Or rather, a Wikipedia user, perhaps a Wikipedia updater, might get sued by the National Portrait Gallery in London, England.
Put very simply, the National Portrait Gallery maintains a website where the collection is shown in high resolution photographs. "Dcoetzee" downloaded these images and then posted them on Wikipedia to provide users of the online encyclopedia with the images of what is in the National Portrait Gallery's collection.
There's no controversy over this so far: those are indeed the basic facts. However, what has then happened is an example of the way that the internet (or if you prefer, the web) is international while the legal system is not. For the Gallery is now asking that the Wikimedia Foundation remove the images and as they have not done so, is considering taking action against "Dcoetzee". And as English law (yes, it is the law of England and Wales, not British or UK law, for Scotland has a different legal system) stands at the moment, the Gallery would almost certainly win.
At the heart of this is a case called Bridgeman v. Corel, an American case. Simply, a photograph of a public domain image cannot be copyright because it lacks originality. However, while that is the case in the United States, it isn't the case elsewhere, for the rest of the world operates according to the laws in place in the rest of the world. In this case, as the photographs were on a server in England that would, we might think, be the law which is applicable. Bridgeman v. Corel is not a precedent in English law: it has no effect whatsoever. In English law, the applicable one, photographs are indeed covered by copyright: the copyright belongs to whoever took the photograph originally. That copyright exists as with books and music: until long past the photographer's death.
There is a great deal more to all this as well, perhaps worth looking at the full legal letter. But at the heart of the whole tale is this simple fact: photos of public domain images cannot by copyright under US law. They can be and are under English law. Thus, under English law, the National Portrait Gallery would seem to have every right to protect its copyright.
There is one further, delightful, wrinkle to this tale. Under, again English, law as it stands, the viewing of a page in your browser is not considered simple viewing of said page. It is considered the publication of that page. This holds for libel for example: Dow Jones settled a case in Australia on exactly this point: was the reading, in Australia, of a potentially libellous article in fact libel under Australian law? The piece had been written in New York, uploaded in New York and published in print in New York. So surely New York libel laws would prevail? No is the answer to that: viewing in a browser is publication in the jurisdiction where that browser is. The logic appears to be that before viewing there was one copy of the article on the server: during viewing there are two copies, one on the server and one in the browser. After viewing there may well be one still in cache, plus the server version. This is thus publication.
This is also the case in prosecutions about child pornography. Just about everyone gets charged not just with possession of child porn, but with publication or creation of it. The act of viewing in the browser is deemed publication. Now this "viewing in the browser as publication" might be a silly idea, it might strike many as wrong, but that is indeed the way that the law is being interpreted in Common Law jurisdictions in the main.
Which leads to the wrinkle. Those images are currently on the Wikipedia servers. They are freely available to anyone in England and Wales with the appropriate computer and internet connection. Each and every time one or other of the images is downloaded into a browser an (potential shall we say at this point) offence is being committed: the publication of a copyright image without either permission or licence.
Now whether the whole world should follow the American precedent, the English, some other compromise or not isn't the point here. What is really the point is that laws are not, currently, all the same around the world and so there are these controversies over which law should be applicable on an internet or web which is not divided in the same way as these national legal jurisdictions.
We'll need to get this sorted out at some point and the really basic questions are as follows. Should the US District Court for Southern New York (which decided Bridgeman v. Corel) be able to decide what the copyright law on photographs is in London, England? Many would think that that is a projection of the US legal code far beyond the natural and righteous boundaries of the jurisdiction. On the other hand, should the English legal system be able to determine what is placed on the pages of a US based and US hosted website? That also seems a little like Imperial over reach.
Anyone with any useful ideas as to what the law should be here please do let the rest of us know.
(This article is not illustrated for fairly obvious reasons)
Comments
Well, no. Quite a lot of the point is attempted enclosure of the public domain.
At first the NPG tried to claim actual copyright over 400-year-old paintings. (Because obviously, without copyright, the people who painted those pictures in the 1700s would never paint again.) When that didn't work, they put up pictures of them and claimed copyright of every possible image of the paintings, because they didn't let anyone else photograph them.
In fact, the obvious business model would be:
1. Take high-quality scan of work.
2. Destroy original.
3. Tweak the pixels every 95 years to keep the copyright perpetual.
4. PROFIT!!
Fairly obviously, this is not quite in line with preservation of culture or the appreciation of portraiture.
David Gerard (who comments here) is the controversial UK spin-doctor for Wikimedia Foundation, whose role seems to have been reduced over time to defending Wikipedia anywhere on the net. Other talents include bullying public institutions who are trying to protect their capacity to fulfil their duties to the public.
Institutions like the National Portrait Gallery were expressly set up to preserve art (which is not really about copyright, it is about preserving, restoring, researching and displaying the works) and have been built on free access to all public visitors. The hardcore "freedophile" propagandists at Wikipedia, who have been pushing their own Ayn Randist agenda to tear down public protections for some time, ignore this. They ignore the fact that the success of the NPG is built on time, effort, skill and a lot of money.
Even if you say a work is "public domain," it's not public domain in practice if you keep the work behind a closed door and no one gets to see it without your permission and no one gets to reproduce it (the NPG forbids photographs) and you assert ownership of the reproductions you've made that you give out. Claiming that the photographs are somehow of a different character than the original works is a bad-faith attempt to assert private control over a public good.
The stated goal of the NPG is: ‘to promote through the medium of portraits the appreciation and understanding of the men and women who have made and are making British history and culture, and ... to promote the appreciation and understanding of portraiture in all media’. Stifling access to these portraits is a hell of a way to accomplish this.
Once again, Wikipedia Review demonstrates its agenda of personal attacks against anybody related to Wikipedia -- as well as its lack of real arguments.
Please explain what those "public protections" are, what this alleged "Any Randist" agenda is, and so on.
It's not Wikipedia Review's obligation to explain the obvious to those who are predisposed to disregard the obvious.
I suppose in Wikipediot logic, it would be okay for me to rent a celluloid movie reel of a Hollywood film, and set up a machine to snap a high-resolution digital image of each and every cell on the film, then to use another machine that would render these photographs to the web viewer at 24 frames per second, then release that stream of images under a free license, and then we all hold hands in a circle and sing a round of "Kum-ba-ya" in honor of the free culture movement?
I believe this case shows a moral fault in the English legal system;
The NPG is using thin legal technicalities to engineer new copyrights for themselves, in everything but name, on paintings for which the copyrights have long since expired. They make money doing this. The artists' legal heirs are cut out.
Let's make no mistake, people are interested in these images because of the artist's work, not the photographer's copy work, yet the gallery is trying the parlay the photographer's work into new copyrights on the art - for the benefit of the NPG.
The NPG prohibits the public photography in their gallery, they sell cds of the artwork, they'll even sell them on line.
Kohs, we know you hate Wikipedia with a burning passion and hope we all die screaming in agony, but you're not usually THIS intellectually dishonest.
For your analogy to work here, the Hollywood celluloid reel would have to be public-domain in the first place (just like the portraits at the NPG are).
It's worth noting that, being a case between a corporate entity and an individual, it would almost certainly be heard in the individual's location -- ie a U.S. court.
Even if it were determined that the appropriate law were UK law, it would be a U.S. court giving its interpretation of that law -- and the U.S. court might find quite persuasive the last U.S. court that had to judge UK law in this area: namely the U.S. court in Bridgeman vs Corel.
i'm making a review on the coverage of this story.
this is a good, balanced article, the best so far
thanks Tim Worstall
Public institutions using public money (tax) should not be able to claim copyright on MY pictures.
The World benefits because, for example, NASA can't claim copyright on material created from public funds.
I'm not a lawyer, but I don't think Bridgeman v. Corel is national law in the U.S. It is applicable in the U.S. court district in which the case was decided, but this doesn't make it law across the country.
Meanwhile, here's what Coetzee had to say recently about pedophiles working on Wikimedia Foundation projects:
"I've already mentioned on [[:en:Wikipedia talk:Sexual content]] my strong opposition to any policy that blocks users solely because they 'self identify as pedophiles' (on the theory that a moral pedophile who does not act on their fantasies or engage in advocacy should be permitted to participate). However, I 'would' support universal cross-wiki blocking of persons pursuing or facilitating relationships with minors. I could go either way on advocacy - sometimes POV pushers do okay on Commons, since it's hard to push an agenda through uploading images alone - while other times they go on making a nuisance of themselves. [[User:Dcoetzee|Dcoetzee]] 05:25, 2 July 2010 (UTC)"
In other words, acceptance of the editor would be handled on a pedophile-by-pedophile basis.
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