Simon Bradshaw has written a delightful summary of some legal opinions around the current dispute between the National Portrait Gallery and Wikipedia, in which the Gallery are seeking to prevent the distribution of high-resolution digital images of paintings whose copyright has expired.
Simon makes it obvious that, at least under English law, this dispute isn’t clear-cut. In particular, the National Portrait Gallery could well prevail in an English court using claims of copyright infringement, despite the works at the centre of this dispute being undeniably out of copyright, and despite the digital images being more akin to really detailed photocopies (which don’t attract copyright protection).
I think this dispute gets to the heart of what and, more importantly, who the National Portrait Gallery is for.
Given what they say about their mission and their history, it seems to me that the Gallery’s role ought to be the widest possible dissemination of those works that we, the public, have already paid for. This payment might have been with money, but has certainly been by granting a limited monopoly to the artist, in the form of copyright.
If anything, the Gallery ought to be helping Wikipedia, and anyone else willing to bring these works into wider public use.
If the Gallery are the official custodians of works that have been acquired for the public, then by what right do they restrict the public’s access to those works no longer in copyright, beyond that necessary to physically safeguard the works themselves? How does limiting the public’s use of these works advance their stated aim “to promote the appreciation and understanding of portraiture in all media“? How does restricting people from seeing, or using, out-of-copyright works promote the appreciation and understanding of those works?
On their own web site, the Gallery makes some statements that I find rather extraordinary.
The Gallery has a public duty not only to conserve and display works in its Collection…
Fair enough; I’d expect nothing less of a National Gallery established by Parliament, and supported with public funds.
…but also to ensure they are correctly represented in reproductions and publications.
I’m sorry? So the Gallery are also the Image Quality Police, with implicit jurisdiction over every publisher in the world? Who gave them that duty, and why?
There are sometimes sensitive issues involving artists, sitters, donors or lenders of Collection works, to which we must be responsive. Accordingly, we tightly control the circumstances and quality of reproductions from the Collection.
I believe the right to exert such control should fall away when the copyright in a work lapses. This will undoubtedly be long after the artist’s and sitter’s deaths, who are actually the only individuals whose “sensitivities” ought to carry any weight anyway. Note also that they’ve used a situation that arises “sometimes” as an excuse for imposing a general policy, which is never a good way to do things.
We also exert strict controls on all photography in the Gallery, which is allowed only on the understanding that copyright rests with us and that any further reproduction deriving from resulting photographic materials is subject to our written permission.
Note that their statement doesn’t say “photography in the Gallery of works still in copyright“, it says “photography in the Gallery“. So, if I take a picture of my foot in the Gallery, the copyright in that picture apparently belongs to the Gallery. By what right?
The Gallery’s image licensing department raises money by licensing reproductions, thus supporting both the free entry policy and the Gallery’s main functions caring for its Collection and engaging people with its works.
I interpret this statement to mean that the Gallery have decided to favour fund-raising, through restricting access to out-of-copyright works, over their duty to enable public access to those works.
I think I can hypothesize the Gallery’s motive as: “this licensing business, which we’ve built on top of our custodianship of out-of-copyright works, is a nice little earner. Wikipedia is jeopardizing this part of our income, which we’ve somehow come to depend on, therefore we want them to stop.”
Frankly, I think the Gallery has lost the plot, and needs to be reminded of it.
I believe anyone ought to be able to use images of works that are out of copyright for any purpose whatsoever, without asking anyone else’s permission, and without paying so much as a brass farthing for the privilege. This could include printing high-quality reproductions of works and selling them to anyone who wants a fine portrait on their wall; or it could include printing the works on toilet paper, for anyone who wants to appreciate a little art while they poop.
I believe this ability, for the public to copy, re-use and re-purpose artistic works whose copyright has lapsed, is precisely why copyright lapses in the first place. It’s the final stage of the deal that copyright represents, between the public and the artist. The artist gets certain exclusive rights for a time that they are free to exploit to their wallet’s content, but in return, the public eventually gets to do what it likes with their art, short of laying claim to any physical instances of it.
It seems to me that, by engaging Wikipedia in this dispute, the National Portrait Gallery has forgotten the primacy of its roles as custodian and promoter, and is attempting to deny the public its proper use of works acquired for the public good for the sake of a bit of cash.
Let the Gallery help copyright holders license the hell out of works that are still in copyright; that’s one of the things that copyright is supposed to make possible. But out-of-copyright artistic creations are ours, the public’s. The canvas and the paint and the box it comes in are physically the property of someone, but once the copyright has lapsed, the imagery itself no longer belongs to anyone in particular, but everyone in general.
I think it’s shameful that a National Gallery of Anything feels okay about erecting a tollbooth in front of images that I believe legally, and quite possibly physically, belong to the public, using excuses such as “protecting sensitivites” or “ensuring reproductive quality” or “supporting free entry“. I see this as building a business on public property, and then denying the public access to that property for the sake of the business.
If the Gallery cannot be persuaded to reset their course, and put the public first in their decision-making, then I hope this dispute with Wikipedia does get to court, or judicial review, or whatever’s appropriate. I further hope that this will result in the Gallery’s role being clearly articulated as custodians for the public, and that where that role conflicts with any income stream they have built on top of it, the income stream should not be what wins.