Wikipedia:Wikipedia Signpost/2009-07-13/Copyright threat

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, but the organization claims copyright on photographs of those portraits.

Almost four years ago, in his keynote at Wikimania 2005, 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"&mdash;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&mdash;the home of both the Wikimedia Foundation and Derrick Coetzee&mdash;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". On this basis, UK institutions that control public domain artifacts routinely claim copyright on reproductions. However the legal precedents for this approach date from many decades ago, 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.

NPG claims
While the message published by Derrick Coetzee is not a formal letter of claim, it does note four specific grievances of the National Portrait Gallery, in varying degrees of precision: infringement of copyright, infringement of database right, unlawful circumvention of technical measures for restricting image use and breach of contract. According to the message, a formal letter of claim has been prepared and Coetzee will be sued unless all the images he uploaded are removed by July 20.

Infringement of copyright
Following the traditional view of British art galleries, the National Portrait Gallery claims that it has copyright over the digitized images that it publishes on its website:

"we can confirm that every one of the images that you have copied is the product of a painstaking exercise on the part of the photographer that created the image in which significant time, skill, effort and artistry have been employed and that there can therefore be no doubt that under UK law all of those images are copyright works…"

The NPG asserts that the alleged infringement occurred in the UK, as its servers are located there: it also asserts that images hosted by Wikimedia "are clearly directed at (amongst others) UK users". The NPG also claims to have contacted the Wikimedia Foundation over the issue, but to have been "ignored". On the Foundation-l mailing list, Gregory Maxwell characterized one "contact", from April 2009:

"[It] was made by a commercial partner (in the US) of the NPG, and was the typically legally uninformed nonsense that comes in often enough to have a boilerplate reply. They were given the standard "Wikimedia and it's servers are based in the US. Under US law such images are public domain per Bridgeman Art Library v. Corel Corp. Therefore no permission is required to use them." response."

Maxwell also noted that "a copyright complaint by the NPG in 2006 where the initial response from our side was 'What we're doing is permitted by US law' was satisfactorily resolved by providing attribution and back-links on the image page." A representative of the NPG stated in an email at the time that the NPG would "allow Wikipedia to use the images available on our site (www.npg.org.uk), providing there is a direct link from the image displayed on Wikipedia to the page it appears on in the NPG website." However, they also stated that such an agreement would be "dependent on Wikipedia displaying correct copyright information" and that it would be "essential that the image was not offered free-of-charge to anyone wishing to use it (under a GNUDFL [sic], Copyleft or similar licence), and that anyone wanting a copy be directed to the NPG website."

Infringement of database right
Database right is a concept in European Union law that is fully applicable in the UK since 1998. Similar rights have been enacted in some non-EU countries, but not in the United States. The right aims to give limited protection to collections of material that would not otherwise be eligible for copyright. In particular, the owner of the database right can prevent the extraction of "all or a substantial part of the contents", regardless of whether the database is made available to the public or not, and the National Portrait Gallery claims that the 3,300 images constitute a "substantial part" of its database of 120,000 images.

To qualify for database right, there must have been a "substantial investment in either the obtaining, verifying or presenting the contents". However, the European Court of Justice (ECJ) has ruled that the "substantial investment" must have gone into the specific preparation of the database, excluding, for example, listings of sports fixtures or runners in a horse race: "the expression ‘investment in … the obtaining … of the contents’ of a database […] does not cover the resources used for the creation of materials which make up the contents of a database." There are also judgments in other EU countries (apart from the UK) that have denied database right to databases produced by public bodies in the course of their normal functions: the National Portrait Gallery is a public body charged, among other things, to "generally promote the public’s enjoyment and understanding of portraiture of British persons and British history through portraiture both by means of [its] collection and by such other means as [it] consider[s] appropriate."

Unlawful circumvention
The NPG website has (or had, Wikimedian Robert Rohde reported that it is currently deactivated) a software feature called "Zoomify", which allows visitors to zoom in on an area of a picture: effectively, to get one screen's-worth of a higher resolution image file. Obviously, it is then possible to stitch the various "screen's-worths" back together to recreate a high-resolution image of the entire portrait, as many patient Wikimedians have done in the past; the images were initially captured and stitched manually, but more recently Wikipedians found automated ways to recover full images through Zoomify.

The NPG's lawyers claim that the purpose of using Zoomify was so "that an entire high resolution image is never made available to a user". However, a FAQ on Zoomify, Inc.'s website states: "we provide Zoomify as a viewing solution and not an image security system."

Around the time that the NPG implemented the Zoomify feature, they also began embedding hidden digital watermarks in the images on their site. The watermarks include the NPG's Digimark ID and a notice stating "Restricted Use, Do Not Copy".

Breach of contract
The breach of contract claim is the least developed in the message published by Derrick Coetzee. The NPG states that there are clear links from each of the image pages on its website which, if followed, make it clear that they prohibit copying without permission. The NPG's lawyers go on to claim that Coetzee should have known that his copying was "in direct contravention of the clear rules" and that this amounts to a breach of contract.

Reactions
News of the legal threats to Derrick Coetzee has generated lengthy discussions on the Commons Village Pump and at the Administrators' noticeboard on Wikipedia. It was also quickly picked up on the blogosphere and on Slashdot. As of Sunday night, July 12, it has not featured in any "mainstream" media, although Wikimedia Norway announced that they had notified local media.

Concerning the Wikimedia Foundation itself, general counsel Mike Godwin said "We're in contact with Derrick. We're looking at ways we may be able to help." Godwin also stated that "while discussing the general theory of copyright as it relates to this case is fine, I don't think it's a good idea to talk about specific responses here just yet." Executive director of the Foundation Sue Gardner stated "we have no plans to send out a press release on this issue." Other Wikimedians on the mailing list and elsewhere have urged restraint on the part of the community, in order to preserve the possibility of a mutually acceptable agreement with the NPG and avoid exacerbating Derrick Coetzee's legal situation.

On Wikimedia Commons, a template used to provide links to National Portrait Gallery sources has been updated to include the Copyright claims disclaimer, which explains the nature of "sweat of the brow" copyright claims and warns users that "You are solely responsible for ensuring that you do not infringe someone else's copyright." On July 12, citing potential conflict of interest, Larry Pieniazek, a Wikimedia steward, temporarily removed Derrick Coetzee's administrator status on Wikimedia Commons, so preventing him from deleting any images. Coetzee responded on his Commons talk page, stating "No insult is taken and I understand the need for the project to take this action under the circumstances."

Precedents for cooperation
Friction between Wikimedia projects and other online content suppliers is nothing new, but such disputes are usually solved amicably without the need for threats of court action. Wikimedia Norway described how a similar (though less acrimonious) argument with Galleri NOR was resolved through respectful discussion once the public image library realised that 60–80% of the traffic on its website was coming from Wikimedia Commons. A recent Signpost article described an agreement between WikiProject Chemicals and the Chemical Abstracts Service over access to the latter's database.

While the New York Public Library has also donated many thousands of images, perhaps the most significant recent collaboration was announced last March, with an agreement between Wikimedia Germany and the Deutsche Fotothek which will result in 250,000 images being uploaded to Wikimedia Commons. The Deutsche Fotothek hopes that the greater diffusion of these images will help to put them in context, with any additional information aiding its own curational work.

For the time being, and despite having instructed lawyers, the National Portrait Gallery states that it "remains willing to enter into a dialogue with the Wikimedia Foundation to discuss terms upon which low-resolution images of paintings in its collection can be made available on the Wikipedia website".

Disclaimer
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