UK public gallery threatens Wikimedian
On July 10, Wikimedian Derrick Coetzee received an email message from Farrer & Co., lawyers acting for the National Portrait Gallery (NPG) in London, threatening legal action in the English courts. In March of this year, Coetzee had uploaded over 3300 high-resolution images of public domain artworks held by the gallery to Wikimedia Commons. Coetzee posted the letter publicly, setting off discussions in the Wikimedia community and beyond about the legal, political, and ethical ramifications of the threat. The National Portrait Gallery holds thousands of portraits that have fallen into the public domain,[1] but the organization claims copyright on photographs of those portraits.
Almost four years ago, in his keynote at Wikimania 2005,[2] Jimmy Wales already described receiving (and refusing) a request to remove "a number of images on your website which are portraits in the collection of the National Portrait Gallery in London" (among them the famous Chandos portrait of Shakespeare and other 400-year-old paintings), and noted it was "a fairly routine thing for me to get complaints from museums who own [public domain] works, who assume that because they own the physical object they can threaten Wikipedia to take these down." According to a July 2008 statement by Erik Möller, "WMF's position has always been that faithful reproductions of two-dimensional public domain works of art are public domain"—and thus that copyright claims on such reproductions are illegitimate. Since a 54:3 straw poll that followed Möller's statement, Wikimedia Commons has tagged such reproductions as public domain content (noting the possibility of restrictions imposed by "local laws"). In the United States—the home of both the Wikimedia Foundation and Derrick Coetzee—the 1999 case Bridgeman Art Library v. Corel Corp. established that faithful reproductions of public domain images lack the originality required to generate a new copyright.
UK copyright law has traditionally been more tolerant of "sweat of the brow" copyright claims, on the basis that "what is worth copying is prima facie worth protecting".[3] On this basis, UK institutions that control public domain artifacts routinely claim copyright on reproductions.[4] However the legal precedents for this approach date from many decades ago,[5] and so cannot take account of the subsequent changes in British and international copyright law. In the message published by Derrick Coetzee, the NPG's lawyers themselves note that there is no English precedent that covers this particular situation.
- ^ The NPG online collection claims to have 120,000 portraits, but many of these are still under copyright in the original.
- ^ Jimmy Wales: Ten Things That Will Be Free. Wikimania 2005 keynote, August 2005. Section 5: Free the Art!. Video (164MB, 1:07:51 / section starts at 0:11:40)
- ^ University of London Press v University Tutorial Press [1916] 2 Ch 601 at 610 (Peterson J).
- ^ See, for example, the Museums Copyright Group.
- ^ See, for example, Walter v Lane [1900] AC 539 (copyright in a speech belongs to the reporter who wrote it down), University of London Press v University Tutorial Press [1916] 2 Ch 209 (copyright in standard examination questions).