National Portrait Gallery images: Flickr vs Wikipedia?

I've got an update in the National Portrait Gallery versus Wikipedia debate - straight from the NPG.

Further to Wikipedia's blog post about the legal notice one of its members received from the National Portrait Gallery (see National Portrait Gallery versus Wikipedia - Round Two!) I asked the press unit at the National Portrait Gallery some questions and I've now had a response.

This clarifies some matters which had left me very confused. However I still think that the NPG needs to pay more attention to the content of wording on some parts of its website. It could be more helpful for those using digital sites (such as blogs) to share learning about art history.

Importantly it also indicates that the NPG would be open to an approach from Flickr to discuss how it can make some of its collection more accessible using the Flickr website.

For the sake of clarity:

• bold text is my question. (Amplification may be in italics)
  
• the response from the NPG is enclosed in a quote box thus (unless clearly indicated otherwise using a reference hyperlink, all quotes are from the NPG)
  

the response from the NPG is enclosed in a quote box

• my comments follow in ordinary text - for the record, I'm no expert and these are only my opinions.
  
• However I've introduced subheadings in bold to help keep a focus on the points being raised
  

Upfront - as there are criticisms of both the NPG and Wikipedia below - I'd like to offer my sincere appreciation and thanks to the National Portrait Gallery for providing some answers to my questions. I'd have approached Wikiepdia with questions if there was an email address to send them to.

I really value both institutions a huge amount and right now I'd like to lock them both in a room and not let them out until they've reached an agreement!

What does the NPG mean by "low resolution images"? (For example low res. images that I post on my blog or website are generally 72dpi around 500-600 pixels on the longest dimension and generally no bigger than 100KB)

By low resolution images we mean those which are 72dpi and displayed on websites at a maximum height of 500 pixels and a maximum width of 790 pixels.

That's good news. Images which are large enough to make sense of.

They're not as big as they could be and it's certainly the case that other museums and art galleries have made images available which are bigger than this - but it's a good start and it's certainly better than nothing.

I've also been having a bit more of a think about the high resolution (300 dpi) images created by the NPG and purloined by Derrick Coetzee and uploaded to the Wikipedia website. The rationale behind producing high resolution images is for printing on paper. The expense incurred in producing them to the sort of quality required for such printing can be very high and is an expense which needs to be recouped. (Don't we know it? Eevery time we get a professional photographer to photograph our artwork or invest in cameras and lights to do it for ourselves the costs are not insignificant!). As this is such a large project I'd expect that costs incurred would be spread over the anticipated life of the image.

However, creating digital images does not mean they are automatically free for use or available for use elsewhere without permission. Copyright free means you are free to copy the original not to steal the reproduction.

The critical issue for me has always been about whether low resolution 72 dpi images were being made freely available given the public ownership of the images and the level of state funding made available to art galleries and museums in the UK.

Hence my next question.

What does the NPG mean by "accessible"?

'Accessible' means that the National Portrait Gallery was among the first to digitise and present a substantial portion of its Collection online for the world to see in 1999, before Wikipedia was born.

Since the re-launch of our website earlier this year, we have presented images at considerably larger scale than before (per spec, above) which it is possible (within most browsers) to 'right click' and copy for uses which conform to UK copyright 'exceptions' and 'fair dealing' provisions ('fair use' is an American legal term). It is very important to note that there are many items in the collections for which we have no mandate or permission to grant further access.

It states on our website at http://www.npg.org.uk/about/creators/copyright.php as follows:

Copyright

What's allowed and what isn't

The National Portrait Gallery's website is here for your enjoyment. You may: access, download and/or print contents for non-commercial research and private study purposes;...

What they mean and what they say: Well that's clear enough. If we're using it for non-commercial research and private study purposes it's OK to use the images if they've entered the public domain and are compatible with UK copyright 'exceptions' and 'fair dealing' provisions .

However that's not what it says in the NPG's website information pack about images. Hence my next question.

Copyright still applicable: I do also appreciate that quite alot of the collection is not in the public domain - particularly in relation to many of the photographs which are also a very popular part of the collection.

The fact that the artist or photographer retains copyright doesn't mean that they won't allows access. It would be really great if the NPG would negotiate with artists and executors to gain access to low res pictures which can be made accessible on the Internet.

Low resolution images: What the NPG copyright statement also doesn't say is that you may download low resolution images and use them on (say) a blog.

However there is a letter on the Wikipedia site dated Thursday, 26 Oct 2006 - ostensibly from Matthew Bailey, the (then) Assistant Picture Library Manager at the National Portrait Gallery which indicates that it is possible to use low resolution images on a digital site - so long as they were clearly presented with a link back to their source and the relevant copyright notice.

Wikipedia took exception to this. Read User Kaldari's excerpt from his reply to the letter to see why. Wikipedia takes the view that....

Any image used on WIkipedia must either be public domain or licensed under a free licence. Unfortunately, we cannot use images licensed exclusively for Wikipedia. The reasoning behind this is that all Wikipedia content is free to reuse, even for commercial purposes
User Kaldari - responding to a letter from the NPG in 2006

Now we're at the nub of the issue!

Wikipedia has apparently decided that any and all images on its website must be free and available for commercial use - ie with no copyright notice attached.

So what exactly is it doing accepting images which are clearly designed for commercial purposes, have cost a lot to produce, have their commercial value protected by relevant software (ie parts of the image can be seen at very high resolution) and have not been released under licence by the organisation which commissioned the photographs?

The reason that Wikipedia is devoid of photographs of people living today is that it dare not touch photographs taken by living commercial photographers. Yet the images which it has accepted are also taken by living commercial photographers who would exercise their copyright without impunity if exactly the same photo was placed on (say) a stock photography site where the image was for sale.

Let's not forget that the photos used by Sheryl Luxemburg infringed the copyright of the photographer on a stock photography site (see American Watercolor Society Gold Medal - the final verdict on Sheryl Luxenburg) ie her artwork made a copy of the photograph - and, as a result, she had to return the gold medal and the prize money and was banned from entering AWS competitions.

Logically speaking, if a photograph of a tramp enjoys copyright then so does the photograph of a painting of Queen Elizabeth 1. The subject matter is not material to the creation of a photograph or copyright - which is why UK copyright law varies from that which prevails in the USA.

On the face of it, it strikes me that the infringement is such that the wikipedia member who downloaded the images and then uploaded them to Wikipedia would normally be warned, suspended or banned from Wikipedia. I don't quite understand why Wikiepedia is defending what he did if it says something quite differently about what is allowed on the website.

Breaches of copyright Having considered the matter further sice my last post, I'm now clear in own mind that accessing high resolution images (which are clearly a commercial asset and/or can be used for commercial purposes) through circumventing the software set up to protect them is to my mind a clear breach of copyright. One could make a case for it also being called theft. These images wouldn't exist without the expertise of the photographer and the funding which came from the taxpayer.

Now if Wikipedia put an embargo on all commercial uses my personal view would be that they might be in a different place than the one they are right now.

It also calls into question all those high res images on Wikpedia which have been downloaded from commercially for sale DVDs of images.

This next question relates to the issue about low resolution images being accessible for permitted purposes.

When is the National Portrait Gallery going to create a message to this effect on the NPG website and revise and/or remove what it currently says in the the NPG's web information pack (which I personally think is absolutely "crackers" and completely incompatible with the gallery's mission to educate and inform re portraiture. Just how is the school student supposed to access web-ready low res images they choose as being relevant for their projects?)

Our website licensing terms are very much in keeping with standard terms in the image licensing industry, and the way we publish these terms is more open and approachable than most other cultural organisations.

However, we will be reviewing the way that this information is displayed on our website and hope to make it clearer that visitors to our website may access, download and/or print contents for non-commercial research and private study purposes.

It WILL become clearer! That second paragraph represents a MAJOR step forward.

If the gallery takes a clear lead and makes sure that its website does NOT carry contradictory messages that should be very helpful to all those wanting to use web-ready low resolution images for their own legitimate purposes.

However I'm not sure I agree with the first paragraph - I've read the terms and conditions of many art galleries and museums around the world and in my view, the NPG's is one of the worst for lack of clarity re legitimate use. To my mind the terms and conditions positively deter people from making use of images for legitimate use and/or making requests for a licence.

For me, it's absolutely essential that a system spells out very simply and very clearly (in word which would win a Plain English Crystal Mark Award) what is allowed in relation to low resolution images which avoids all students needing to ask and/or paying fees for non-commercial research and private study purposes.

Is there a market for high resolution images? In addition, the argument about licensing would be more cogent if there was an active market. There a very interesting Freedom of Information request and response here income from online rights - A Freedom of Information request to The National Portrait Gallery by Etienne Pollard (On What do they know?)

I am writing in response to the request you made under the Freedom of Information Act in your email of 23 March 2009 for the following information:

1 The number of requests made for use of National Portrait Gallery collection images on third party websites in each of the past five years.

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

2. The income received by the National Portrait Gallery in consideration of the use of National Portrait Gallery collection images on third party websites in each of the past five years.

2008/9 £11,291

2007/8 £18,812

2006/7 £16,573

2005/6 £10,021

2004/5 £14,915
income from online rights - A Freedom of Information request to The National Portrait Gallery by Etienne Pollard (On What do they know?)

...and that's before the associated costs incurred in adminstering the requests. It's not a lot is it? It's going to take a long time to pay off that £1m investment programme!

Access to high resolution images: To my mind, in relation to high resolution images, the important thing is that a hyper link exists to an image which can easily be viewed online. If access is available on the host site, I personally can't think of any reason whatsoever why a high resolution image needs to copied and placed on the Wikipedia site. Unless the motivation was commercial.............

Links back to copyright notice and where the original is: I also have absolutely no problem at all in indicating copyright status against an image with a link back to the originating art gallery or museum. Regular readers of this blog will know that's my standard practice.

The plain fact is people need to know where the original is. Anybody will tell you that an original beats the photograph any time. People wanting to learn more about art need to VISIT art galleries and museums - and those wanting to know more need to see a picture in person and consequently need to know where they can find it.

That's also a very cogent reason why art galleries and museums should work with those who disseminate educational information on the Internet - it helps to increase the number of visitors to the art gallery or museum.

That's why I like the approach that Flickr has taken with various institutions where the images are grouped in relation to the institution which has donated them.

Has the NPG yet worked out how it can attract public support for its stance? It really doesn't have it as yet! This is looking ever so like an "own goal" in terms of how the issue has been addressed. (You may win the legal case but it leaves a poor impression of the NPG)

There is a lot of debate on the internet about this issue and of course we encourage debate. Unfortunately there is also a lot of misinformation about this situation. One thing we would like to emphasise is that we did not receive a response from the Wikimedia Foundation on our requests to discuss the issue so we were obliged to issue a lawyer’s letter to D Coetzee, the Wikimedia contributor involved in the matter.

Also, we are working to clear misconceptions about the Gallery being heavy handed in its dialogue with Wikipedia and to emphasise that we are not against Wikipedia using low res images of those works not being in copyright. But we also wish to reiterate that the Gallery is protecting these images in order to make them fully accessible to the public who own them. The Gallery needs to license these images commercially in order to help ensure there are sufficient resources for the photography and digitisation of a large and evolving collection.

How to contact Wikipedia re copyright infringment: In relation to the first paragraph, I'm increasingly disappointed with Wikipedia on this one. While it does have an email address for copyright infringements (it's info-en-c@wikimedia.org for those who were wondering), it doesn't have a legal address of the Foundation on the website for takedown notices. It requires people to go through a third party which is..........

Mike Godwin or Sue Gardner, Designated Agent

Wikimedia Foundation

c/o CT Corporation System

818 West Seventh Street

Los Angeles, California 90017

Phone: +1 (415) 839-6885

Facsimile number: +1 (415) 882-0495

Designated agent From the Wikimedia Foundation

The Wikipedia Foundation is uncommunicative: What the NPG seems to be saying is that these people did NOT respond to their requests to discuss the issue.

Or maybe the NPG couldn't find this agent's address? It's certainly the case that Wikipedia is also pretty tortuous when it comes to giving up information about how things works and how to contact them!

Also, isn't it about time that Wikipedia recognises that the Online Copyright Infringement Liability Limitation Act is an American law and does not relate to every country in the world.

It's also very sad that its own copyright page does NOT openly and explicitly recognise that copyright law varies depending on where in the world you live and where documents originated. Maybe it'll think about tightening up on that aspect?

Time, cost and effort required to generate public domain images: The reality is that copyright may have expired on the original artwork but to get an image into the public domain costs time, money and effort which means this is emphatically not a free good. That access needs to be financed.

I'm all for art galleries and museums making more art work accessible. After all most of the collection at any one time is in the vaults. Digitisation is a great way of making the collection much more accessible. However that does have to be funded. I'm with the NPG on that one. There are basically two options:

• create the high res images and then sell work as prints etc and licence images for printing by third parties - which looks like it might take a long time
  
• ask the government (ie the tax payer) to fund the project
  

One could make a case for the digitisation of the artwork being funded by government - with a contribution from every single tax payer. On the other hand why not try and secure as much income as possible from high resolution images sold to art lovers - which are the only ones which have a real commercial value - so long as there is free and easy access to the low res version.

For example - why doesn't the NPG work with Wikipedia to produce images for display in an appropriate form as a number of other museums and art galleries do.

We hope that this issue will be resolved so we can work with the Wikimedia Foundation in the future.

It was interesting to see that Wikipedia had approached the NPG re working with it to access images back in 2006 (see above). However the current cirumstances and documentation on the Internet suggests Wikipedia appears to only have one way of working ie "You agree with our way of thinking or we'll take your images anyway!" It's really not very conducive to good working relationships.

Different copyright laws not different interpretations: It was good to see an open letter on the Wikipedia site about Working with, not against, cultural institutions but it could have avoided further confusing the issue

On one level the threat is an issue of differing interpretations of copyright law.
Wikipedia - Working with, not against, cultural institutions

No!!! It's about the applicability of DIFFERENT COPYRIGHT LAWS. The law which is applicable in the USA does not apply in the UK. The arena for debate about how laws can be improved is the legislature or the court - NOT Wikipedia.

I also find the implicit assumption in the open letter that USA copyright law has some sort of dominance over any other copyright law to be arrogant in the extreme.

Wikipedia or Flickr as a partner? However I did find the open letter's promotion of a cooperative way of working to be much more positive. Although one was left wondering whether there might be another reason.........

Wikimedia Commons is not the only organization that seeks these donations (of volunteer time and effort). Flickr, a commercial website, has a paid staff that is seeking the same material. As Noam Cohen of The New York Times noted earlier this year, Flickr and Commons are competing for similar donations.^[3] Each site brings a different set of advantages to the table. In theory, it makes sense for one nonprofit institution to build a relationship with another nonprofit in preference to a commercial website. In practice, the outcome may depend upon whether Wikimedians adopt a cooperative or a confrontational approach. Possibly within the next year, either Flickr or Commons will gain enough momentum to become the dominant venue for archival image donations.
Wikipedia - Working with, not against, cultural institutions

I had the same idea - hence my next question.............

Or maybe web-ready low res images could be made accessible via Flickr as museums like the Smithsonian are doing?

The Gallery does not usually allow visitor photography of its collections. This is for several reasons:

• copyright (protecting others’ rights as well as protecting our own income streams for the direct benefit of the Gallery);
  
• conservation;
  
• data protection and privacy (of members of the public);
  
• security; and
  
• interruption to general visitor enjoyment.

However, special photography requests are welcomed and handled on a case-by-case basis by the Rights and Images department.

We would of course be happy to discuss this if we were approached by Flickr as we would be interested to find out how this worked with the Smithsonian and other museums.

I read that as an open invitation to Flickr to start discussions with the National Portrait Gallery! You heard it here first.

and finally......

Can somebody answer this question. Since only the copyright holder can serve notice of an infringement, why isn't it the photographer which has served notice on Coetzee and/or Wikipedia ?

Or did the NPG employ the photographer (and hence own the copyright) or did it pay for the copyright ownership as part of the contract to photograph the works.

Just a thought.