Should there be copyright in NPG’s photos?

There’s a pretty good chance that there is copyright in the National Portrait Gallery’s photographs of paintings, which are currently the subject of a legal spat between NPG and a volunteer for the The Wikimedia Foundation. Intuitively, that seems like a bad thing — but is it? And if so, what does it mean for the future of digitisation?

Others have done a much better job of explaining the legal situation than I could, so I won’t talk about that. I’m more interested in the policy position that we should be adopting than the one we’ve found ourselves in.

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.

All that said, a policy position that there isn’t copyright in these images might do more harm than good.

There are a huge number of historic works in the world. Digitising them is important: both to make them more widely available and for their preservation. Unfortunately, it’s expensive to do, especially when the works are old and fragile.

It’s appealing to say that digitisation should be funded from general taxation and the works placed in the public domain for all, but I think that the cost is probably significant — certainly enough to make it politically untenable.

The usual solution is a compromise between public ownership and private investment. A company invests in digitising a set of works in return for the exclusive right to distribute their digital copies for a limited period — say twenty years — after which the works return to the public domain*. Of course, this approach relies on copyright.

It’s hard to create a system of copyright that caters well for both approaches. If there is copyright in an exact copy, there will forever be people who aggressively defend those rights in order to protect their revenue — and frankly, when £1m has been spent producing the copies, that’s not unreasonable.

Without copyright, there’d be much less  incentive for anyone other than Government to digitise anything. It’s almost certain that most historic archives would never become available to the public.

Copyright exists to provide an incentive to create things. It’s a monopoly right created by Government for a specific purpose, designed to ensure that works eventually return to the public domain, as these paintings have. My gut says there shouldn’t be copyright in these images, that these exact copies are substantively identical to the original public domain works, and should therefore be public domain themselves.

My brain says that’s completely illogical — and that in fact, a copy of a work is by definition a different work, and should therefore be protected by copyright. That in fact, copyright is doing the exact job that it was created for: providing a incentive for these images to have been made in the first place.

If there was no copyright in these images, would NPG still have spent £1m digitising them? I doubt it.  And perhaps therein lies the rub.

* Disclaimer: this was the impression that I got from a long chat with David Thomas, of the National Archive — but that was years ago and I wasn’t entirely sober.