NPG-WMF talks are in progress. What would you like to see from them?

Erik Möller has just emailed this to the communications committee list, and said it can be posted publicly:

“Quick note: The National Portrait Gallery contacted us to see if we can find a compromise regarding the images in question, and we’ve entered good faith discussions with them. Feel free to point this out in relevant places.”

Of course, details on terms, proposals etc. are confidential at this stage. But let’s assume that, interesting as a final verdict might be, neither WMF, the NPG or DCoetzee really want this to come to a legal battle. (The WMF is a charity and broke by definition, the NPG is a government sub-department.) That’s a really good thing. Working with people always beats working against them.

So: what would you like to see in a compromise, that addresses the concerns of all sides? (My initial ideas are here.)

The real problem is funding digitisation — that governments tell galleries they have to make money from copyright on the works in their possession. This was barely workable last century, and is increasingly untenable in this one.

That million pounds the NPG spent on digitisation was taxpayer’s money. We’ve already paid for it. IMO, we should be getting the images at highest resolution completely unencumbered. I don’t hold out hope of this being standard until we get the Ordnance Survey data and the postcode database released, though.

(Also: this blog quoted on the BBC News site.)

(Note: I am on the comcom list, and answer media queries as a WMF volunteer, but opinions on this blog are entirely mine and not WMF’s.)

33 thoughts on “NPG-WMF talks are in progress. What would you like to see from them?”

  1. First, cease and desist persecuting and otherwise harrassing DCoetzee, then apologise, absolving him of any charge.

    Providing a CC ShareAlike (Wikipedia compatible) license to images already obtained (ideally also to any published by NPG in the future) would be an acceptable outcome. The NPG can then profit (if it must) by selling traditional copyright licenses for other users (who find CC-SA intolerable).

    Otherwise, CC0, Crown Copyright, or asserting NPG images are in the public domain could be explored as alternatives.

    Public funds are wasted on technical and legal means of preventing the public accessing or reproducing images public funds have paid for.

  2. Use the medium resolution images offered. Don’t take peopole’s stuff without asking – we should have had this discussion with the NPG beforehand.

    There’s something slightly unethical about holding someone elses property to ransom to force discussion.

  3. First of all, Dcoetzee should be removed from the picture. It’s unfair for him to be the target of such a high-profile case, especially if this can be settled out of court.

    Second, the NPG should free-license most of its images, or something close: I could see an arrangement where they used the Creative Commons Attribution-Noncommercial-Share Alike license for their work, while continuing to hold a monopoly on commercial use. This would certainly be consistent with their mission and even largely with their concern about supporting the gallery. If they leave out the Noncommerical bit for the images already on Commons, so much the better.

    Finally, the NPG should explore the intangible benefits associated with their high-resolution images being on Wikimedia. I have this idea where the NPG gives *all* of their images to Wikimedia, gets good publicity for their altruistic action, perhaps even further exploited through a Wikipedia Loves Art event, then gets links to their website from every Wikimedia Commons image description page with one of their images. The benefits through publicity are not to be dismissed, and there are plenty of other ways to make such a deal sweeter (e.g. giving their site an “interwiki” prefix like [[npg:mp04051|Shakespeare]], which would give them better rankings in search engines, as interwiki links don’t have the nofollow attribute).

  4. @John – see, your last sentence could be read as applying to the NPG taking down the hi-res images over the weekend – the bureaucrats of the NPG holding the taxpayers’ property to ransom. We are talking about stuff funded by the taxpayer here; licensing appears by all numbers we’ve gotten so far to be a drop in the bucket that barely pays for itself if that.

    The fundamental issue here is that the government requires arts organisations to hold public domain works to ransom for funding. This was barely tolerable in the last century, but is completely unworkable in this one.

  5. I see no need to concede on the copyright issue, but I also think that reduced resolution scans should be satisfactory for Wiki purposes. Thus, a gentleman’s agreement that recognizes the right for anyone to use the reduced resolution images in that matter, but remains silent about the legal issue of copyright.

    Without questioning the numbers, I have seen it mentioned that the NPG has received a £1,000,000 for digitisation, and £380,000 for licensing fees. It would be right and proper if the amount received for licensing fees should first be used to repay the subsidies. I’m sure someone else can let me know if this has factually happened. (Banks have been known to view subsidies differently when those subsidies try to impose limitations on executive compensation.)

    Allowing individuals into the NPG with cameras isn’t enough when you consider that most museums do not have the space to display all their holdings. They no doubt own many paintings that lack display quality but may retain great historical value as the only visual representation of the person depicted.

    One thing that many Wikimedians have consistently failed to understand is that they can’t do and be everything themselves. When we engage in a wholesale usurpation of the functions of another person or institution it is not a question of violating the law, but there remains the ethical failure to recognize that that other should retain its reason for existence.

  6. The cession of all threats of legal action against Derrick Coetzee is obviously a sine qua non to any agreement. I would add:

    *A public statement included on their website that they do not claim copyright on files which consist only of copies of portraits whose author died more than seventy years ago;
    *promotion of low-resolution (eg, 300 pixels width) reproductions of more recent images, with the consent of the copyright holder;
    *coordination between the NPG and relevant Wikimedia volunteers to ensure the orderly upload of these files to Wikimedia Commons and any post-upload feedback (new information about a picture, “oops, we made a mistake, that one’s still under copyright”, etc.)
    *the dismissal of that member of the NPG’s staff whose political activity is incompatible with his position in a major public art gallery.

    Note that we used CC-BY-SA for the German images because of German “moral rights” which require the identification of the photographer. There is no reason to use them for these NPG images (although I bet that’s a way towards a compromise!)

  7. I’d like to see the NPG admit that they cannot hold copyright on the images, and WMF not concede otherwise. WMF can help the NPG with metadata and much needed promotion of other services, such as (for example) gallery access…

  8. @Physchim62 – “*the dismissal of that member of the NPG’s staff whose political activity is incompatible with his position in a major public art gallery.” – anyone in particular you’re thinking of here?

  9. @Rob – I think WMF and the Wikimedia Community could live with the copyright question remaining unresolved – e.g. “The WMF considers this image is public domain in the US; the NPG asserts copyright in the UK and licenses said copyright under CC-by-sa” would be completely livable within our rules. It would also get us loudly saying around the world how lovely the NPG are and how good they are to work with.

    That would be far less than ideal in many ways – I think the images should assuredly be public domain – but that’s a battle the WMF has neither the cash nor the interest to pursue if workably avoidable.

  10. I don’t think an NPG public admission on non-copyright would be a reasonable demand. Its too much to expect and politically both unnecessary and may be a “straw that breaks a back”. Likewise with an agreed settlement any litigation against the user would end too, so that’s pretty obvious.

    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?

  11. It might be said ‘we’ paid for in when in fact you mean the British taxpayer paid for it… in the same way that the British TV license owner pays for the BBC. This doesn’t mean anybody in the world is entitled to full unabridged access to those images.

    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.

  12. @Steph – “instead they (David) took the pictures” – which David? Your point is not clear.

    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.

  13. I want to see it go to court, as mentioned before.

    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.

  14. It would be great if the NPG opened their collections for external parties to digitise and thus release those reproductions how they wish though.

    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?

  15. @kwyjibo – If NPG wanted a court case against DCoetzee, they wouldn’t have approached WMF (rather than DCoetzee) to work something out. And WMF doesn’t really want a court case, because it’ll be horribly expensive, and is by no means a slam dunk – having our position wrong would be bad for us.

    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.

  16. The bottom line on any deal has to start from what we think the legal position is.

    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.

  17. @James – I think the legal threat in the US is approximately zero. The threat model in this case is of an adverse judgement in the UK that can be enforced against DCoetzee in the US, even if the case would be laughed out of court in the US, and the enclosure of the public domain in the UK. I think WMF (and EFF) are prepared to fight this if it did come to a court case, because otherwise the public domain and our work would be utterly buggered.

    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.

  18. If you’re right that the risk for WMF in the United States is essentially negligible, then I think the position is as I have set it out. I think that probably is correct, but I would want to see U.S. lawyers input to say so for sure. It may be that you are on lists where you have seen that input. I haven’t; but it seems to me that this is the only way there could be pressure on WMF.

    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.

  19. @James
    “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?”

    – 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.

  20. (And that’s just the start. Hungary’s defamation laws? Country X’s law of criticizing the president? Country Y’s law on encryption as a military item that unlike the US has not been revoked? All of that potentially awaits such a decision……

  21. The best solution, it seems to me, is for the NPG to give the WMF physical access to its collection in order to digitise it for themselves. This will make for a level playing-field, and also incidentally strengthen the NPG’s case for an assertion of database copyright on their own scans. If the WMF’s scans are of poorer quality than the NPG’s, then it shouldn’t hurt their commercial sales too much. If they’re not, then the NPG has clearly been wasting its money very badly.

  22. […and is increasingly untenable in this one.]

    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?

  23. or could it be that National Portrait Gallery believes that it can do what it likes with the portraits which it holds in trust for the nation? Don’t forget that they have at least one employee whose job it is to manage these bogus and fraudulent copyright claims.

    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.

  24. Actually what we have here is a “failure of concept”. generally, ventures (charitable or commercial) are expected to cover their costs by generating revenues. There are some cultures and some goals where this may not easily be possible, and because the goal is deemed sufficiently important, it’s funded by the general public instead. This affects everything from welfare, care of the unfortunate, legal assistance, through to the military. Placing such a goal under an obligation to self-fund causes finances to be placed so high over ulterior goals that the latter can get lost in the rat-race.

    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.

  25. After a little reading, I’m not really sure that Bridgeman v Corel is even upheld in the US.

    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.

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