Wikimedia writes on the NPG legal threat.

Erik Möller’s posted to the Wikimedia blog on the issue. Note the correction of the NPG’s claims that Wikimedia never responded to them (rather than responding with “Bridgeman v. Corel, go away”) — Erik assumes good faith and presumes this is in error.

About the best roundup of coverage so far is Dcoetzee’s own link collection — press and blog posts. I liked the WikiNews story.

Other British taxpayers as annoyed at the NPG’s waste of their money as I am have been putting in FOI requests to see just how much money they make from keeping it all to themselves (£378k before expenses — what are the expenses? six staff, what else?), how much they’re spending on legal representation, what proportion of their web hits are from Wikimedia links and so forth.

(One request that should be made: £10-15k annually from web licenses — they need to be asked how much the person handling these licenses is paid. They make more money selling food in the café. Suggest your best prospective FOI requests in the comments!)

I’m suspecting a severe case of bureaucratic empire building here: the bureaucrats honestly think the paintings belong to them rather than to us. Which is what one might see from a private for-profit corporation, but is rather less than acceptable for a government sub-department, not even an independent charity. As Sage Ross notes from Clay Shirky’s Here Comes Everybody:

Self-preservation of the institution becomes job number one, while its stated goal is relegated to job number two or lower, no matter what the mission statement says.

43 Responses to “Wikimedia writes on the NPG legal threat.”

  1. Andrew says:

    If you haven’t read it yet, I really recommend digging up a copy of Permissions: a survival guide (Susan M. Bielstein, 2006; amazon); it’s intended as a working guide for art publishers, but serves as a pretty good overview of how the whole galleries-claiming-image-rights thing tends to play out and how the dynamics behind it work.

    I have been wondering, incidentally. The user being strongarmed here is American, and has a good legal basis to say bugger off. A British citizen doing the same thing, given the vagueness of the legal precedents here… a lot less so. It might be wise to start thinking about what we should do in those cases.

  2. David Gerard says:

    Possibly they thought the “government department” bit would make suing an actual British citizen just a bit too radioactive.

    There’s a whole industry doing nothing but copyright clearances. I suspect there’s enough pointless labour involved to make copyright itself a net economic loss.

  3. Brian McNeil says:

    I’m having great fun with this. Forget joining the crowd making the NPG wonder “How many hornets *are* there in this nest?”, there’s a whole ‘nother ball game on this one – with high stakes.

    Who is implicated in this? Who has a vested interest? And, for people reading about the story, what parts of your culture are at stake?

    Since the Wikinews story was published I’ve been looking for feedback on this one. What other bits of our culture are entangled in this ‘perpetual copyright’ web? What world-heritage level art is being exploited?

    Think Mona Lisa in the Louvre, ceiling in the Sistine Chapel. This might be a higher stakes game than you think at first glance.

  4. David Webb says:

    I’ve put my take on to that blog’s comments, and I’ll copy it here too:

    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

  5. Tony says:

    Apparantly, I suddenly became interested in this, and have filed an 18 point rather comprehensive FOI request: http://www.whatdotheyknow.com/request/npg_profit_loss_information

  6. Physchim62 says:

    My suggestion for an FOI request is “every image in the control of the Board of Trustees of the National Portrait Gallery which solely depicts a portrait whose author died more than seventy years ago.”

    @Brian McNeil, yes, there are big consequences to this case. You say the stakes are high, but they are only as high as the money that has been pointlessly wasted in trying to embezzle these cultural works. We’re not dealing with the mafia here, but we are dealing with people who earn their salaries to pay their mortgages simply by trying to prevent access to cultural works through fraudulous copyright claims: there are many of them, not just at the NPG. Part of me wants to say that they are leeches sucking the blood of our common culture, but another part of me reminds myself that they are human beings as well.

    The Museums Copyright Group, whose chairman is the Head of Rights and Reproductions at the NPG, has never had any response to Bridgeman v. Corel except to say that it’s wrong. Any responsible professional would have asked themselves “but what if it’s right? what if this income stream is based on false assumptions?” THAT is the question we should be forcing the NPG to face up to, because that is the only way that the dispute will be resolved for the benefit of the general community.

  7. kwyjibo says:

    They’re not fraudulous copyright claims, why does anyone at the NPG have to question Bridgeman v. Corel, people keep on bandying that around like it’s UK law.

    My issue isn’t whether digital reproductions of public domain works are considered public domain. It doesn’t matter each way, there are very good arguments, such as the cost of digitisation, of why reproductions should remain copyrighted.

    The issue is that the NPG will not allow external parties to digitally reproduce their public domain works without giving away rights to the NPG. Thus, external parties, such as say, professionals hired by Wikimedia UK (they’re not just going to let amateurs with a scanner do it, are they?) would not be able to release reproductions done at their own expense into the public domain. It’s this control of access which should be challenged.

    The NPG are a governement body. The sale of reproductions to publishers or websites is an important revenue stream. They are there to provide taxpayer value, and the return from image sales are a lot easier to quantify than the fuzzy feeling when releasing things for free.

  8. Brian McNeil says:

    Interestingly, the famous Bridgeman vs. Corel case was heard twice – once under *UK* law, and once under US law.

    The pro-photograph people are very quick to gloss over the fact that the issue has been examined under the terms of a UK legal framework.

  9. David Webb says:

    @Physchim62 – I don’t think your question would pass a FOI request as its a general interest question and nothing to do with freedom of information, in other words the information on that is already freely available, you could look on the website for the authors name, and check yourself when they died.

    I also enjoy the way you slate the NPG for asking “what if its right?” but are not slating the WMF with “what if its wrong”? Isn’t that the question the WMF should be forced to ask themselves? If it is right, then the WMF is hosting copyright content, and committing copyfraud, if its wrong, then the NPG can in future release the images under a PD licence without any harm done, with the WMF the harm is already being done.

    @ Brian – the case has been heard under US law by a US judge in a US court, the British legal experts consider it to be unsound and that it wouldn’t pass here. As pointed, the QC (Queens Counsel) examined British law after the US case and still gave the opinion that under English law photographs of 2D objects, including portraits, are copyrighted. The only people who gloss over this fact are pro-wiki people.

  10. Andrew says:

    Brian: My understanding is that the case was heard in a single go, but the US court took the interesting step of interpreting it using both US and UK systems. I don’t believe there was a British case per se, though you had me quite confused for a bit (as did the Wikinews article, in fact…)

    So, it has indeed been “examined under the terms of a UK legal framework”, but we shouldn’t read too much into that – as far as the British courts are concerned the examination of the issue in Bridgeman is… well, of academic interest, a detail to sit alongside the actual precedent cases and the textbooks vacillating over it.

    I mean, sure, I’d put a good-sized bet on a court here ruling the same way in the same case were one to appear tomorrow. But they haven’t yet, and a test case could plausibly go the other way.

    We ought to be careful about how we represent the state of play, here; it’s always a layer more complicated than it seems.

  11. David Gerard says:

    @Andrew – yes. The state of play is that it’s not firmly decided yet in the UK and that an adverse judgement against Dcoetzee could theoretically be enforced against him there in the US even if the original decision would have gone his way in the US. (This has actually happened with libel judgements in the UK that would get laughed out of court in the US. It’s at the point where the US is writing new laws against the enforcement UK libel judgements.) On the other hand, it’s far from a foregone conclusion that a new copyright will be found to have been created in the UK.

    (If the NPG is so concerned about the artistic creativity put in by the photographer … what’s the photographer’s name? Even if they claim a new copyright, academic precision requires them to detail this artistic input, just as you would detail who did a photo restoration and when though that usually doesn’t generate a new copyright.)

    Law is not code and anyone writing like it’s that deterministic is fundamentally on crack.

    Now, whether we think it’s right or not … that’s endless ground for arguing with people who are Wrong on the Internet. I think the NPG’s claim is wrong, specious and odious, David Webb thinks it’s absolutely right. But any of us blog-comment lawyering in terms of absolutes are just talking complete shit.

  12. Dan says:

    Oddly enough, this reminds me that in the US such FOI requests wouldn’t be possible if we were dealing with an institution like the Smithsonian, which is exempted. The bill introduced in the Senate last year to bring it under the FOIA was sent to committee to die. http://www.opencongress.org/bill/110-s3276

  13. David Gerard says:

    @kwyjibo – it appears it isn’t an important income stream but a trivial income stream that may not actually pay for the cost of collecting it after staff expenses. Hence the use of FOI requests to find out what the hell is going on in there.

  14. Roger Pearse says:

    I’d like to see the economics too. FoI requests are a good idea.

    Don’t you hate the way that UK state bodies behave, tho? Think of the US and GPS; they made it available to us all. In the UK all these creeps think of nothing but finding ways to screw the public over for money, or so it sometimes seem. The idiot meanness, the culture of “us and them”… it makes you despair.

    Why pay for public bodies like the NPG, if they behave like the Barclay brothers towards Sark?

  15. David Webb says:

    Why pay for public bodies? So that they can obtain art which would otherwise end up in a private collection that only the owner could ever view, that would be one of the best reasons I can think of. Do you think that it would be in the “public interest” if the original images were in private hands, in a private collection, never seen by the public ever again?

  16. Roger Pearse says:

    Thanks for your comments about yourself, Matt. You can find out who I am by clicking my details.

    I don’t believe your denials, by the way. I can’t imagine why any normal person could be so corporate-friendly with having a good reason.

  17. Roger Pearse says:

    Brian,

    You asked what other bits of heritage are being held to ransom. All the medieval manuscripts and early books in the National collection in the British Library are being given the same treatment.

    The real issue is whether the public interest comes first, or that of the bureaucrats of the NPG. The latter have no interest in the former.

    The conservatives have asked for nominations of useless quangos which merely exploit the public while costing money. Perhaps I should nominate the NPG! After all… what proportion of the tax-paying public can physically ever visit this thing?

  18. Roger Pearse says:

    I have just, quite by accident, stumbled over the result of an FoI about the NPG which is quite interesting. The question was how much money they made from licensing the use of images for other websites. It’s here

    “2008/9 235 licences granted

    2007/8 413 licences granted

    2006/7 295 licences granted

    2005/6 est. 205 licences granted

    2004/5 est. 305 licences granted

    2008/9 £11,291

    2007/8 £18,812

    2006/7 £16,573

    2005/6 £10,021

    2004/5 £14,915

    The Gallery has not calculated the cost of specifically administering the online rights programme exclusive of other Picture Library activities and therefore it does not hold the information you have requested.”

    So they have prevented us all from using the images on our websites (not that I particularly want to, but in general); in order to make a gross sum of ca. £10k a year. And they claim they have no idea whether they even cover costs!

    Precious, precious information this.

  19. [...] I have just stumbled on the result of one, addressed to the National Portrait Gallery (also posted here).  It’s about the way they stop people using images, so they can charge for [...]

  20. Roger Pearse says:

    If the public cannot access material held in supposedly public collections, why pay for it?

    The idea that all private collections are less accessible is untrue by the way. My experience on manuscript collections is the reverse. But of course it IS true that a lot of private collectors won’t allow anyone even to know what they have.

  21. David Webb says:

    That’s not particularly interesting at all Roger, the more pertinent question would be, how many websites are linking to the images from the WMF, how many websites now contain images that are taken from the WMF which are from the NPG and are now depriving the NPG of the licence fee?

    We’re talking what, around £50 per licence here, the WMF are hosting, was it 3,014 pictures? The WMF alone is depriving the NPG of £150,700.

    You’re right, it did get pretty interesting.

  22. David Gerard says:

    @Roger – yes, that’s the web licensing I link in the post and note they make more selling food in the cafe ;-)

  23. David Gerard says:

    @David – again, you’re presuming that the price tag is inherently valid. In logic, this is the fallacy called “begging the question.”

  24. Roger Pearse says:

    Sorry yes, I saw the link after I posted the comment.

    I’ve just submitted a similar FoI to the British Library about fees made from licensing pages of manuscripts.

    Once we have this information, it becomes clear that the “we’re losing income” argument becomes hugely specious.

    Just imagine if all of us could use the images freely. The loss, provable loss, is just 10k a year. Hell, we could have a whip-round and raise that!

  25. David Webb says:

    @ Mr Gerard – And you are assuming the price tag is invalid. If it is however valid, that is the sum which the WMF is avoiding paying.

    @Roger – As pointed out, thats £50 per image, the NPG have 16,000 images, have a whip round for £800,000 per year, which is the value at £50 per image.

    The actual loss to the NPG (if a UK court decides in its favour) is actually immeasurable, the WMF have applied a licence which basically says “do what you want with these things, they are PD, host em on your own web site!”. How many of these web sites will take down the images if it comes to a trial and the NPG is proven right?

    How many of the websites will delete the images if the WMF blinks first and agrees to remove the PD tag and state there is copyright on the images, hosts low-res copies and links to the hi-res copies?

    An interesting article on this from a US artist

    I posted my response to the wiki blog on the register, I’m wondering which will pass moderation first…..

  26. cverrier says:

    As I understand it – the issue boils down to the basic difference in UK and US case law on copyright.

    US Case law says a ‘slavish copy’ (including photos) on a public domain work cannot itself be copyrighted – end of story.

    UK Case law says that, while this is true when you plonk something on a photocopier, it is NOT true for photos – because of the skills and effort required in producing a good photographic copy. UK courts, therefore, make a specific exception for photography of the kind carried out by NPG.

    WMF, in their statement, seem to simply ignore this, and base all their arguments/assertions on US law alone. This may be deliberate, or it may just be that they are trapped by a very US-centric view of the world and have a hard time coping with the idea that different laws apply in different countries. (If a US citizen tries to bring a gun into the UK – then they can wave the 2nd Amendment all they like – they’re still going to go to jail. Similarly if I drive at 70mph (legal in UK) in most of the US, then I’m going to get a ticket – and yes, this happened to me a few years back – sorry officer!)

    You may or may not disagree with the differences in US and UK law – but that’s were we are. Maybe we’ll see a big battle to overturn this, and maybe we won’t. It should be a good spectator sport in any event.

    Leaving the legal argument aside – it then comes down to what everyone does about it.

    The main problem becomes one that is increasingly common with the internet – where does jurisdiction lie when a US citizen in the US breaches copyright of UK organisations on a UK based server?

    Just as a data point – when a UK citizen in the UK breaches a US server, then the US courts think that the jurisdiction lies in the US. Sauce for the goose?

  27. David Gerard says:

    @cverrier – UK law on whether these pictures are copyright is nothing like as clear as you state. To quote FT2 commenting on the Register:

    “They would then cite the various _UK_ legal cases on it, and consider that Lord Oliver’s comment at the Privy Council (_not_ some random US court): was that “Skill, labour or judgement merely in the process of copying cannot confer originality.”

    “They’d consider that the House of Lords comment (_not_ some random US court) was “To accord an independent artistic copyright to every such reproduction would be to enable the period of artistic copyright in what is, essentially, the same work to be extended indefinitely”, and that this was described as legally “undesirable”.”

    There’s UK precedent that says the opposite.

    As I noted, anyone claiming this isn’t all entirely up in the air legally is on crack.

  28. cverrier says:

    Another reply to a different point..

    NPG may well be spending lots of cash on lawyers for this – but they’re not just protecting £300K – they’re protecting NEXT years income, and the year after that, and the year after that – for many years to come.

    Assuming (not unreasonably) that Internet usage can only grow in future – then the revenue amounts they are trying to protect could get pretty big – making it easier to justify a legal fight now.

  29. cverrier says:

    @david

    I’m happy to admit my limited experience on this – it was just my impression of some posts that purport to quote a QC’s opinion. I was trying to boil the aguments down a bit and suggest where the main issues of this debate lie.

    If UK case law is vague (or untested) then I guess a court case to settle it can only be a good thing. (and a good spectator sport for the rest of us!)

  30. kwyjibo says:

    The sale of image rights by the NPG is not a trivial income stream.

    By honing in on online redistribution only, you’re ignoring the bigger picture. Not only are those image rights sold onto publishers, and for other uses, returning £380k in the last year.

    Wikimedia, by claiming that these reproductions are PD too, and by republishing them online under such a license would kill off the entire revenue stream, and not just the trivial numbers you quote.

    I would like to see this go to court. Regardless of the outcome, I’d prefer clarity over the blind crusading I’m seeing on the issue. I’d particularly like to see the institutions open up to external archivists, but that’s something that pretty much no one has mentioned.

  31. HaeB says:

    “just how much money they make from keeping it all to themselves (£378k before expenses — what are the expenses? six staff, what else?)”

    According to the 2007/2008 annual report, only £130,000 is left after expenses. Further discussion here

  32. FT2 says:

    This is a dangerous precedent, that the US has decided is legally valid and has made clear to the rest of the world is enforceable.

    Anyone remember the Dmitry Sklyarov/DefCon case? “Russian person performs a computer activity that’s 100% legal in Russia; products of act can be downloaded in US; Russian person visits US and is arrested there for breach of US law.”

    Its a very dangerous precedent for the US government to try and establish. Sklyarov the other year, McKinnon yesterday, …. Coetzee today? someone who blogged about Iran or runs an liquor centric or naturist website that some African country can view tomorrow? As cverrier said above, “When a UK citizen in the UK breaches a US server, then the US courts think that the jurisdiction lies in the US. Sauce for the goose?”

    For better or worse (and with few exceptions agreed by treaty) charging people with breach of statute or criminal law, should only be an option if it was a crime in the location they did it. Otherwise every person on this planet has about 300 legal systems to worry about every time they say a word or do anything online.

    (And what’s trivial and one wouldn’t think of in one country may be a serious crime in another, you don’t get to judge if you _like_ the other country’s laws)

  33. Joss says:

    Everyone wants everything for nothing these days – it is the mantra of the web “I have a right!!!” Well, you don’t

    I, as a British Taxpayer, am a great supporter of the NPG

    I find the whole attitude of “we think it should be free therefore we will take it” just plain bullheaded. I dont support the NPG just for someone else to take the goods and redistribute them on their own website – I expect NPG to make as much money as it can to save and preserve portraiture for the country.

    As a media professional, if I want to use images from anywhere, whatever the copyright law, I ask first. The reason is simple – the person who owns those images went to the trouble and probably spent money making them – they will probably want some reimbursement. And that is fine by me. And to be honest, it is just plain good manners.

    Although the tax payer contributes to the running of the gallery, the money falls far short of what it takes to run it. It relies heavily on donations, patronage and all the small incomes from various places. To complain that the NPG doesn’t earn much from its website is just arrogant. That is still vital income, however small.

    I really cant see why the person who used special software to grab and reassemble these images could not have the decency to ask first! NPG may well have just sent a neat CD with the whole lot (medium resolution) which would have been fine for the web.

  34. David Webb says:

    Well, someone blinked:

    “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.”

    The question is, who blinked first? Why is the WMF which will happily display any content with-holding information? The NPG already made their stance, they will allow the WMF to host lower resolution images, the WMF appears to be trying to find a compromise, who blinked first? Looks like the WMF.

  35. David Gerard says:

    @David – new post on just that subject.

  36. David Gerard says:

    @David – and who blinked (it was the NPG who contacted WMF) is pretty irrelevant, actually – what’s relevant is working the issue out. I can only hope the NPG is not as bogged down and combative as you appear to be.

  37. David Webb says:

    We already know the NPG’s stance on this issue. They will provide lower quality images to the WMF, the WMF will link back to the NPG and provide proper copyright atttibution to the images, that is the only solution where “everyone wins”. The WMF get to host the lower quality images, the NPG continues to hold copyright over the images.

    The only possible stumbling block, will the WMF agree to host the images whilst recognising copyright?

  38. Physchim62 says:

    The WMF shouldn’t recognise a “copyright” that doesn’t exist, that has been embezzled by the NPG. That doesn’t mean that a mutually acceptable compromise is impossible.

  39. frank says:

    FOI request:

    A breakdown of those UKP 339000 licensing revenue in 2008
    by country. If the revenue comes mostly from the UK then
    the legal fight against alleged US infringers is a waste.

  40. John Nagle says:

    The Electronic Frontier Foundation is defending the uploader and the Wikimedia Foundation against the National Portrait Gallery:

    http://www.eff.org/deeplinks/2009/07/eff-defends-wikipedi

    The National Portrait Gallery has not been heard from since that letter.

    Since Bridgeman vs. Corel was decided, nobody seems to have tried to pursue a copyright case involving a photo of a public-domain image. (There was Toyota vs. Meshwerks, which bolstered Bridgeman vs. Corel at the appellate level and extended it to 3D scans of solid objects, in that case autos.) There’s ongoing huffing and puffing from supposed copyright holders of images of public-domain works, but nobody has actually brought a lawsuit. Probably because their lawyers tell them they will lose. Meanwhile, pictures of old paintings are all over the Web, as they should be.

    That’s what will probably happen here.

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