Derrick Coetzee vs National Portrait Gallery
p2pnet news view Freedom | P2P:- If you’re in London, England, or if you’ve ever been there, there’s a good chance you’ll have visited the famous National Portrait Gallery whose images, new and old, are on display for all to see
Well, not quite all.
In fact, not even nearly all.
Because they’re copyrighted.
Hold that thought.
“Hi,” says Derrick Coetzee, aka Dcoetzee on his Wiki Commons page. “I am currently engaged in a legal dispute with the National Portrait Gallery, London.”
What could that be about? – one wonders
Derrick is an English Wikipedia administrator, “with background in computer science and mathematics,” he says, also pointing out he’s an amateur photographer and media editor.
“On Commons, I contribute photographs and diagrams and work on image cleanup, batch uploads of public domain images, and automated tools,” he says.
And on a link page »»»
Below is a letter I received from legal representatives of the National Portrait Gallery, London, on Friday, July 10, regarding images of public domain paintings in Category:National Portrait Gallery, London and threatening direct legal action under UK law. The letter is reproduced here to enable public discourse on the issue. For a list of sites discussing this event see User:Dcoetzee/NPG legal threat/Coverage.
Update: I am now being represented in this matter pro bono by Fred von Lohmann, a senior intellectual property attorney for the Electronic Frontier Foundation.
Some other relevant resources:
- National Portrait Gallery site, National Portrait Gallery (London) on Wikipedia
- Farrer & Co site
- Bridgeman Art Library v. Corel Corp. on Wikipedia
- “Public Domain Art in an Age of Easier Mechanical Reproducibility“, by Kenneth Hamma, Executive Director for Digital Policy, J. Paul Getty Trust.
- “Archives or Assets?“, Peter B. Hirdle, President of the Society of American Archivists
You see, Derrick, a US citizen, had the unmitigated gall — the sheer effrontery — to want to share the works of the masters outside the hallowed precincts of Britain’s National Portrait Gallery.
Online, in fact.
Oh! The Horror!
He’d, “downloaded thousands of high-resolution images from its website, and placed them in an archive of free-to-use images on Wikipedia,” says The Guardian, continuing »»»
The National Portrait Gallery has threatened legal proceedings for breach of copyright against a man who downloaded thousands of high-resolution images from its website, and placed them in an archive of free-to-use images on Wikipedia.
There has been no formal response from the internet encyclopedia but Derrick Coetzee, who downloaded the images, promptly uploaded the letter from the London lawyers Farrar and Co, “to enable public discourse on the issue”. He said he was taking legal advice .
Photographs of works of art are protected by copyright in the UK, but not in the US, where Coetzee lives. All the creators of the original images are long since dead, but the photographs were only taken for the NPG as part of a £1m digitisation project in the last couple of years.
The gallery, “hoped to avoid taking any further legal action” and isn’t thinking about suing the Wikipedia, says the story, adding:
“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.”
Says a Wikinews post »»»
The complaint by the NPG is that under UK law, its copyright in the photographs of its portraits is being violated. While the gallery has complained to the Wikimedia Foundation for a number of years, this is the first direct threat of legal action made against an actual uploader of images. In addition to the allegation that Coetzee had violated the NPG’s copyright, they also allege that Coetzee had, by uploading thousands of images in bulk, infringed the NPG’s database right, breached a contract with the NPG; and circumvented a copyright protection mechanism on the NPG’s web site.
The copyright protection mechanism referred to is Zoomify, a product of Zoomify, Inc. of Santa Cruz, California. NPG’s solicitors stated in their letter that “Our client used the Zoomify technology to protect our client`s copyright in the high resolution images.”. Zoomify Inc. states in the Zoomify support documentation that its product is intended to make copying of images “more difficult” by breaking the image into smaller pieces and disabling the option within many web browsers to click and save images, but that they “provide Zoomify as a viewing solution and not an image security system”.
In particular, Zoomify’s website comments that while “many customers â famous museums for example” use Zoomify, in their experience a “general consensus” seems to exist that most museums are concerned to make the images in their galleries accessible to the public, rather than prevent the public from accessing them or making copies; they observe that a desire to prevent high resolution images being distributed would also imply prohibiting the sale of any posters or production of high quality printed material that could be scanned and placed online.
Stay tuned.
First they ignore you, then they laugh at you, then they fight you, then you win ~ Mahatma Gandhi
The Guardian – Legal row over National Portrait Gallery images placed on Wikipedia, July 14, 2009
Wikinews – U.K. National Portrait Gallery threatens U.S. citizen with legal action over Wikimedia images, July 14, 2009
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July 16th, 2009 at 12:59 pm
Photographs of a painting under copyright is a derivative work that belongs to the owner of the painting’s copyright holder.
This is the logic in American copyright law. The same logic applied to works in the public domain should mean that a photograph of a public domain work is also in the public domain. Why should it be any different in Britain?
Anyway photographs of paintings should not count as copyrightable original works of art. After all, the work is done by a machine (the camera), not an artist. It can even be done in an automated process, by machines (like the Hubble Telescope) that cannot be copyright holders because it is not human.
I own some old very photographs, some of which may have historical value. I can’t tell who was the photographer and when the photo was taken. Then under the National Portrait Gallery theory if I scan the photographs (a scanner, a machine, is also a camera) I am the copyright owner of the copies and I can exploit (for money) the copies commercially better if I destroy or hide the original photographs and then introduce the copies, whose copyright I own, to the marketplace?
The National Portrait Gallery claim is wrong and goes against it’s own purpose, to propagate great work of art to a culture hungry world.
July 16th, 2009 at 7:40 pm
The Foundation has been refraining from comment (while the NPG shoots its mouth off) but has just posted:
http://blog.wikimedia.org/2009/07/16/protecting-the-public-domain-and-sharing-our-cultural-heritage/
It’s important to note that the NPG isn’t actually an independent charity – it’s a government sub-department.
July 17th, 2009 at 5:25 am
Given Jammie Thomas was recently given a $1,920,000 penalty for sharing 24 mp3 files on Kazaa ($80k per file), it seems that with Derrick Coetzee having shared at least 3,300 images the NPG could be looking at an award of $264,000,000. Easy money if you can get it. That might just fund the building of a new gallery for the NPG.
What I find so astounding is that so many are saying “Oh yes, copyright is absolutely essential and must be protected with the full force of the law, but these images being of antique paintings should be exempt”, without recognising the elephant in the room that all published works belong to the public and no member of the public should be subject to prosecution (and million dollar fines) for sharing and building upon published works (even if published yesterday).
Restore the public’s natural right to share and build upon its cultural heritage – all published works – the public domain. Abolish copyright.
July 17th, 2009 at 6:33 am
Yeh, all you freedom warriors are so great protecting the ‘public interest’. Of course now none of the images in the NPG collection are available to view in high resolution, as NPG has removed that option from their site. They’re spending a lot of money trying to actually make this information generally available to the public. It’s not surprising that they dislike it when someone comes along and circumvents their technical measures, ignores the terms of use on their website and then they get completely ignored when they try and discuss the issue with wikimedia.
So what’s going to be the result of this? More galleries are going to be circumspect about making their collections available digitally. We’re all going to lose out. So continue spouting on about freedom, and David Gerard can continue his rants – (”and, OMG, they’re part of the government!!!” – like, so what?), and see what the end result is.
July 17th, 2009 at 7:47 am
This is what the devil whispered in the NPG’s ear:
Devil: “Wait! Don’t publish those photos. What are you thinking?”
NPG: “Well, we were tasked with making the paintings in the gallery more accessible to the public, so we thought we could at least let them have photos of them.”
Devil: “Don’t be stupid. You’re sitting on a gold mine! Haven’t you heard about the 18th century privilege of copyright? This gives you a reproduction monopoly that you can commercially exploit.”
NPG: “We’re familiar with it, but how does suspending the public’s liberty to make copies of the photos we want to deliver to them help us in our task?”
Devil: “It makes you lots of money, which you’ll find very helpful. As to how, first: don’t publish those photos. Second: if you really must, just let the great unwashed see fragments of them, preferably distorted, watermarked, DRMed, or otherwise impeded. Then you can sell extremely valuable licenses for the complete photos to wealthy publishing corporations.”
NPG: “Ah, that sounds like a good idea. Then we’d have more funds to maintain the paintings and our executives in the lifestyle to which they would be accustomed.”
Devil: “Now you’re getting the hang of it.”
NPG: “But what if a member of the public gets their grubby hands on one or more of the photos, and starts sharing them?”
Devil: “Sue the fucker!”
NPG: “Ok, we’ll try…”
July 17th, 2009 at 12:18 pm
@Rob…
So, you’re saying that, basically, if someone wants to “spend a lot of money”, that makes it okay to exploit the Public Domain?!
If they’re making stuff available to the Public, then why the hell would they need to also protect it?
The works themselves are already Public Domain.
Any images of these (digital or otherwise) can’t be simply “re-monopolized” for profit.
What part of “Public Domain” do you have a problem with?
July 21st, 2009 at 10:48 am
Devil’s advocate:
What I am saying is that the NPG has no legal obligation to make available any of their photographs. If they get pissed off about someone misusing their service, whether legally or not, and they don’t make the pictures available any more then we have all lost out. Since Coetzee has uploaded the images, the NPG have removed ‘zoomify’ from their site, meaning that no one is able to see the pictures in high definition any more. Wikipedia may be clinging onto about 3000 of these pictures, but as a result none of us have access to the tens of thousands more. Tell me again who benefits from this? Why doesn’t wikimedia have an arrangement like they did with the german gallery – the NPG seemed more than amenable to something like that. I doubt wikimedia will back down now though, they’ve got their righteous indignation going overdrive.
October 7th, 2009 at 5:49 pm
The NPG have every right to take action on someone who did not ask permisson to upload their images, especailly when he was using high resloution images.
If anyone wants to research a historical British figure then they can just go onto the NPG website. I don’t understand why so many people think that Wilipedia is the only online source for information when we all know that you can easily edit pages and make stuff up. As great as that website is it should not act above the law, and this case it’s very clear that this happened.