UK National Gallery threatens Wikipedia, tries copyfraud tactics

A story with some important implications has broken in the last few days.  It concerns items in the UK, which are out of copyright and unique and owned by the public. 

UK state bodies claim copyright of any photographs under English law and use their position as custodians to prevent access to them in this way.   This claim has never been tested and may be legally dubious even in the UK.  It is fairly certainly invalid in the US, for instance.  A great many state bodies — the British Library comes to mind — do the same, abusing their position to obstruct access to the public.  The object of the civil servants is to make money for their own institution, and let the public interest go hang. 

But now it may all come to court.  Whatever happens, that must be good news.

It seems that  the UK National Portrait Gallery has issued a copyright infringement letter to a US Wikipedia user, after he uploaded thousands of images from its website to Wikipedia.  The gallery started out pretty arrogantly, according to Techradar; the letter promptly appeared on Wikimedia.  TechRadar reports their next statement:

“The Gallery is very concerned that potential loss of licensing income from the high-resolution files threatens its ability to reinvest in its digitisation programme and so make further images available.”

They are concerned… about the loss of income.  Yes, indeed I’m sure they are.  The pictures belong to the public, the photos are paid for by the public, yet all they are concerned about is the income they can make from them.

Even in this statement, there is good news for us.  The Gallery has had to think of some reason why the public should support their actions.  They’ve had to acknowledge that “making images available” is what is expected of them.   They’ve had to acknowledge that Wikipedia making them available is in the public interest.

The gallery demands that the items be taken down, or they will sue, on the 20th July.  Let’s hope they do.  Just imagine how it works. 

First, imagine the court decides for the Gallery.  Then Wikipedia has to decide whether to pay any attention.  Wikipedia is based in the US.  It doesn’t give a damn about the UK.  So if the Gallery wants to enforce this, it has to travel to the US and convince a US judge that it is in the interests of people in the US that US people not see stuff in the UK.  The chances of this are minimal, as US courts are largely political and favour US people.  So the whole issue of daft UK copyright that harms only people in the UK will come squarely before the public eye.  In this situation, the need for a change to that law will become overpowering.

Second, imagine that the court decides against the Gallery.  This is even better, because it will bring UK law into line with US law.  It will bring an end to this copyfraud.

David Gerard rightly observes, “I can’t see this ending well for the National Portrait Gallery, whatever happens.”  But it most likely will end well for everyone in the UK.

The issue is being reported also in the Guardian, although no comment seems to be possible.


3 thoughts on “UK National Gallery threatens Wikipedia, tries copyfraud tactics

  1. I do believe you are incorrectly applying the term copyfraud, the only people who are applying the wrong copyright status in this case is the WMF, they are applying a “PD licence status” to images which are not public domain in their country of origin (the UK). Until such time as a court in the UK rules upon this medium, then the images are copyrighted and the term copyfraud is being applied to the wrong party.

  2. Thanks for your comment. But as I understand it, the points you make are one side of the point at issue, and this is where a court case would be very helpful to resolve them.

    There seems no dispute that the portraits are out of copyright. The question is then whether images of out-of-copyright material can then be copyright.

    My understanding is that whether the images are copyright in the UK is in fact unknown, since no case law exists on this matter. The assertions of various interested parties rely on untested assumptions about the law on this point (that also seems to be agreed). The images do not involve any original creative work, and are therefore certainly out of copyright in the USA, where the law is clearer, or so I understand.

    The term copyfraud has been used where people are claiming copyright of material not their own, especially by trying to manufacture copyrights over non-copyright material, e.g. by denying access to everyone else. Since no-one has any interest in the images, except insofar as they are the only available copies of the out-of-copyright material, I rather presumed that this is a clear example of the events for which this term was minted. There seems no way in which this term could apply to Wikipedia, tho.

    The argument of the NPG is that because the management of the NPG used public funds to make them, copyright in the images belongs to the NPG. This may not be true in the UK. It seems generally agreed that it is certainly not so in the USA.

    It is an interesting feature of all the NPG comment, and pro-NPG comment, that the public — supposedly owners of the images, photos and all else — don’t rate a mention.

Leave a Reply