A quick scan of the law regarding copyright and the public domain images

Originally posted 2010-03-17 18:26:32. Republished by Blog Post Promoter

startrek-tricorderThe story’s all over the Net, but here’s as good a take on it as any, from Mike Masnick at Techdirt:

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.

By Ron Coleman

I write this blog.

5 thoughts on “A quick scan of the law regarding copyright and the public domain images”
  1. Technollama and LawClanger have produced the summaries that have been most praised by bloggers from both sides of the argument. Neither pretends to be a complete learned argument, but both address the essential issues.

  2. UK copyright law is even more, um, interesting than its US equivalent. I haven’t a clue how this will come down.

    But I have a suggestion.

    Don’t post high-resolution photographs on your website.

    There, problem solved. Post thumbs and low-res previews and accept the fact that whatever’s on the Net is going to be free whether it or you “wants” it to be or not. But provide an easy linkage to information about how to license a high-resolution image, and you’ve done about the best damage control you’re going to manage until the people at TinEye et al improve their technology by a few orders of magnitude. Be sure to include it in your EXIF, too, and as the image meanders the web it will speak to those who know how to listen.

    And since stripping metadata, at least in the US, is a completely different offense from ordinary copyright infringement, if somebody reposts your low-res images without that handy licensing information, you can throw the book at them, and it will stick.

    If you *must* post high-res images, put them behind a login, and make your TOS as harsh as your lawyers think you can get away with re: republishing. Now you’ve got a contracts claim. Won’t help you against third parties but if you can find out who did it you can at least make them sorry, if you’re worried about it.

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