This raises some interesting legal issues related to copyright, jurisdiction, and enforcement. In the U.S., the Bridgeman v. Corel decision would probably bar NPG’s claims. Similarly, the U.S. Supreme Court in Feist held that copyright protection is not based on a “sweat of the brow” theory. UK courts have not necessarily agreed. However, there is the strictly legal, and then there is the practical. In the 2005 article Public Domain Art in an Age of Easier Mechanical Reproducibility, Kenneth Hamma, former Exec. Dir. for Digital Policy, J. Paul Getty Trust, highlights the collision of traditional approaches to control over museum collections and the digitization of the public domain:

[R]esistance to free and unfettered access may well result from a seemingly well-grounded concern: many museums assume that an important part of their core business is the acquisition and management of rights in art works to maximum return on investment. That might be true in the case of the recording industry, but it should not be true for nonprofit institutions holding public domain art works; it is not even their secondary business. Indeed, restricting access seems all the more inappropriate when measured against a museum’s mission – a responsibility to provide public access.

Restricting access via copyfraud or DRM defeats the purpose of the public domain, and damages the reputation and mission of the institution holding the original copies of these works. However, the NPG’s disappointing actions should not overshadow the many institutions working to make the public domain accessible to you, the public. The Commons on Flickr is a great example of 27 private and public institutions from all over the world who are making works available with “no known copyright restrictions”. Working with, not against, cultural institutions highlights some of the ways cultural heritage institutions and communities can work together to mutual benefit.

We hope that institutions will increasingly see the the mission value (and financial value — attracting visitors to see original works) of working with communities to open up access to curated public domain works and of proactively marking public domain works as such for humans and computers, e.g., with our public domain tools.