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

from the wtf? dept

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.

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

Australian Media Exec Uses Dickens & Shakespeare -- Who Both Thrived Without Copyright -- To Explain Why We Need More Copyright

from the wow dept

It's really amazing the lengths to which some copyright maximalists will go to push their agenda. Take, for example, the CEO of News Ltd., (the Australian wing of Murdoch's News Corp.), Kim Williams. In a keynote speech to the Australian International Movie Convention, he gave one those typical barn burner speeches about how the entertainment and media industry are collapsing due to infringement and that we need greater enforcement and new laws. Typical stuff. Of course, it's almost entirely wrong. He seems to totally ignore the fact that there is an incredible renaissance in content production, with more and more of it happening every day. The idea that what's happening has decreased the incentives to create is just not seen in the facts.

But, it gets even more ridiculous. To prove his point, he cites two great artists, whom, apparently in his mind, wouldn't have created their great works absent copyright: William Shakespeare and Charles Dickens:

Illustrating his point, Mr Williams speculated what today's artistic landscape would look like had Dickens and Shakespeare had to contend with digital piracy in the same epidemic proportions it now exists.

“Imagine the great works that are not being produced because the digital bandits are creating virtual pirate Globe Theatres and virtual literary magazines and making off with possibly 65 per cent of the profits,” Mr Williams said. Herald Sun Digital Pass

“If you think I’m exaggerating, think again, because the copyright bandits of the paper age of Shakespeare and Dickens had nothing on the copyright kleptomaniacs of the digital age.”

Well, first of all, there were no "copyright bandits" in Shakespeare's age, because there was no copyright law. And yet -- shocker of shockers -- Shakespeare's plays were still written. In fact, there's a reasonable argument that if there had been copyright in Shakespeare's day, many of his works wouldn't have been written, since he copied liberally from many sources. Certainly, he took many of those other works and improved upon them, but that sort of thing violates copyright law today.

Dickens' case is a bit more complicated. He, at least, lived in an era where copyright did exist (1 for 2, Williams), and spent his early years as the 19th century equivalent of a copyright maximalist. While his works were under copyright in the UK, the US did not recognize foreign copyrights, and thus -- everyone assumes -- his works were regularly printed and sold without his permission and with no royalties to Dickens. In fact, when he first toured the US in the 1840's, he pissed off tons of adoring fans who came to see him speak... only to have him berate them for "pirating" his works.

Except... that's not the whole story. You see, it turned out that American publishers realized that there was a benefit to being the first to print a foreign author, because those who got to market first tended to dominate the market. Thus, while there was no copyright, other voluntary agreements were hatched. For example, multiple publishing houses worked out deals to be "authorized" printers of Dickens' work in the US and paid Dickens money anyway, in order to get the earliest copies of his works. Adrian Johns' research highlights how Philadelphia publishing magnate Henry Carey paid Dickens to get early access to his works, knowing that being first would help get the most sales. Dickens also found that other publishers were willing to work out royalty agreements. Ticknor & Fields, Harper and Brothers and TP Peterson and Brothers, were all publishers who paid royalties to Dickens for the works they published (according to The Man Charles Dickens by Edward Wagenknecht). That book notes that Dickens "was grateful... for their generosity 'above and beyond the law.'" Dickens also worked out additional deals with American publishers to get paid, and his second trip to the US was sponsored by a Boston-based publishing firm, Fields, Osgood & Co., who was then recognized as his "authorized American publisher" for his next work, despite no copyrights being valid for such works in the US.

While he still campaigned for strong copyright laws, multiple reports note that he found throngs of adoring fans in the US, all of whom only knew of his existence due to his books which they were able to read, despite a lack of copyright. In fact, he discovered that not only were fans showing up in large crowds to see him, they were willing to give him money, despite the lack of official copyright on his works.

End result? "He received so warm a welcome and so much faster money than he had ever earned as a writer that he returned home thinking much more positively about America and the Americans."

Right. So, perhaps Shakespeare and Dickens aren't the best examples for Williams to trot out for why he needs stricter copyright law. In fact, they seem to prove the exact opposite. Even in the near total absence of copyright law, both authors created truly long-lasting, culturally significant works, and earned quite a nice living doing so. In both cases, it was the freedom to have their works shared that helped to make them so culturally relevant, and in neither cases did they fail to earn a living, despite the situation (in fact, quite the contrary).

Filed Under: australia, charles dickens, copyright, kim williams, william shakespeare
Companies: news ltd.