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For the public? Good.

2009-07-20

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.

7 comments

  1. I agree, but you’ve missed the bit in the NPG’s Intellectual Property Rights Policy:

    All records created by Gallery staff in the course of their official role as employees of the Gallery, including writing, photographs, videos, slides and electronic data, are Public Records according to the Public Records Acts of 1958 and 1967. As such they belong to the Gallery and the Gallery owns copyright.

    Public records? Anyone for a Freedom of Information Act request?!


  2. I find the concept of Crown Copyright hideously broken, and it looks like these so-called ‘Public Records’ are the same.

    I heartily endorse the situation in the United States, where documents produced by federal agencies are explicitly placed in the public domain immediately by dint of their governmental origin, for the public to do whatever it likes with. The public paid for it, so the public owns it. Easy.

    None of this the-law-of-the-land-is-copyright nonsense over there.


  3. Freedom Of Information requests are being put in in great number.

    One result from the ones people have gathered so far is that the licensing business doesn’t appear to be a nice little earner. Indeed, it seems to barely make a profit over costs.


  4. Frank, you’re right on the button re the NPG case.

    But, I’m curious to know if you’ve considered the possibility that it is always unethical to suspend the public’s liberty to share or build upon published works?

    It should be recognised that it is just as wrong to sue Jammie Thomas for sharing copies of 24 published MP3 files as it is wrong to sue Derrick Coatzee for sharing copies of 3,300 published images. Why should members of the public be sued millions for distributing what has been delivered to them?

    “Licensing the hell out of a copyrighted work” = “Persecuting the hell out of individuals enjoying their natural right to liberty: their cultural liberty to share and build upon that work”

    Copyright=Sociopathy


  5. @David Gerard, the lack of profit is one of the points I find most worrying about this dispute. It’s not relevant to the law, of course – the British Horseracing Board was hoping to make £100 million a year from the data which the ECJ and then the Court of Appeal said that anyone could have for free – but it is relevant to why the dispute has arisen.

    While the galleries may be making next to nothing from these licenses, there are individual human beings who are earning quite respectable salaries from the whole licensing process. Obviously these people don’t want to lose their jobs! Indeed, they seem inclined to fight to protect their jobs, whatever the cost in logical consistency with the duties of their employers or even UK copyright law.

    It is excellent news that the Wikimedia Foundation and the National Portrait Gallery are negotiating to avoid an expensive and unjustified court case. I hope the negotiations work out. But I remain very, very wary, it is not yet the moment for optimism.


  6. “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.”

    But that’s not how it works. If it were, there wouldn’t be stock libraries – such as the Bridgeman Library – from which one can buy licences to use high-quality digital images of out-of-copyright paintings.

    Considering just the issue of someone making a high-quality digital representation of an out-of-copyright painting, I think that they should have some rights on their photograph because it isn’t ONLY a representation of a painting; the digital copy only came about through someone’s significant time, cost and effort.

    That said, I think that one should be able to go to a gallery and take one’s own photos (whilst not hindering other people’s access to the works) and do what they like with them.


  7. That is how it works when copyright lapses. This debate is partly about whether a high-resolution scan of an image counts as something that’s protectable under copyright. Referring to these as ‘photographs’ conflates them with creatively produced images, which they’re not intended to be.(*)

    US courts have already found that such images are not protectable under copyright, and I don’t think it should be here, either. Moreover, I don’t care if such a decision harms the business models of stock photography libraries. If they can’t add value, over and above being the only source of an image of 100-year-old paintings, then they don’t deserve to survive in an era of free copies of publicly-owned content.

    Dover Books has built a business that includes reprinting out-of-copyright music scores. I have several of their books, such as a volume of Brahms’s symphonies. But anyone else is able to publish this same material, and it’s perfectly legal to download those same Brahms scores from the International Music Score Library Project. That this is so hasn’t prevented Dover from being able to sustain their business model.

    Copyright doesn’t exist to keep the stock libraries in business, it exists to encourage the creation of artistic and creative works by providing an economic mechanism that artists can exploit to earn a living. But it lapses after (a ridiculously long) time so we can all use the work.

    The major confounding problem with the NPG is that they’re hoarding the originals, and telling the public they can’t access them on the same terms that the NPG has abrogated to itself.

    The action, by the NPG and others, is effectively a form of economic filibustering, gaming the copyright system at the public’s expense to retain control of images that now belong to all of us.

    You can almost understand a private company acting like this, trying to get the most out of the system, but to have a publicly-supported institution like the NPG doing it is, IMHO, unacceptable.

    (*) I also don’t accept the notion that, just because the equipment used to make the scans is expensive or complex to operate, that somehow its output is an “investment” that deserves protection. Courts tend to agree with that, too.



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