Terrible Ruling In Germany: Digitizing The Public Domain Creates New Copyright

from the no,-no,-no,-bad-court,-bad dept

A court in Berlin has made a very bad ruling, saying that digitizing images in the public domain creates a new copyright. We wrote about this case last year, involving the Reiss Engelhorn Museum in Mannheim suing Wikipedia because users had uploaded 17 images of the museum's public domain artwork. Ridiculously, the German court sided with the museum:

The court ruled against the Wikimedia Foundation and in favour of the Reiss Engelhorn Museum. The German court dismissed the case against Wikimedia Deutschland on the grounds that it was not legally responsible for the files in question, which were held by Wikimedia Commons in the US, which in turn are managed by the Wikimedia Foundation.

This is not a particularly new issue -- it's come up many times in the past. In the US, thankfully, we have a nice precedent in Bridgeman v. Corel that states clearly that exact photographic copies of public domain works are not protected by copyright, because they lack the originality necessary for a copyright. Of course, that hasn't stopped some US Museums from looking to route around that ruling. Over in Europe, where there is no Bridgeman-like ruling, we tend to see a lot more of these kinds of attempts to relock down the public domain by museums. There have been similar attempts in the UK and in France, though as far as I can tell, neither case went to court.

Wikimedia says that it will appeal the ruling, which is the right move, but really an even larger question is why museums, which should want to more widely share such artwork with the world, are being so overprotective of these works. It's not as if someone seeing a digitized image of the Mona Lisa makes anyone less interested in seeing it in a museum.

Filed Under: copyright, germany, museums, public domain, scanning images, wikipedia
Companies: reiss engelhorn museum, wikimedia

German Museum Sues Wikimedia Foundation Over Photos Of Public Domain Works Of Art

from the once-public-domain,-always-public-domain dept

The mission of museums and art galleries is generally to spread knowledge and appreciation of beautiful and interesting objects. So it's rather sad when they start taking legal action against others that want to help them by disseminating images of public domain works of art to a wider audience. This obsession with claiming "ownership" of something as immaterial as the copyright in a photograph of a work of art made centuries ago led the UK National Portrait Gallery (NPG) to threaten Derrick Coetzee, a software developer, when he downloaded images from the NPG and added them to Wikimedia Commons, the media repository for Wikipedia, of which he was an administrator. That was back in 2009, and yet incredibly the same thing is still happening today, as this Wikimedia blog post explains:

On October 28, the Reiss Engelhorn Museum in Mannheim, Germany, served a lawsuit against the Wikimedia Foundation and later against Wikimedia Deutschland, the local German chapter of the global Wikimedia movement. The suit concerns copyright claims related to 17 images of the museum's public domain works of art, which have been uploaded to Wikimedia Commons. The Wikimedia Foundation and Wikimedia Deutschland are reviewing the suit, and will coordinate a reply by the current deadline in December.

The problem, as usual, is that the museum is claiming that the photographs are new creations, and therefore covered by copyright:

The Reiss Engelhorn Museum asserts that copyright applies to these particular images because the museum hired the photographer who took some of them and it took him time, skill, and effort to take the photos. The Reiss Engelhorn Museum further asserts that because of their copyrights, the images of the artwork cannot be shared with the world through Wikimedia Commons.

As Wikimedia points out:

Even if German copyright law is found to provide some rights over these images, we believe that using those rights to prevent sharing of public domain works runs counter to the mission of the Reiss Engelhorn Museum and the City of Mannheim and impoverishes the cultural heritage of people worldwide.

The disagreement over the use of the NPG's images back in 2009 gradually fizzled out. The Museums Journal reported in 2012 that:

The National Portrait Gallery (NPG) has made changes to its image licensing to allow free downloads for non-commercial and academic uses.

The change means that more than 53,000 low-resolution images are now available free of charge to non-commercial users through a standard Creative Commons licence.

And more than 87,000 high-resolution images are available for free for academic use through the gallery’s own licence. Users will be invited to give a donation in return for the service.

Meanwhile, high-resolution NPG images are still available on Wikimedia Commons, although Wikipedia notes that these are prudently hosted in the US, where their legal position as works in the public domain seems clearer. It's really time for other countries to catch up with the US and recognize that photos of public domain works of art are still in the public domain, and that sharing them with the world is something to be praised as helpful, not pursued as harmful.

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Filed Under: copyright, germany, images, museum, public domain, scans, wikipedia
Companies: reiss engelhorn museum, wikimedia