National Portrait Gallery versus Wikipedia - Round Two!

This week the National Portrait Gallery in London served a Notice of Copyright Infringement on one of the adminsitrators of Wikipedia. Today, according to the BBC, the conflict intensified.

On July 10, Wikimedian Derrick Coetzee received an email message from Farrer & Co., lawyers acting for the National Portrait Gallery (NPG) in London, threatening legal action in the English courts. In March of this year, Coetzee had uploaded over 3300 high-resolution images of public domain artworks held by the gallery to Wikimedia Commons. Coetzee posted the letter publicly, setting off discussions in the Wikimedia community and beyond about the legal, political, and ethical ramifications of the threat. The National Portrait Gallery holds thousands of portraits that have fallen into the public domain,^[1] but the organization claims copyright on photographs of those portraits.
Wikipedia - The Wikipedia signpost

The legal letter asserts four infringements of the copyright relating to the photographs of the original artwork (not NOT copyright of the portraits themselves): infringement of copyright, infringement of database right, unlawful circumvention of technical measures for restricting image use and breach of contract.

Essentially it's a takedown notice and the NPG indicate that they are not looking to see the case fought in the courts if the images are removed from the wikipedia site and any other technology that's being used to store the images.

This looks set to become a landmark legal case in relation to copyright. It's an interesting test of copyright law on a global basis.

• One of the central issues is that in the USA, the Bridgeman v. Corel decision would apply and hence disbar the NPG’s claims. In the UK, that case has no legal standing.
• Coetzee lives in the United States, the National Portrait Gallery servers - which he accessed - are located in the UK (hence that's where the downloading occurred), plus the NPG states that wikipedia pages are targeted at UK users - hence the NPG asserts that UK law applies and have jurisdiction over the case.

Plus it's interesting to see how a major organisation tries to take on a very large amorphous one without a proper email address!

I think if this one goes to the High Court, I'm going to be queuing up to get in and listen!

What's being said?

The rights and images page
on the National Portrait Gallery website

I've been looking around for links to this and have found the following for those interested to read more about it. For the record wikipedia seems to be tracking all references to it on this page.

National Portrait Gallery

• the website says precisely zilch! Which rather surprised me. I wonder if they realised how big this would go on the Internet?
• however it's statement of purpose is being very widely quoted around the net

Founded in 1856, the aim of the National Portrait Gallery, London is ‘to promote through the medium of portraits the appreciation and understanding of the men and women who have made and are making British history and culture, and ... to promote the appreciation and understanding of portraiture in all media’.
National Portrait Gallery - Organisation

• Plus this is their Intellectual Property Rights Policy
• While this is what the Annual Review had to say

Cataloguing the Collection
The Gallery continues its substantial investment in cataloguing and digitising the Collection. 106,228 portraits (10% more than last year’s total) have been catalogued. The aim is to have half the Collection – 160,000 portraits – catalogued and available on the Gallery’s database by 2009
National Portrait Gallery Review 2007 - 2008

Wikipedia

• The Wikipedia Signpost (their in-house newsletter) published UK public gallery threatens Wikimedian
• This is the personal page of Derrick Coetzee who generated the Notice - and then published it on his wikipedia page
• This is the coverage of the event on specific days and around the world
  
• He's now being represented by Fred von Lohmann of the Electronic Frontier Foundation.
• Today - the row escalated when Erik Möller stated Wikipedia's case - Protecting the public domain and sharing our cultural heritage, - on the Wikipedia blog. It quotes

In 2003, Peter Hirtle, 58th president of the Society of American Archivists, wrote:

“The conclusion we must draw is inescapable. Efforts to try to monopolize our holdings and generate revenue by exploiting our physical ownership of public domain works should not succeed. Such efforts make a mockery of the copyright balance between the interests of the copyright creator and the public.” [source]

Creative Commons

• UK National Portrait Gallery threatens Wikipedia user over public domain images - an interesting article
  

Flickr

• There's a bit of a dialogue going on at NPG legal action

Picture Libraries

• National Portrait Gallery receives support from BAPLA in its legal fight against Wikipedia - this relates to the British Association of Picture Libraries and Agencies. But it's hardly surprising news!

News and Professional Press

• The Guardian - Legal row over National Portrait Gallery images placed on Wikipedia
• BBC - Gallery in Wikipedia legal threat
• BBC - Wikipedia painting row escalates

The blogs

• Xconomy - Art Isn’t Free: The Tragedy of the Wikimedia Commons
• Techradar - Wikipedia slapped with National Portrait Gallery copyright order
• Techradar - National Portrait Gallery responds to Wikipedia copyright case
• The A Register - National Portrait Gallery bitchslaps Wikipedia

What do I think?

I'm not sure as yet.

It's one of my favourite art galleries and at the same time I completely support the principle that the public should be able to access easily and for free low resolution images of artwork which is in the public domain.

I have always thought that the NPG's web information pack about access to images for websites is completely and utterly ludicrous.

• It completely ignores the way technology is used now (blogs don't exist!)
  
• It completely ignores personal and education uses and the need for low resolution images
  
• It wants to charge £18 for every image even on personal websites!
  
• the process used for obtaining images is utterly cumbersome!
  

By all means charge a fee if it's colour balanced high resolution images which are being used for a commercial purpose and/or are required for a print publication which will be sold. That's a legitimate payment for something which takes expertise.

Howeve low resolution images are completely different matter. For the most part they are a complete biproduct of the images which will generate revenue. Secondly, I really do wonder if the people who wrote the guide have ever seen how many people have cameraphones out as you walk through the galleries. The fact is producing a low resolution image is not difficult!

What gets me is asking school students to pay £18 any time they want to use a low res 72 dpi small image for a school project. That goes completely beyond my understanding! It's almost worth a letter to one's MP questioning how the Grant-in-Aid is in the public's interest!

However there is some hope on the horizon. According to the Guardian.............

The gallery stressed today that they hoped to avoid taking any further legal action, and said they were not considering suing Wikipedia. It said it would be happy for the online site to use low-resolution images but was "very concerned" about loss of revenue from copyright fees for the high-resolution versions, which form a significant part of its income.The projected gross revenue from fees in 2008/9 was over more than £339,000.

So how does the NPG reconcile what's reported above with what it's asking in its web information pack? Like I said I see no problem with making a charge for large high resolution images which are being used for commercial purposes. I do have a problem with trying to make money out of school kids trying to do their art homework!

Plus what we're actually talking about here is only 2% of gross income - before costs from administering the scheme of charging fees. I think I'd focus much more effort on making images within the collection much more accessible online in order to generate other related sales - of high resolution images only.

I found an article by Kenneth Hamma - highlighted in the Creative Commons article - to be very interesting. Hamma is the former Executive Director for Digital Policy at the J. Paul Getty Trust so has a credible perspective. In 2005, Hamma wrote an article Public Domain Art in an Age of Easier Mechanical Reproducibility in which he contrasts how traditional approaches to control over museum collections collide with major issues which arise when you start to digitaise works in the public domain. It's definitely an article worth reading in full as it provides a more informed debate about the issues then some of the comments to date.

[R]esistance to free and unfettered access may well result from a seemingly well-grounded concern: many museums assume that an important part of their core business is the acquisition and management of rights in art works to maximum return on investment. That might be true in the case of the recording industry, but it should not be true for nonprofit institutions holding public domain art works; it is not even their secondary business. Indeed, restricting access seems all the more inappropriate when measured against a museum’s mission – a responsibility to provide public access.

It strikes me organisations like Wikipedia and Flickr should be having adult conversations with the various museums about ways of enabling public access to images which don't compromise the income potential for museums and art galleries which can be generated through sales of products derived from high quality prints. I know what has in fact happened with some museums and art galleries - with an hugely beneficial effect in terms of access to images at no cost to the institution.

At the same time the NPG and other museums could go a lot further to meeting the personal and educational needs of interested parties for free access to images which have little commercial worth - by making them more accessible.

I mean - how many images @ £18 each have they sold to personal websites? I feel a Freedom of Information request might be in the pipeline.............

Or maybe the guards in the NPG are going to have work over time to stop photos being taken with cameraphones if the only issue is infringement of the copyright relating to a photograph and not the original work which is already in the public domain.

It's all very, very silly and yet crucially important at the same time.

I do hope all concerned keep calm, have good hearts and work on being constructive.

Note: I want to register my interest! I'm a Member of the National Portrait Gallery because it's one of my favourite galleries and I want to support it. I've also had nothing but the very best sort of support from Neil Evans and his staff in the Press team in relation to the BP Portrait and other exhibitions. I even supply photos of awards ceremonies to the NPG! Which is not to say I agree with everything the gallery does...........