I'm a title

The NPG wouldn't need to extradite him over here for the case, it could be heard in the UK without him present, and if he doesn't defend himself, the NPG should get a default judgement against him, its then getting the US courts to comply that'll be tricky.

I've asked the WMF several questions on this issue, the posted blog on WMF still appears to be holding my comments in moderation, even though 3 others posted since have passed muster...

1) Did the uploader remove watermarks/copyright status from the images in question (which would be a criminal offence – his talk thing seems to state that the NPG images did have a hidden watermark)

2) Did the uploader use a batch tool to download 3000+ images from the NPG’s servers, thereby bypassing the zoomify feature (which was intended to protect the images – they claim it’s not a security device, zoomify claim a security device cannot exist so they cannot claim to be one)

3) Are the WMF going to follow UK law if this goes to trial and if the UK courts agree they are copyrighted

4) Will the WMF pay for every infringement of copyright (i.e. every unique hit on every image) if it’s found that the images are under copyright

5) Why are the WMF not following their own rules on not allowing images which are under copyright, their own stance is “it may be” so why not err on the side of caution?

All the WMF coverage is one sided "we're doing it in the public interest!" so where is the public interest now that the NPG have removed the images so the only source is umm, the WMF, not including the other 13,000 images that now probably won't be displayed?

I hope it does go to trial, I hope the judge rules in favour of the NPG and orders the uploader to pay a licence for every copyright infringement (unique page view).

The NPG have stated they are happy for the WMF to host low-res copies of the images, but that isn't good enough for the WMF, they want to host the high resolution, they want them public domain, they want their cake and they want to eat it. Low res copies are *perfect* for the internet, hosting several 1MB+ files on a page is bad web design.

It really is a simple case of the WMF ignoring UK law and calling foul when the NPG says "hey, thats our ball there dude".

(untitled)

I believe it was Johann Wolfgang von Goethe who said "science and art belong to the whole world and before them vanish the barriers of nationality"

Not exactly what he meant but equally applicable here i think, art is meant for everyone.

if i understand correctly

An American person, took images created by a british company, that are copyrighted in britain, and wikimedia, an American company, don't think British law is applicable?

Why doesn't this surprise me?

What a chump

Ignorance of the law is no defence, and their is no fair use defence here either.

The trial should go ahead to establish precedent. As to the punishment, I don't see much point in destroying the person's life. Have them make a donation to charity or something, and then give Wikipedia a hard kick in the nads for not doing their job.

Please stick it right up these yankee theiving bastards

NPG should download and sell disks of the image of the wikimedia foundation for 50p in their gift shop. They could call the disks "First our tea, now our art you theiving yankee bastards"

Hmmm..... let's see the obvious parallels

Guy in US accesses systems in UK and breaches UK law. As he is a US citizen and broke no US law the guy is perfectly fine to do this.

Guy in UK accesses US systems looking for UFOs, is not considered trialable in the UK but is extradited to the US to face trial under US law.

Futile?

“But such a monumental investment in digitization would be futile if the Gallery's work instantly escapes its control once it appears on their website.”

No it wouldn't.

It would, indeed, make it entirely worthwhile.

Not well thought out

Coetzee's adminship was removed for a very good and valid reason. He would be in an impossible position and potentially facing a hostile litigand.

He is also charged as an administrator with not misusing the tools he has. That includes not using them in a matter where he has a significant personal interest ("conflict of interest"). Others would revert him for that alone if he tried, as well as for attempting to delete material off a US server that is seen as completely legal in the US.... and may well be legal in the UK too, see Interlego v Tyco Industries (Privy Council) and Coca-Cola Go (House of Lords).

If he didn't delete the images, he would be exposed to a charge of willful non-deletion by NPG. If he did then he would be reverted anyway (other US based users are not bound to agree with his decision and he doesn't have a way to stop them reinstating the images), and he breaches his implicit agreement with the community to use them only in a communally sanctioned way, in doing so.

Since he couldn't override others subsequent disagreement and reinstatement anyway, and he would probably have his admin privileges removed to prevent disruption by the time he'd deleted half a dozen of them, any attempt by Coetzee to use them would be pointless anyway.

In the circumstances removal is probably something he is extremely grateful for while the situation is legally active, as it takes out from any control he might have, a major complexity and possible "no win" situation. It's as far from being "hung out to dry" as possible.

@AC 12:06

"..wikimedia, an American company, don't think British law is applicable?

Why doesn't this surprise me? "

It doesn't surprise me because I know and understand that the USA is a different country with different laws. You have to get used the the idea that individual countries have laws that differ from the laws of other countries.

Try reading http://en.wikipedia.org/wiki/Legal_systems to get a basic idea, then read http://en.wikipedia.org/wiki/United_States_law and follow this with http://en.wikipedia.org/wiki/English_common_law. It's fascinating :)

@ Neil C Smith

"I also find it disturbing that it's possible to copyright reproductions of public domain works anyway."

Interesting - why is that ? To prevent that would, arguably, deny any copyright on say .. photographs of the White Cliffs of Dover. The subject matter is (mostly) in the public domain, but a particularly nice photograph of it could be protected as an image - others are free to take whatever picture they like, and may produce even more spectacular images, but the protection of the original *image* shouldn't be removed IMO.

"This is a complete subversion of why copyright came into existence in the first place."

I would argue completely to the contrary.

In this particular case, it seem's someone for some reason just went on a land-grab of protected images, which are freely *viewable*... why did they not, for instance, just link directly to the NPG ?

Personally i'm with TheBigYin on this.

it's not his image to use

Each image on the website was created by an authorised person and owned by the gallery. The thing it is a picture of does not have copyright, (neither does an elephant) but the picture they took of it does (as does my picture of an elephant). Uploading this image (or my picture of an elephant) is therefore breach of copyright in the UK, and possibly anywhere where the claim of 70years is used. The NPG can sue him and win, and the fact he cant delete them is no defense, though may also make wikimedia culpable.

Now, back to my elephant picture,,,,,,

It's a "Hits" fight

Places like wikipedia think they can take your content, stick it on their page and get loads of hits from your work then feel all important as they've got the biggest site in the world etc...

NPG have spent time and money on their site and as they've done the work in protecting the actual artwork and sharing the images they'd like the hits coming to them.

Seems to make sense. If Wikimedia don't see it like that they're arses like those Pirate Bay jokers.

@frank ly

"Try reading http://en.wikipedia.org"

In the circumstances I think we'll give it a miss.

On moral rights.....

Rod - sorry, but you're looking at the wrong page there. That's for reproductions of material that's within copyright - album covers etc are usually under 50 years old for example. So you're taking a set of rules regarding using a photo of a copyrighted item, and trying to apply it to a photo of a non-copyrighted item.

The question might be turned on its head - if both reproductions of non-copyright material are legal, then why would an end-user not choose the higher resolution. Alternatively if the NPG was genuinely concerned for its digitizing project, why not allow a limited number of accredited users to take their own photos (tripod, no flash)? The only answer I can think of is that, copyright having expired long ago, the NPG wants to obtain a de facto monopoly anyhow.

Is that truly the most ethical stance possible? Or does physical ownership of a national collection of material that exists nowhere else, funded by taxpayers, charities, and bequests, convey that moral right?

@AC 12:51

"Legally, they are in the US and they are right in upholding that they can't bow down to every little national law and regulation. Are we seriously going to expect paintings of naked women to be covered because a court in Saudi Arabia complains? The only workable way is to say only the local laws to the website hold sway - everyone else sorts themselves out."

The WMF should respect local laws when dealing with international issues 100%, there should be no question on that ever. If an image comes from the US and has naked women on it, Saudi law does not apply, however the images in question come from the UK and so UK law applies to the images so the WMF should respect that.

If the WMF is unable to respect British/European laws, then why should the British/European institutions give any assistance to the WMF in the future? Why should they spend a fortune on making works of art available online when a faceless US corporation rips them off "in the public good".

Some sympathy for the gallery here

I assume that the flash guns in most cameras could damage the pigments in some artwork, and that this one the reason for banning photography in the gallery. The other is the argument used by the National Trust, that someone photographs all the items on display, so that someone else can choose which ones to target for theft.

Plausable reasons, even if you disagree with them.

My understanding that setting up a camera, painting and lighting is non-trivial and needs to be adjusted for each painting. Hence a real cost is incurred in digitising the collection. It seems reasonable for the gallery to want a mechanism to recoup the costs; the likely alternative is that Bill Gates' photo-library pays and has the rights. Is that what you want?

@SuperTim

"Now, back to my elephant picture,,,,,,"

Your _3 dimensional_ elephant's picture, I take it? :)

Wiki Blog

Erik Moeller wrote a piece on Wikipedia about this, I put in my 2 cents worth and its still (funnily enough) awaiting moderation! Even though comments posted 8 hours later are still up and running.... Does the WMF not want to answer potentially embarrassing questions? Who knows! Here is my post from:

http://blog.wikimedia.org/2009/07/16/protecting-the-public-domain-and-sharing-our-cultural-heritage/

There are a lot of questions that need to be answered by the uploader really. On his talk page (http://commons.wikimedia.org/wiki/User_talk:Dcoetzee) there is mention that the NPG images contain hidden watermarks, is this true? Were the watermarks removed? If they were removed, that is a criminal offence rather than a civil one (2003 Copyright Regulations)

“Electronic rights management information is any information provided by the copyright owner which identifies the work, the author or any other right holder, or information about the terms and conditions of use of the work, and any numbers or codes that represent such information. Any attempt to interfere with this data, remove it or retransmit a work without it will become a criminal offence. As in the case of technological measures, this new law gives museums, archives and libraries new powers to protect their digitised collections or other material they have produced in electronic form.”

Did the uploader use a batch tool to bypass the zoomify feature, thereby downloading directly from the server over 3,000 images, again that could easily be construed as bypassing technical measures, I’d guess that sitting down and piecing together over 3000 images would be very time consuming.

The WMF’s own rules on the uploading of images, is they must not be in copyright in their country of origin, as far as the law in the UK currently stands, the images are in copyright in the UK, why is the WMF ignoring their own rules on this subject and keeping the images up? The WMF may say “their copyright status is in question”, so that is a “they may be copyrighted” so wouldn’t your rules on not allowing images which hold copyright prevent the images from being uploaded? Because its more suitable for the WMF to keep hold of the pictures?

“We are open to a compromise around the specific images, but our position on the legal status of these images is unlikely to change.”

So, if the NPG does follow through and it does go to court in the UK and the courts in the UK uphold that yes, these images are copyright under UK law, will the WMF pay the NPG for each and every copyright infringement that has taken place (i.e. every single unique page view on each individual image) or will the WMF continue with their stance of “we’re not bothering to comply with UK law on this”?

There has been no legal case in the UK on this subject, there may be very soon, but up until that time it should be argued that the images in question are not in the Public Domain in the UK and that the WMF has no right to display them even under their own rules.

As you posted an opinion from an American source in favour of the WMF, a balanced view would have been for you to also publish the opinion of a British copyright solicitor, which is:

Following the report the Museums Copyright Group has obtained an opinion from Jonathan Rayner James QC, a leading copyright specialist, who has no doubt that UK copyright law protects photographs of works of art:

“… as a matter of principle, a photograph of an artistic work can qualify for copyright protection in English law, and that is so irrespective of whether … the subject of the photographs is more obviously a three dimensional work, such as a sculpture, or is perceived as a two dimensional artistic work, such as a drawing or a painting …”

(http://www.museumscopyright.org.uk/bridge.htm) That link also discusses the Bridgeman v. Corel case that so frequently pops up as a defence, when it doesn’t apply in the slightest in the UK.

====

Taking bets on which gets moderated first, this one on El Reg, or the Wikipedia one.....

@David Webb

"If the WMF is unable to respect British/European laws, then why should the British/European institutions give any assistance to the WMF in the future? Why should they spend a fortune on making works of art available online when a faceless US corporation rips them off "in the public good"

Because if a UK citizen wanted to have free reuse of their own national heritage, for their own purposes, they might feel that unending copyright through physical prevention of photographs is not what copyright law is about.

They would then cite the various _UK_ legal cases on it, and consider that Lord Oliver's comment at the Privy Council (_not_ some random US court): was that "Skill, labour or judgement merely in the process of copying cannot confer originality."

They'd consider that the House of Lords comment (_not_ some random US court) was "To accord an independent artistic copyright to every such reproduction would be to enable the period of artistic copyright in what is, essentially, the same work to be extended indefinitely", and that this was described as legally "undesirable".

_Then_ I guess they'd ask your opinion on it....

heh

they should nail him to the wall

why?

because they cant have it both ways

if their laws apply here (re garry mckinnon) then ours apply there

cant have it both ways

Once again -- the Wikimedia Foundation enjoys the benefits of a volunteer theif

Like worker bees, the Wikipediot volunteers take copyrighted material, chew it up in their little bee mouths, carry it back to the Hive, then spit it out in freely-licensed form onto Wikipedia. And then they expect us to applaud them and pay more money into their little Foundation that already is guilty of spending only 31.6% of incoming revenue on actual program services.

Soon, they will agonize about how all the quality copyrighted content seems to be disappearing (newspapers going out of business, talented musicians being drowned by Hannah Montana CDs, etc.).

I hope somebody goes to 39 Stillman Street in San Francisco and gives Sue Gardner the berating diatribe she deserves.

Thanks for all the fish!

@AC - The images were taken from a UK site which is where the copyright lays, the person who downloaded the images broke UK copyright law, the WMF should respect that stance. If the NPG was in the US then the US laws would apply. Because the NPG is in the UK, the server is in the UK and the images were in the UK, when the uploader (I really can't be bothered to remember his name) accessed them, he was accessing them *in the UK* so that would mean that UK law applies.

When he uploaded them to the WMF servers, he was uploading images where copyright on them already existed, the country of origin is also accepted by the WMF, they will not host images that are copyright in the country of origin (I believe the Berne Convention prohibits that).

@FT2 - I can see your point, your point is why should the NPG have control over the images in their posession. The alternative is to not have control over the images in their collection.

If the WMF were to licence the 3,014 (or so) images, it would cost them around £150k, if they were to licence the entire collection, it would cost around £800k. That to me seems a pretty solid reason why they want to retain control, that is £800k that could do on purchasing further works of art for the gallery.

I believe Lord Oliver's comments were in relation to slavish reproductions, that would be ones where you stick it in a photocopier and press a button, and I agree, things like that would not infer copyright, but these are not slavish reproductions, some guy with a polariod didn't run around taking cute little pictures.

It would have taken a fair bit of artistic endevour to reproduce the images in question, everything from lighting, to distance, to making sure the lighting wasn't such that it could potentially damage the works of art. It's a far cry from standing there with a typical SLR.

There is also not perpetual copyright, the images that the NPG display have their own copyright shelf life, life of author +70 years, so eventually the images will become public domain and then anyone can host them without question of copyright.

We actually have pretty liberal copyright laws over here, you're allowed to (for personal use) take a photo of whats on the TV, even though what is being displayed is copyrighted.

And El Reg won, my wikipedia comment was moderated on here bloody quickly, long live the moderatrix!

@james 68

"cant have it both ways"

I think you'll find that the US nuclear arsenal is a tad larger than Britain's* and therefore they can have it as many ways as they like. Whether this is just or fair is left as an exercise for the reader.

* Admittedly, the recent supine attitude of our PMs has rendered this point academic.

@AC

"Let us not be distracted by the Britards angry at the Ameritards ("yankee theiving [sic] bastards") and instead concentrate on how a British public institution gets to privatise the public domain"

Oh please do go and get stuffed. How the hell is something in the public domain if it only exists in legally purchased hardcopy exhibited on private property? Do you seriously imagine that Lucien Freud produced his works in photoshop at 300dpi?

It's very simple indeed to figure out who owns any painting in the world - you see who holds the bill of sale for the canvas with the daubs on it. Anything else is a derivative work created by somebody else. The only reason there is any debate at all in this instance is that the NPG was stupid enough to try getting involved with the TardWebs.

Based on the response so far, that's one lesson no other museum/gallery will be making. Cash at the door, no photography under any circumstances, prints/calendars/mugs/t-shirts available in the gift shop, end of story. If you try getting 'modern' all your expensive digital images will be immediately splurged across thousands of crappy little websites before you blink, and every third-rate printshop on the planet will be using them to make knockoffs of the prints that generate a big chunk of your income. Why invest in bankrupting yourself?

@Jolyon Ralph, David Webb

Thats a nice idea, Jolyon, but the UK courts already considered minor modification and copyright, and the ruling in the UK indicates that what counts is creative and visual originality. That something technical has been added within the image, doesn't necessarily make that _image_ an "original work". It isn't about plain "slavish copies" either as David Webb suggests.

Here's that UK Privy Council case again, which speaks directly to this point. Speaks several times in fact, probably to make sure people get the idea :) :

"It may be and no doubt is the case that that information involves important functional concepts, and even a good deal of technical research, but [...] what this case is concerned with is not an idea or a concept but artistic copyright claimed in the drawings. [...] What is important about a drawing is what is visually significant and the re-drawing of an existing drawing [= reproduction of a 2D image] with a few minimal visual alterations does not make it an original artistic work, however much labour and skill may have gone into the process of reproduction [...]"

"I think it clear that it will not create copyright in a new edition of a work, of which the copyright has expired, merely to make a few emendations of the text, or to add a few unimportant notes. To create a copyright by alterations of the text, these must be extensive and substantial, practically making a new book. With regard to notes, in like manner, they must exhibit an addition to the work which is not superficial or colourable, but imparts to the book a true and real value, over and above that belonging to the text."

"Copyright is concerned not with any originality of ideas but with their form of expression, and it is in that expression that originality is requisite. That expression need not be original or novel in form, but it must originate with the author and not be copied from another work ... A drawing which is simply traced from another drawing is not an original artistic work [...]"

"[C]opying, per se, however much skill or labour may be devoted to the process, cannot make an original work. A well executed tracing is the result of much labour and skill but remains what it is, a tracing. Moreover, it must be borne in mind that the Copyright Act 1956; confers protection on an original work for a generous period. The prolongation of the period of statutory protection by periodic reproduction of the original work with minor alterations is an operation which requires to be scrutinized with some caution to ensure that that for which protection is claimed really is an original artistic work."

Anyone still arguing that in legal terms, a _UK_ equivalent of the Supreme Court haven't ruled on matters extremely closely related to this case? Anyone still inclined to claim that Bridgeman is a purely US case and UK law hasn't ever considered it? Did anyone actually _read_ "Bridgeman" and noticed that while not binding in the UK, it was nonetheless decided by applying _UK_ law?

@David Webb

"There is also not perpetual copyright, the images that the NPG display have their own copyright shelf life, life of author +70 years, so eventually the images will become public domain and then anyone can host them without question of copyright."

... And around year 50 after the photographer dies (and every 50 -100 years thereafter), the astute revenue maximization employee withdraws them all in favor of new improved photos, right?

Original Old Masters can't be photographed by anyone else, current photos are copyright, past photos were withdrawn and locked away "for protection" 20 years before copyright expired so no other copies exist by the time they would have been copyright-free.....

This (in simple terms) is exactlyone of the reasons why the courts in both the UK and US haven't endorsed reproduction copyright.