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?

Filed Under: derrick coetzee, public domain, uk national portrait gallery, wikimedia

National Portrait Gallery Threatens Wikimedia Developer For Downloading Public Domain Images

from the what-public-domain? dept

Derrick Coetzee, a software developer and an administrator of Wikimedia Commons, the media repository for Wikipedia is being threatened by the National Portrait Gallery in London. Coetzee admits that he downloaded about 3,000 high-resolution images from the site, but notes that they are all of paintings that are in the public domain (nearly all are over 100 years old). Coetzee is in the US, where he notes Bridgeman v. Corel suggests that photographs of public domain paintings do not carry any copyright, since the photograph does not add any new expression. However, such issues are not settled in the UK, and the National Portrait Gallery is insisting that the photos are covered by copyright.

On top of that, the Gallery is claiming a violation of its database right. Database rights are an unfortunate mistake in European law, that allows a copyright-like right to be held on a database, even if the entries in that database are uncopyrightable -- such as a collection of facts or a collection of public domain works. Finally, the Gallery is also claiming that Coetzee unlawfully circumvented protection methods designed to keep folks like himself from downloading the content -- and thanks to the UK's own anti-circumvention law, that too could make him guilty of infringement. Of course, that last one shouldn't apply if the content isn't actually covered by copyright, as Coetzee argues.

The whole thing, frankly, seems rather ridiculous, and a huge black mark on the National Portrait Gallery in the UK. Here was a chance to help educate the public and give people more reasons to go to the Gallery to see the actual photos, and they're trying to stomp out that kind of education through abuse of copyright law. The people who run the Gallery should be ashamed of themselves. They ought to go back and read their own mission statement:

Founded in 1856, the aim of the National Portrait Gallery, London is 'to promote through the medium of portraits the appreciation and understanding of the men and women who have made and are making British history and culture, and ... to promote the appreciation and understanding of portraiture in all media'.

How, exactly, does suing someone for getting those portraits more attention achieve that goal?

Filed Under: derrick coetzee, public domain, uk national portrait gallery, wikimedia