A Conflict between Old and New Media

August 2, 2009

A large number of photographs from the collection of the National Portrait Gallery (NPG) have been appropriated from its Web site and are now freely available on the media section of Wikipedia, Wikimedia Commons. The ensuing legal row has engulfed two world famous institutions from the worlds of new and old media.  

The Facts

The gallery maintains a collection of priceless old paintings; admission to view these is free.  According to its Web site the NPG ‘is increasingly keen to find new ways to share the Collection’. The declared mission of Wikimedia Commons is ‘to collect and develop educational content under a free license or in the public domain, and to disseminate it’. Both organisations want to make works of art available to the public; it would seem a perfect match. Not so.

Reportedly, Derek Coetzee, a Wikipedia user, accessed the NPG database of images, circumvented their copy protection measures and downloaded more than 3,300 high-resolution images. He then uploaded these images to Wikimedia. Having invested £1 million in the creation and publication of these images, the NPG was not amused.   

According to the NPG, Coetzee has breached the terms of use of its Web site, improperly circumvented the technological protection measures they put in place, infringed their rights in the database of images and, most controversially, infringed copyright in the images.  However, according to a Wikimedia policy statement, claiming that faithful reproductions of public-domain 2D artworks are subject to copyright is ‘an assault on the very concept of a public domain’. Wikimedia maintains that, if copyright is claimed in reproductions and the taking of photos is prohibited, museums become ‘gatekeepers’ who can make historical works inaccessible to the public.

The Law

Copyright law grants the author of an original artistic work the right to control reproduction and distribution of his work. In most cases this right extends for 70 years after the author’s death. The public policy justification for this law is that society benefits from the creative effort of artists and these efforts should be rewarded with licence fees. The law also recognizes that this right should be limited and, once the creative contribution has been repaid, the Author’s work should be available to all. 

Arguably this model is intended to promote creativity without placing undue restrictions on public access to creative works. In the UK copyright subsists in all ‘original’ artistic works. Originality is interpreted as meaning that a work ‘originates’ with the labour, skill and judgment of the creator of a work; in short, ‘originality’ requires the sweat of the author’s brow. Wikipedia dispute this interpretation of the law and cite the case of Bridgeman Art Libraries v Corel Corp 36 F Supp 2d 191 (which arose from a US Court interpreting UK law based on the decision of the UK Privy Council in Interlego v Tyco Industries Inc & Ors (Hong Kong) [1988] UKPC 3). In the Bridgeman case the American court held that under UK law photographs of artistic works do not give rise to their own copyright. Wikipedia claim that, on the basis of the Bridgeman decision, there is no copyright in a photograph of an artistic work and, in UK law, Derek Coetzee has done nothing wrong.  In the meantime however they have removed his administrator rights so Coetzee can’t remove the pictures from the Web site. 

However, the story does not end there; the Interlego decision was concerned with a very particular set of circumstances. When the question of originality was reconsidered in 2004 by the Court of Appeal in Hyperion Records Ltd v Sawkins [2005] EWCA Civ 565, it was held that the remarks made in Interlego should not be applied beyond the circumstances in which they were made. Wikipedia would be unwise to rely on the Bridgeman decision, which arose in a US district court, to argue a point of UK law, which has since been decided so clearly by the Court of Appeal. Derek Coetzee should be concerned; prior to 2005, the Bridgeman decision may have had some persuasive weight in the UK – that is no longer the case.  

Morality, and Artistic and Commercial Realities

Quite apart from the legal argument, Wikipedia is arguing that Coetzee has done nothing unethical. Central to their stance is the moral belief that NPG, or any other similar institution, should be not be able to rely on copyright to control the distribution of priceless works of art that are themselves out of copyright protection.  However, that stance fails to take into account the effort and expense that the NPG invested in creating their database of images or the way in which those images were appropriated from the NPG Web site.  The publication of content created by someone with their consent is one thing, but the publication of content created by a third party without their consent is entirely different.  

Protecting old and priceless paintings requires the provision of climate controlled rooms with particular humidity and light levels; if these paintings were repeatedly subject to camera flashes or the level of lighting required for faithful photographic representations the paintings themselves would inevitably degrade and be lost forever.  Therefore the NPG had, at great expense, commissioned a collection of such photographs and made them available for anyone to view, for free, on their Web site. To recoup their costs, over the last year the NPG had recovered £339,000 by licensing the use of these images. Now that the images have been appropriated and published, the NPG’s chances of recovering its investment have been destroyed in a mouse click. If the law does not provide a remedy then what incentive is there for any institution to invest the millions required to create, catalogue, reproduce and publish reproductions of any collection? 

Making great works of art available is a noble aim. If the law fails to protect the rights of those who invest time, money and skill in reproducing great works then there will be no incentive for them to continue. Investment requires a return and if this is not going to be provided by copyright licence fees then it may end up falling to the gallery goer, or the taxpayer. Ultimately, someone has to pay the bill.  

IP Solutions?

For people in the creative industries, and those who fund them, getting the bill paid is the most important, and often their hardest, job; with the advent of digital media, this is truer than ever. One thing that has not changed is that copyright infringement cases are often intricate and expensive. However, traditional methods of protection are not the only way; there is more to life than copyright. An increasing number of modern day artists have begun to look more closely at the use of IP rights with, for example, Damien Hirst and the elusive Banksy registering their names as trade marks. Trade mark rights can be used to prevent the sale of work purporting to originate with the owner and to control the promotion and sale of whole categories of goods and services. Better still, trade marks are a registered right, therefore trade mark cases (although fiercely contested) tend to be cheaper and quicker than copyright disputes. There is a whole palette of intellectual property rights and, with suitable strategic advice and a positive and creative approach, artists, authors and institutions can continue to protect and generate revenue from their creative work.  

Alan MacDougall is a partner at intellectual property attorneys, Mathys & Squire. Alan specialises in drafting and prosecuting patent applications for information technology inventions, and has detailed knowledge of networking and communications technologies.