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.

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.

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

“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.

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.

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)

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

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.

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!)

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.

“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.

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?

@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…..

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!