Protecting the public domain and sharing our cultural heritage

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Last week, the National Portrait Gallery in London, UK sent a threatening letter to a Wikimedia volunteer regarding the upload of public domain paintings to Wikimedia’s media repository, Wikimedia Commons.

The fact that a publicly funded institution sent a threatening letter to a volunteer working to improve a non-profit encyclopedia may strike you as odd. After all, the National Portrait Gallery was founded in 1856, with the stated aim of using portraits “to promote appreciation and understanding of the men and women who have made and are making British history and culture.” [source] It seems obvious that a public benefit organization and a volunteer community promoting free access to education and culture should be allies rather than adversaries.

It seems especially odd if seen in the context of the many successful partnerships between the Wikimedia community and other galleries, libraries, archives and museums. For example, two German photographic archives, the Bundesarchiv and the Deutsche Fotothek, together donated 350,000 copyrighted images under a free content license to Wikimedia Commons, the Wikimedia Foundation’s multimedia repository. These photographic donations were the successful outcome of thoughtful negotiations between Mathias Schindler, a Wikimedia volunteer, and representatives of the archives. (Information about the Bundesarchiv donation ; Information about the Fotothek donation)

Everybody ended up winning. Wikimedia helped the archives by working to identify errors in the descriptions of the donated images, and by linking the subjects of the photographs to accepted metadata standards. Wikipedia has driven new traffic to the archives. And the more than 300 million monthly visitors to Wikipedia have been given free access to amazing photographs of historic value they would otherwise never have seen.

More examples:

  • During the past few months, Wikimedia volunteers have worked with cultural institutions in the United States, the United Kingdom and the Netherlands to take thousands of photographs of paintings and objects for Wikimedia Commons. This project is called “Wikipedia Loves Art.” Again, everybody wins: the museums and galleries gain greater exposure for the images, Wikipedia is better able to serve its audience, and people around the world are able to see cultural treasures they might otherwise never have had access to. (See the English Wikipedia page about the project and the Dutch project portal.)

  • Individual Wikimedia volunteers work with museums and archives to restore digital versions of old images by removing visible marks such as stains and scratches. The work is painstaking and difficult, but the results are terrific: the work is returned to its original glory, with its full informational value restored. Audiences can appreciate it once again. (Restoration work is coordinated through the “Potential restorations” page, and many examples of restoration can be found among Wikimedia’s featured pictures.)

Three Wikimedia volunteers have summarized these opportunities in an open letter: Working with, not against, cultural institutions. On August 6-7, Wikimedia Australia is organizing an event to explore these and other models of partnership with galleries, libraries, archives and museums (GLAM).
Why do Wikimedia volunteers donate their time to painstaking restoration work, the photographing of art, and the negotiation of partnerships with cultural institutions? Because Wikimedia volunteers are dedicated to making information – including images of historic or informational importance – freely available to people around the world. Cultural institutions should not condemn Wikimedia volunteers: they should join forces with them in a shared mission.
We believe there are many wonderful opportunities for Wikimedia to work together with cultural institutions to educate, inform, and enlighten, and to share our cultural heritage. If you would like to get involved in the discussion, we invite you to join the Wikimedia Commons mailing list. Subscribe and introduce yourself – the list is read by many Wikimedia volunteers and by some volunteers associated with Wikimedia chapters as well as some Wikimedia Foundation staff. Alternatively, if there is a chapter in your country, you may want to get in touch with them directly. You can also contact the Wikimedia Foundation. Please feel free to send me your first thoughts at erik(at)wikimedia(dot)org, and I will connect you as appropriate.
The NPG is angry that a Wikimedia volunteer seems to have uploaded to Commons photographs of public domain paintings that are owned by the NPG. Intitially it sent threatening letters to the Wikimedia Foundation, asking us to “destroy all the images”. (Contrary to public claims, these letters did not include an offer for compromise. The NPG is possibly confusing its correspondence with a letter exchange in 2006 with a Wikimedia volunteer, which the user published here.) The NPG’s position seems to be that the user has violated copyright law in posting the images.
Both the NPG and Wikimedia agree that the paintings depicted in these images are in the public domain – many of these portraits are hundreds of years old, all long out of copyright. However, the NPG claims that it holds a copyright to the reproduction of these images (while also controlling access to the physical objects). In other words, the NPG believes that the slavish reproduction of a public domain painting without any added originality conveys a new full copyright to the digital copy, creating the opportunity to monetize this digital copy for many decades. The NPG is therefore effectively asserting full control over these public domain paintings.
The Wikimedia Foundation has no reason to believe that the user in question has violated any applicable law, and we are exploring ways to support the user in the event that NPG follows up on its original threat. We are open to a compromise around the specific images, but our position on the legal status of these images is unlikely to change. Our position is shared by legal scholars and by many in the community of galleries, libraries, archives, and museums. In 2003, Peter Hirtle, 58th president of the Society of American Archivists, wrote:

“The conclusion we must draw is inescapable. Efforts to try to monopolize our holdings and generate revenue by exploiting our physical ownership of public domain works should not succeed. Such efforts make a mockery of the copyright balance between the interests of the copyright creator and the public.” [source]

Some in the international GLAM community have taken the opposite approach, and even gone so far to suggest that GLAM institutions should employ digitial watermarking and other Digital Restrictions Management (DRM) technologies to protect their alleged rights over public domain objects, and to enforce those rights aggressively.
The Wikimedia Foundation sympathizes with cultural institutions’ desire for revenue streams to help them maintain services for their audiences. And yet, if that revenue stream requires an institution to lock up and severely limit access to its educational materials, rather than allowing the materials to be freely available to everyone, that strikes us as counter to those institutions’ educational mission. It is hard to see a plausible argument that excluding public domain content from a free, non-profit encyclopedia serves any public interest whatsoever.
Erik Moeller
Deputy Director, Wikimedia Foundation

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[…] Möller’s posted to the Wikimedia blog on the issue. Note the correction of the NPG’s claims that Wikimedia never responded to them […]

There are a lot of questions that need to be answered by the uploader really. On his talk page ( there is mention that the NPG images contain hidden watermarks, is this true? Were the watermarks removed? If they were removed, that is a criminal offence rather than a civil one (2003 Copyright Regulations) “Electronic rights management information is any information provided by the copyright owner which identifies the work, the author or any other right holder, or information about the terms and conditions of use of the work, and any numbers or codes that represent such information. Any attempt… Read more »

I am almost hoping they sue – a case verdict against such idiocy would be much welcomed, worldwide. Too many institutions supposedly created for the public benefit have been overtaken by greed, and dealing with them is long overdue.

I’ve posted on my blog a call for best Freedom of Information requests to send the NPG – remember that they are not an independent charity, they’re a government sub-department. There have been some excellent suggestions so far. The salary of the person responsible for this licensing would be interesting, for example.

Given Jammie Thomas was recently given a $1,920,000 penalty for sharing 24 mp3 files on Kazaa ($80k per file), it seems that with Derrick Coetzee having shared at least 3,300 images the NPG could be looking at an award of $264,000,000. Easy money if you can get it. That might just fund the building of a new gallery for the NPG. What I find so astounding is that so many are saying “Oh yes, copyright is absolutely essential and must be protected with the full force of the law, but these images being of antique paintings should be exempt”, without… Read more »

I’m pleased that the NPG’s demand is being fought. The NPG should not be using copyright law to restrict access to our cultural heritage. Even if it turns out that the NPG has the letter of UK law on their side, bringing this into the public eye is the first step towards changing it.

Please could you post or link to the threatening letters that were sent to the Wikimedia Foundation so that the rest of us can judge the full situation better.

There are many in this world who do not understand copyright or even wilfully abuse it. For example, you can find many people who wish to sell you copies of ancient maps and themselves claim copyright on the result… something that is clearly an abuse in my view. IIRC there is a case in the US in which a telephone directory company was denied copyright protection because all they had done was present standard information (names/numbers) in the obvious way. Copyright *requires* a significant creative step and no photograph or scan of a painting, no matter how expensive the photographer,… Read more »

We’ve already had that landmark case. See [[Bridgeman Art Library v. Corel Corp.]].

“Even if it turns out that the NPG has the letter of UK law on their side, bringing this into the public eye is the first step towards changing it.” Which part of ‘breaking the law’ do you imbeciles not understand ?? The old ‘we are bigger than you, so we will do what the f**k we like. Deal with it’ bully boy tactics are unbecoming. Why stop at the National Portrait Gallery ?? Why not steal EVERYONE’S copyright image ?? Oh, sorry, I forgot – you don’t want to upset American celebrities and their ‘image rights’ and take on… Read more »

Mark, as we’ve just entered good faith discussions with the NPG to determine whether a compromise is possible, we’d prefer to not disclose any past legal correspondence so as to not inflame matters further. Suffice it to say that the letters were a request to remove the images, and didn’t include any offer for compromise.

What you’ve done is undermine the National Portrait Gallery’s programme of digitizing its collection at high resolution, which is a loss to all of us. How do you think they’re paying for this programme? With free beer?
You could have accepted the free release of medium-resolution images, but no, you think your size and self-appointed non-profit status means you never have to pay for a damn thing. Well hello bully-boys – you’re not the freedom-fighters you think you are. You’ve just proved yourselves thugs.

Let me guess. Bedd Gelert is employed by Encyclopedia Britannica. 🙂 Stopped reading after “you imbeciles”… @C Johnson: “How do you think they’re paying for this programme?” – It has been paid mostly with government grants and donations, like anything else they do. Compared to the £16mio income from these and other sources, the £10-20thd of revenue from attempting to monetize their trusts through these scans – there’s not being undermined anything. Especially if you factor in the costs to the patrons if this goes to court. What’s really being undermined is their mission to, and funded by, the public,… Read more »

Wiki whatever is just in the wrong and in the wrong and in the wrong. The pictures are subject to copyright in the UK so why does Wikipedia think this does not apply to it. Why are they allowed to break the law. If you disagree with the law, why not campaign to get it changed? Just breaking the law is wrong and if you can’t see it, well, then go home, have a sit down and re-evaluate your life.

Welcome to the internetz, where everything is free. Interesting legal debate. Good exposure for both parties. The National Portrait Gallery (sorry I can’t say NPG – reminds me too much of the New Power Generation) just needs to assert that their images are copyright otherwise their income from the reproduction of these images in books and magazines could be at risk, Streisand will see to that if they keep commenting to journos. Just because we can now see our national treasures on Wikipedia as well as shouldn’t stop books and mags paying their fees. The National Portrait Gallery are… Read more »

I live in the UK. From what I understand the images in question were in the UK with all the copyright and database rights protection that brings. I know the internet is global but what really irritates me is that an individual and an institution based in the US can justifying ignoring UK law (images owned by the UK taxpayers, held by a UK institution, digitised on a UK database etc)… There seems to be a really nasty theme here of “US law is the only law that matters on the internet and anyone who thinks differently is anti-‘the common… Read more »

These pictures are just photocopies of public domain work? Why would they even want to try to assert copyright? Oh, yeah. They’ve pushed the photocopy button, they deserve protection!!!
These photos are in the public domain. Why do they want to create scarcity of something that belongs to the public?

The legal issues here, as defined by UK copyright law, will no doubt be clarified as this situation unfolds. What I personally find more interesting is the question of the National Portrait Gallery’s mission and the ways in which their case (and their practices) undercut that stated mission. Based on their published material, the gallery’s aim is “to promote through the medium of portraits the appreciation and understanding of the men and women who have made and are making British history and culture, and … to promote the appreciation and understanding of portraiture in all media.” In its day-to-day operations,… Read more »

Excuse me for not posting under my real name, but I’m a publisher of academic books in the UK, and I don’t want to embarrass my employers, since I’m not speaking on behalf of the firm. I’d just like to say that the National Portrait Gallery is one of the worst offenders in the world in its digital practices. The terms and conditions (quite apart from the cost) associated with getting permission to use one of their images – itself a pretty offensive idea, I know – are so bad that you can’t really afford to do business with them.… Read more »

@Harry Freeman: And if Wikipedia wasn’t ignoring Chinese law, Wikipedia would not exist at all.
@the Publisher: Wow, that was enlightening. Indeed, if practices like these succeed, all our previously free heritage will soon be exclusively owned by someone. And that someone isn’t us…

The spirit of the copyright law is that the government grants you protection for creative works in exchange for the public’s free access to the work once the copyright term expires. NPG are violating the spirit of that promise. It would perhaps be less bad if they allowed others to come to the gallery and take photos of the paintings – but they do not. NPG’s actions are a clear effort to take from the public their right – guaranteed under copyright law – to be allowed to copy works after the prescribed amount of time. Their claim to have… Read more »

Erik, I note that the Bundesarchiv archive donations which you cite as an example are described as “800 pixels in size on the longer side”. Much larger images are available at the Bundesarchiv, so it seems that the archive has freely shared medium resolution copies with Wikipedia. It is my understanding, and please correct me if I am wrong, that the NPG is willing to allow low or medium resolution images on Wikipedia. Why is it necessary for Wikipedia to host these high resolution images from the NPG (regardless of how they came to be there), when it could host… Read more »

[…] bei Nichteinhaltung rechtliche Schritte an. Die Wikimedia-Foundation zeigt sich mit Coetze solidarisch, indem sie erklärt, dass das Vorgehen des Users aus Ihrer Sicht nicht zu beanstanden ist, wird […]

I find the attitude that has been taken by both the Wikimedia Foundation and the editor in question to this matter pretty arrogant, to be frank. Don’t get me wrong, I pity the guy for having to shoulder the legal burdon of an unsupportive and little-concerned system. What seems to be being ignored here is the actual cost to another non-profit institution, the NPG; they paid the photographer, they paid for the restoration, security and digitisation of the images in question and yet the WMF did not even try to contact the gallery to negotiate an arrangement suitable to both… Read more »

As they used to say: “Lex dura, sed lex.” The only option is to do what is legally required: the images are copyrighted in the UK and should be regarded as such.
Wikimedia is behaving a bit like George W. Bush when invading Iraq: “We’ll do it because we want to and nobody can stop us.”

Regardless of the legal position, Mr Moeller and Mr Coetzee are just being arrogant. The NPG currently get money from licensing hi-res images and the NPG people decide how to spend that money to further the aims of the NPG. Mr Moeller and Mr Coetzee in their public statements are implying that they believe that the NPG should not have that licensing money and have taken sufficient steps to stop that income stream. There is a difference between ” I know better than you and I will prove it enough to convince you to change your mind.” and “I know… Read more »

I would say that it’s more the NPG who is acting like the playground bully here, not the Wikimedia Foundation!
English law on the authorship and originality of photographs hasn’t changed in more than a hundred years – these images are not copyright under UK law! People like the Museums Copyright Group might wish that that were different, but it is not the case, and they should not be allowed to pervert their public role by pretending otherwise.

Thought experiment: imagine if someone downloaded 10% of all Wikipedia pages and posted them on a new server under a different name — even while keeping the attributions of authorship.
Ignoring legal considerations, that would still be in bad taste.
Was there an attempt made to ask the NPG if putting 3000 of their photos on wikipedia was ok with them, before the deed was done?

@علاء F. – thanks for clarifying… so basically Wikipedia is above the law – or at least laws that it doesn’t agree with or think are in the common good (presumably as defined by Wikipedia)…

@bugzappy, there are literally hundreds of sites that do exactly that, many of them with far more than 10% of Wikipedia pages on their servers. You can find a list of them on Wikipedia, at least of the one’s somebody’s bothered to note down. These sites don’t have to ask permission before they copy Wikipedia pages, but they do have to respect the original copyright. In this case, it is the NPG who is not respecting the original copyright, by pretending that one exists where there is none.

Mainstream media is picking the story, for better or worse:

Taking these photographs is a very skilled process, involves a number of people/equipment/lighting (actually photographing paintings this well is one of the hardest things to photograph), and can only be done when the gallery is closed (adding to expense).
The NPG were more than willing to share low res – web suitable / optimized images (their database even helps you to do this), but the high res ones will damage revenue – because their will be people who misuse them after downloading from WP.

Coetzee copied 3,300 high-resolution images from the NPG’s online database, some of them [high resolution]. It is common practice for museums to put some digital image in low resolution on the web. High resolution images are normally kept under much tighter control, not accessible to the public, but to employees and e.g. researchers. So the question is: did Coetzee have permission? How did he get access to them? Coetzee studies computer sciences. Has he been hacking, or writing a tool to harvest images from sites, unbeknownst to the owners? Even if NPG has been negligent, they still are the proprietors… Read more »

[…] response by Wikipedia deputy director Eric Moeller could be summarized as “Nuts“: The NPG believes that the slavish reproduction of a […]

[…] Intuitively, I feel that there shouldn’t be copyright in the images that Wikimedia are using. That their importance trumps NPG’s desire to exploit them commercially: these paintings are an important and unique part of our culture’s history. This isn’t just academic: it has real impact. […]

The licensing money that NPG is the problem! That they receive hundreds of thousands of dollars each year to “license” public domain images is absurd. No doubt many of the works in the museum were donated so they could be enjoyed by the public. But by locking up the paintings, and by demanding exorbitant fees to republish the public domain images, they are depriving Britain’s citizens of some of the most important art work in her history. How many textbooks don’t include these images because of licensing costs and legal hassles? How many schoolchildren have been deprived of seeing this… Read more »

I’m sure that everyone would agree that if the original author of a painting (or any other work of art) is alive, a photographic reproduction would definitely be a violation of copyright. When a work of art enters the public domain, then all of its unauthorized reproductions that were formally a violation of copyright, would naturally enter the public domain as well. If a high fidelity reproduction, as in the case with NPG’s images, existed during the time that the original author was still alive, then it would have been a violation of copyright. But now since the paintings are… Read more »

I hate to think how many digitization projects have been set back or sent back to the drawing board because of the thoughtless actions of Coetzee and Moeller. High quality digitization projects not only make images available to the public but preserve them for future generations. I am sure individuals in those institutions had to convince different boards that it is a good idea not only to raise that kind of money but to spend it. I’m sure the chief concern would have been that these images would be stolen. Coetzee has proven them correct, now other digitization projects, not… Read more »

David Webb’s assertion that removal of watermarks is a criminal offence rather than a civil one is only of concern if the works were subject matter of copyright in the first place. The whole point of the argument is whether they are or not. Worrying about watermarks is distinctly premature. The opinion of the silk “that UK copyright law protects photographs of works of art” is beside the point. It only does so if the works of art in question are themselves copyrighted, and in this case they are not. It also makes points which in so far as they… Read more »

Look, I’ve just skimmed through the above, but it seems to me just about everyone is missing the point. There are 3 really important points to make here. 1. The NPG is not saying that images of the works in its care should not be available through Wikipedia; its saying the cracked zoomify versions shouldn’t be available there, as the commercial use of large-scale images helps support their digitisation programme. The NPG is happy with its 500 pixel images being available on Wikipedia, and that’s really just in line with 99% of all other images available there. 2. Through encouraging… Read more »

[…] Protecting the public domain and sharing our cultural heritage […]

Interesting debate, and I actually think the gallery has a good case, even if we might not like it. There are at least a couple of different things worth mentioning here. 1. I think nobody disputes the fact that the paintings are in the public domain with respect to copyright. 2. If the photos hold any copyright or not will be up to UK law to decide. US law has nothing to say in this matter. What is in front of the lense has no bearing on if a photo has copyright protection or not. I think most people agree… Read more »

[…] NPG με οποιονδήποτε και κυρίως με το Wikimedia. Άλλωστε όπως γράφει ο Eric Moeler του Wikimedia  για την NPG, “αρχικά έστειλε […]

[…] just become aware of a right kerfuffle between Britain’s National Portrait Gallery and the Wikipedia Foundation, all because of a smart young thing who hijacked a lot of high-quality images from the NPG site and […]

It is digusting that you allow websites such as conservapedia to exist under your banner.
I’m profoundly disappointed by your organization and will do whatever I can to publicize this scandal!!!!!

Vincenzo, Conservapedia is a completely distinct project from Wikipedia and the Wikimedia Foundation. Thousands of wikis use the same software and format/style as Wikipedia, which is an opensource project MediaWiki.

[…] the high res-images from the Wikimedia Commons and on the other side we have Coetzee (backed by the Wikimedia Foundation, many wikipedians and Creative Commons) claiming that these images belong to the public domain and […]

[…] Protecting the public domain and sharing our cultural heritage […]

[…] NPG με οποιονδήποτε και κυρίως με το Wikimedia. Άλλωστε όπως γράφει ο Eric Moeler του Wikimedia  για την NPG, “αρχικά έστειλε […]

[…] Protecting the public domain and sharing our cultural heritage […]