on false copyright (which, ironically, is copyfraud) and host them on another website.

    There is also suggestions that the images contained copyright watermarks (which were removed). So the questions are:

    1) were there watermarks within the image that were removed
    2) was there a script which directly downloaded the images
    3) why are the WMF not following their own procedures on images where a copyright claim is legal in the country of origin
    4) why, in relation to 3, did the WMF not remove the images, but hide behind US law which does not apply in this case
    5) how will other museums in Europe look upon this, as a case of the WMF not bothering to take into account their local laws on copyright?

    I fail to see how you can consider it politically motivated though. I’m not sure I can find where the political standing comes from. All I see is a museum spending a fortune on photographing images, having their copyrighted work ripped off and uploaded to another website, and people defending it because “its alright to steal work if we think its alright to steal other peoples work”.

    All this case is going to do, is hurt the WMF’s standing within historical institutions that hold copyright, as the WMF has shown they don’t really care if you own copyright on something, they are in the US “Sue and be damned”… great policy that.

  24. Physchim62 says:

    @David Webb, the whole point is that the NPG doesn’t hold any copyright on these images. Why? Because they’re copies. It doesn’t matter how much effort you put into making a copy, you will never gain a new copyright simply from making a copy. Especially not if it is your job, or even statutory function, to do so. How many secretaries in the world would be rich by now if that were not the case!

    Many galleries and museums tried to dissuade the Bridgeman Art Library from pursuing its case against Corel. They were afraid of the consequences of an unfavorable judgment, and the judgment was unfavorable twice, the second time after extensive argument by amici curae from among the most reknowned American intellectual property lawyers. There is no guarantee that the NPG will win in its expensive adventure to Chancery Lane, and indeed there are many reasons to believe that it will not. Personally, I bet a £10 donation to the National Portrait Gallery that it will lose if it is stupid enough to take the case to court.

    But let’s not mince words over the motives behind the case. Many museum curators hate the ruling in Bridgeman v. Corel. That is their right in a free society, many lawyers have questioned its details as well. Does that make it right to risk hundreds of thousands of pounds in a speculative law suit to try to get it overturned? What are the benefits for the NPG if it won? Wouldn’t the NPG be better off financially and morally by ending its hypocritical pretence of copyright on artworks that were created more than four hundred years ago, thereby allowing it to rid itself of the members of staff whose job it is to protect this illegal monopoly? Certain NPG employees are spending benefactors’ donations to satisfy their own political desires, that is simply unacceptible for anyone.

  25. David Gerard says:

    @David – would you be this David Webb? Not that it would take anything away from the sincerity of your opinions, but it would e relevant to note that you are speaking not merely as a taxpayer (as you note), but as someone personally exhibited at the NPG.

  26. David Webb says:

    @ Mr Gerard, no, that is not me, I have no affiliation with the “art world” nor with the NPG nor indeed with the WMF. I have no bias against nor towards either the NPG or the WMF or any connections with either.

    @ Physchim62, what you are saying is correct, in the US, that however is not the case in the UK, there are articles even on Wikipedia which highlight the issue:

    Wikipedia article

    Until there is a test case in the United Kingdom to state otherwise, there is copyright on photographs, all photographs (time of death + 70 years) no matter what their subject.

    As the wikipedia piece points out, the photo’s in question are not “slavish” copies, they require special conditions to protect the original works for instance (which is why flash photography is prohibited in galleries) and is probably the reason why it cost so much to take the photographs in the first place.

    But please go and read that wikipedia article, you will see that “making a copy” is not covered by copyright (i.e. pressing the copy button on a photocopier) but taking a photograph, because of the artistic or technical requirements, are.

  27. Matt says:

    David (Webb) – have a look here: http://blog.heebie.co.uk/wikipedia-under-legal-threat-national-portrait-gallery

    Seems David (Gerard) may have jumped the gun slightly.

  28. Physchim62 says:

    The exact-copy paradox is well known in copyright law: that the law seems to offer more protection to the person who makes an inexact copy than to the person who goes to the trouble to ensure that their copy is exact. There has never been a satisfactory solution, except to punish inexact copying in the same way as exact copying (which has its own drawbacks for the general advancement of Art).

    The reason that the paradox hasn’t been resolved is that any resolution would attack at another pillar of copyright law, that you can’t gain copyright simply by copying. To gain copyright, you must add some form of your own creativity into the work that you produce, something which is, almost by definition, absent from a simple copy. If this were not so, I could go out and write out the words of Das Kapital and then claim them as my own: I would have expended considerable effort, maybe even skill, in doing so, but that would be enough for me to own the copyright!

    That is really the difference in our positions: you see these images as photographs (protected), I see them as copies (unprotected).

  29. Physchim62 says:

    “Take the simplest case of artistic copyright, a painting or a photograph. It takes great skill, judgement and labour to produce a good copy by painting or to produce an enlarged photograph from a positive print, but no-one would reasonably contend that the copy, painting, or enlargement was an “original” artistic work in which the copier is entitled to claim copyright. Skill, labour or judgement merely in the process of copying cannot confer originality.” Oliver J, Interlego v. Tyco Industries [1989] AC 217.

    Now Interlego was a Hong Kong case, so does not create a precedent in English law, but it was decided on appeal by British judges in the Privy Council. r Justice Oliver went on to discuss the exact-copy paadox in similar terms to those I used in my post above.

    Nobody is claiming that there is an exact precedent in English law for the current dispute, but Interlego is maybe as near as we get, and it suggests that the NPG will lose. Are you up for my £10 bet?

  30. David Webb says:

    Mr Gerard. I have looked at the link to the blog post issued by Matt. As stated I am not the David Webb who has published art work, I am not an artist in any way, shape or form, the most creative I get is with C or C#, maybe a little PHP if I’m feeling up to it.

    If you wouldn’t mind posting a correction to that blog please, pointing out that you were mistaken. The David Webb you are thinking of is English, I on the other hand, am not, and by suggesting to other sites that someone with affiliation to the NPG is giving their opinion would only give my comments a biased slant towards the NPG with people seeing it as “oh, he’s got an agenda”.

    I’m sure if you had mailed the David Webb in question before posting factually incorrect information, this would not have arrisen.

    Also, could you please answer the questions posted earlier?

    1) were there watermarks within the image that were removed
    2) was there a script which directly downloaded the images
    3) why are the WMF not following their own procedures on images where a copyright claim is legal in the country of origin
    4) why, in relation to 3, did the WMF not remove the images, but hide behind US law which does not apply in this case
    5) how will other museums in Europe look upon this, as a case of the WMF not bothering to take into account their local laws on copyright?

  31. Wilmslow says:

    What’s wrong with that blog post? David Webb isn’t mentioned anywhere…

  32. cverrier says:

    @david gerard

    I used the word ‘hacked’ quite deliberately – the original lawyers letter said that the zoomify system was bypassed to access the images and grab them wholesale. The lawyers don’t use the term, because they’re lawyers, but they do say the servers were bypassed – Lawyers, in my experience, don’t put stuff in letters like this unless they feel on pretty sure ground.

    I agree that Zoomify doesn’t potray itself, first and foremost as a security tool, but its reasonable to argue that NPG would see it as a way of dissuading causual copying. If my house is burgled, the burglars cannot claim that my lack of security suddenly makes the intrusion legal.

  33. Matt says:

    @ Wilmslow
    Check the comment from David Gerard on that blog post.

    “The discussion is getting interesting, with someone who appears to be an artist who’s been exhibited at the NPG weighing in heavily on their side.”

    Bit of a better idea to actually check something like that out before blathering about it everywhere.

  34. Roger Pearse says:

    This is excellent news, because it means that the whole copyfraud being practised by UK state institutions will finally come to court, and be judged by someone other than themselves. With luck the judge will just kick it out, establishing a legal precedent in line with US law; if not, the disconnect between US and UK law will be all over the papers, and the obvious damage to UK interests that it causes likewise. That would make pressure to change it pretty overpowering, and about time too.

    It’s not just the NPG; this is a problem across the UK sector of state institutions holding material out of copyright and owned by the public, yet preventing access. The British Library is fantastically dedicated to obstructing access to its holdings and charging scholars enormous prices for lousy copies which may not be circulated.

  35. [...] Gerard rightly observes, “I can’t see this ending well for the National Portrait Gallery, whatever [...]

  36. Matt says:

    @ Roger

    Again, a rather disingenuous use of the word copyfraud. This isn’t a situation where an institution is claiming copyright on a public domain work such as a book, song or similar; not is it a case of an institution claiming copyright on a work belonging to someone else; it’s a situation where the National Portrait Gallery does hold the copyright on the pictures which have been uploaded to Wikimedia.

    You may not believe this to be morally right, or you may believe this to be open to challenge in the courts, but this is simply not copyfraud.

    Calling it copyfraud muddies the waters when it comes to actual copyfraud cases.

  37. David Webb says:

    Matt is correct, copyfraud is when you have works which are in the public domain (i.e. a book) then apply copyright to said works. The NPG have not claimed copyright on the original work, they have clearly stated that the works themselves are in the public domain. The photographs they have taken of the work however, are *not* in the public domain.

    The whole point of the matter here is that the WMF has ignored UK laws on this issue. In the UK the photographs *are currently* copyrighted, there are no if’s or but’s on that subject.

    Should the NPG have no other option but to take this case though the UK laws, a judge will not rule on a “new law” a judge cannot really do that, a judge can only read the law *as it is* and make a decision based on that, in other words they interpret the laws made by parliment, and as it stands, the law does state that the NPG holds copyright.

    The biggest question is, what will the WMF do then? Continue to break its own rules and host content which is copyrighted and they have no legal right to host, or will they abide by the UK courts ruling and remove the images?

    Who is going to pay though? You have 3,014 (or so) copyright images on the servers, which are being accessed constantly, is the WMF prepared to recompense the NPG if a judge finds that yes, the images are copyrighted and yes, the WMF is in violation of UK law? Is the WMF willing to financially support the uploader?

    In this instance, even though the servers are in the US, I’m pretty sure the Berne Convention would apply, namely:

    “The exclusive right to reproduce the work, though some provisions are made under national laws which typically allow limited private and educational use without infringement”

    From Wikipedia:

    “Although the Berne Convention states that the copyright law of the country where copyright is claimed shall be applied, article 7.8 states that “unless the legislation of that country otherwise provides, the term shall not exceed the term fixed in the country of origin of the work”, i.e. an author is normally not entitled a longer copyright abroad than at home, even if the laws abroad give a longer term.”

    That seems to spell it out clearly, even in the US, UK copyright law applies to the images as the country where copyright is claimed, that’ll be something for the legal types to debate though, and does raise an interesting point, if the Berne Convention does apply (and as its automatically granted, it should do) does that mean the images (which are claimed copyright in the UK) are actually copyrighted photographs in the US, which would make the WMF liable under international law?

    This really is getting quite interesting, and it really is facinating to see how both sides are reacting to the issue.

  38. David Gerard says:

    If it was as clear as that, the National Portrait Gallery would have sued the Wkimedia Foundation itself, not a user, and they would have done it in 2004. As opposed to jousting, lying about no response from Wikimedia (getting a response you don’t like is quite different from getting no response at all), then sending an intimidatory letter to a user rather than the Foundation, clearly with no expectation that he would tell the world.

    The images aren’t clearly in copyright in the UK or clearly out of copyright in the UK. Remember also that Bridgeman vs Corel was decided according to UK law, not US law. That it was a US court doing so makes it not a precedent, but it does make this a thorny case composed entirely of grey areas. Absolute declarations of “it is copyright in the UK” or “it isn’t copyright in the UK” simplly don’t make sense in the light of events as they have proceeded.

    Additionally, US courts have ruled that something being taken out of the public domain outside the US does not take it out of the public domain in the US. That’s not an absolute precedent for this case, but it’s a possible pointer.

    Additionally, think of Justice Eady’s famously creative libel decisions in the UK: where the libel decision would never have passed muster in a US court, but the judgement from said decision is theoretically enforceable there. This is at the stage where the US is writing new laws to counter it. I submit that the NPG would not be pleased to have started a diplomatic row with the US. Particularly when their single largest donor is US-based.

    Precis: anyone who storms onto a blog loudly declaring that the legal case is slam-dunk either way is a damned fool.

  39. David Webb says:

    Bridgeman vs Corel does not apply, unless of course the US judge was a legal expert in UK law, something I would doubt as it would be hard enough keeping track of your own countries laws rather than trying to keep track of UK law.

    I’m pretty sure the reason the NPG didn’t fire off the legal papers against the WMF in 2004 is due to a time/cost, is it really worth spending a vast sum of money in the courts over 1 or 2 pictures? Probably not. Is it worth spending vast sums of money over 3000 pictures? Yes.

    As you have stated that it is (in your opinion) unclear as to the copyright status of the images in question, would it not be prudent to err on the side of caution and remove the images from public display rather than paint a picture on the copyright notice that the NPG is commiting copyfraud?

    The NPG is not starting a diplomatic row with the US, in fact the major media outlets over here (including, but not limited to, the BBC) are taking zero interest in this story so far. At the moment its nothing more than a storm in a tea cup.

    Your quote from this blog…

    “Wikimedia has ignored these claims, occasionally laughing. (Bridgeman v. Corel. Sweat of the brow is not creation in US law; go away.) ”

    That seems to be you stating, the case is, your term “slam-dunk” in your favour and that the NPG doesn’t have a leg to stand on, your post above is more conciliatory with a “ok, it may be, it may not be, not so sure now”. You are also in that comment applying US law onto a UK case (sweat of the brow).

    The fact still remains that in the legal letter, the NPG have pointed to the relevant legislation:

    http://www.opsi.gov.uk/acts/acts1988/ukpga_19880048_en_1

    And which parts of it were broken by the uploader. So far the only “defence” offered is in a US court room, by a US judge who would not be an expert in UK law.

    Until such time as a court of law in the UK rule otherwise, the legislation as set out in the document linked, applies, and according to that documentation (and the copyright lawyers) the photographs in question are copyrighted, and as such, the WMF should enter into dialogue with the NPG, and if the WMF cannot come to an agreement on the terms of a licence, then they should either:

    a) have one of the founders of the WMF (or yourself if you so desire) upload the images in their name
    b) pay for the case to go to court in the UK
    c) vow to change their rules on 2D photographs if they should lose the case in the UK and its shown that yep, they are copyrighted.

    Is the WMF foundation willing to do this? Or will the WMF stand idly by whilst the NPG is faced with the prospect of a long, drawn out trial, which will cost a fortune, and for which the NPG may never be able to reclaim their costs?

  40. David Gerard says:

    Speaking as a Britiah taxpayer myself, I’m appalled that the NPG is spending this much money defending £378K minus cost of six staff a year. I think this is unambiguously a case of some civil servant empire building.

    I couldn’t possibly speculate as to what the WMF will do. I do however suspect they are playing a combination of chess and poker, while the NPG is playing a combination of Old Maid and draughts.

    Matt, David: feel free to keep commenting here just like this will decide the case, it’s great to have a comment-filled post on this blog, but I’ll post another one tomorrow that anyone other than us might read, in case any of us come up with something new to say.

  41. Matt says:

    @ David [Gerard]

    According to the accounts, the turnover in 2007-08 from the picture library was £378,000, and rendered ‘a surplus, less costs, in excess of £130,000.’

    Assuming a worst case scenario that the surplus was one penny more, that’s a profit margin of around 34%. Most companies would give their eye teeth to have an area delivering that kind of return on investment, and it’s hardly surprising that the National Portrait Gallery is willing to go to take actions available to them to protect that income.

    I do hope you won’t abandon these discussions, as I’m finding them quite interesting in terms of the discussions themselves and the insight into the mindset within the Wikimedia/pedia ‘cabal’. Given your previous roles as the UK media contact and the like, you’re probably well placed to actually speculate as to what WMF would do, given your likely exposure to the inner workings. I don’t believe that any of us are arguing here as if it will decide the case, but more to the ethics of the two viewpoints.

    Curious as to your draughts, Old Maid, poker and chess analogy though. The National Portrait Gallery appears to have negotiated, engaged a respected law firm in the field of copyright and made itself available to brief the press. The Wikimedia Foundation appears to have not even put up a press statement on it’s website: http://wikimediafoundation.org/wiki/Press_room

    PS: I don’t believe the staff at the National Portrait Gallery come under the Civil Service, making it quite difficult for a civil servant to be empire building.

  42. Roger Pearse says:

    The wikipedia article on copyfraud outlines the use of the term. It does seem pretty appropriate, actually! After all, no-one has *any* interest in these images except insofar as they are images of an out-of-copyright item. No-one wants to license one of them for any other reason than that it is an accurate reproduction of something else.

    As I understand it, the facts are these.

    1. The originals are not copyright.
    2. Images of them cannot be copyright, since merely making a copy of an out-of-copyright work does not create a copyright (but see below).
    3. So the NPG is going down the route used by copyfraud people; preventing anyone but itself making copies, and then asserting that the copies are in copyright.

    But … UK law may indeed be so sloppily drafted that #2 is not in fact the case any longer in the UK. This seems to be the point at issue. As I understand it, #2 is fairly definitely the case in the US.

    If #2 is not the case in the UK, this would effectively ensure perpetual copyright in the UK, so long as someone could control the copies in circulation somehow. This cannot ever have been the intention of the law-makers.

    But as far as I know, this point has never been tested in court in the UK. If so, all the assertions that this is what the law is are all theory, and usually made by people with an interest to declare. I would like to see it be tested, and find out.

    If that is the law, that the UK law is indeed wildly out of line with the US and wildly out of line with the public interest, then we need to know, and need to get it changed. It won’t affect US users, after all. I suppose there are people who are desperate to keep British people in the dark; the sort of people who put loads of images from UK libraries on google books, while ensuring that UK viewers couldn’t access them. I can’t stomach that attitude.

    In the same way, it is depressing that all the state bodies demanding these rights don’t mention at any point that these items are public property, and public money is being used all through. Presumably they consider that ownership purely nominal. But it should not be. These bodies should either act in the public interest, or be abolished.

    It is a bit difficult, therefore, not to see this as a piece of petty-bureaucratic empire building at public expense (in several senses). It’s a power grab.

    But I hope that we will get some legal clarity as a result of this.

    I am a little sympathetic to the idea that the NPG wanted to license the images for a while to help pay for more digitisation. But if the digitisation is seen as a means to make money, as seems to be the case, as a means to empire-build and the public can go to hell, then I’d rather see the NPG abolished.

  43. Roger Pearse says:

    Thanks for the link to http://www.whatdotheyknow.com/. I never knew about this.

    I’m not really sure I understand the pro-NPG position. Would some of those making it explain why they believe it is in their interest NOT to have access to this stuff? Are they perhaps photography buffs?

    We ought to be clear that no-one is suggesting that photographers should not be able to copyright their work, if it is a real creative work. They should; that is precisely what copyright should be for. If you take a photograph of a footballer, you should be able to sell it.

    But I think we’re saying that, just because some stooge sticks something on a copier should not create copyright. That’s what the NPG “photographs” amount to.

    Possibly we might be saying “state bodies should operate under more public-friendly rules anyway, considering it is our property and our money.” Discuss!

  44. [...] and comment, I’ve found the following most useful: BBC | Boing Boing | Creative Commons | David Gerard | Edward Winkleman |Guardian | IP Osgoode | ORG | Roger [...]

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