Is The National Portrait Gallery Lying About The Cost Of Its Digital Archives In Fight With Wikimedia?
from the might-be... dept
Last week, we wrote about how the National Portrait Gallery in the UK was threatening a guy who uploaded a bunch of photos from the Gallery's site to Wikipedia and defended his upload by noting that the portraits in question were all in the public domain. The Gallery insists that the photos of the portraits are not in the public domain, and that's where the heart of the legal dispute lies -- though, there are some side issues. In the US, it's pretty clear that a photo of a public domain work remains in the public domain (assuming no additional creative expression is added). In the UK, it's unsettled law. However, as the situation gets more attention, some interesting facts are coming out.The National Gallery is claiming that a big part of the reason for why it's doing this is that it has cost £1 million to digitize the photos, and removing the ability to license the images makes it less likely that others will digitize their own collections. That's not a bad argument (though, there isn't necessarily a legal basis that copyright should be based on how much it costs to create the work in question). However, someone decided to check on those numbers, and put in a Freedom of Information request, and discovered that the actual costs to digitize and put the collection online was significantly lower than what the Gallery is claiming:
The Gallery spent £18,000 to put its collections online in 1999. During a ten year period up to 2008 another £10,000 was spent on minor developments and adjustments and in 2008 and 2009 a further £11,000 was spent. This gives a total figure of £39,000.Now, that's not nothing, but £39,000 is significantly lower than £1 million, yes?
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Filed Under: derrick coetzee, public domain, uk national portrait gallery, wikimedia
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I would think that 39k is excluding digitization, isn't it?
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Did the Public purse pay for Digitisation?
It is obscene that a member of the public should be sued by a public organisation whose remit is to provide that member of the public (as much as any other) with access to public property (including photographic images).
Copyright, suspending the public's liberty to make copies in order to sell them, is an anachronistic and unethical privilege intended for mercenary publishers - certainly not public organisations tasked with delivering art and knowledge to the public.
Should the public pay for the digitisation of its cultural heritage through the suspension of its liberty to share and build upon it? Or should the public pay with its money and keep its liberty intact? I suggest the latter is ethical, whereas the former isn't. The other question is whether the money is extracted from the public by force (taxation) or voluntarily. If the latter, then each image can be placed in a digital art auction, and those among the public who appreciate its value can participate in reimbursing the costs of its digitisation. After all, if 3,300 images cost around 33,000 to digitise then that puts the cost of each one to the public at 10. You'd only need a thousand art appreciators bidding a penny to cover its cost. What a bargain.
Instead we have the parlous sight of a public body putting a fundamentally innocent man through an expensive and very stressful process of litigation.
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.
What hell have we descended into where such crimes by publishers against members of the public are regarded as unsurprising, if not just?
Publishers are supposed to benefit the public, not persecute it.
Stop this madness.
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Re: Did the Public purse pay for Digitisation?
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Perjury?
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Crown copyright
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Re: Crown copyright
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Re: Re: Crown copyright
In the US, unless there is a prior agreement to the contrary, the copyright on a "work for hire" belongs to the entity doing the hiring: For example, the gov't.
If there is such an agreement in a gov't contract, then the full market value of the copyright that is being given back to the contractor is supposed to considered as part of the payment to the contractor. In other words, the copyright is sold back to the contractor. A problem can occur, though, if the copyright is sold back at less than full market value, as the law requires. This is known as an illegal "kickback" which, unfortunately, happens far too often.
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Re: Re: Crown copyright
And that is not strictly true either. I was granted copyright on several applications and application suites that I developed while working for the US government. I did explicitly state in the code and documentation that I granted full rights to use and modify to their heart's content so long as the copyright notice remained in place.
Frankly, aside from one GM-14, I don't think they had a clue what I was doing, how I was doing it, nor why it worked. They just loved the money they were saving, and their future fitness reports ;-).
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Re: Re: Re: Crown copyright
Who granted you these copyrights? It kind of sounds like you think you granted them to yourself.
Frankly, aside from one GM-14, I don't think they had a clue what I was doing,
I rather suspect that no gov't lawyer was aware of your self-granting activities.
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Nat Portrait Gallery Digitisation
If they make ultra high quality digital images which would give scholars special details or some such, they will have a new product but the original work is and remains public domain.
Or is there some hocus pocus involved somewhere....?
CS
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3000 digitial images. Let's see. If the number was 39,000 pounds, that would be a cost of 13 pounds each to photograph, digitize, and present each image. Sorry, but when you are talking about high end material like this, you aren't shooting with a hand held 5mp camera. So there is little chance that each image cost 13 pounds.
Look at the bigger number now: 3000 images, 1 million pounds, or about 333 pounds per image. Now that is starting to sound like a more reasonable number. Heck in 1999, scanning a regular slide (not even a 4x5) into digital was anywhere from $2 - $10 an image, and that didn't include any costs to shoot the image.
Go ask a professional photographer how much it would cost to take a single professional image of a painting in your house in 4x5, and then to digitze it.
Sorry Mike, epic fail once again. Please try doing the basic math before you reprint someone else's lies or misdirections.
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Re:
333x=y
More like
(cost per painting)(# of paintings)+(cost of equipment)=Total cost.
Of course taking ONE picture and digitizing it would cost a lot.
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Re:
Now go take bids for doing a batch of 3000 direct to digital. There will be a dramatic difference.
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$$$
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Wikipedia - It's a Desert for Photos
Basically the point of this article is to highlight the apparent lack of images on Wikipedia, which has been caused, according to the Times, by Wikipedia not wanting to pay for these images. Additionally that no photographer would want provide free images because everyone deserves to be paid for their work.
The article does not delve into the following issue that would seem to be relevant. I assume, that with celebrities, that there would be a large number of photographers both professional and amateur who have taken pictures of celebrities in public locations. I also assume that there must be nearly an infinite number of snapshots of one sort or another. So, I would assume that some professional photographer wouldn't mind if one or two pictures (of the "millions" available) being in the public domain. As for amateur photographers, they may be more willing to freely contribute.
As to why Wikipedia has an apparent dearth of pictures, I don't know.
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The point is that they want digitization to create a revenue stream that will support OTHER activities.
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no mike actually they are backwards in UK so 39k euros > 1mil euros
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The Real Issue is Control
Museums put out reproductions as a profit-making business, and use the proceeds to fund scholarships. You know those colleges whose tuition is about two or three times a young person's necessary living expenses, but which give out a lot of scholarships (Harvard, Yale, etc.)? Well, art museums run on much the same system. Their problem is that they want to pick favorites up front, to chose young people they like, and give them an all-expenses-paid package, much the same way that Microsoft does. Well, of course, the internet doesn't work that way, as Open Source Software has demonstrated. It's much harder to shunt people you don't like into dull jobs and keep them there. The National Portrait Gallery wants to be able to say to the world what English art means, and to do so by controlling the training of experts. People like that can be fairly controlling-- if you let them, they'll be telling you how to comb your hair, what to eat for lunch, etc., etc.
One of my old History professors once told a story about doing research in the private archive (muniments room) of a certain British nobleman-- with the snarling nobleman more or less literally breathing down his neck to make sure the historian told the story the way he wanted it told. Under the circumstances, my old professor did not have full intellectual freedom. When documents were eventually moved to the Public Record Office-- the British equivalent of the National Archives-- they became available to people with a much wider range of views. The growth of the internet is simply a continuation of the same process.
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Re: The Real Issue is Control no Money
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Re: Re: The Real Issue is Control no Money
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How many textbooks don’t include these images because of licensing costs and legal hassles? How many schoolchildren have been deprived of seeing this historical work because the gatekeepers want to create an unnatural monopoly on a public treasure? It’s a shame that these alleged guardians of Britain’s past culture are so blinded to the opportunities that exist in a world when each copy is free that they fail to realize that they could perform their mission much better by opening up, by embracing the digital world instead of fighting it as a buggy whip maker battled the automobile industry.
The NPG was given a gift of these photos, the condition of that gift being a mandate to share these important images with Britain’s citizens. They have failed in that mission, and even as others work to remedy this, still the NPG fights the future and tries to claim as their own works that were created hundreds of years ago. They have no right to license these photos; they have a duty to protect them, and share them with the world. If they can’t meet those duties, then they should turn the paintings over to someone who can.
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UK Copyright Law
In UK law that expert reproductions of pre-existing works give rise to their own copyright. The principle was set out in Walter v Lane more than a century ago and upheld in Sawkins v Hyperion by the Court or Appeal.
The US decision (Bridgeman Art Library v Corel) misinterpreted a decision of the UK Privy council, Tyco Industries v Interlego. This case related to very particular facts and has since been "confined to its facts". In UK Legal speak this is a polite way of saying that it is a peculiar decision that should not be applied beyond the specific facts which gave rise to it.
Copyright subsists in those photgraphs. Under UK law this is straightforward copyright infringement; Coetzee has stolen the fruits of someone elses labour. If you care about a free market and people receiving just reward for their labour (as opposed to forcible collectivisation) Coetzee's actions are objectionable.
In fact the Wikimedia policy on 2D reproductions of copyright works is dishonest and risks undermining the credibility of the movement. Quite apart from the moral case, it is disgustingly arrogant to expect that US law should apply to the entire world - it does not.
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Re: UK Copyright Law
That's quite different from US law. In the US, copyright infringement is not covered by theft laws. But if you say that it is in the UK, I would ask that you provide a citation to support that claim.
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Re: UK Copyright Law
Whoa whoa whoa. That's about as ridiculous a statement as I've heard in a long time.
One: you can steal products, but you cannot steal "the fruits of ones labors." You still have the ability to produce AND you still have the originals. No fruits have been "stolen" at all.
But, more importantly, a TRUE free market would not rely on gov't monopolies. What you are discussing -- a system using copyright -- is a system of gov't backed monopolies and artificial scarcities to create (on purpose) a less efficient market. That's not a free market by any stretch of the imagination.
As for people receiving "just reward," that's what a true free market is about. But what you are discussing is anything but a true free market.
As for your claim that these works should obviously be covered by copyright, I really must ask how that makes any sense at all. Copyright is only designed to cover original creative expression. Where is the original creative expression here?
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Re: Re: UK Copyright Law
If I spend a couple of hours taking a photo of a 200 year old oil painting with my digital camera, and you come along, and whilst I'm not looking whip out my camera's memory stick, make a copy, and then re-insert it, then you have stolen the fruits of my labour. It matters not whether my labour involved any creativity, nor whether my photo or the painting is subject to copyright.
Copyright infringement is nothing to do with IP theft, though sometimes copyright is the only law providing any disincentive or remedy. Copyright is an unethical and anachronistic monopoly granted to originators of IP and should be abolished.
However, that doesn't make it open season for IP thieves.
In the case of the NPG, Derrick Coetzee had only re-assembled images from smaller portions voluntarily supplied to him by the NPG. There was no theft involved, only Derrick's labour and selfless donation of it to Wikipedia for the public's benefit.
Moreover, these are published images (delivered to the public - public domain - public property) of publicly owned material and intellectual works held in a publicly owned building entrusted to the care of a publicly funded organisation. How much more public can you get?
Frankly, if Derrick had hidden in the gallery, waited until it closed and then whizzed round with his digital camera (safe light source as opposed to flash) and had then uploaded his images to Wikipedia, it would have still been the mildest of infractions (akin to remaining in a park after nightfall to photograph badgers) to do this as a member of the public, and a philanthropic gesture to selflessly facilitate greater public access to these works.
But, that's only because these are public works. If Derrick had burgled an oil painter's private studio and collection to make copies of his paintings (whether still wet or old masters) then that would be IP theft.
It should be straightforward to recognise the clear ethical difference between an IP thief's violation of an individual's privacy and a corporation's violation of Derrick's cultural liberty (not forgetting illegitimate enclosure of public property).
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Re: Re: Re: UK Copyright Law
The so called "fruits" of your labor are the photos you made. You still have those, so nothing was "stolen" from you.
Or if you really want to follow your own argument, then you were a "thief" by photographically copying the painting in the first place. Either way, you're still wrong.
Of course this has been explained over and over and over again here on these forums, of which you are a frequent and longtime visitor, so I don't expect anything anyone could say could change your mind at this point. If you're determined to hang onto that fantasy, I'm sure you will, whether it stands up logically or not.
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Re: Re: Re: Re: UK Copyright Law
Thieves aren't in the business of denying people the use of their intellectual property, but in the business of obtaining it through unauthorised physical access.
If the 200 year old oil painting is public, my property, or I have been permitted access to it, then I can't be stealing a copy of it.
I think you'll find people readily recognise the difference between burglars stealing copies of their camera's memory stick and people taking photos of the oil paintings they have purchased. The former is IP theft, a natural rights violation. The latter is infringement of copyright, an 18th century privilege.
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Re: Re: Re: Re: Re: UK Copyright Law
Legally, it is generally only theft if the intent or effect of the removal was to deny you the possession of it.
As an example, let's say that you work in a large open office setting but with a desk of your own. Furthermore, let's say that you have a red stapler sitting on your desk. Now, if someone comes along and takes your stapler away without your permission, thus denying you use and possession of it, then they have indeed probably stolen your stapler.
On the other hand, if someone walking by stops for a moment and picks up your stapler, looks at it, and then returns it to your desktop, that is not theft. In fact, if you were to then try calling the police and your insurance company and reporting the stapler as stolen, you would probably be charged with multiple criminal offenses yourself.
In the case you described, neither the intent nor effect was to deny you possession of the memory card (or picture on it), and thus was not theft under most laws.
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Re: Re: Re: Re: Re: Re: UK Copyright Law
Let's say a thief takes your used stapler, but replaces it with a new one of exactly the same model. You'll say nothing was stolen because the owner was not deprived of use. The thief is laughing all the way to a secret collector who's offered him $5,000 if he can obtain the very same stapler as used in the movie Office Space (which you just happened to have).
Theft is simply an ancient word used to describe a certain class of violation of the natural right to privacy. It is that natural right that explains what theft is, and why theft is not infringing someone's monopoly, nor is theft 'depriving of use' or 'denying of possession'. Being deprived of use or possession is simply a typical consequence of theft - it does not define theft.
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Re: Re: Re: Re: Re: Re: Re: UK Copyright Law
Except, I didn't say just "use". So don't try to say that I did. It isn't honest. And you will have a hard time arguing that something has been stolen from you if you are still in full possession and use of it. You may disagree with that, but I think the Supreme Court out ranks you on legal matters.
Let's say a thief takes your used stapler, but replaces it with a new one of exactly the same model. You'll say nothing was stolen because the owner was not deprived of use.
That is absolutely not true and not conceivably covered as anything but theft according to what I said. Again, to try to claim that I said otherwise is just plain lying. There just went your reputation, if you had any.
Being deprived of use or possession is simply a typical consequence of theft - it does not define theft.
Legally, that's generally a requirement whether you happen to feel that it's "natural" or not. The law isn't based on your feelings.
Are you so enamored of your self-deception that you feel compelled to misstate what others have said? If that's the case, then talking to you is clearly a waste of time and I give up. Go ahead, you can have your last word now.
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Re: UK Copyright Law
But Sawkins v Hyperion did set a limit to this - in particular Sawkins lost his case on one on the works for reasons given as follows:
"Dr Sawkins is therefore adding nothing to the work which was not in either of the sources used. He considers that the editing of the Panis Angelicus also falls within the category of transcription, with the addition of one or two performance suggestions. There is no new music."
The test in UK law is therefore the same as in US law i.e. whether there is "new content" and I would contend that exact photographic reproductions in which there is "no new imagery" should not qulaify for copyright on the basis of this case.
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Sawkins vs. Hyperion
"The issue which I have to decide is whether the similarities which exist between the Sawkins and the Paillard versions are due to some form of copying or whether they simply resulted from Dr Sawkins, as part of his independent work, coming to a similar conclusion as to what the dynamics of the existing score permitted him to do. I believe that it was the latter. Having heard Dr Sawkins give his evidence and having taken into account the expert evidence, and in particular the limited freedom which I think both experts ultimately accepted the editor had, I am not satisfied that there was any attempt made by Dr Sawkins to copy the Paillard edition, whether consciously or unconsciously. I regard and find that the added viola parts included by Dr Sawkins in his edition of this work were the product of his own skill and labour, unaided by the Paillard edition."
Now, note this - 'unaided' by the Paillard edition (of the music). He had arrived at the same conclusion, as he had argued from the witness stand, due to similar constraints in the music. Both editions were trying to adapt the original score (a different piece of music) and faced similar challenges, so of nescessity would share many traits.
But what of copying a painting? As in, taking a photo? How is this 'unaided' by the original painting?
Now, I could see a similar scenario arising - just recently I came up with an art concept to draw a small girl sleeping on a dragon's back in flight and the girl would have a blanket on her back, and set about drawing it for an art contest - only to find a similar image online just a day later.
Many fairytales, novels, and stories borrow themes from each other as well, sometimes intentionally and sometimes acidentally. The heroes journey is pretty popular.
These are not bad- we understand that similar themes will happen, as 'ideas are not copyrightable'.
But actually copying someone elses expression of their idea verbetim does not constitute a new idea (actually, it kind of classifies as stealing or plaguirism if I remember high school :P Seriously, I don't want to see 'hologram of holofoil of photo of painting of Rembrant's Return of the Prodical Son, copyright NPG)
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The £39,000 did not include digitization
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Being right is not always the end of the story
The Wikimedia Foundation could have taken the same line with the NPG as they have with other European institutions, accept their offer of reduced resolution images for free availabilty in Wikimedia and not pursue the high resolution images. Mr Coetzee outsmarted the NPG by finding a method of acquiring their high resolution images. Perhaps he could not resist the temptation of showing his peers and Wikimedia how clever he was. Perhaps Wikimedia could not resist the temptation to keep the high resolution images, they are obviously much better quality. But the consequence is that for some percentage of the public The Wikimedia Foundation has been diminished in their eyes, and some percentage of the commercial, scientific and artistic communities will be thinking twice about what level of co-operation to afford to Wikimedia. This non-profit organisation may rely heavily on their volunteer contributers, but in the long run they need co-operative ventures. Being smart and even being right is not enough to make it in the big time world of the internet.
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