Wikipedia:Wikipedia Signpost/2009-07-20/Copyright dispute

Last week news broke of the legal threat sent to Wikimedian Derrick Coetzee (see Signpost and Wikinews coverage). The National Portrait Gallery in London alleges that Coetzee infringed on the gallery's copyrights by uploading to Wikimedia Commons over 3000 relatively high-resolution images of public domain portraits; the NPG, like many UK cultural institutions, claims copyright on photographic reproductions of public domain works.

Since the initial Signpost coverage, the Wikimedia Foundation has responded with a post on the Wikimedia blog, Coetzee has announced that he is being represented by a lawyer from the Electronic Frontier Foundation, and the story has seen a wide variety of discussion in the mainstream media and among bloggers and others.

Wikimedia response
Although an individual Wikimedian, rather than the Wikimedia Foundation itself, is the target of the National Portrait Gallery's threat, the legal dispute is widely understood as pitting the gallery against Wikipedia and the Wikimedia Foundation. In the letter to Coetzee, the NPG stated: "Our client 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 and our client will continue to write to the Wikimedia Foundation with requests for discussion. However, to date, the Wikimedia Foundation has ignored our client’s attempts to negotiate this issue, preferring instead to take a more harsh approach that one would expect of a corporate entity."

On 16 July, Erik Möller posted a response on the Wikimedia Foundation blog, titled "Protecting the public domain and sharing our cultural heritage". The post describes some of the ways in which other organizations are working in cooperation with Wikimedia projects and highlights the open letter on "Working with, not against, cultural institutions" that was published in the previous Signpost, but it also re-iterates the Foundation's position against efforts to restrict the distribution and use of cultural works that are in the public domain. In support of Coetzee, the post notes that: "The Wikimedia Foundation has no reason to believe that the user in question has violated any applicable law, and we are exploring ways to support the user in the event that NPG follows up on its original threat. We are open to a compromise around the specific images, but our position on the legal status of these images is unlikely to change. Our position is shared by legal scholars and by many in the community of galleries, libraries, archives, and museums."

On 17 July, Möller said that "we’ve just entered good faith discussions with the NPG to determine whether a compromise is possible". According to reporting by The Guardian, the NPG "said they were not considering suing Wikipedia."

Deadline approaching
The letter to Coetzee demands that all the NPG images uploaded by Coetzee be deleted from Wikimedia servers by 20 July; there is no indication that this is being considered. Coetzee's administrator privileges on Wikimedia Commons were revoked last week because of the potential conflict of interest, although even deletion by an administrator would not meet the gallery's demand, since "deletion" on Wikimedia projects is merely the reversible suppression of content to prevent access by non-administrators. According to Coetzee, he is being represented pro bono by Fred von Lohmann, a senior staff attorney for the Electronic Frontier Foundation who specializes in intellectual property issues.

Freedom of information requests
Wikimedians and others have begun filing freedom of information (FOI) requests to discover such details as how much web traffic comes to the NPG website from Wikimedia projects and how much of the gallery's income comes specifically from licensing public domain works (as opposed to the many still-copyrighted works the gallery also owns).

Through previous FOI requests and the NPG's official statements, it is known that the gallery invested £1 million in its ongoing digitization project, that it spent £39,000 putting images online, that licensing images for web use brought in between £10,021 and £18,812 in each of the past five years, and that the total income from licensing in all media (including for copyrighted works) and reproduction fees ranged from £433,000 in fiscal year 2006-2007 to a projection of over £339,000 for 2008-2009. Licensing income appears to represent only a few percent of the gallery's budget, which exceeded £16 million in the 2007-2008 fiscal year.

Continued media coverage
Over the last week, Coetzee and others have cataloged the steady stream of press coverage, including Slashdot, the BBC, The Independent, the Evening Standard, The New York Times, and a host of blogs and specialist publications. Overall the coverage highlights well the essentials of the copyright dispute, although with such a wide variety of reporting, these stories report a wide variety of sometimes contradictory facts about the dispute.

UK publications in particular have often stated categorically that UK law extends copyright protection to photographs of public domain works; in contrast, legal analysts&mdash;such as technology law bloggers Simon Bradshaw and Andres Guadamuz&mdash;have consistently come to the conclusion that UK law is unsettled in several respects relevant to this dispute.

While the images uploaded by Coetzee are widely referred to as "high resolution", they are too small for many types of print usage. It is standard practice in galleries and museums to create much higher resolution digital files&mdash;for insurance and repair purposes, in addition to reproductions&mdash;and the NPG is assumed to keep such files.