Copyright Notice – All images on that site belong to them
More copyright notices – All the images belong to them!

Why doesn’t the WMF be nice, and pop along to all these website (in the US) and take all their images and stick them up on the WMF? Thats just 2 website (in the US) that are claiming copyright. If the American museums don’t believe that Bridgeman v Corel applies, then what makes you think a UK judge would believe it would?

Your argument about their images being “medium res” how big do they need to be for hi-res?

2,400 × 3,303 pixels, file size: 3.07 MB Thats bigger than 1080p
We also have This one which was taken, not from the website, but from a book, according to this site the book is hardly 10 years old, so still under copyright.

It seems to me, that the WMF just sees what it wants, and then takes it, be it from books, other peoples websites, wherever, then applies the “we don’t believe in your copyright, so we’ll ignore it” logic.

The WMF has quite a lot to lose if this did go to court, every single image hosted on WMF from the EU would have to be examined, the copyright status checked, and if any were deemed to be copyrighted, they would have to be removed. Not sure Encyclopedia Britannica has these issues mind you, will the WMF pop over to their wiki, search for works they consider public domain, and take them too?

The only resolution to this is the simple one, accept the low res images, apply copyright restrictions and agree to not publish any content from the UK without being 100% sure of its copyright status.

Will the NPG allow a liberal copyright on the low res images? Probably yeah, they will want to get this over and done with, they will most likely allow WMF to host lower resolution images with a liberal copyright agreement restricting use for everything except commercial use.

The actual principle and goal of NPG is to hold and preserve a collection of irreplaceable art owned by the UK community, and to generally make it available, promote it, and further those artistic goals. Just like not everyone uses the highway, and not everyone wants the military, so not everyone wants art. One job of government is sometimes to make the judgement “We’re still covering the cost out of our budget, due to the immense value it adds to the community”.

The problem is that NPG is being required to act as a charitable heritage and safeguarding body and at the same time fund as a private profit-making one. They aren’t entirely thesame and in cases like this the conflict is what results.

That the NPG should pretend that it has rights on these images equivalent to the rights of the authors of the more recent works in it’s collection strikes me as arrogance on a quite astounding scale.

Why is it “untenable”? Could it be because irresponsible and arrogant scofflaws like Wiki thumb their noses at copyright law and the legal rights and protections that go with it?

– It’s not clear that the risk is high. A US court might be extremely wary of extending liability that far, because of all the other liabilities under 300 jurisdictions worldwide that it could expose every American to. In simple terms the structure is “A person is deemed liable by a US court for breaking a non-US law by making some product, service or information available to non-Americans”. It’s too huge a Pandora’s box. Do you know what Chinas copyright laws are, or Frances’, or Irans?

“Coetzee’s U.S. lawyers would argue… [jurisdiction, repugnance]”

And probably if a hearing was inevitable, they would also point out the same rulings of the UK’s supreme court (house of lords, privy council) that let to Bridgeman being decided as it was, when it was considered under _UK_ law whether a breach had taken place.

As regards DCoetzee, if the NPG were to go ahead in the UK Courts, they would first be met with a motion of “forum non conveniens” — Coetzee’s lawyers would argue that the only proper venue for such a trial would be at a location convenient for the defend, and being that this is a case of a corporate entity versus an individual, the presumption is that such a motion would probably succeed.

In a U.S. Court, the decision on applicable law would probably follow Bridgeman, so I would expect U.S. law would be judged to be the applicable law. There are powerful interests that might want to see a Bridgeman II in the U.S., and might try to push it to trial. But on the basis of cases like Feist, I think any U.S. trial would go the same way as Bridgeman, and Coetzee would be left in the clear.

If the UK courts refused to cede jurisdiction, I suspect the NPG would indeed win (although the arguments to the contrary in Bridgeman are not without weight), but it would then be faced with whether it could enforce any such judgment in the U.S.

Coetzee’s U.S. lawyers would argue:
* That the UK courts had no personal jurisdiction over Mr Coetzee.
* That, under U.S. law, the UK court had no jurisdiction over the subject matter; and
* That the judgment was repugnant to the public policy of the state where enforcement was sought (ie the United States).

I suspect a U.S. court would find those arguments considerably persuasive.

So I don’t see the NPG as being on a hiding to very much here. At most they might win a “moral victory” in a U.K. court, and threaten to get Mr Coetzee deported if he ever set foot in the U.K. And even that is only if Mr Coetzee failed to get the case punted to the U.S.A.

I don’t think WMF will feel any pressure on that score.

The bottom line will be WMF’s assessment of US courts’ readiness to entertain non-US law (and/or judgments) for pages exported out of the USA. They won’t discuss that, because WMF’s public position must be that it is invulnerable. (And I hope that it is).

But if it does feel invulnerable, it is hard to see WMF making any significant concession to NPG ex gratia, unless NPG were to offer something WMF would see as substantial in return. And NC, or anything else less than CC-BY-SA, won’t cut it.

The NPG approached WMF to work something out, so I think they don’t really want legal total war either. But, as you note, it depends how prepared they are to come into the twenty-first century.

The NPG has whacked a hornet’s nest with a cricket bat, and when you do that every hornet will want to negotiate with you individually. Every individual Wikimedia contributor is threatened by their legal letter. But the WMF also has to come up with something acceptable to the angry hornets.

The real question is this: if WMF were sued in an *American* court, what is the risk that a US judge would hold WMF liable for breaking non-American copyrights by making images available to non-American readers?

If there is a real risk that a U.S. judge might hold that (or uphold a non-US court’s judgment to that effect), and therefore award damages against WMF on that basis, and/or require WP to prevent US-only content (including US fair use content) being made available outside the U.S., then that is a gun to WMF’s head. But otherwise the NPG is pissing in the wind, and WMF can do whatever it wants.

If the WMF calculate that the NPG is indeed pissing in the wind (bearing in mind the importance of free speech and the 1st Amendment in the U.S.A.; and the re-assessment on applicable law by the judge in the revised decision in Bridgeman), then the WMF doesn’t *have* to do anything. It might consider a deal, to take down the higher-res images in return for the NPG relicensing its entire low-res collection CC-BY-SA, because I think the Foundation could sell this as having gained much more for the Commons worldwide than it was giving up. I think there could be a deal on those terms.

But I suspect that the NPG is very resistant to offering anything more than CC-BY-NC-SA, and probably thinks it can negotiate a Use-on-Wikipedia-Only license (and would see even that as a considerable special concession). I don’t see any reason for WMF to accept either of those, so I suspect that no deal will be forthcoming.

A shame, because if a deal could be struck, the creative win/win promotion / joint fundraising opportunities people have set out surely could be quite advantageous. But it would be a 180-degree change in mindset for the NPG.

Also, insisting on a fight with one museum would destroy our good relations with the nicer museums. We’re an 800lb gorilla, being nice and being seen to be nice is very important to us. This fuss has been damaging enough in public image terms.

And no-one sane wants to go to court if at all avoidable. One of the big jobs of the WMF lawyer is to avoid that sort of thing!

I think the hardest part will be coming up with something that plays with the Wikimedia community, who are largely (though not entirely) very pissed off about the attempted enclosure of the public domain.

Right now, any photography or reproduction of public domain artworks held by the NPG is only allowed if the NPG get to claim copyright.

FT2 suggests that WMF chip in with the digitisation project, that would be great, but given how default-broke nonprofits are, how is this ever going to happen?

Wikimedia and the NPG’s positions are entirely opposite. Even though Commons insists that all uploads must be free in their country or origin AND in the US – there is a special exemption for reproductions of public domain artwork regardless of the copyright position of reproductions in their country of origin.

Even if NPG were to release low resolution images of reproductions into the public domain, what’s to stop essentially untouchable foreign wikimedia volunteers from paying NPG for the high resolution images, and then uploading them anyway?

Either Wikimedia deletes the high res images, and accepts that those reproductions are not free, which is against everything the foundation believes in, or the NPG storms to court.

We need a ruling.

Also, the reasoning that they worked and paid for the images therefore they own a copyright in them is in fact the legal point in question – you can’t assume it either way. However, I feel quite confident in stating that the NPG shouldn’t be using taxpayer money to build their own small empire and to charge again and again.

Your comparison between tanks, aircrafts and paintings is also odd and interesting. If you could download a car, without taking the original car away from the owner, of course everyone would – the owner would lose nothing.

Since the British tax payer paid for the digitisation to such a high level I would think it was for them via publically accountable staff to decide how and where they’re used not Wikiedia or any body acting on Wikipedia’s behalf and least of a single British taxpayer assuming onwership of all works.

If you use those images it must be under some license, no? Just like the use of some Wikipedia material is under some sort of license. Presumably the website the images were scrapped from had a license granted to view the images rather than distribute the images.

Lots of comments above talk about what they (WMF + NPG) could do now to promote/fix/collaborate this blantant theft of British tax payer property but thats after the fact. The truth is, if they (WMF) or David were serious they’d have proposed any one of the above plans before taking the pictures.

WMF hasn’t approached NPG and said hey…why don’t we collaborate to digitise all your pictures…instead they (David) took the pictures and when someone complained all this happens.

Lastly they my well belong to you (being a British citizen I suppose a tiny 72 millionth probably does) but what logic means you can then decide what to do with all of them? Would you take a tank, aircraft or any number of other ‘communal’ assets and give it away/destory it/sell it/loan it to another country? Of course not so get down off that horse right away you sound like a spoilt child caught doing something you know is wrong.

Oh and being a Charity doesn’t suddenly mean you can do anything you like, in fact it’s irrelevant in this context.

I read your ideas… interesting and some may have merit but again you’re just assuming the image belongs to you and somehow WMF/you/a thousand volunteer photographers are going to make up for what has happened or what you did whilst not even taking down the images that you put up. It’s rediculous. I noted you’re somehow post justifying keeping them up on WMF bcause they’ve now taken them down. A brilliant stroke of irony given that you’re the reason they took them down in the first place.

It’s like you’ve taken someone else property (in this case the NPG’s and by extension – using your own argument – the British taxpayers) and whilst the NPG is all feeling hurt and upset about it you’re continuing to hold on to it and display it for all to see whilst offering what… to carry on photographing their works so you (WMF) can carry on putting them up on your website?

Are you nuts? You should take them down, sort it out and then hopefully you’ll be able to put some/all of them back up once you’re agreed the manner of their use. That just common sense.

I reckon just take them all down until you sort out the right thing to do and start behaving like reasonable adults.

In the it doesn’t matter who subsidised it or who you think owns the images. The truth is you scrapped the images becuase they were nice and high res and you thought wikipedia could do with them but you didn’t even check to see whether it was ok.

All this BS above is just after th fact justification for your action. As I’ve said above if WMF is serious about what they want to do they shoudl take them down, work with NPG (if they even want to work with you – you don’t have a right to those image remember?) to build a lasting frame work of image use that all museums can buy into.

All WMF is doing now is jeopardising any future co-operation with public institutions for anything other than low res versions.

Grow up, man up, take em down, sort it up and then put whatever NPG allow you too back up.

NPG is in a tough position because it’s essentially being told by its funder, “who cares how impossible this makes your mission, we’re only paying X, you sort out what you’ll do to bridge the gap”. A story that sadly, too many publicly funded places are familiar with.

WMF can and does serve the public (as it feels) by offering high quality imagery. For example some pictures only show faces or key detail, at a good resolution, and users will benefit from that detail being accessible for free use in old masters. The problem here is that I don’t know the resolutions involved. What resolution do archivists work to? Is it radically better from the resolution a good repository might use? I fear not. And who are the main “paying markets” anyway? What would their response be?

So:

* A binding agreement that NPG and WMF can both live with
* Neither WMF not NPG demanded to publicly grovel or explicitly admit to being wrong (both sides have powerful colleagues/alliances in their respective worlds they would need to save face in front of, for any deal to work)
* Beyond that, I’m, honestly not sure whats best at this point.

But here’s a radical one:

* WMF and NPG work _together_ to obtain a fund of $1.5 – 3m (£1 – 2m) from some educational or art trust, which is used to fund the digitization project. With this extra income, NPG would not be under such pressure to charge, and it would also provide a reasonable surplus to NPG on top.

I am fairly sure if NPG + WMF went around some suitable donors, and said “NPG is digitizing its massive collection, but it costs £1m and they need income from it to fund projects XYZ. This means their images aren’t free and puts them in a difficult position. If we can raise £2m for NPG they have committed to use £1m of it for their project and make all images free in return, using WMF as the repository, gaining massive positive publicity and web-links, and keeping the other £1m in replacement for lost revenues….”

Wouldn’t _that_ be amazingly more “win-win” and wouldn’t a number of substantial philanthropic charities probably be very keen to take it seriously?