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.
This post is tagged copyright, digitisation, national portrait gallery, npg, wikimedia, wikipedia
I don’t think the incentive argument holds at all. I’m sure there are many people who would happily volunteer their time to digitise works of art such as these and with a suitable open approach the NPG could assist this. Also making the digital images public domain doesn’t prevent the NPG from commercially exploiting them, it would just mean that could buy it from other companies outside of the NPG shop.
Let me get this straight – the NPG spends, according to themselves, loadsa money* copying a work as faithfully as possible, and get to claim it’s a new work, and charge people to use it. I copy a file/image/work/whatever faithfully, hand it out for free and get sued. This copyright thing has just got way out of hand.
* a figure to be disputed – - please see http://www.whatdotheyknow.com/request/cost_of_online_collections_2#incoming-1653
Hi. Copyright is indeed completely illogical. You write “a copy of a work is by definition a different work, and should therefore be protected by copyright.”. So I pick a copyrighted work, I copy it, than, according to you, I created by definition a different work, and with its own copyright including protection. You’re telling me that copying of copyrighted work is allowed. That is great news!
@Ad: Well spotted! I should have been clearer. I meant a copy that is expensive to produce, not one where the cost of copying is nil or negligible.
@Richard: Again, I’d argue there’s a difference between copying that’s free and copying that’s expensive — I’m not sure that it matters if that figure is disputed. If it was a quarter of that amount, it’d still be expensive.
@Julian: I’m not at all convinced that that’s a workable solution. Often those volunteers just don’t exist, and even if they did, digitisation is often a very specialised job. Taking pictures of NPG paintings would probably be a good task for volunteers, but scanning ~400-year-old original documents that are falling apart? Not so much.
It would certainly work in some cases, and of course people should do that if they can. Would NPG have spent all that money if they had a corps of volunteers who’d do the work for free? Unlikely.
I consider £39000 is a *steal* for the cultural benefit of the nation, if not the world.
Could a solution be for the NPG to release the pictures into the public domain once they had recouped the true cost of digitisation?
Absolutely — if they didn’t do that they’d be squarely wrong, IMO — that would be profiteering on our cultural heritage. Very naughty.
According to that FOI request the £39,000 explicitly does not include the costs of digitisation. Either way, it’s still a steal, but not a cheap one! It’s a question of means, not of worthiness: who pays?
Aaah – didn’t spot the digitisation exclusion – my bad.
I see another FOI request in line for the NPG…
Do post a link when it’s made, I’d love to know the answer
The Digital Art Auction is a means of determining the equivalent retail price of a digitally representable work of art if each bidder paid the same price (not exceeding their valuation).
Thus, if 3,300 images cost £1,000,000 to digitise then each image need only fetch £300 at auction to break even. £300 could be raised by 30 people bidding at least £10, 300 bidding at least £1, or 3,000 at 10p, etc.
There are ways of enabling the public to pay for works to be published that don’t involve suspending their liberty to share and build upon their cultural heritage (and that don’t involve dubious taxation).
As far as I am aware, the implementation of the Digital Art Auction closest to completion is currently: https://www.liberateip.com
NB There are many implementations of the Street Performer Protocol, but this is simply a means of collecting donations of varying amounts with a refund in the event the target fund isn’t reached. See http://fundable.com.
That sounds interesting. Would love to see how it works in practice. Why is this better than traditional fundraising? What is actually being auctioned?
Liberate IP seem to be applying this to commercial works, which I don’t quite understand.
It’s a way of establishing the equivalent market value of a private work (to be published) in terms of equally priced shares. The natural liberty to share and build on public works consequently remains preserved – not suspended in order to create the unnatural privilege of copyright. The funds also only come from those interested in the publication of the work (not from taxation of all).
It’s best feature is that everyone can make an honest, individual appraisal of their value of the work, with the confidence that they will not risk paying significantly above the market value.
Effectively the auction determines the equivalent retail price that would otherwise be attached to each copyright ‘protected’ copy.
LiberateIP is aiming the idea at copyright holders, e.g. as in the case of Blender (3D modelling software) where a large number of interested users successfully collected a fund for the copyleft release of the software. Today LiberateIP could be used to enable Michael Jackson fans to purchase the CC Share-Alike release of his digital masters (or the Beatles’ library).
Bidders at Propagate Ltd (LiberateIP.com) stand to gain three things, each of which will have different values to different people and with different products:
1) First opportunity to cash in on the freedom to copy and resell a work legally. There are various mechanisms to command a price above “free” (e.g. collect in advance, gather periodic subscriptions, sell advertising etc.) Discovering one that works in a particular context is an exercise left to the entrepreneur
2) Good PR and possible customers from being in the winners’ list on the post-auction page (with optional contact info so that copy-seekers can find them). OTOH, those who don’t appear but profit from propagating liberated works may be publicly shamed… possibly bad for business.
3) Having a scarce, numbered original package when most copies are generic (or merely virtual). Some may find prestige in displaying proof of one’s patronage of the arts. Some may find collectible value in the scarcity and provenance of original disks (complete with inserts, extras etc.)
BTW, I am glad to see someone discussing my company. Now if I can just connect that discussion to qualified investors…
It’s been a while since I last visited this issue but I’ve learned a bit in the intervening time. Initially I attempted interrogating the National Portrait Gallery via FOI – it wasn’t successful – and anyway it would never be easy to differentiate between income from (c) works and Public Domain works.
So I had a closer look at the National Gallery as I could be sure that all of their collection was PD. Their initial digitisation if the primary collection (~2300 images ) was completed in 2003 at a cost of £382k. This figure includes equipment, operating costs, building works and staff costs. Then I queried the income earned directly by their picture library (the digital picture repository and database) for 2009 – £127k. This income is from ‘royalties’ based on 50% of the net sales value of products (faithful copies of PD works) sold via the National Gallery Company (a separate entity owned by the National Gallery Trust). This income is also distinct from money donated to the NG from either the National Gallery Trust (largely supported by gifts from the NGC) and direct payments from the NGC. Thus it becomes clear that the NG earned considerably more than the £127k for royalties during 2009. Let’s also not forget that they’re a publicly funded organisation with a grant of over £11 million.
I could go back and interrogate the figures for each year since 2003, but I can’t be bothered and I’m pretty convinced that the total returned will be significantly more than the initial outlay plus ongoing overheads. AFAICT the NG are profiting from PD works.
http://www.whatdotheyknow.com/request/details_of_contracts_for_and_acc
http://www.whatdotheyknow.com/request/initial_digitisation_costs