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!

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.

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.

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.

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?

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.

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.

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.

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.

“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.

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.

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?

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?

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).

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

@ 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.