Archive for the ‘copyright’ Category


For the public? Good.


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.


End of week exam


(I originally wrote this two years ago after a week of watching dreary arguments about copyright, digital rights management (DRM) and failing advertising models on the BBC Backstage mailing list. Sadly, it still seems fairly relevant. Here’s the original post in context.)

Cynical University

“Where all your ideas are derivative works of ours”

Attempt all questions.

Part A

(50 marks)


Mr A enjoys model railways so much, he wants to tell everyone about them, so he decides to publish a free newsletter for all called The Story of O-Gauge. Learning the lessons of the other free newsletters lying near telephone booths, he sets up an automated printer/dispenser in Old Compton Street, which prints and dispenses a copy of his newsletter each time its shiny red button is pressed by anyone at all.

Quickly, he discovers that his newsletter is popular, for many copies are dispensed to anyone that comes within arm’s length; but this popularity comes at a cost. So Mr A decides to defray his dispensing expenses by asking Mr B, the owner of a local trinket emporium, to pay him to give away their brochure, Astounding Trinkets!, with his newsletter. They agree, but only on the grounds that Mr B will pay one red cent for each brochure given away with a copy of Mr A’s newsletter.

Time passes, and Mr A is enraged to discover that he has been giving away many more copies of his newsletter than the Astounding Trinkets! brochure, which, in his mind, is an integral part of the whole newsletter experience, and not something the public is at liberty to ignore, throw away or clean their ears with.


1) On a scale of nowhere near long enough to way too long, how long has Mr A’s brain been cooking on the Wishful Thinking grill?

2) On a scale of not at all to exceedingly, how stitched up has Mr A been by Mr B’s transfer of business risk?

3) Using any international Laughing Policeman scale, how helpless with mirth will Police Constable C become when Mr A accuses members of the general public Messrs D through Z of stealing his newsletter that he chooses to dispense freely to all and sundry? Will Mr A’s case be strengthened if he also stamps his little foot indignantly during these accusations?

4) Mr A decides to use DRM to restore economic sanity to the surly public’s enjoyment of his total content experience, but he wants to keep them involved in the process for some reason. So he asks his newsletter’s readers which DRM model they prefer; the overwhelming answer is: “the one with the biggest tits“. List at least three dubious, yet profitable business opportunities that Mr A sadly overlooks at this point.

5) Assume that Mr A started his dispenser at midnight on Jan 1 2007, that he dispensed one hundred copies on that day, that his newsletter dispensing grows at 375% per month, and that his pent-up frustration grows exponentially with dispensing figures. At what time will Mr A die from an aneurysm if he never realizes that most potential advertising impressions generate no response, and you couldn’t make some people read them if you put a gun to their head?

6) How will the date of his demise change if, when he dispenses his 50,000th copy, he discovers that two thirds of his newsletters are being eaten by a local circus horse called Googlebot that loves the taste of toner in the morning?

Your exam continues after this important message

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And now, back to the exam.

Part B

(50 marks)

On a graph with Wastefulness along the X axis and Obnoxiousness up the Y axis, plot the size and position of all the advertising-supported business models you know of.

Keep the graph within the bounds of good taste by calibrating it in mega-Saatchis, and by using the colour scheme that you think will be most attractive to avocado-eating ABC1 18-34-year-olds.

Include a statistically significant sample of their names, phone numbers and tasteful photographs so that your answer can be verified by an independent panel of lonely experts.

The remainder of the exam is sponsored by
Sony Playstation 3

Exam Raider X – the Final Challenge

(2,000 marks)

Compare and contrast the relative speed, fidelity and legal vulnerability of the following copying machines:

  • the Gestetner Automatic Cyclostyle
  • the British Parliamentary rumour mill
  • EMI Records
  • Shawn Fanning’s original Napster

Explain, in sufficient detail to prevail at appeal, how these legal vulnerabilities can be avoided by any media player that Sony might bring to market in the future.

Exam Raider XX – the Ultimate Hurdle

(20,000 marks)

Show how a rigorous, yet fair, system of intellectual property governance, applied at the outset of rampant DNA copying by multicellular organisms, would have sped up the process of biological evolution to the point where we would all be walking on sunshine by now.

Exam Raider XXX – the Desperate Gambit

(200,000 marks)

Perform a market-impact assessment of a machine that could make perfect, free, unlimited copies of itself and Angelina Jolie, paying particular attention to the international trades in lip gloss, little brown babies and grainy photographs of Jennifer Aniston.

Using any system of logic that is legally permissable, show how hacking such a machine to make copies of Steve Ballmer would lead directly to the end of the world, as well as causing a widespread loss of confidence in Blu-Ray technology.

End of the exam.

or is it?

Exam Raider Anniversary Edition
coming for Christmas 2010