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New Developments In NPG/Wikipedia Lawsuit Threat
Raul654 writes "Last week, it was reported that the UK's National Portrait Gallery had threatened a lawsuit against an American Wikipedian for uploading pictures from the NPG's website to Wikipedia. The uploaded pictures are clearly in the public domain in the United States. (In the US, copies of public domain works are also in the public domain. UK law on the matter is unclear.) Since then, there have been several developments: EFF staff attorney Fred von Lohmann has taken on the case pro-bono; Eric Moeller, Wikimedia Foundation Deputy Director, has responded to the NPG's allegations in a post on the WMF blog; and the British Association of Picture Libraries and Agencies has weighed in on the dispute in favor of the NPG."
I fully agree that the paintings are in the public domain, but it does NOT mean that the digital photos are. If he created his own photos, he could post them. The only question is whether or not a straight copy of a work can be copyrighted on its own... which is why the museum is arguing that artistry went into creating them.
Having done museum copywork in the past, I can assure you that getting high-quality images of paintings is NOT simple - lighting is critical to capture the texture, color, and avoid reflections and shadows. It's not just point-and-click. I'd side with the museum here, sorry!
madCow.
I used to have a sig, but I set it free and it never came back.
Welcome to globalisation. Laws in the US aren't the same as the ones in the UK. In the UK we don't have fair use laws.
I'm wondering why this is different to the music mess caused by allofmp3; everyone was so upset that the Russians system was different and against "our" laws.
One of a couple of things is going to happen as we continue the Digital Revolution. Either we're going to need a global legal system since all this internet stuff is global, or we're going to have to shut down the internet and make it the "countrynet" so that everything you do is contained in the same legal framework.
Or, head, sand, bury.
This is a difficult one, I think, because it's harder to conceive of one of the parties as "evil" in the way that you can when the RIAA is suing dead people and those who have never used a computer. I have sympathies for the NPG - not least because they use the high-quality scans as a form of revenue which enables them to keep a really fantastic gallery open and free to all. Whilst what Wikipedia have done is almost certainly legal in the US, they are distributing it in the UK (where we might say it is presumtively prohibited). Of course, all this could have been sorted if we just had a root and branch overview of copyright throughout the world, but the Berne convention will probably prevent that...
And don't forget that the NPG hasn't taken to this in an "evil" way, they did offer to provide lower resolution pictures and haven't been preditory
the British Association of Picture Libraries and Agencies has weighed in on the dispute in favor of the NPG.
There's a shocker. These people are just as bad as the *AA here in the U.S. Their about us page just screams "we make money of every dirty copyright trick we can think of and pretend to do it for you, the artist, the photographer, the little guy". It's all such a sham.
Check out their site, I was going to quote some of it but you can't even right click the page without their stupid JavaScript alerting you that their site is their content, blah, blah. Hello, 1996 called they want their cheap tricks back. Obviously this stuff is easy to defeat but it's still ridiculous that they even do it at all.
I hope this suit goes all the way to the new Supreme Court England is setting up and that these idiots get a total smackdown. Hey, a guy can dream a little right?
Creationist Textbook Stickers Declared Unconstitutional by CowboyNeal
Defenders of the Wikimedia Foundation say the images are in the public domain (even though they aren't under UK law) and applaud Coetzee as if he were some kind of Robin Hood. Unfortunately, it's a case of the poor stealing from the poor. If all museum images were simply appropriated by file-sharers under the rationale that they *should* be in the public domain, pretty soon there wouldn't be any museum willing to pay for the digitization of important works, and we'd all be worse off. See the rest of my argument here: http://www.xconomy.com/national/2009/07/17/art-isnt-free-the-tragedy-of-the-wikimedia-commons/
So according to the National Portrait Gallery, the WMF ignored their initial attempts to communicate with them. Now they're responding by website???
UK law is very clear, photographs, even if they're of a subject matter that is public domain, are subject to their own copyright as an original work.
Even though I can see where the problem is since UK law is unclear in this matter, it is still a photo of a painting and will never compare to the real thing.
I've seen loads of photos of the Mona Lisa, but does that mean if I was in the Louvre* would I not go and see it? Of course I would, because I'd want to see the genuine article.
*It's in the Louvre isn't it?
Summation 2
First off, I can't even copy some quotes from the article at http://www.bjp-online.com/public/showPage.html?page=865802, because they've done that stupid hijacking of my browser (I know, I'm using IE - I'm at work), and they claim "copyright" over it (despite the fact that their article quotes over people...) Nevermind, View Source to the rescue.
Simon Cliffe of BAPLA says "We understand that other people who have had similar experiences with Wikipedia and Wikimedia Commons have been told that they regard all images of out of copyright material as public domain"
Imagine that - thinking that out of copyright material is public domain!
"and dispute there is any copyright in a copy of an original work"
Not true at all - the point is that making a copy of public domain material doesn't constitute original work. They are perhaps confusing effort with originality.
"If owners of out of copyright material are not going to have the derivative works they have created protected, which will result in anyone being able to use them for free"
Just think, people might be able to use out of copyright material for free! When it's fully allowed by US law!
"but to assert the protection the law provides for their commercial interest"
US law provides them with no such protection. So they'll have to think up another way to profit from other people's work from centuries ago (not that there's any evidence that Wikipedia showing these images will harm their ability to profit - I don't think anyone goes "I'm not going to bother going to a gallery, when I could just sit at home on Wikipedia").
Musuems have collected and preserved much of the worlds cultural heritage. But at the same time they severely limit the publics enjoyment of the art and artifacts they seek to preserve.
I enjoy visiting a museum on occasion, but entry prices are usually extremely high and in the time that I have available I can usually only browse the highlights (from a respectul distance that hurts my eyes and blurs any details). Quick browses of paintings that their authors have spend weeks, or months on. You can ofen buy (expensive) books with again the same highlights of the collection, but not on a 1:1 scale.
High res scans would make all of this available to a much wider audience; worldwide, 24-7. Let them store that fragile 400+ year old painting in a secure bunker. Its the painting I am interested in, not the canvas.
Of course this would also make the museum obsolete; and kill off some major tourist attractions -- so expect some resistance from the old guard.
It kind of worries me that he hacked in and took the hi-res images. We run a gallery of biological images and it costs us a lot of money and effort to digitise our 80-100 year old collections in order to make them useful to the public and scientific community. We do want our images in the public domain and we do want them used, but we need to have the cash to keep doing this work as a small charity so clearly there needs to be some balance. If someone hacked in and took our hi-res images it might jeopardize our ability to add other images on our already shoe-string budget. If he gets away with that I'd be quite upset to be honest...
and i will type in paypal description 'for NPG case'. hehee. dont make fun of me, i do that all the time. my donations may be small, but at least it can pay some snacks for one of the staff. everything counts.
Read radical news here
The Wikipedia server and Wikipedia editor are resident in the US.
The NPG's server might be in the UK, or it might be in the US, or any other country. Then again, the images might have been served up from a distributed content delivery network, a cache or other indeterminate location outside of the UK. UK law has a tenuous relationship to this case.
It's worth noting that the pages are served by easynet. This company operates a global content delivery network, so a US resident probably never even comes in contact with the UK and its jurisdiction. The files probably came directly from a server in the US.
I think the UK NPG will get laughed out of a UK court. If any infringement happened (which it didn' under US law), it happened in the US. Mind you, the lawyers are salivating over this one, in the hope that they become famous by establishing some new case law. Too bad that a clear technical explanation will leave the judge with no alternative but to die laughing.
UK resident.
Working on a UK machine.
The defense?
But I worked hard on it and spent a lot of time and money copying the code.
Effort on its own means jackshit in this world (except maybe public schools), you need to actually produce something of its own merit.
Where do we go from here?
But US courts have already concluded that photographic reproductions of a public domain painting do not count - so tough, it's legal, and not up for debate.
From TFA: http://www.bjp-online.com/public/showPage.html?page=865802
[Wikimedia Commons] regard all images of out of copyright material as public domain, and dispute there is any copyright in a copy of an original work,' [Simon Cliffe, NPG executive director] says. 'This is contrary to UK law. ... The 1988 CDPA recognises this.'
So according to this guy, US and UK law are in disagreement over this, making this case all the more interesting.
"Computers are useless. They can only give you answers." - Pablo Picasso
The National Portrait Gallery in London (Where the original pictures reside) DOES NOT CHARGE for entrance. I have spent many a wet lunch hour wandering around the Gallery enjoying the artwork.
I sells high quality prints of the Artwork. This is a way of raising funds for the upkeep and towards the purchase of new work.
As an Amateur photographer who has had their work pirated by someone from the USA and realises the futility of trying to stop them from claiming it as their own, I'm with the NPG on this one. Btw, I would have given the pirate a high quality copy of the picture if they had asked for it and agreed that the copyright was mine. Instead, he stole it.
I'd rather be riding my '63 Triumph T120.
I'm seriously torn here about whether I support the museum or the little guy. I don't think anyone would argue that the original pictures are in the public domain but that isn't what is being shown on Wikipedia, what is getting shown there is a photograph of a public domain work. I think it's fair to argue that a non-trivial amount of work went into taking these photographs and therefore they fall under copyright legislation. If you think it was a trivial amount of work ask yourself how long it took a professional photographer to capture all these shots - I'll bet it ran to at least several weeks of work and probably more (at 20 paintings a day it would be 30 weeks work and I doubt they could do twenty a day).
On the other hand this museum is paid for by the people and presumably the payment to have the photographs taken was also public money. I would say, therefore, that there is a strong argument that these photographs should be in the public domain (at least for residents of the UK). Strengthening the freedom argument, to my mind, is the fact that the museum doesn't allow people to take their own photographs in effect causing a monopoly situation on public works.
I used to have a better sig but it broke.
If that's the case then does that mean that if copying the NPG/MPAA/RIAA stuff is hard, requires a great deal of skill and is a creative process, that automatically makes it a new work protected by copyright law?
Or somehow that's only true if you steal from the public?
Note that in my opinion it's stealing from the public if the public effectively no longer has free access to works that should be in the public domain[1].
Whereas it's copying if the company still has free access to its own originals/copies.
[1] You have to pay a fee to view the public domain work, and you aren't allowed to take pictures, and you can't take pictures of the owner's pictures, or make copies of them.
what may happen is that a judgment is made against the guy in the UK and there is no ramification to him until he tries to go there the next time. If he does he'll probably be arrested, etc on whatever equivalent there is in the UK to a bench warrant for failing to pay the judgment against him. And that process will happen efficiently because of the wonderful sheep^h^h^h^h^h people accounting systems we all now employ at border checkpoints as part of our security theater.
"If still these truths be held to be
Self evident."
-Edna St. Vincent Millay
If I made my own digitalized copy of these public images and my copy is very similar to that of NPG, who is the owner? My work has the same value that their. I wonder how they can copyright a work!
The National Portrait Gallery in LONDON does not charge people who can turn up and enter the premises, which is lovely for people who live in LONDON, but increasingly expensive as your location diverges from LONDON. This means that poor people from Scotland, for instance, ahve little chance of seeing the images in a decent resolution, unencumbered bt the NPG's assininse DRM viewer.
Wikimedia putting these images on the web benefits everyone in the world, including all those people for whom a trip to the NPG and an overnight stay is unfeasible.
Since the NPG has spent the money on digitisation and doesn't recoup it by charging admission, I'm not sure how people NOT coming through the doors will be to the NPG's detriment. Even if they get money proportional to the amount of people coming though the door, I'm not sure that putting the full-res images on the web would deter anyone in the vicinity from going into the gallery and viewing the paintings for real - it's clearly more ideal - and I highly doubt that anyone so dedicated to viewing the images that they'd make the trip from afar, would be deterred by the availability of the digitised images on the web.
the painting is public domain.
If you don't like the law, then move to the UK, become a citizen, and change the law.
Thank you for taking the time to contact the National Portrait Gallery. Please see below the Gallery's position statement: The National Portrait Gallery is very strongly committed to giving access to its Collection. In the past five years the Gallery has spent around £1 million digitising its Collection to make it widely available for study and enjoyment. We have so far made available on our website more than 60,000 digital images, which have attracted millions of users, and we believe this extensive programme is of great public benefit. The Gallery supports Wikipedia in its aim of making knowledge widely available and we would be happy for the site to use our low-resolution images, sufficient for most forms of public access, subject to safeguards. However, in March 2009 over 3000 high-resolution files were appropriated from the National Portrait Gallery website and published on Wikipedia without permission. The Gallery is very concerned that potential loss of licensing income from the high-resolution files threatens its ability to reinvest in its digitisation programme and so make further images available. It is one of the Gallery's primary purposes to make as much of the Collection available as possible for the public to view. Digitisation involves huge costs including research, cataloguing, conservation and highly-skilled photography. Images then need to be made available on the Gallery website as part of a structured and authoritative database. To date, Wikipedia has not responded to our requests to discuss the issue and so the National Portrait Gallery has been obliged to issue a lawyer's letter. The Gallery remains willing to enter into a dialogue with Wikipedia. This statement will be published on the National Portrait Gallery's website in due course. Once again, thank you for your feedback. I do hope that you will be able to visit the National Portrait Gallery both online (www.npg.org.uk - where visitors can freely view more than 60,000 low resolution digital images of works in the Collection) and in person in the near future. Yours sincerely, Helen
Anyone care to try posting some images from Getty on Wiki....?
http://www.gettyimages.com/Corporate/LicenseInfo.aspx
Oh dear, another confusing international internet legal kerfuffle. I'm not really clear what jurisdiction the British courts are going to have over this guy.
I'm moderately sympathetic to the NPG in this case - although, as noted, they are government-funded, it is UK taxes that fund it. They're *also* funded by licensing these photographs, AFAIK and by other donations, grants, etc. Given that, I can understand why they want to keep a revenue stream and also why they don't feel the need to provide images free-of-charge to the rest of the world (though it's human culture, so I also think it'd be somewhat unfair to deny the rest of the world access - although they have, evidently, made these pictures available on their website). Given UK law doesn't definitively place these photographs in the public domain, I can see why they think they have a legal leg to stand on - except for the (large) matter of jurisdiction, which I can't understand how they're going to argue / enforce.
Despite all my sympathies for the gallery's predicament, I would *love* to see the EFF come over here and argue the case successfully so that we can set a legal precedent and have a stronger public domain. It's not that I'm against the NPG, it's that I want our laws improved ;-)
Also: wouldn't it help if the WMF foundation published the legal threats they'd received? They claim in the blog entry that they were quite aggressive but I've not actually seen the real letters. The letter to the individual contributor seemed quite pleasant and constructive, as legal threats go. Although I guess it's possible that they'd be more formal / aggressive when addressing an "organisation" than an individual.
What I don't get is why people haven't started sneaking in cameras and taking the pictures themselves. The rentacops there can't make you delete the photos, and I'm sure that legally they can only ask you to leave. I think you could take lots of photos before they even noticed. After a while I'm sure we'd get all 3000 images!
Ah but wikipedia has servers in Europe, which could easily come under any copyright ruling a UK court makes.
The other problem is the server the images were taken from is hosted in the UK, so arguably the editor breached UK copyright rules when taking the images, and people have been extradited for less than that.
In Feist versus Rural Telephone Company, the court commented that copyright protects originality, not hard work. If the purpose of a photograph is to be a faithful rendition of a painting, how can it possibly have copyright protection? It does not add anything creative to the painting. It does not riff on it, it does not create a derivative work. The more effort that is expended on it, the more it becomes a high-fidelity copy of the original, and common sense says that would make it even less copyrightable than an amateur snapshot, that might "creatively" include keystone distortion or a bit of the frame or reflections off the glass.
The innumerable _parodies_ of, say, Grant Wood's "American Gothic" are surely copyrightable. But if a faithful copy of the original can be copyrighted, this is something new and pernicious in the world.
"How to Do Nothing," kids activities, back in print!
It is not okay to block a freedom just because it makes economic sense. so be it if no museum is going to be willing to pay for digitization because they can't recoup their cost or make profit out of it. They should revisit their goal of being a museum. Not block people freedom of sharing something that is free, If they can't do it...i'm sure somebody else will be willing to do it and even ind a way to make profits without blocking the freedom of sharing something that is free,
...Its ok to shoot missiles into someone elses country because you do it in your own.
If Google really cared they would fix Android Chrome to reflow text, instead of discriminating
See also region locked DVD discs like anime. Don't distribute them inother countries, but breaking it is falling foul of copyright of the work created in a foreign country never printed in the host country.
It DID jaul Dimitry.
It DID aid and abet RIAA's persecution (by killing the credit card money owed).
Not only does their site pretty much yell out "We want to make money from everyone.", they even say in their "Vision" that they want to be an all inclusive monopoly :
Every national and international photographic library, agency and other body or business relevant to our industry will be inspired to join and be a part of BAPLA.
Just what we need, yet another money-sucking trade group with an interest in perpetual copyright and the power and money to bribe lawmakers into granting them exactly that.
I believe that most posters are mistating UK law. NPG's statement of the law are very carefully parsed and seem to say only that some photographs of out of copyright works could be copyrightable without actually making statements about protection of slavish copies. In fact their statements are probably true about US law. What is clear under US law, and is unclear but supported by some UK precedent is that a slavish, accurate, faithful copies of a public domain work, that look just like the public domain work (which involves for paintings a difficult, expensive, process) are not copyrightable.
OTOH, the UK does have database protection which protects collections of facts and data even where the underlying data/facts are not protectable or are public domain. US law has nothing like this. The database copyright is designed specifically to protect the sweat of the brow effort in assembling collections data. Further, there can be questions about how the photographs were accessed. I think NPG has a better shot at applying this law as well as some of the other causes of action involving misappropriation of their computer facilities, maybe trespass, etc.
would *love* to see the EFF come over here and argue the case successfully
I would love to see the EFF argue any case successfully, their track record is not the most impressive. Rather than experienced trial and appellate lawyers they tend to have very smart, passionate people without much advocacy background. The Fred Von Lohmann guy, according to his biography, did transactional work before joining the EFF.
I'm not sure how it is in the UK, honestly, but in the US courts don't attempt to adjudicate matters where they have no jurisdiction. The only exceptions to that are when congress acts to extend jurisdiction to a US controlled area outside the US, or when the interests of a fair trial demand moving to a new location. Neither of those situations allow someone in the US to sue someone in another country to sue for something that is legal in that country.
Since the initial download of these photos from the server in the UK was obviously 100% legal in the UK, and the copying occured in the US - far outside any UK court's jurisdiction - I'm not shure how they would even bring a case up. Would they attempt to sue them for something that is legal in the UK? Or would they attempt to get a UK court to let them sue citizens in another country for something that happened in another country and which is not illegal for them to do in that country? The second situation would most probably be laughed at as a kangaroo court, it makes no sense.
Honestly, I see this as a no-win for the NPG. I can't imagine a situation where the guy who posted the photos would lose anything in this case, even any fines or anything in the UK.
Security is mostly a superstition... Avoiding danger is no safer in the long run than outright exposure. - Helen Keller
1. The Gallery spent £18,000 to put its collections online in 1999. During a ten year period up to 2008 another £10,000 was spent on minor developments and adjustments and in 2008 and 2009 a further £11,000 was spent. This gives a total figure of £39,000.
Their costs in the last 5 years were thus £11,000 plus some fraction of the £10,000 spent between 1999-2008. Why are they now claiming their costs were about 50 times that?
Try this one instead - but Australia are rolling over and being the US's bitch this time.
They can't have it both ways. If the US protects fugitives from justice who've committed crimes against other countries laws then other countries should reciprocate and tell the US to shove their extradition requests up their fat asses.
See how Disney and Microsoft like that.
Confucius say, "Find worm in apple - bad. Find half a worm - worse."
therefore taxpayers should get access to what they have payed for
I think you are confused. The creativity you are thinking about is in the invention of a method for making the photograph, not in the photograph itself.
In other words, you might very well be able to apply for a patent for your ingenious and creative method, but as innumerable others have replied to you, since the photograph which is the result is designed to be as "unoriginal" as possible, it is unlikely to be judged to be eligible for copyright.
> And a certain Russian programmer was arrested and jailed in the US for things he did in Russia that were legal there... remember that one ?
I assume you mean Dmitry Sklyarov?
> Why should the reverse not apply ?
Because it was a bad idea then and it's a bad idea now.
And do they mention that there has never been a supreme court judgment on the issue?
The judiciary are adept in coming to a justification for what they want to allow and what they don't want to allow. In the the Bridgeman case Corel performed their own digitization using the Bridgeman slides. An equivalent act would have been if the wiki-thief had made prints from the digital files and then craeted his own digital files from the prints.
However, in this case the physical jpegs the thief responsible simple purloined the files belonging to another. If that was the situation that came up before Kaplan I doubt he'd have found in favour of people rifling through the computer files of another.