Virtual Collections: National Portrait Gallery versus Wikipedia

The digital revolution’s radical transformation of information and communications technology has enabled public and private collections throughout the world to offer instant internet access to images of countless numbers of their artworks: virtual collections; invaluable 21st-century cultural services. Just as the general public’s physical access to the UK’s public collections is free of charge, so is internet access to their virtual collections. But should internet visitors also be able to copy and download those digital images, and use them for their own – even commercial – purposes, free of charge? This issue lies at the heart of the legal wrangle currently unfolding between the UK’s National Portrait Gallery (NPG) and the free of charge online encyclopedia service, Wikipedia (WKP).

In recent times NPG has spent around a million pounds creating a database of high-resolution digital photographs of its collection. WKP does not dispute that it downloaded over 3,000 images from NPG’s database and uploaded them onto its own. NPG has instructed art lawyers, who have in recent months formally requested WKP to ‘cease and desist’ from using NPG’s digital images. WKP has refused, and has now been formally notified of NPG’s intention to take legal proceedings against them.

Key art law issues involved and arising in this dispute are not confined to the particular facts of this case, but are relevant to curators of all virtual collections and their online user communities. They are discussed below, and focus on a longstanding artlaw question that has never been decided by the UK courts: whether making a photographic copy of an out-of-copyright painting creates a new copyright in the photograph.

It is common knowledge in the arts and cultural fields that copyright lasts for a finite period of time: for the lifetime of the author and, in most countries, for 70 years after the author’s death; after which period the copyright work falls into the so-called ‘public domain’, and can be freely copied and merchandised. However, in order to qualify for copyright protection there is a basic requirement in UK copyright law, as in many other countries, that a work must be ‘original’. That is to say, that the work must be created by an artist’s independent skill and labour, and not, say, by copying another artist’s work. NPG through its lawyers asserts that its digital photographs of out-of-copyright paintings in its collection do create new photographic copyrights. Evidently WKP and its lawyers disagree.

The situation is made more complex because of the existence of a case on this precise point, decided by a US Federal Court in 1999. In Bridgeman Picture Library v Corel Corporation the court ruled that a photograph of an out-of-copyright painting did not pass the legal ‘originality’ test, and therefore failed to create a new photographic copyright. The court’s thinking was that a photographic copy of, say, Leonardo’s out-of-copyright Mona Lisa produces only that image, and must therefore be viewed as Leonardo’s ‘original’ image – not the photographer’s ‘original’ image. Although this US court decision strictly only operates in that country, the decisions of courts in other countries can and often do persuade UK courts to follow the approach of those foreign courts, especially when the key legal issues and facts are very similar or the same. Not only were the key issues and facts in Bridgeman/Corel the same as in NPG/WKP, but also the US court decided the matter using UK law. (Bridgeman is a UK company and therefore had to satisfy the US court that UK copyright law gave it ownership of copyright in its digital images of out-of-copyright paintings.) In other words, because NPG would be required to satisfy a UK court that its digital images of out-of-copyright paintings do pass the legal ‘originality’ test, it would doubtless face WKP’s counter-arguments using in support the US court’s decision in the Bridgeman/Corel case.

There is a further copyright-related claim: that WKP used ‘unlawful circumvention of technical measures’ to appropriate NPG’s image database. In other words, that WKP used software techniques to breach NPG’s technology protecting its image database. To succeed with such a claim, NPG must first satisfy a court that it owns photographic copyright in the images of out-of-copyright paintings; which brings the matter back to Bridgeman/Corel and the ‘originality’ issue.

International copyright laws have in recent times given a new intellectual property right to creators of databases: the so-called database right, which arises where significant investment of resources has been devoted to the collecting and formatting of data. NPG claims that WKP has violated its database right by extracting and re-using 3,000 of its 60,000 digital images. The proportion of images appropriated by WKP is likely to be a key issue in this claim, and whether the quantity used – around 5% – is abusive and therefore unlawful.

NPG further claims that WKP’s appropriation and use of NPG’s digital images was in breach of a contract between NPG and WKP. The first and most important issue in this claim will be for NPG to establish that WKP entered into a legally enforceable and binding contract with it. NPG asserts that every page of its website offers online users the choice of two links (‘License this image’ or ‘Use this image on your website’) and that clicking either link reveals NPG’s statement that users need permission to reproduce its images; so that, through adopting either of these procedures, any user contracts with NPG not to reproduce its images without its express permission; that WKP’s downloading and subsequent uploading of those images to its website has contravened NPG’s contractual rules; and that WKP is therefore in breach of its contract with NPG. Difficult issues for a court to decide, in this situation, will be whether WKP and NPG both intended to create a legally enforceable and binding contract with each other, and that each gave something of value to the other to seal their commitment. NPG’s intentions and commitment are clear, but WKP’s intentions and commitment to the formation of a contract with NPG are far from clear.

WKP has instructed its own lawyers to resist NPG’s claims, and for it to ‘cease and desist’ its current uses of NPG’s images. The wrangle therefore appears to be heading for litigation before the UK courts – despite the fact that WKP is based in the US – because NPG rightly claims that WKP’s service is delivered in the UK (among many other countries) where it alleges all the legal violations have occurred.

Interested outsiders will understandably have mixed feelings about the prospect of this litigation which, on the one hand, should resolve the longstanding debate as to whether photographs of out-of-copyright paintings create new photographic copyrights in the UK; and, on the other hand, whether it would be better (and substantially less costly) for these far from straightforward issues to be resolved by the parties themselves. By meeting face-to-face, without lawyers, the parties can explore mutually acceptable practical solutions; and might find it valuable to engage the services of a neutral art law expert to act as a mediator to facilitate such an informal dispute resolution process. In the context of such a possible mediation process, NPG and WKP should naturally wish to consider the fact that both organisations offer their cultural services to the general public free of charge, and whether it would not be in the public’s interest for images from NPG’s virtual collection also to be available via WKP; perhaps with suitable links between them, and a modest annual licence fee being paid by WKP to NPG.

© Henry Lydiate 2009

 

The digital revolution’s radical transformation of information and communications technology has enabled public and private collections throughout the world to offer instant internet access to images of countless numbers of their artworks: virtual collections; invaluable 21st-century cultural services.

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This article is from the Artlaw Archive of Henry Lydiate's columns published in Art Monthly since 1976, and may contain out of date material. The article is for information only, and not for the purpose of providing legal advice. Readers should consult a solicitor for legal advice on specific matters. Artists can get free online legal information from Artquest.