In July 2009, lawyers representing the British National Portrait Gallery (NPG) sent an email letter warning of possible legal action for alleged copyright infringement to Derrick Coetzee, a former editor and administrator of the free content multimedia repository Wikimedia Commons, hosted by the Wikimedia Foundation (WMF), after Coetzee uploaded more than 3,300 high-resolution images of artworks, taken from the NPG website, to Wikimedia Commons. The NPG accepted that the artworks depicted were in the public domain, but contended that they owned exclusive rights to their reproductions, demanding that they be removed from Wikimedia Commons. The images were not deleted and, following criticism of the NPG's stance from the Wikimedia Foundation and the Electronic Frontier Foundation, the NPG did not pursue the matter further. An unrelated 2023 Court of Appeal judgement clarified that in England and Wales no new copyright is created in making a photographic reproduction of a two-dimensional public domain artwork. The NPG website continues to assert ownership of copyright.
NPG claims In 2009, a letter sent by the representatives of Britain's National Portrait Gallery stated that Derrick Coetzee had downloaded more than 3,300 high-resolution images from the gallery's database of images and had posted them for re-use on Wikimedia Commons. The NPG letter stated the claim that while the painted portraits may be in the public domain, the high-quality photographic reproductions are recent works, and qualify as copyrighted works due to the amount of work it took to digitize and restore them, that the action of uploading the images infringed on both the NPG's database rights and copyrights, and that the images were obtained through the circumvention of technical measures used to prevent downloading of the prints. The NPG also stated that the public availability of the images would affect revenue acquired from licensing the images to third parties, revenue also used to fund the project of digitizing their collection, an effort that the NPG claims cost the organization over 1,000,000 pounds sterling. The NPG had requested a response from Coetzee by 20 July 2009, and requested that the images be removed from the site, but noted that the NPG was not considering any legal action against the Wikimedia Foundation. The NPG announced that Coetzee had responded via his legal representative by the requested deadline. Coetzee's legal representation was provided by the Electronic Frontier Foundation. Coetzee publicly posted a copy of the legal letter from the NPG, indicating that he desired to "enable public discourse on the issue". On 17 July 2009, NPG gallery spokesperson Eleanor Macnair stated that "contact has now been made" with the Wikimedia Foundation and "we remain hopeful that a dialogue will be possible." The NPG has stated that it would be willing to permit Wikipedia to use low-resolution images, and that it hoped to avoid taking any further legal action. The NPG had previously attempted to contact the Wikimedia Foundation in April 2009 regarding this issue, but did not receive an immediate response. The British Association of Picture Libraries and Agencies (BAPLA), an image industry trade group, expressed support for the gallery. In early 2010, an NPG spokesperson reported to Heise Open, a division of German publishing house Heinz Heise, "We had a constructive discussion in December and are now considering how best to come to an agreement." In November 2010, Tom Morgan, Head of Rights and Reproductions at the National Portrait Gallery addressed a conference attended by both Wikipedians and representatives of cultural institutions. Morgan's presentation was entitled "Wikipedia and the National Portrait Gallery – A bad first date? A perspective on the developing relationship between Wikipedia and cultural heritage organisations".
Background The 1999 United States District Court case Bridgeman Art Library v. Corel Corp. (in which Bridgeman Art Library sued the Corel Corporation for copyright infringement for distributing copies of digital reproductions of public domain paintings sourced from Bridgeman on a CD-ROM) established that "a photograph which is no more than a copy of a work of another as exact as science and technology permits lacks originality. That is not to say that such a feat is trivial, simply not original." As a result, reproductions of works that have fallen into the public domain cannot attract any new copyright in the United States. As such, local policies of the Wikimedia Commons web site ignore any potential copyright that could subsist in reproductions of public domain works. However, British case law can take into account the amount of skill and labour that took place in the creation of a work for considering whether it can be copyrighted in that country. The letter from the National Portrait Gallery demands that the case should be heard in the UK under UK law and not in the US under US law. The issue of jurisdiction is complicated as the National Portrait Gallery is located in the United Kingdom, but Wikimedia Commons, and the uploader, are both located within the United States. The letter also claims that by making the images freely available on Wikimedia Commons, Coetzee would also be liable under the British Copyright, Designs and Patents Act 1988 for any copyright infringement committed by other users who download and use the images.
Reaction
… excerpt ends here. Continue reading the full article.
