National Portrait Gallery and Wikimedia Foundation copyright dispute

In July 2009, lawyers representing the British National Portrait Gallery (NPG) sent an email letter warning of possible legal action for alleged copyright infringement to Derrick Coetzee, a former editor/administrator of the free content multimedia repository Wikimedia Commons, hosted by the Wikimedia Foundation (WMF), after Coetzee uploaded more than 3,300 high-resolution images of artworks, taken from the NPG website, to Wikimedia Commons.

The NPG accepted that the artworks depicted were in the public domain, but contended that they owned exclusive rights to their reproductions, demanding that they be removed from Wikimedia Commons. The images were not deleted and, following criticism of the NPG's stance from the Wikimedia Foundation and the Electronic Frontier Foundation, the NPG did not pursue the matter further.

An unrelated 2023 Court of Appeal judgement clarified that, in England and Wales, no new copyright is created in making a photographic reproduction of a two-dimensional public domain artwork.[1] The NPG website continues to assert ownership of copyright.

NPG claims

In 2009, a letter sent by the representatives of Britain's National Portrait Gallery stated that Derrick Coetzee had downloaded more than 3,300 high-resolution images from the gallery's database of images and had posted them for re-use on Wikimedia Commons.[2]

The NPG letter stated the claim that while the painted portraits may be in the public domain, the high-quality photographic reproductions are recent works, and qualify as copyrighted works due to the amount of work it took to digitize and restore them,[3] that the action of uploading the images infringed on both the NPG's database rights and copyrights,[2][4][5] and that the images were obtained through the circumvention of technical measures used to prevent downloading of the prints.[6]

Background

The 1999 United States District Court case Bridgeman Art Library v. Corel Corp. (in which Bridgeman Art Library sued the Corel Corporation for copyright infringement for distributing copies of digital reproductions of public domain paintings sourced from Bridgeman on a CD-ROM) established that "a photograph which is no more than a copy of a work of another as exact as science and technology permits lacks originality. That is not to say that such a feat is trivial, simply not original."[11] As a result, reproductions of works that have fallen into the public domain cannot attract any new copyright in the United States.[11] As such, local policies of the Wikimedia Commons web site ignore any potential copyright that could subsist in reproductions of public domain works.[8]

However, British case law can take into account the amount of skill and labour that took place in the creation of a work for considering whether it can be copyrighted in that country.[8] The letter from the National Portrait Gallery demands that the case should be heard in the UK under UK law and not in the US under US law.

Reaction

Response by the Wikimedia Foundation

Erik Möller, deputy director of the Wikimedia Foundation, made a statement on the issue, clarifying the stance of the Wikimedia Foundation on the incident.[13] Möller stated that although the NPG has agreed that the images are in the public domain, the NPG had contended that they own the exclusive rights to their reproductions of the images, using this to monetize their collection and assert control over public domain content.[14] Möller also stated "It is hard to see a plausible argument that excluding public domain content from a free, non-profit encyclopaedia serves any public interest whatsoever." Möller further described the agreement that other cultural institutions have made with Wikipedia to disseminate images: two German photographic archives donated 350,000 copyrighted images, and other institutions in the United States and the UK have made material available for use. [15] The NPG stated that the images released by the German archives were medium resolution images, and that the NPG had offered to share images of the same quality. A reporter for the BBC stated that in 2008, the NPG made a total of GB£339000 2008 from licensing images for use in traditional publications.[13]

Current licensing

In 2012, the National Portrait Gallery licensed 53,000 low-resolution images under a Creative Commons Attribution-NonCommercial-NoDerivatives license,[18][19] making them available free of charge for non-commercial use, although not suitable for Wikimedia Commons or Wikipedia. A further 87,000 high-resolution images are available for academic use under the Gallery's own license that invites donations in return; previously, the Gallery charged for high-resolution images.

By 2012, 100,000 images, around a third of the Gallery's collection, had been digitized.[20]

In November 2015, the United Kingdom's Intellectual Property Office clarified in an informational document that, based on the opinion of the European Court of Justice, "copyright can only subsist in subject matter that is original in the sense that it is the author's own 'intellectual creation'. Given this criterion, it seems unlikely that what is merely a retouched, digitised image of an older work can be considered as 'original'."[21]

<span class="anchor" id="THJ v. Sheridan, 2023"> THJ v Sheridan

A November 2023 Court of Appeal judgement clarified that, in England and Wales, no new copyright is created in making a photographic reproduction of a two-dimensional public domain artwork, and that this has been the case since 2009.[1][25]

External links

Wikimedia Vs Reiss Engelhorn museum, German court awards the museum a separate copyright on images of its collection.

References

—^
Maev Kennedy. Legal row over National Portrait Gallery images placed on Wikipedia The Guardian, 14 July 2009, retrieved 28 July 2009^
Noam Cohen. Wikipedia May Be a Font of Facts, but It's a Desert for Photos New York Times, 19 July 2009, retrieved 28 July 2009^