Old and new media in conflict

A large number of photographs from the collection of the National Portrait Gallery (NPG) have been appropriated from its website and are now freely available on the media section of Wikipedia, Wikimedia Commons. The gallery maintains a collection of priceless old paintings, and admission to view these is free. According to its website, the NPG “is increasingly keen to find new ways to share the Collection”. The declared mission of Wikimedia Commons is “to collect and develop educational content under a free licence or in the public domain, and to disseminate it”. Both organisations want to make works of art available to the public. It would seem a perfect match. Not so.
Reportedly, Derek Coetzee, a Wikimedia user, accessed the NPG database of images, circumvented their copy protection measures and downloaded more than 3,300 high-resolution images. He then uploaded these images to Wikimedia. Having invested £1m in the creation and publication of these images, the NPG was not amused. According to the NPG, Coetzee has breached the terms of use of its website, improperly got round the technological protection measures they put in place, infringed their rights in the database of images and, most controversially, infringed their copyright in the images. According to a Wikimedia policy statement, making faithful reproductions of public-domain 2D artworks subject to copyright is “an assault on the very concept of a public domain”. Copyright law grants the author of an original artistic work the right to control reproduction and distribution of his work. The public policy justification for this law is that society benefits from the creative effort of artists and rewards them with licence fees. This right is limited and, once the creative contribution has been repaid, the author’s work should be available to all. This should promote creativity without placing undue restrictions on public access.

In the UK, copyright subsists in all “original” works: a copyright work must originate with the “labour, skill and judgment” of the author. As a result, an expert reproduction of an existing work is itself original and can qualify for copyright. Yet, in the US, faithful reproductions of 2D works of art do not give rise to copyright. Wikipedia is arguing that Coetzee has done nothing wrong. Central to its stance is the belief that copyright should not be used to control the distribution of works of art that are themselves out of copyright. However, that fails to take into account the effort and expense that the NPG has invested. The publication of content created by someone with their consent is one thing, but the publication of content created by a third party without their consent is entirely different. If old and priceless paintings were repeatedly subject to the level of lighting required for this kind of photography, the paintings would inevitably degrade – hence the NPG’s commission. Over the past year the NPG recovered £339,000 of its costs by licensing the commercial use of these images. Now that the images have been published in this way, its chances of recovering its investment have been destroyed. If the law does not provide a remedy, then what incentive is there for any institution to create and publish reproductions of their collections?
The law must protect the rights of those who invest time, money and skill in reproducing great works and in producing new works. For people in the creative industries, and those who fund them, getting the bill paid is the most important, and often the hardest job: the advent of digital media makes it harder. Copyright infringement cases are often intricate and expensive. However, modern day artists have begun to look more closely at the use of intellectual property rights with, for example, Damien Hirst and Banksy registering their names as trademarks. Trademark rights can be used to prevent the sale of work purporting to originate with the owner and to control the promotion and sale of whole categories of goods and services. Better still, trademarks are a registered right, therefore trademark cases (although fiercely contested) tend to be cheaper and quicker than copyright disputes. There is a whole palette of intellectual property rights and, with suitable strategic advice and a positive and creative approach, artists, authors and institutions can continue to protect and generate revenue from their creative work.