Why Is The UK's Intellectual Property Office Praising National Portrait Gallery's Copyfraud Claims Over Public Domain Images?

from the wtf? dept

Fri, Jul 15th 2016 8:33am — Mike Masnick

The other day I saw the following tweet and was very confused:

That's a tweet from the UK's Intellectual Property Office (IPO) asking how does the UK's National Portrait Gallery in London "manage the copyright of national treasures like Shakespeare?" My initial response, of course, was "Wait, Shakespeare is in the bloody public domain, you don't have any copyright to manage!" It seems rather easy to manage "the copyright" of Shakespeare when there is none. But it turns out the link is... even worse. It's to a blog post on the IPO website eagerly praising the National Portrait Gallery for engaging in out-and-out copyright fraud. You'd think that the Intellectual Property Office would recognize this, but it does not.

The tweet was doubly misleading, also, because it's not the works of William Shakespeare, but rather a portrait of William Shakespeare. The IPO then explains that the National Portrait Gallery is doing a brisk business licensing these public domain images, noting that:

According to the gallery’s most recent statistics – the top five individual portraits licensed from its website are, in descending order: William Shakespeare, Richard III, Queen Elizabeth 1, King John and King Henry V.

Obviously, all of those portraits were created centuries ago -- and are in the public domain. So why is the National Portrait Gallery licensing them at all? Well, I'm pretty sure this goes back to an issue we've written about quite some time ago. While in the US the caselaw is clear that merely digitizing public domain images does not create a new copyright, the National Portrait Gallery in London has always taken the opposite view. Back in 2009, we wrote about this very same museum threatening Wikimedia Commons for posting scans of high resolution images of public domain works that were downloaded from the NPG's website.

But, here's the thing: just a few months ago, we wrote that the UK Intellectual Property Office (the same organization as above) had declared that scans of public domain works are also in the public domain in Europe (including the UK... for now at least). Here's what the UK's IPO said just months ago about copyright on scans of public domain images:

However, according to the Court of Justice of the European Union which has effect in UK law, copyright can only subsist in subject matter that is original in the sense that it is the author’s own 'intellectual creation'. Given this criteria, it seems unlikely that what is merely a retouched, digitised image of an older work can be considered as 'original'. This is because there will generally be minimal scope for a creator to exercise free and creative choices if their aim is simply to make a faithful reproduction of an existing work.

And, then, just months later, it's praising the National Portrait Gallery for falsely claiming copyright on such images and on then fraudulently profiting by licensing those images based on copyrights it doesn't hold? And the IPO's whole focus seems to be on just how much money can be made here. Read this and try not to feel sick:

Online availability and easy access to images and other data are crucial aspects of modern museum and library curation. Huge databases of valuable information are available. Users need to know where to find these resources and how to use them without infringing copyright. Museums and libraries are developing strategies to improve access for researchers, to give access to businesses users who want to develop their own intellectual property (IP) by using cultural resources and develop their own brands and merchandising.

Mathew Bailey, Rights and Images Manager at the National Portrait Gallery, balances the high wire between providing public access to our shared national assets and the need to encourage, develop and supply the creative economy with legally certain, quantifiable, marketable IP. The commodity he deals in – our heroes – couldn’t be more volatile.

Then, to make matters even stupider, the UK's Intellectual Property Office notes that no one has any idea who created any of these top portraits:

It’s no accident the names of the artists who painted the UK’s top five portraits are uncertain - King John looks like he’s just sat on a thistle, whereas Richard III only half fills his canvas. The lives of Richard III, King John and Henry V were all dramatised by Shakespeare during the reign of Elizabeth I. She was an image conscious monarch in the first age of mass communication and Shakespeare was her blockbuster dramatist. Shakespeare’s narratives add value and are the real reason why he, Richard, Elizabeth, John and Henry are still top of the portrait pops.

It didn't occur to Dan Anthony, who wrote this article, to recognize the absurdity of the fact that the National Portrait Gallery is claiming a copyright in works where it doesn't even know the name of the artists who created those works? Holy crap. How does the UK IPO find these people?

Oh, and then the article ends with this:

All images © National Portrait Gallery, London.

Bloody hell. They are not. They're in the public domain. Here's Shakespeare's portrait:

You can find it, accurately listed as being in the public domain over at Wikipedia. Dan Anthony at the UK IPO is incredibly misinformed, and he should ask his own colleagues, who just months ago made it clear that such images were in the public domain, before posting such ridiculousness on the IPO's website.

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Filed Under: copyfraud, copyright, ipo, licensing, national portrait gallery, portraits, public domain, scanning, uk, william shakespeare

27 Comments

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That One Guy (profile), 15 Jul 2016 @ 7:21am

How's that saying go again?
“It is difficult to get a man to understand something, when his salary depends on his not understanding it.” -Upton Sinclair
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Anonymous Coward, 15 Jul 2016 @ 8:46am

Because if the gallery doesn't claim copyright, clearly Shakespeare would stop producing works?...
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TechDescartes (profile), 15 Jul 2016 @ 8:57am

Pot, Meet Kettle
Just a guess, but I bet the IPO didn't pay for a license to use these photos in its blog post telling everyone else that they need a license.
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Anonymous Coward, 15 Jul 2016 @ 9:11am

"Why Is The UK's Intellectual Property Office Praising National Portrait Gallery's Copyfraud Claims Over Public Domain Images?"

Isn't it already well established that IP extremists are sociopaths and that the corporations that write our laws are sociopathic.

If you want proof just look no further than the IP extremists that post here and take a look at how broken our IP laws are and how they constantly get abused. The legal system that we have now is what we get when we let sociopathic corporations write laws. The intellectual property office is just a reflection of that.
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Anonymous Coward, 15 Jul 2016 @ 9:47am

Maybe they are trying to set a precedence
This could be one of those long games, where if they can get "this is copyrighted" into enough publications, then the general public dont even bother to check if it is in fact copyright-able and just pay the fee.

Very little has to do with facts now days. Information overload is being used to alter peoples beliefs in everything whether it is factual or not.
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Gracey (profile), 15 Jul 2016 @ 9:49am

There are many other portraits of William Shakespeare available in the public domain too. Who needs to pay for a license to get one from them?

If people don't buy, how are they making money? Anybody with half a brain can search for public domain works. In fact there is at least one in the British Library Public Domain images they released.
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John85851 (profile), 15 Jul 2016 @ 10:27am

Re: Maybe they are trying to set a precedence
Or, like the article implied, just say everything is copyrighted in the hopes that people will pay the licensing fees without arguing,
Though that leads to another issue: if they don't hold the copyright, how can they charge for a license? And can people get their money back if they paid for a license to use something in the public domain?
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Anonymous Coward, 15 Jul 2016 @ 10:30am

Some images may be in copyright though...
For instance, the portrait of William Shakespeare here somehow bears a striking resemblance to David Michell...
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Anonymous Coward, 15 Jul 2016 @ 11:49am

Dan Anthony at the UK IPO is incredibly misinformed
Or just plain dishonest.
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Anarres (profile), 15 Jul 2016 @ 12:01pm

Show, don't tell
I imagine UK IPO discussed at a round table (or less round), and came to the conclusion that photographs meant to depict faithfully public domain images are not covered by copyright.

Not everyone was happy at that table. Having lost the argument, Dan Anthony might have thought, hey, why not just go on and write a happy article set in the world I want to create? Just state as fact that public domain images are copyrighted, and highlight the "work" the copyright management must be.

Also don't forget to spice the discourse with happy phrases about the "national treasures" and relate that value to rights. It isn't like we can ever have value without someone to own rights and "manage" them.
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Anonymous Coward, 15 Jul 2016 @ 7:54pm

Practice common in U.S.
This practice is prolific in the U.S.

Asserting Rights We Don’t Have: Libraries and “Permission To Publish” | Peer to Peer Review
By Rick Anderson on August 21, 2014

Search: "physical rights" public domain

and: "proprietary rights" public domain

and: "physical Work" public domain
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Anarres (profile), 15 Jul 2016 @ 8:22pm

Re: Practice common in U.S.
For the benefit of other readers, here's the discussion mentioned:

http://lj.libraryjournal.com/2014/08/opinion/peer-to-peer-review/asserting-rights-we-dont- have-libraries-and-permission-to-publish-peer-to-peer-review/
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Anonymous Coward, 15 Jul 2016 @ 8:44pm

Re: Dan Anthony at the UK IPO is incredibly misinformed
To be fair those probably are prerequisites to get the job.

Consider that police departments will prevent you from signing up if you're too intelligent, and the insistence that the police does not need to understand the laws they enforce... and you can put two and two together.
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Whatever (profile), 15 Jul 2016 @ 10:00pm

I be laughing at ya...
This is one of those cases where Techdirt manages to entirely misrepresent a story in a manner that it would take a whole team of workers month to undo the misinformation provided.

The gallery isn't claiming copyright over public domain works. They are claiming copyright ONLY on the photographs taken of those images. They have only ever allowed a single set of shots to be made of the (public domain) works they curate. Those images, produced well within the last 70 years, are copyright in and of themselves. Not the work pictured, but the picture of the work. The setting, the method by which they were photographed, the lighting... everything required for it to be a unique copyright work of it's own.

Put another way: If other images of these works exist (they probably do, taken over the of the work) then they could be used if they are in the public domain or the copyright holder has granted rights. The images taken recently by the gallery are works in their own rights and copyright.

Nobody is claiming copyright over 300 year old works of art. That would be silly.

Thanks for all the misinformation and fake anger Mike, it made my weekend (and while I post this late friday night, I am sure it won't get added to the discussion until Monday... prior restraint lives at Techdirt!)
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Anonymous Coward, 16 Jul 2016 @ 1:05am

Re: Show, don't tell
Dan Anthony might have thought, hey, why not just go on and write a happy article set in the world I want to create?

In other words, he is no different from the 'pirates' doing what he wants regardless of little things like the law.
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Anonymous Coward, 16 Jul 2016 @ 2:22am

Re: Re: Show, don't tell
"If pirates can do as they please, so can I" so said the mousey.
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Anonymous Coward, 16 Jul 2016 @ 2:42am

IP rights are connected to employment too. Rights create jobs. Kill rights kill jobs. Or change the way the world works.
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DNY (profile), 16 Jul 2016 @ 5:39am

Re: Jobs?
Which jobs? Are you worried about full employment for lawyers? Seeing that actual authors and artists are not the beneficiaries of the current arrangement, rather publishers and other "rightsholders" whose business model depends on a government-granted monopoly (does anyone remember the point of the original British copyright law was to give the rights to the actual authors, rather than publishers, something echoed in the American Constitution's wording?)changing the way the world works is exactly what most here advocate. And it won't kill jobs. I'm sure lawyers will find some other way to create billable hours besides interfering in the normal way culture was produced down until the Berne Convention and its successors replaced the English notion of copyright with the French notion of droites d'auteur, giving us "life plus" terms on monopolies that in the English-speaking world for that brief shining moment when copyright was acutally a boon to culture were granted to authors and artists only.
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Anonymous Coward, 17 Jul 2016 @ 5:53am

There may be claiming right to picture of a portrait made by them. In this case, if someone else took picture it would be public domain. Correct me if I am wrong.
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John Fenderson (profile), 17 Jul 2016 @ 9:40am

Re:
That's the law in the US. I don't know if UK copyright law works the same way.
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chris, 17 Jul 2016 @ 11:40pm

It might not actually be them driving this!
I have quite an extensive private collection of historical photos related to early Australian train. Any photo taken prior to 1955 in Australia is public domain (govenment photos is currently prior to 1966), but that is not sufficient for some overseas documentary makers. They want me to given them a world wide rights license, as they claim that they are not public domain in all countries in the world.

It's realy quite a bizzard conversation to have with people trying to explain to them that I cannot given them a world wide license to use these photos as they are in the public domain in Australia and obviously I can't own the copyright to them any longer (even if I originally did). They just are not willing to take the risk. For anything I inherited, I'm happy to oblige (i.e. the copyright use to be in the family) and they will happily pay me to give what in Australia is a worthless license. If I or my family never had access to the copyright, then I tell them they are out of luck and need to contact an institution that might have a copy (sometimes a lot poorer version) of the the photo as I don't want the risk of an overseas claim, even though we are generally only talking about photo taken in Australia.

It quite possible that the Gallery is issuing licenses, knowing they have no intrisic worth, purely to keep overseas documentary and book publishers happy when they insist in paying for things they don't need to pay for.

I find it weird that a photo taken in Australia that is out of copyright in Australia is not considered automatically out of copyright in other countries (here's looking at you USA and the History channel). By the way it is my understanding that in Australia a work that originates in another country that is out of copyright is considered by law as being out of copyright in Australia.
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richard, 18 Jul 2016 @ 12:46am

Re: It might not actually be them driving this!
They aren't wrong to be paranoid. It's quite possible for something to be in copyright in one country and public domain in another. You can write a license based on your US copyright even if your Australian copyright has expired.
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richard, 18 Jul 2016 @ 1:14am

Re: It might not actually be them driving this!
The other side of this is that I believe *all* photos made before 1955 are public domain in Australia, even those made in other countries.
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Wendy Cockcroft, 18 Jul 2016 @ 7:13am

Bloody Hell!!
Bloody hell indeed, Mike. The absurdity shouldn't surprise you, though, the UK's IPO have no problem at all with "speculative invoicing," having advised me on one occasion that it's legal so no biggie.

You know how I'm always prattling on about not calling copyright property? This is what happens when you allow these prats to get away with referring to it thus.

If it's property it's owned by someone, and if it's owned by no one in particular then they will fence it off and claim the rents for themselves. Nice work if you can get it.
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Anonymous Coward, 20 Jul 2016 @ 10:10pm

Re: I be laughing at ya...
"Nobody is claiming copyright over 300 year old works of art. That would be silly."

Which is why legislation is being planned to extend the length of copyright to life + 300 years...
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Sigh, 31 Jul 2016 @ 1:15pm

It's not just Sleazespeare...
How many more centuries of copyright protection do works created before the first modern copyright law was passed (94 years after William "Blatant Corporate Sellout" Shakespeare died on his 52nd birthday) really need, anyway!
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Anonymous Coward, 3 Aug 2016 @ 10:51pm

Re: I be laughing at ya...
You've missed the key point of this article - a copy of something in the public domain can't be in copyright itself. The key bit is this:

However, according to the Court of Justice of the European Union which has effect in UK law, copyright can only subsist in subject matter that is original in the sense that it is the author’s own 'intellectual creation'. Given this criteria, it seems unlikely that what is merely a retouched, digitised image of an older work can be considered as 'original'. This is because there will generally be minimal scope for a creator to exercise free and creative choices if their aim is simply to make a faithful reproduction of an existing work.

So according to that the images commissioned by the Gallery cannot be in copyright.
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