Derrick Coetzee, a software developer and an administrator of Wikimedia Commons, the media repository for Wikipedia is being threatened by the National Portrait Gallery in London. Coetzee admits that he downloaded about 3,000 high-resolution images from the site, but notes that they are all of paintings that are in the public domain (nearly all are over 100 years old). Coetzee is in the US, where he notes Bridgeman v. Corel suggests that photographs of public domain paintings do not carry any copyright, since the photograph does not add any new expression. However, such issues are not settled in the UK, and the National Portrait Gallery is insisting that the photos are covered by copyright.
Mike is surprised that the National Portrait Gallery is acting so regressively:
Here was a chance to help educate the public and give people more reasons to go to the Gallery to see the actual photos, and they’re trying to stomp out that kind of education through abuse of copyright law. The people who run the Gallery should be ashamed of themselves. They ought to go back and read their own mission statement.
Yes, mission statements are all very nice, but the way they see it, they’ve spent millions on scanning stuff and it just galls them that someone is depriving them of the rent that should come their way by virtue of all that effort.
And what is the law? I don’t know about what it is in the United Kingdom. In one of my first copyright-related posts on LIKELIHOOD OF CONFUSION®, though, I wrote at length about what it is here. Indeed, everyone familiar with the issue seems to agree that in the United States, there is no copyright in scanning, which amounts to little more than the rejected “sweat of the brow” basis for asserting copyright in compilations — which is certainly the animus behind the National’s assertion of rights.
So is that such an unreasonable basis for making such a claim? As I said, their scans undoubtedly cost a small fortune. Why should a free rider be able to benefit from that investment by the Gallery, notwithstanding the high aspirations of its mission statement? They still have to pay the bills, after all.
It’s a good argument, morally; and to that extent I disagree with Mike and the “information wants to be free” crowd. No one else’s work, or money used to pay for work, should be automatically rendered worthless because “information” or “culture” are the object of that effort. To the contrary, if we want culture and knowledge disseminated, we should preserve incentives not only to create it but to preserve and disseminate it.
Morally then, very good. But legally, it gets us nowhere under U.S. copyright law, because copyright only protects creative works. And, unfortunately for people who put in this kind of effort at risk of having others ride for free, copyright also crowds out the range of other possible claims and evidently leaves no room, under the doctrine of preemption, for claims on any other basis.
Very nice, or perhaps not nice, but still neatly packaged, on this side of the pond, but how about where it probably matters — in the UK? I haven’t yet found any learned opinion on the state of affairs there as to this issue, and welcome suggestions.