The National Portrait Gallery (NPG) in the United Kingdom holds the most extensive collection of portraits in the world. Over the past five years, the gallery has been working on its £1 million project of digitising its entire collection for viewing online. In addition to the low resolution images of the complete works, the NPG recently began adding high-resolution images which allow viewers to “zoomify” sections of images. These images are protected by software which does not allow users to copy the images, but only to zoom in on them. The NPG website has specific pages addressing copyright, the use of images and obtaining image permission and explicitly prohibits “reproduction of any kind in any medium” and “storage in any medium including extraction into any other database, computer programme or website”. The NPG does not charge an admission fee into the gallery, and as such, they rely on the £339,000 in revenue they receive from copyright and licensing fees, as well as reproduction fees from books and magazines.
In March, Wikipedia volunteer Derrick Coetzee was able to use special software to de-scramble the high resolution tiles thus allowing him to capture the whole portrait in high resolution. Coetzee was able to capture about 3,300 high-resolution images, which were then uploaded to the online encyclopedia Wikipedia. The NPG requested that Wikipedia remove the images from its database, but when Wikipedia did not do so, NPG threatened legal proceedings for breach of copyright against Coetzee, unless he deleted the images both from Wikipedia and from his own hard drive by July 20th. As of Tuesday, the portraits were still available on Wikipedia. The portraits themselves are part of the public domain, as their term of copyright protection has expired. In the US, photographs of public domain works are not copyrightable, but under UK law, copyright may subsist in a photograph of a public domain painting.
Erik Moeller, the deputy director of the Wikimedia Foundation, states that the gallery is limiting public access to materials for the sake of earning extra revenue. The NPG responded that they will only be able to meet their goal of having their entire collection online through self-generated income, and having the images available online at Wikipedia jeopardizes NPGs ability to licence the use of its images. Moeller also stated that two German photographic archives donated 350,000 copyrighted images to be used on Wikipedia; however, the NPG pointed out that these archives had supplied the images in medium-resolution and that the NPG had offered similar material to Wikipedia.
The digital rights group Electronic Frontier Foundation has voiced its concern that this dispute could negatively affect U.S. web companies who make their content available world-wide, and the group has not ruled out the possibility of bringing a declaratory judgment against the NPG. On the other side of the dispute, the NPG has stated it has no intention to sue Wikipedia; however, since the July 20th deadline has passed and the images are still available on Wikipedia (and presumably Coetzee’s hard drive) it will be interesting to see if the NPG takes any legal action against Coetzee.
It seems to me that the NPG has a bit of a backwards business model. Many of these portraits are in the public domain, and high-quality scans can hardly be considered original artistic works in their own right. I understand that the gallery wants to finance their digitization efforts through licensing, but they really have no more right to reproduce the images than Wikipedia does.
If the NPG wants to keep its full-size scans private it should actually keep them private! Scrambled or not, they posted high-quality digital images on the web for everyone to see. Given that their entire business model is based on being the sole possessors of these un-copyrightable scans, they probably shouldn’t have given them away for free.
I am wondering where will the case proceed? USA or UK, it makes sense if the case proceeds in US since Derrick Coetzee lives in US, Wikipedia Foundation Inc. is located in California, and NPG wants the judgment to be enforceable against Wikipedia. However, as you mentioned in your post UK and USA laws are different regarding photographs of public domain works (in US photographs of public domain works are not copyrightable, however,in UK they could be protected by copyright laws). So it seems that NPG does not really have a case in US but arguably could win under the UK law. Is NPG planning to apply the UK law in USA?
Stu, to me they are not just scans of public domain works, they are high resolution photographs of the public domain work, which the museum paid $1M for, scrambled them, and may be subject to copyright laws in UK.
I, also, do not think that NPG wants to keep the photographs private, rather they want you go to to their website and see (not to copy or reprint) the images. To me, it seems that, the high resolution images may just be an incentive to make people want to visit their website. NPG sells exhibition tickets, books, posters, etc. through their website, thus, arguably, it has better chances of making profit if the website has more visitors.
Also, people can actually make profit from the high resolution images. Had Wikipedia posted low resolution images, I do not think NPG would have complained.
Now whether those professional photographs are copyrightable, I don’t know, some see music remixes original and some don’t (I just read the discussions on your Pirate Party post), same can hold for photographs of public domain works, there could be something original and creative in the method that the photographer uses to take the picture.
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