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Copyright dispute

Further developments in copyright dispute

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By Sage Ross

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—such as technology law bloggers Simon Bradshaw and Andres Guadamuz—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—for insurance and repair purposes, in addition to reproductions—and the NPG is assumed to keep such files.

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== Some thoughts on things to cover ==

Some things I'd like to see this report cover if possible:

  • Clearing up some of the confusion regarding money: what the NPG has invested in its digitisation programme (£1 million), what it spent on putting the images online (£39,000), what it earned from web licensing last year (£11,291), and what it earned from magazine and book licensing last year (£339,000), and the percentage this is of their total income (I've heard 2,3%, someone should check this).
  • A note that no one has yet been sued (perhaps the most common misconception).
  • A note that the Wikimedia Foundation has no holdings in the UK (at least one report got this wrong).
  • A note that the gallery has free entry, but does not permit photography (with or without flash).
  • Information about the current negotiations between the WMF and NPG (which I know very little about).
  • Clarification that the Bundesarchive contribution was of freely licensed copyrighted works, not public domain works (which is why they were reduced resolution).
  • Maybe some thoughts on image resolution.
  • There has been at least one detailed legal analysis that may be useful.

Will add more thoughts if I think of anything. Dcoetzee 15:47, 20 July 2009 (UTC)[reply]

The 2.3% refer to the previous year (2007/2008), and (as described at Wikipedia_talk:Wikipedia_Signpost/2009-07-13/Open_letter#The_institutions.27_needs) were calculated from two numbers in the National Portrait Gallery Annual Report and Accounts 2007-2008:
  • £16,610,000 "Total incoming resources" from the "CONSOLIDATED STATEMENT OF FINANCIAL ACTIVITIES FOR THE YEAR ENDED 31 MARCH 2008", on p.36
  • £378,000 income from "Picture Library" in section 2c, "Activities for generating funds" (definition), as given on p.43, in the "NOTES TO THE ACCOUNTS FOR THE YEAR ENDED 31 MARCH 2008" (which, as noted on p.38, form part of the same account as the "Consolidated Statement)
(378000/16610000 = 0.02275...)
Some more remarks:
  • Assuming that the "more than £339,000" (defined in the Guardian article as the "projected gross revenue from fees in 2008/9") refers to the same item, the income from the Picture library has shrunk considerably during the last three years:
    • £433,000 in 2006/2007 (see p.43 again)
    • £378,000 in 2007/2008
    • £339,000 in 2008/2009 (or a bit "more than" that)
  • The majority of the licensing fees income goes to the cost of raising those fees itself. The 2007/2008 annual report says on p.17 that the Picture Library rendered "a surplus, less costs, in excess of £130,000 during difficult conditions in publishing, television and media markets, and during implementation, without interruption to service, of the first instalment of a new two-part computer system" (a statement that raises the question why the following year saw a further decline).
  • Comparing the income from the Picture library to the other "Activities for generating funds", one finds that it is not much more than either that from "Catering franchise" (£290,000) or "Venue hire" (£321,000, apparently means renting the Gallery's buildings for corporate events), and is dwarfed by "Retail" (£1,437,000, I assume this means this means selling items such as postcards and catalogues, for which licensing fees have already been paid, in the museum shop and over the NPG's website)
  • An aside remark, not quite relevant for the Signpost article: In 2006, NPG director Sandy Nairne seems to have gotten quite a favorable impression of Wikipedia, and he even made an edit ;) [1].
Regards, HaeB (talk) 18:43, 20 July 2009 (UTC)[reply]

Derrick, I've incorporated as much of what you suggest as I think fits. Some of it is tangential to the main story, and I don't want to get into the Sisyphean task of correcting everything that's wrong on the internet.--ragesoss (talk) 19:16, 20 July 2009 (UTC)[reply]

Not a problem, just suggestions. :-) Thanks for writing this. Dcoetzee 21:38, 20 July 2009 (UTC)[reply]

The NPG and other public/state museums, galleries and other bodies are the custodians of the objects they hold #not the owners#. The only things they have a claim to are the photographs, books and other created objects which the staff/hired in professionals have created as part of their work.

Various museums etc have an arrangement for 'photographs for personal etc use' and a number are prepared to come to arrangements with WP and similar bodies - presumably on the grounds of carrying out their remit, and because the publicity/information provided/other aspects will be of at least indirect benefit to them.

Should point out - we only hear from those bodies who are looking for problems (and are not willing to come to a 'use this image not that and provide a link for buying better quality images' arrangement). —Preceding unsigned comment added by (talk) 09:27, 22 July 2009 (UTC)[reply]

Update 2009-07-22

UK magazine Amateur Photographer quotes a statement from a spokesman from the NPG issued at 1340 BST on Tuesday 21:

We are pleased to announce that on Monday 20 July we received correspondence from D Coetzee's lawyer. We wish to give this due consideration before commenting further. The Gallery will make a further announcement in due course once the situation is clearer.

Looks like we're back in a waiting game to see what the NPG's next move is… Physchim62 (talk) 11:04, 22 July 2009 (UTC)[reply]

Another interesting article was this MediaPost article, which quotes my attorney directly:

Fred von Lohmann, an attorney with the organization, says the dispute between the museum and Coetzee/Wikipedia poses a question that could affect a broad swath of U.S. Web companies that make content available throughout the world: "Are they going to be bound by the most restrictive copyright law anywhere on the planet, or by U.S. law?" [...]

Von Lohmann says his client has no obligation to comply with another country's restrictive copyright law. "It's not the case that as an American you have to worry about the laws of every other country," he says. "The U.S. Congress has made decisions -- based in part on our constitution and our First Amendment -- that certain kinds of works are not copyrightable," he says.

He says he hopes to resolve the dispute with the National Portrait Gallery out of court, but isn't ruling out filing a lawsuit seeking a declaratory judgment against the museum. "We have not taken any options off the table," he says.

Dcoetzee 11:30, 22 July 2009 (UTC)[reply]
Nice one, Derrick! I'd assumed you wouldn't want to comment directly (on the specific matters of the not-a-suit), but quoting someone who quotes your attorney is a nice way round the problem! Physchim62 (talk) 11:42, 22 July 2009 (UTC)[reply]
I'll note here the qualifications of the two bloggers mentioned in the article: Simon Bradshaw appears to be a trainee barrister, with postgraduate qualifications in intellectual property law, who collaborates with the Open Rights Group; Andres Guadamuz is a lecturer in law at the University of Edinburgh, specialising in intellectual property law. A third blog which is relevant in this section is by Francis Davey, a practising barrister specialising in IP law. In short, these are analyses that should be taken seriously, even if the authors themselves admit that they haven't covered all the possible angles. Physchim62 (talk) 11:37, 22 July 2009 (UTC)[reply]


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