National Portrait Gallery copyright conflicts
Encyclopedia
In July 2009, lawyers representing the National Portrait Gallery of London (NPG) sent a demand letter
threatening possible legal action for alleged copyright infringement
, to an editor-user of the free content
multimedia repository Wikimedia Commons
, a project of the Wikimedia Foundation
. The letter claims that Wikipedia editor Derrick Coetzee obtained more than 3,000 high-resolution images from the British National Portrait Gallery in March 2009 and posted them on Wikimedia Commons.
The NPG letter stated the claim that while the painted portraits may be old (and have thus fallen into the public domain
), the high-quality photographic reproductions are recent works, and qualify as copyrighted works due to the amount of work it took to digitize and restore them,
that the action of uploading the images infringed on both the NPG's database rights and copyrights,
and that the images were obtained through the circumvention
of technical measures
used to prevent downloading of the prints.
The NPG also stated that the public availability of the images would affect revenue acquired from licensing the images to third parties, revenue also used to fund the project of digitizing their collection,
an effort that the NPG claims cost the organization over one million pounds.
The NPG had requested a response by July 20, 2009 from Coetzee, and also requested that the images be removed from the site, but noted that the NPG was not considering any legal action against the Wikimedia Foundation.
The NPG announced that Mr. Coetzee had responded via his legal representative by the requested deadline.
Coetzee's legal representation is provided by the Electronic Frontier Foundation
.
Coetzee publicly posted a copy of the legal letter from the NPG, indicating that he desired to "enable public discourse on the issue".
On July 17, 2009, NPG gallery spokesperson, Eleanor Macnair, stated that “contact has now been made” with the Wikimedia Foundation and “we remain hopeful that a dialogue will be possible.”
The NPG has stated that it would be willing to permit Wikipedia to use low-resolution images, and that it hoped to avoid taking any further legal action.
The NPG had previously attempted to contact the Wikimedia Foundation in April 2009 regarding this issue, but did not receive an immediate response.
The British Association of Picture Libraries and Agencies
(BAPLA), an image industry trade group, has expressed support for the gallery.
In early 2010, an NPG spokesperson reported to heise Open, a division of German publishing house Heinz Heise
, "We had a constructive discussion in December and are now considering how best to come to an agreement." In November 2010, Tom Morgan, Head of Rights and Reproductions at the National Portrait Gallery addressed a conference attended by both Wikipedians and representatives of cultural institutions. Mr. Morgan's presentation was entitled “Wikipedia and the National Portrait Gallery – A bad first date? A perspective on the developing relationship between Wikipedia and cultural heritage organisations”.
case Bridgeman Art Library v. Corel Corp.
(in which Bridgeman Art Library
sued the Corel Corporation for copyright infringement for distributing copies of digital reproductions of public domain paintings sourced from Bridgeman on a CD-ROM) established that "a photograph which is no more than a copy of a work of another as exact as science and technology permits lacks originality
. That is not to say that such a feat is trivial, simply not original."
As a result, reproductions of works that have fallen into the public domain cannot attract any new copyright in the United States.
As such, local policies of the Wikimedia Commons web site ignore any potential copyright that could subsist in reproductions of public domain works. However, British case law can take into account the amount of skill and labour
that took place in the creation of a work for considering whether it can be copyrighted in the country.
As a ruling made in a US court, Bridgeman v. Corel is not a binding precedent for any court in the UK (though it may be influential). The letter from the National Portrait Gallery implies that the case should be determined using UK law and not US law. The issue of jurisdiction is complicated as the National Portrait Gallery is located in England, but Wikimedia Commons, and the uploader, are both located within the United States. The letter also claims that by making the images freely available on Wikimedia Commons, Coetzee would also be liable under the British Copyright, Designs and Patents Act 1988
for any copyright infringement
committed by other users who download and use the images.
, deputy director of the Wikimedia Foundation, made a statement on the issue, clarifying the stance of the Wikimedia Foundation on the incident.
Möller stated that although the NPG has agreed that the images are in the public domain, the NPG had contended that they own the exclusive rights to their reproductions of the images, using this to monetize their collection and assert control over public domain content.
Möller also stated "It is hard to see a plausible argument that excluding public domain content from a free, non-profit encyclopaedia serves any public interest whatsoever."
Möller further described the agreement that other cultural institutions have made with Wikipedia to disseminate images: two German photographic archives donated 350,000 copyrighted images, and other institutions in the United States and the UK have made material available for use. The NPG stated that the images released by the German archives were medium resolution images, and that the NPG had offered to share images of the same quality.
A reporter for the BBC reported that the NPG made a total of £339,000 from licensing images for use in traditional publications in 2008.
(EFF) remarked that the situation comes down to asking whether US companies and citizens would be "bound by the most restrictive copyright law anywhere on the planet, or by U.S. law?"
In a legal analysis, Lohmann contended that under US law, the NPG's "browse wrap
" contract was not enforceable, database rights are not implemented at all, and that "using Zoomify on public domain images doesn't get you a DMCA claim."
Demand letter
A demand letter, or LOD, ie. a Letter Of Demand , is letter stating a legal claim which makes a demand for restitution or performance of some obligation, owing to the recipients' alleged breach of contract, or for a legal wrong.In the United States, demand letters from a debt collector relating to...
threatening possible legal action for alleged copyright infringement
Copyright infringement
Copyright infringement is the unauthorized or prohibited use of works under copyright, infringing the copyright holder's exclusive rights, such as the right to reproduce or perform the copyrighted work, or to make derivative works.- "Piracy" :...
, to an editor-user of the free content
Free content
Free content, or free information, is any kind of functional work, artwork, or other creative content that meets the definition of a free cultural work...
multimedia repository Wikimedia Commons
Wikimedia Commons
Wikimedia Commons is an online repository of free-use images, sound and other media files. It is a project of the Wikimedia Foundation....
, a project of the Wikimedia Foundation
Wikimedia Foundation
Wikimedia Foundation, Inc. is an American non-profit charitable organization headquartered in San Francisco, California, United States, and organized under the laws of the state of Florida, where it was initially based...
. The letter claims that Wikipedia editor Derrick Coetzee obtained more than 3,000 high-resolution images from the British National Portrait Gallery in March 2009 and posted them on Wikimedia Commons.
The NPG letter stated the claim that while the painted portraits may be old (and have thus fallen into the public domain
Public domain
Works are in the public domain if the intellectual property rights have expired, if the intellectual property rights are forfeited, or if they are not covered by intellectual property rights at all...
), the high-quality photographic reproductions are recent works, and qualify as copyrighted works due to the amount of work it took to digitize and restore them,
that the action of uploading the images infringed on both the NPG's database rights and copyrights,
and that the images were obtained through the circumvention
Anti-circumvention
Anti-circumvention refers to laws which prohibit the circumvention of technological barriers for using a digital good in certain ways which the rightsholders do not wish to allow...
of technical measures
Digital rights management
Digital rights management is a class of access control technologies that are used by hardware manufacturers, publishers, copyright holders and individuals with the intent to limit the use of digital content and devices after sale. DRM is any technology that inhibits uses of digital content that...
used to prevent downloading of the prints.
The NPG also stated that the public availability of the images would affect revenue acquired from licensing the images to third parties, revenue also used to fund the project of digitizing their collection,
an effort that the NPG claims cost the organization over one million pounds.
The NPG had requested a response by July 20, 2009 from Coetzee, and also requested that the images be removed from the site, but noted that the NPG was not considering any legal action against the Wikimedia Foundation.
The NPG announced that Mr. Coetzee had responded via his legal representative by the requested deadline.
Coetzee's legal representation is provided by the Electronic Frontier Foundation
Electronic Frontier Foundation
The Electronic Frontier Foundation is an international non-profit digital rights advocacy and legal organization based in the United States...
.
Coetzee publicly posted a copy of the legal letter from the NPG, indicating that he desired to "enable public discourse on the issue".
On July 17, 2009, NPG gallery spokesperson, Eleanor Macnair, stated that “contact has now been made” with the Wikimedia Foundation and “we remain hopeful that a dialogue will be possible.”
The NPG has stated that it would be willing to permit Wikipedia to use low-resolution images, and that it hoped to avoid taking any further legal action.
The NPG had previously attempted to contact the Wikimedia Foundation in April 2009 regarding this issue, but did not receive an immediate response.
The British Association of Picture Libraries and Agencies
British Association of Picture Libraries and Agencies
BAPLA is the trade association of UK based photographic image suppliers, commercial picture libraries and agencies.-History:The association was formed in 1975 with founding members: Getty Images, Robert Harding World Imagery, Aspect Picture Library, FLPA - Images of Nature, Camera Press, BBC Photo...
(BAPLA), an image industry trade group, has expressed support for the gallery.
In early 2010, an NPG spokesperson reported to heise Open, a division of German publishing house Heinz Heise
Heinz Heise
Heinz Heise is a publishing house based in Germany.- History :Heise was created in Hanover in 1949 as an address and telephone directory publisher, then later expanded to include magazines and loose leaf collections. In 2001, the company was divided into separate enterprises, all of which came...
, "We had a constructive discussion in December and are now considering how best to come to an agreement." In November 2010, Tom Morgan, Head of Rights and Reproductions at the National Portrait Gallery addressed a conference attended by both Wikipedians and representatives of cultural institutions. Mr. Morgan's presentation was entitled “Wikipedia and the National Portrait Gallery – A bad first date? A perspective on the developing relationship between Wikipedia and cultural heritage organisations”.
Background
The 1999 United States District CourtUnited States district court
The United States district courts are the general trial courts of the United States federal court system. Both civil and criminal cases are filed in the district court, which is a court of law, equity, and admiralty. There is a United States bankruptcy court associated with each United States...
case Bridgeman Art Library v. Corel Corp.
Bridgeman Art Library v. Corel Corp.
Bridgeman Art Library v. Corel Corp., 36 F. Supp. 2d 191 , was a decision by the United States District Court for the Southern District of New York, which ruled that exact photographic copies of public domain images could not be protected by copyright in the United States because the copies lack...
(in which Bridgeman Art Library
Bridgeman Art Library
The Bridgeman Art Library, based in London, Paris, New York and Berlin, provides one of the largest archives for reproductions of works of art in the world...
sued the Corel Corporation for copyright infringement for distributing copies of digital reproductions of public domain paintings sourced from Bridgeman on a CD-ROM) established that "a photograph which is no more than a copy of a work of another as exact as science and technology permits lacks originality
Threshold of originality
The threshold of originality is a concept in copyright law that is used to assess whether or not a particular work can be copyrighted. It is used to distinguish works that are sufficiently original to warrant copyright protection from those that are not...
. That is not to say that such a feat is trivial, simply not original."
As a result, reproductions of works that have fallen into the public domain cannot attract any new copyright in the United States.
As such, local policies of the Wikimedia Commons web site ignore any potential copyright that could subsist in reproductions of public domain works. However, British case law can take into account the amount of skill and labour
Sweat of the brow
"Sweat of the brow" is an intellectual property law doctrine, chiefly related to copyright law. According to this doctrine, an author gains rights through simple diligence during the creation of a work, such as a database, or a directory...
that took place in the creation of a work for considering whether it can be copyrighted in the country.
As a ruling made in a US court, Bridgeman v. Corel is not a binding precedent for any court in the UK (though it may be influential). The letter from the National Portrait Gallery implies that the case should be determined using UK law and not US law. The issue of jurisdiction is complicated as the National Portrait Gallery is located in England, but Wikimedia Commons, and the uploader, are both located within the United States. The letter also claims that by making the images freely available on Wikimedia Commons, Coetzee would also be liable under the British Copyright, Designs and Patents Act 1988
Copyright, Designs and Patents Act 1988
The Copyright, Designs and Patents Act 1988 , also known as the CDPA, is an Act of the Parliament of the United Kingdom which received Royal Assent on 15 November 1988. It reformulates almost completely the statutory basis of copyright law in the United Kingdom, which had, until then, been...
for any copyright infringement
Copyright infringement
Copyright infringement is the unauthorized or prohibited use of works under copyright, infringing the copyright holder's exclusive rights, such as the right to reproduce or perform the copyrighted work, or to make derivative works.- "Piracy" :...
committed by other users who download and use the images.
Response by the Wikimedia Foundation
Erik MöllerErik Möller
Erik Möller is a German freelance journalist, software developer, author, and Deputy Director of the Wikimedia Foundation , based in San Francisco, California...
, deputy director of the Wikimedia Foundation, made a statement on the issue, clarifying the stance of the Wikimedia Foundation on the incident.
Möller stated that although the NPG has agreed that the images are in the public domain, the NPG had contended that they own the exclusive rights to their reproductions of the images, using this to monetize their collection and assert control over public domain content.
Möller also stated "It is hard to see a plausible argument that excluding public domain content from a free, non-profit encyclopaedia serves any public interest whatsoever."
Möller further described the agreement that other cultural institutions have made with Wikipedia to disseminate images: two German photographic archives donated 350,000 copyrighted images, and other institutions in the United States and the UK have made material available for use. The NPG stated that the images released by the German archives were medium resolution images, and that the NPG had offered to share images of the same quality.
A reporter for the BBC reported that the NPG made a total of £339,000 from licensing images for use in traditional publications in 2008.
Response by the EFF
Fred von Lohmann, an attorney with the Electronic Frontier FoundationElectronic Frontier Foundation
The Electronic Frontier Foundation is an international non-profit digital rights advocacy and legal organization based in the United States...
(EFF) remarked that the situation comes down to asking whether US companies and citizens would be "bound by the most restrictive copyright law anywhere on the planet, or by U.S. law?"
In a legal analysis, Lohmann contended that under US law, the NPG's "browse wrap
Browse wrap
Browse-wrap is a term used in Internet law to refer to a contract or license agreement covering access to or use of materials on a web site. Specifically, a browse-wrap license is expected or assumed to have been agreed to before a user browses the website...
" contract was not enforceable, database rights are not implemented at all, and that "using Zoomify on public domain images doesn't get you a DMCA claim."
See also
- Copyright law of the United KingdomCopyright law of the United KingdomThe modern concept of copyright originated in the United Kingdom, in the year 1710, with the Statute of Anne.The current copyright law of the United Kingdom is to be found in the Copyright, Designs and Patents Act 1988 , as amended...
- Copyright law of the United States
- LICRA v. Yahoo!LICRA v. Yahoo!Ligue contre le racisme et l'antisémitisme et Union des étudiants juifs de France c. Yahoo! Inc. et Société Yahoo! France is a French court case decided by the High Court of Paris in 2000. The case concerned the sale of memorabilia from the Nazi period by internet auction and the application of...
, a French court case involving the subjection of a primarily US-based web site to French law - Bridgeman Art Library v. Corel Corp.Bridgeman Art Library v. Corel Corp.Bridgeman Art Library v. Corel Corp., 36 F. Supp. 2d 191 , was a decision by the United States District Court for the Southern District of New York, which ruled that exact photographic copies of public domain images could not be protected by copyright in the United States because the copies lack...
, decision on the status of reproductions of public-domain images in the U.S.