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"—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". 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.
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 Maxwellcharacterized 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."
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.
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 Norwaydescribed 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.
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".
^The NPG online collection claims to have 120,000 portraits, but many of these are still under copyright in the original.
^See, for example, Walter v Lane  AC 539 (copyright in a speech belongs to the reporter who wrote it down), University of London Press v University Tutorial Press  2 Ch 209 (copyright in standard examination questions).
^para. 49, Fixtures Marketing Ltd v. Oy Veikkaus Ab.
^See, for example, Republic of Austria v. Compass Publishing Company, Supreme Court of Austria, 9 April 2002 (official company register); De Telegraaf v. NOS and HMG, Nederlandse mededingingsautoriteit, NMa, 10 September 1998 (programme listings of the public television networks).