For the half-year to 31 December 2014, the IPKat's regular team is supplemented by contributions from guest bloggers Rebecca Gulbul, Lucas Michels and Marie-Andrée Weiss.

Regular round-ups of the previous week's blogposts are kindly compiled by Alberto Bellan.

Wednesday, 15 July 2009

A picture of annoyance: NPG growls at photo copier

Note: an earlier version of this article was erroneously posted on the 1709 Blog, which is already well populated with comments on this issue.

Guardian Online has reported that London's prestigious National Portrait Gallery has threatened legal proceedings for copyright infringement against Derrick Coetzee, who downloaded 3,014 high-resolution images from its website and placed them in an archive of free-to-use images on Wikipedia. There has been no formal response from the internet encyclopedia but Derrick Coetzee, who downloaded the images, has apparently uploaded the letter from the London lawyers Farrer and Co "to enable public discourse on the issue". According to the article,

"Photographs of works of art are protected by copyright in the UK, but not in the US, where Coetzee lives. All the creators of the original images are long since dead, but the photographs were only taken for the NPG as part of a £1m digitisation project in the last couple of years".
The gallery says it isn't suing Wikipedia and affirmed its willingness for the site to use low-resolution images. Loss of revenue from copyright fees for the high-resolution versions is not huge but would be noticed: the projected gross revenue from fees in 2008/9 was over more than £339,000.

The IPKat reflects on the fact that the issues here are reflected widely within not only copyright but other IP rights: tensions exist between (i) the need to respect and protect creativity, (ii) the entitlement of the public to gain access to and to exploit works that enter the public domain and (iii) the protection of investment that might not otherwise be made in activities such as the creation of high-resolution images, which incur a cost that the investor may not be able to recover. Merpel says, it seems that Mr Coetzee, by downloading images of pictures from the NPG and popping them into a wiki archive, is literally a human "photo copier".

Further reading and background material on Wikinews
Comment by Amanda Harcourt on some of the finer points of copyright law here

21 comments:

Anonymous said...

Presumably, being a case of a corporate entity suing an individual, venue is going to be the individual's -- i.e. somewhere in the United States.

And any U.S. court is likely to find the discussion of applicable law in the revised judgment in "Bridgeman" pretty persuasive -- so is likely to apply U.S. law.

And under U.S. law it seems there is no infringement.

So surely the NPG is on a hiding to nothing here? And if Farrers had a clue, surely they should have told there client that?

--

One other thing: the claim that the images were protected by a "technological protection mechanism" seems extraordinarily spurious -- when even the manufacturers' website goes to pains to say that the product is "not a security system".

Does a TPM become a TPM just because a plaintiff says it is?

Anonymous said...

Would the downloading of photos which are the subject of UK copyright protection by a person in the US be a potential infringement of the UK copyright? If so, would a US court have to consider UK law rather than US?

Gerontius said...

Oh, no. This is bad news.

Amazingly, but true, I was just about to write to the NPG asking for permission to use one of the images in their digital archive. No way I'll be granted permission now: they'll probably want to be seen to be taking a stand.

Even if they are willing to grant permission, I bet they're being bombarded with queries and compliants at the moment so my query will just vanish amidst the static.

Anonymous said...

"Does a TPM become a TPM just because a plaintiff says it is?"

It doesn't become NOT a TPM just because a defendant found it is easy to circumvent. At issue is whether the defendant knowing circumvented the measures.

Anonymous said...

This threat is a deplorable action on the part of the National Portrait Gallery.

They deny access to photographers who may want to bring high quality access into the public domain, while producing their own images supposedly protected by copyright.

Their actions are neither transformative or original.

They are essentially attempting to suppress the public domain use of works whose copyright has expired.

This is contrary to the public interest balance of copyright.

Francis Davey said...

I disagree. It seems extremely doubtful (to me) that there could be a good TPM claim here.

The correct terms is "effective technological measures" though its often glossed as TPM and "effective" plays an important role.

S.296ZF states that an "effective" measure is an "access control or protection process such as encryption, scrambling or other transformation of the work" or a "copy control mechanism".

The NPG's software that it uses to display its pictures does not look like an effective technological measure to me. The fact that I can simply click on a link to see an enlarged image seems (to me) to indicate that there is no effective technological protection.

gyges said...

There is a character in the Ayn Rand novel, The Fountainhead, called Gail Wynand.

He's a newspaper proprietor who, amongst other things, seeks out art; buys it, and locks it away from public view. He does this simply to deny the public access to art.

I used to think that Saatchi was the only person that did this ... read what the Stuckists have to say about him.

Obviously, the NPG have similar ideas.

ps Talking of art being bought up and hidden from the public, does anyone know where I can get copies/posters of the work of Mark Lombardi?

Gerontius said...

To anon@9.23pm

I'm sorry, but the suggestion that a carefully taken photograph of a painting is neither transformative nor original is just plain wrong. To take a good photograph, you need to control aspects of lighting around the painting as well as choices of exposure and so forth within the camera. There will then doubtless be post-processing and colour correction. All of this done in an effort to reproduce the original as accurately as possible and requiring much individual skill on both technical and artistic fronts.

The question is, whether it is transformative or original ENOUGH. A quick snapshot: absolutely not. A carefully set up photoshoot with significant post-processing work: perhaps.

Also, the over-used battle-cry "we're being suppressed/oppressed" is just unhelpful and rude. The NPG didn't have to reproduce all of the artwork digitally. They decided to do so, and presumably made a significant financial investment in so doing, IN ORDER TO make the artwork more accessible. As a result, absolutely anyone can log into their website and view the pictures. As far as I can tell, what they're seeking to prevent is commercial use of those images, commercial use being the only thing they charge anyone for.

Ultimately, the NPG's actions do not prevent anyone from personally enjoying and studying the images and actually ensure that more people can do so, so calling their actions "deplorable" is out of line.

Anonymous said...

Re commercial use, I thought Wikipedia was a non-profit (even charitable) foundation? It can hardly be commercial use if they are not making any money from it, or did Mr Goetzee use the pictures for something else as well?

Gerontius said...

The problem is that Wikimedia Commons says that anything on it may be used for any purpose (subject to attribution). So, it is an easy thing for people to do to download the high-res images from the Commons and then use them commercially. ie Although Wikimedia are not using anything commercially, they provide an easy way for anyone else who wants to to do so.

Note that the NPG offered Wikimedia low resolution versions of the images, which would not be suitable for most commercial uses, but would be sufficient for most, if not all, Wikipedia purposes. Also, as I mention above, anyone who wants to study in more detail can still go to the NPG website, so there is no loss to Wikimedia or Wikipedia.

NPGs actions in going after Wikimedia and Coetzee after their offer was rejected represents a common principle of protecting your IP: go after the supplier, not all the end users.

The problem with Wikimedia's attitude in this is that they are saying "we can do this, so we will do this". That is not a rule that I think should be applied to any aspect of life: I could eat nothing but hamburgers all my life if I wanted, or I could stick my tongue out at people just to be mean. Even more galling, they have been offered a compromise solution which is perfectly adequate for the purposes to which the images would be used in Wikipedia and turned it down on the basis of this principle of doing it because we can. This only result of this is to damage NPG financially with no discernable benefit to themselves. Now they act all "ooh, we've done nothing wrong" when they get sued. Legally, they're probably right. Morally, they stink

Things always go wrong when people try to uphold "principles" without rational thought, and Wikimedia are quite prone to this. Look at their ridiculous decision not to permit the uploading of MP3s because end-users can't play them without paying for a patent-licensed player, forgetting that the end-users probably had to pay for their PC and that most PCs come with an MP3 player of some description as standard. Instead you have to use the almost unheard of OGG format which, while easily installable on a PC, is incompatible with just about any mobile device. I actually like the OGG format, but excluding MP3s on an irrationally applied principle is just silly.

Anonymous said...

Anon 9:23 replying to you Gerontius:

The problem is you are defending the indefensible. Merely converting the artwork to a new format or medium does not suddenly take it out of the public domain, despite the meticulous care with which it is done. If you do want copyright protection you need something truly original and transformative, such as a compilation of works.

You claim the words suppressed/oppressed are unhelpful and rude, but how would these works ever enter the true public domain (meaning any use permitted, including commercial use) under the circumstances you defend? The NPG effectively blocks access to all others to photograph or otherwise copy these works apart from its own authorised agents. Hence they are effectively suppressing the public domain use of these works.

Take for example an student who wants to use several of these works in a digital media project. The low resolution images so generously proffered by the NPG to Wikimedia Commons are useless, the student's project requires high resolution. They are unable to go to the NPG to take their own pictures, either due to distance and cost or the prohibition on visitor photography by the NPG.

Effectively, these works are blocked from legitimate public domain use by the student.

The NPG can still make revenue from these works by offering high quality prints in its own stores.
They should not be trying to license copies of public domain works.

Anonymous said...

Gerontius the decision to exclude MP3s or other patent encumbered audio formats is hardly an irrationally applied principle. The MP3 audio codec is not available from the patent holders royalty-free and Wikimedia's objective is to make the content available to anyone regardless of their operating system or cost of their computer. This is particularly important in developing countries who may not be able to afford a proprietary operating system. The MP3 patent will not last forever, and you may see it becoming more prevalent once it has expired, just as happened with the GIF image format.

Gerontius said...

Thought I'd get some responses to my comments.

"Merely converting the artwork to a new format or medium does not suddenly take it out of the public domain" - agreed. But that doesn't mean that the conversion is automatically in the public domain. Depends on whether the conversion satisfies the requirements for copyright protection. This is not indefensible and stating it as a black and white issue is just plain wrong so start seeing shades of grey.

And the NPG is not blocking anyone. They're making the pictures more accessible. If the NPG didn't exist, you couldn't go to see the pictures at all because they'd be in some private collection. If the NPG hadn't digitised them, then only people who could go to the museum would be able to see them. I don't see why the NPG shouldn't be entitled to some level of control following their efforts to make these pictures more accessible. But for some people, millions of pounds of investment is not enough, they want more and they want to be able to do whatever they want. Show some respect for the work and efforts of others.

As for GIFs - they did not become more prevalent when the patent expired. There were THE most popular format for years because everyone used them and they satisfied most needs. Only when true-colour started becoming a requirement did PNG and JPEG start taking over. You've got your history all wrong.

And the MP3 prevention is irrational. I can play MP3s without having paid for anything more than my compute because it is such a popular and well-supported format, just like GIFs were. It's an irrational fear of patents that is driving the decision, not any rational decision about making sure people can use the content - the decision is IRRATIONAL because it actually makes the content harder to access for the average user.

Anonymous said...

Anon 9:23, when I last checked, there was no obligation on owners of creative works (whether in copyright or not) to make them available to the public (if I'm wrong, I suppose I'm going to have to start taking high-res photos of boxes of letters stored away in my parents' attic!). Terms like "block" and "suppress" therefore seem rather inappropriate.

In fact, as a UK tax-payer (who therefore helps fund the NPG), I don't particularly see why citizens of other countries should have cost-free enjoyment of the NPG's works. If such folk want to view the portraits, they can come to the UK on holiday, and thereby contribute to the Exchequer like the rest of us.

Anonymous said...

Fundamentally the last two comments miss the point entirely. The NPG is a taxpayer funded institution, and has a responsibility to UK citizens to conserve and exhibit these works. Their policies aren't promoting their art to residents of Belfast or Aberdeen if they do not make their art available online. They are not a private institution and should not be acting as such. In fact many private galleries are much more open than the NPG, such as the Getty Museum. Thank goodness Mr Getty did not donate his artworks to the NPG!

Anonymous said...

We obviously have Bernie, Tom and a few of their minions skulking around this topic...

Gerontius said...

Anon@2.56

"Discussions" alsways go downhill when anyone starts saying "you're missing the point", because I can just say, well you're missing the point. And you spectacularly miss the point of your own words:

"responsibility to UK citizens to conserve and exhibit these works"

Conserve and exhibit, not digitise and put on the web and allow anyone to use them for their personal pet projects. They didn't have to do this. They invested lots of money to do it and it made them more accessible to everyone. Yet that isn't enough apparently. They release images on their website so that everyone can view them, but when they put some limitations on how the images can be used they're suddenly the villains of all democratic and free-thinking people. Give me a break. Some people make me sick.

I have no idea what the Getty does so there's no point comparing unknown apples with pears.

Anonymous said...

Perhaps the easiest resolution is for the NPG to allow non-flash photography. The public then has a right to take their public domain copies, admittedly not under ideal conditions for reproduction. For commercial use the NPG can license their professional photographs as they do currently. Everyone wins.

Anonymous said...

Allowing non-flash photography would probably not work because (and I have seen this a thousand times) there are just too many muppets with point and click cameras who do not know how to turn off the flash (nor do they seem to care).

Perhaps a photography competence certificate would be a good prerequisite...

Anonymous said...

I am interested in where they get their projected loss of £339,000. (Is that just for the images taken, or their projected fees over all their pictures?)

Last year they only received about ~£12,000 from online rights for all their images in total.

That would mean, assuming that the 340,000 is applying to -all- images and not just the ~5% of the database so far extracted, the other ~£328,000 they expect to come from offline. (Perhaps people liscensing the pictures to use in books, or print sells?)

And do they really expect that 3000 pictures on wikipedia are going to affect all other usage for all images, not just those 3000?

http://www.whatdotheyknow.com/request/income_from_online_rights#incoming-23194

Anonymous said...

Even if the case was judged under British law, it is doubtful copyright would subsist in the photos. Hyperion vs Sawkins is a useful case to study, as it adresses a similar problem - an 'editor' - who was composing a work based off earlier works to be as much like the original as possible, but playable, was being challenged by the record company who hired him as to whether or not he had copyright. He was granted cpopyright on three of the four pieces, each of which he spent about 300 hours on and considerable skill and labor. The question was not labor - but rather originality - whether or not his piece was different enough from another composers piece, also based off the old work, to constitute a new work.

"The issue which I have to decide is whether the similarities which exist between the Sawkins (defendent) and the Paillard versions (other composer/editor who had made a similar composition based off the original Lalande work) are due to some form of copying or whether they simply resulted from Dr Sawkins, as part of his independent work, coming to a similar conclusion as to what the dynamics of the existing score permitted him to do. I believe that it was the latter."

In University of London Press Limited vs University Turtorial Press Limited, 'originality' of a work is described this way:
"The word "original" does not in this connection mean that the work must be the expression of original or inventive thought. Copyright Acts are not concerned with the originality of ideas, but with the expression of thought, and, in the case of "literary work", with the expression of thought in print or writing. The originality which is required relates to the expression of the thought. But the Act does not require that the expression must be in an original or novel form, but that the work must not be copied from another work - that it should originate from the author."

And of course, interlego vs. Tycho, which directly adresses whether recopying a drawing, even with some added information or minor alterations, and similar such things confer copyright:
"Take the simplest case of artistic copyright, a painting or a photograph. It takes great skill, judgment and labour to produce a good copy by painting or to produce an enlarged photograph from a positive print, but no one would reasonably contend that the copy painting or enlargement was an "original" artistic work in which the copier is entitled to claim copyright. Skill, labour or judgment merely in the process of copying cannot confer originality.

Subscribe to the IPKat's posts by email here

Just pop your email address into the box and click 'Subscribe':