Wikipedia Against Gallery Copyright Overreach

http://davidgerard.co.uk/notes/2009/07/11/sue-and-be-damned/

For several years, the National Portrait Gallery has claimed
copyright over public domain images in their possession. Wikimedia has
ignored these claims, occasionally laughing. (Bridgeman v. Corel. Sweat of the brow is not creation in US law; go away.) Our official stance in this time has been “sue and be damned.”

So the National Portrait Gallery has tried. Here’s their letter.
A lollipop for every misconception or unlikely or impossible demand.
This was sent after (so they claim) the WMF ignored their latest
missive. The editor they sent the threat to is … an American.

A UK organisation is threatening an American with legal action over
uploading images that are public domain in the US to an American server
— unambiguously, in established US law, not a copyright violation of
any sort. I wonder how the case will go.

The standard of originality in the UK needs raising, but the extent of copyright that English galleries and other institutions claim over public domain works exceeds even that. It is harmful to academia and art, and it is morally wrong. We have long needed a Bridgeman vs. Corel in the UK, and hopefully this could be it. The Wikimedia Foundation is popular, organized, and solvent enough to be able to tackle the state and private interests that claim to sit between the public and the public domain.

The Wikimedia Foundation shouldn’t be fobbed off with an offer of a grant or licence of rights, as there should be no rights to grant or licence. If the Foundation fail and this enclosure of the public domain is formalized in English law it will still have been worth trying, and converting overreach into a legal principle at least opens it to reform.

Good luck to the WMF, and a hint to the NPG – you are a national, state institution that exists to serve the public. You are not serving it by claiming to enclose the public domain.

Posted in Free Culture
8 comments on “Wikipedia Against Gallery Copyright Overreach
  1. David Gerard says:

    In practice, we’d happily accept CC by-sa, for some value of “we.” This wouldn’t stop Americans arguing it was PD, of course …

  2. Bryan says:

    The Wikimedia Foundation can’t be fobbed off with an offer of a grant or license of rights. One of the basic principles on which the whole Wikipedia project is founded is that its purpose is to produce reference work that can be freely copied and reused by others. A picture licensed “for use by Wikimedia only” would be useless. Wikipedia refuses any additions that are licensed with “noncommercial only” clauses for the same reason.

  3. kwyjibo says:

    If the NPG thought that digitally reproduced PD artwork would remain PD, they may not have done it at all.
    One can argue that the value generated to the tax payer through selling these images services the public.

  4. Overton says:

    A jpeg is not the PD image, it is an object similar to a lithographic plate, which when processed can be used to print or display an image. In essence Mr Coetzee has not copied the images, he has taken an entity that in its own right has taken time and skill to create. If these digital files were physical objects, lithographic plates for example, there would be no doubt that Mr Coetzee taking would be theft.
    What has been done by this action is to deprive the NPG of a revenue stream, not by creating copies of the images, but by taking the entities created by the NPG which faithfully reproduces the images.
    The behaviour of Mr Coetzee and the WMF is also counterproductive. The NPG has now removed the high resolution images, and whilst this may be closing the stable door after the horse has bolted, it is indicative that other institutions won’t be making their own high resolution material available.
    If you go down to Ikea you’ll find ‘textured’ prints:
    http://www.ikea.com/gb/en/catalog/products/80148781
    the technology behind these can faithfully reproduce individual brush strokes on a canvas.
    http://www.factum-arte.com/eng/conservacion/cana/default.asp
    If the Van Gogh Museum were to use the technology to prepare facsimile copies of his collected works, academics and artists would have access to works at a level of detail that few would ever bee able see. The production of such items would be even more a ‘slavish-copy’ of the original than the NPG images are. Presumably under the ethics being espoused the digital files used to create these copies are fair-game to anyone who can manage to get hold of them.

  5. Rob Myers says:

    Thank you all for the comments.
    I don’t think WMF should accept a grant of rights that aren’t the NPG’s to give. This would be rightswashing and it would be to the detriment of the public. Plus I doubt it would carry any weight in the US.
    The pittance that licencing makes fades into insignificance against the material, intellectual and social loss that locking up the public domain causes. For a state institution in need of increased attendance, this is at best a perverse incentive.
    The idea that pressing the shutter on a camera or pulling the lever on a printing press is a creative act comparable to making a painting is insulting and obviously false. They may be acts of *skill*, indeed they may be greater acts of skill than the average postmodern daub, but that is not what copyright protects.
    The V&A is an example of a gallery that is using reproduction of its holdings as an attendance driver. Other galleries should follow its lead. The NPG is a national treasure that is woefully under-funded, under-promoted and under-attended. It can solve all of these problems by embracing cultural freedom rather than being suckered by intellectual property snake-oil merchants.

  6. Overton says:

    But the public domain wasn’t locked up. The images were available on the NPG website. The images are also available in books, from which Mr Coetzee could have created his own photographs, and uploaded his own copies. What he decided to do was use the work of the NPG.
    The pittance that licencing makes fades into insignificance against the material, intellectual and social loss that locking up the public domain causes.
    OK that is a few years off. But here we have a current project where they are recreating the throne room at Nimrud Palace:
    http://www.factum-arte.com/eng/conservacion/nimrud/default.asp
    as you can see from that page they are scanning objects scattered in museums across the world to piece together as much of the original as possible. The degree of detail it is possible to reproduce in 3D is phenomenal. This video, which is partly in Spanish, will give you an idea what is possible today:
    http://www.factum-arte.com/eng/conservacion/elche/default_en.asp
    So we could recreate the Elgin Marbles and give a copy to Greece or give them back the originals. Hell we could supply copies to all the major museums across the world. To offset the costs whoever undertook that task would probably look to produce copies for sale to the public. But if you watched through the Dama video, anyone with a milling machine can, and according to your tenet should be allowed to, knock out copies if they have managed to snag the digital CNC files.
    They may be acts of *skill*, indeed they may be greater acts of skill than the average postmodern daub, but that is not what copyright protects.
    Then if not copyright what does protect them? Presumably you have looked at those factum-art copies and what is possible with modern laser surface scanning. Suppose the Van Gogh museum did produce high quality copies of their collection, such copies would be a colossal public benefit, as would the cost of creating the digitization. Now say those files leak out, should the museum have any ability to stop someone from using those files to produce and sell exact copies, and if they don’t, if someone can just snag their production data, what incentive do they have in make the artifacts available in the first place?
    And so we return to the NPG. Just how do they protect their investment in producing their digital files?

  7. Rob Myers says:

    The public domain was and is locked up, as the removal of the images and the refusal to allow alternatives to be created proves.
    The philosophy of art, and the opinion of the art-going public, is a bit hard on copies. But touring shows already feature copies of works too delicate to move, and they can command blockbuster admission fees. So that’s one way of recouping scanning costs. Or groups like Wikimedia can save the museum a fortune by doing the scanning so the costs don’t need to be recouped but the circulation of the copies still promotes the gallery. If, unlike in the NPG, they are allowed to record works.
    In your example, any increase in interest in the unique original works will increase attendance and therefore admission fees for the Van Gogh museum. Digital copies and prints of those copies will have this effect. The museum has no right to stop the use of those files and, crucially, it is not in their interest to do so. A painting is not like an MP3, it’s like a concert. It’s a unique, unreproducible historical event. Even a “perfect” copy is not a perfect copy and this affects the copy’s aesthetic value. Nelson Goodman is good on this in “Languages of Art”.

  8. overton says:

    But touring shows already feature copies of works too delicate to move, and they can command blockbuster admission fees. So that’s one way of recouping scanning costs.
    But in your world you’ve given away the files that create the copies, those which cost £10,000s to produce. Every hick town impresario can get a copy made to whatever degree of accuracy he or she is prepared to pay the 3D printer operator.
    Or groups like Wikimedia can save the museum a fortune by doing the scanning
    Are you talking about wikipedia paying £1,000,000 for a group of trained conservationists to record the NPGs collection, or were you thinking of having a crowd turn up one night with step ladders and P&S cameras? You are going to have systems in place to ensure that the colour matching is correct?
    Even a “perfect” copy is not a perfect copy
    Not anymore. It is possible to recreate these works to a level of surface detail that exactly matches the original. Any blemish in the surface of the original will be in copy, if a daub of paint stands 2.3mm proud of the surface in the original it will stand 2.3mm proud in the copy. They are exact copies to 100 microns of accuracy.