UK National Portrait Gallery threatens Wikipedia user over public domain images


Museums, archives, and cultural institutions have been forced to re-examine their relationship with the digital presentation of public domain works in their collections. This has brought the issue of “copyfraud” to the forefront. Recently, the UK’s National Portrait Gallery (NPG) threatened legal action under UK law against a Wikipedia user for, among other things, copyright infringement of digital photos of public domain works by uploading them to Wikipedia.

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.

4 thoughts on “UK National Portrait Gallery threatens Wikipedia user over public domain images”

  1. The NPG is right in saying that they have a lot of investment in creating files from which someone can generate high quality copies of the works. The issue isn’t that copies of the works are being made, but that copies of the files that the NPG spent time, and effort creating are being made available.

    Today it is possible to laser scan the surface of a painting to an accuracy of less than 100 microns, and recreate that surface to a detail where individual brush strokes can be examined. To do so is a highly skilled and costly process, yet the digital files that would drive the printers:

    are no different than a jpeg, they just enable one to recreate the work in greater detail. Presumably the snagging and making available those files would be equally justifiable.

  2. The NPG has said they’re not opposed to low-res photos being on Wikipedia, it’s the uploading of the high-res ones they spent a lot of money creating in order to generate revenue for the gallery. How do people think galleries make money? The NPG has free entry, and loads of people get to enjoy the artwork in person. Without being able use their collection for fundraising we’ll end up without the museums being free, and then reducing what they can afford to display, spiralling ever downwards.

  3. Rij,
    “How do people think galleries make money?”

    Straight up commercial galleries are largely dealing with modern copyrighted works. The old no longer copyrighted works in museums are another matter.

    The NPG, like other museums and archival institutions, is largely supported by government and donation money. The licensing of their collection (including the great many copyrighted images which aren’t in dispute here) comes to only 2,3% of their annual income. The NPG earns more income from selling food and renting out their space than they do from images.

    I think your concerns are more than a little over-blown.

    The NPG is chartered to provide access foremost. Wikipedia gets more visitors in an hour or so than NPG (online and in person) gets in a year (and yet Wikipedia has far less funding). The works in question are old and their informational value now belongs to the public. The NPG has no moral right to lock these works away and prevent the public from doing what they will with the electronic copies.

  4. The 2.3% number appears to be an over-statement, at least for online activity, according to this freedom of information act request the gallery only received a total of £11,291 in royalties for online rights last year (£18,812 the year before), compared to a budget of £16,610,000.

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