Wikipedia uploaded part of the National Portrait Gallery, UK’s online collection to its own Wikimedia Commons website. It is every art gallery’s greatest fear. Now that it has happened, Creative Commons Clinic Project Manager Jessica Coates explains how the test case is being dealt with.
If you’re of a copyright bent, you may have notice the discussion lately surrounding a legal dispute between UK’s National Portrait Gallery (NPG) and Wikipedia.
For those who haven’t heard, on 10 July Wikipedia contributor Derrick Coetzee received a threat of legal action from the NPG relating to Coeztee’s taking of more than 3300 Zoomify images of public domain paintings from the NPG’s website, which he then uploaded to Wikimedia Commons. The NPG claims copyright in the images, which are essentially high resolution digital preservation copies of the paintings, and alleges that by posting them to Wikimedia Commons Coetzee has infringed not only this copyright, but also a number of other legal rights relating to the works.
In responding to the allegations, the Electronic Frontiers Foundation (EFF) (which is representing Coetzee) have focused on the jurisdictional issues of the case ie whether Coeztee’s actions should be judged under US or UK law. There are also a number of other legal questions that arise in relation to the case, such whether Coetzee illegally circumvented the Zoomify copy protection on the works.
But what jumped out at me (and most readers judging by the online discussion) is the NPG’s claim of copyright in its digital copies of public domain paintings. Is it really true that if I get a work that is in the public domain – say, the Mona Lisa – and take a high quality scan of it, I have created a whole new work that attracts copyright protection?
As the EFF points out in their article on the case, it is fairly clear that under US law such images would not be protected by copyright. The US courts considered the application of copyright to reproductions of public domain material in Bridgeman v Corel and found that copyright does not subsist in ‘slavish copies’ (ie that seek to exactly replicate the original) of public domain works unless there is some level of originality (eg in the construction or composition) that differentiates the copy from the original work – mere technical skill and effort is not enough. So my photograph of my friend standing in front of the Mona Lisa is protected, but my photocopy or scan is not.
The lawyers for the NPG argue that UK law goes in the opposite direction – or at least that Bridgeman v Corel doesn’t apply in the UK, that there are no relevant local precedents and that legal opinion is against the US case law. Andres Guadamuz from the University of Edinburgh argues in this blog post that the question isn’t as straight forward as the NPG lawyers contend. But it is certainly true that the requirement of ‘originality’ that is the basis of the US decision doesn’t apply in the UK, with British courts being far more willing to find a work is protected by copyright based on skill or effort alone.
So what is our position here in Australia? Unclear. I have to admit, I (and I think most of the local copyright community) had thought that the Bridgeman v Corel rule applied here, and hence such material wasn’t protected. However, Australia’s approach to originality has traditionally been more aligned with the UK than the US. In fact, the leading Australian case on the issue (Telstra v Desktop Marketing) arguably sets the bar even lower by finding that a telephone book was original based almost purely on the level of effort required to put it together. On the other hand, in the Ice TV case decided earlier this year the High Court seemed to suggest that they did not support the low originality test set by Desktop Marketing – although their comments were only in passing, and the case was decided on another issue.
This doesn’t mean that Desktop Marketing is the end of the matter in Australia. After all, it was looking at a text-based work which, in anyone’s judgement, was an entirely new product – not a photograph that is merely intended to be a facsimile of an existing work. It turns out Australia doesn’t really have a lot of case law about subsistence of copyright in photographs or verbatim copies (at least as far as I can see). IP commentator Rickertson points out that because the Copyright Act says that the owner of copyright is the person who took the photo, without requiring any particular artistic or intellectual merit, an argument can be made that just pressing the button is enough to invoke copyright protection. But, as Rickertson also points out, this logic would lead to the illogical position where every individual photocopy received separate copyright protection.
Until we actually have a case on point in Australia, it seems unlikely we’ll have a legal answer. So the question we need to ask ourselves is which precedent do we want to follow? If someone’s intention is to copy something exactly, should we be protecting the copy? Or do we want to take the direction of the US and require some extra level of creativity?
Of course, this question isn’t simple. After all, the NPG spent a lot of money digitising the paintings, which they (presumably) hope to recoup by selling high resolution copies. If anyone can copy high quality files once they’re put online, will that deter galleries from digitising or providing access to their works in the future? On the other hand, should publicly funded institutions be using legal technicalities to restrict access to material in their collections, even after copyright has expired?
My personal opinion is that I don’t think it would be good for Australia to go down this route. Many copyright experts are already concerned about the low level of originality required by Australian law, and how it is stifling innovation by stopping people from making use of public information and data. Do we really want to extend this drawback to public domain works?
After all, the digital era has changed how people create and use copyright material. Remix and mash up are now not only genuine art forms, they’re a standard means of communication for an entire generation. We all complain about piracy, but can we really blame the pirates if we don’t give artists, students and innovators something they can legally use, if we tell them that even century old paintings are out of bounds?
The more we extend copyright – whether by legislative amendment, contractual restrictions or, in this case, judicial interpretation – the more we reduce the pool of material that we are all free to use. Is it really a good idea to restrict the resources available to the many for the sake of the benefit of a few?
High heeled shoe on tricycle, `Liquorice Allsorts’, designed by Ross Wallace, used in `Parade of Icons’ Sydney 2000 Olympic Games Closing Ceremony, Sydney 2000. Collection: Powerhouse Museum, Sydney. Part of the Sydney 2000 Games Collection. Gift of the New South Wales Government, 2001.
Jessica Coates will be presenting a paper at CAN’s Allsorts Online forum in Adelaide on December 1. The one day free event will be a dynamic discussion on how collecting institutions can share content online. Jessica’s role in promoting Creative Commons licences is central to the success of online collections and telling stories about the nation’s cultural heritage. On Wednesday December 2, CAN is teaming up with the Australian Network of Art and Technology (ANAT) and the Royal Institution of Australia to host four masterclasses. By limiting the classes to 10 participants, there is an opportunity to leave the class with a personalised experience and an action plan.
Event: Allsorts Online Forum
Date: December 1
Venue: State Library of South Australia, Adelaide
Time: 8.30am – 5pm + Drinks
Event: Allsorts Online Masterclasses
Date: December 2
Venue: Australian Network of Art and Technology (ANAT) and the Royal Institution of Australia (RiAus)
Cost: $250 per session
Time: 9am – Noon and 1pm – 4pm
Jessica has requested this article is published under the attribution non-commercial share-alike Creative Commons licence.