Can a Wikipedia user copy the National Portrait Gallery’s image library onto Wikipedia for everyone to access and use?

On one side of this legal question, are the museums, theatres and other curators of archives. They spend large amounts of money looking after their material. In the case of the NPG, the original portraits are kept in a carefully controlled environment. Rather than subjecting the paintings to repeated high levels of light required for high quality photographic reproductions, NPG commissioned one set (at a reported cost of £1 million)and made that set available for use upon payment of a fee.

On the other side of the argument, we have Wikimedia Commons: “to collect and develop educational content under a free license or in the public domain and to disseminate it”.

NPG have terms of use for the its website. Therefore, they believe that Derek Coetzee (the person who posted the images on Wikimedia Commons) may have breached those user terms (contract law breach); and also breached their database rights and copyright.

The debate boils down to the definition of originality: In the UK, copyright exists automatically in all “original” artistic works as soon as they are recorded in permanent form. A work is “original” if it is created with labour, skill and judgment.

Everyone agrees that copyright will exist in the painted portraits. However, those copyrights expire 70 years after the end of the year in which the painter died. The parties disagree on whether a photograph of a work of art should be regarded as “original”.

In the past, photographers have argued that a high level of labour, skill and judgement is required to produce a high quality image. Unfortunately, the courts have given judgment in a small number of cases on this point. The first (from 1988) (Interlego v Tyco Industries)by the UK’s Privy Council, became the basis of a US court decision (Bridgeman Art Libraries v Corel) (1999). It is the Bridgeman case that seems to support Wikipedia’s position.

In 2004, the courts in the UK made it clear that the Interlego case dealt with a special set of circumstances that did not set a precedent. The UK’s Court of Appeal effectively side-stepped the Interlego case when it considered Dr Sawkins’ case against Hyperion Records Limited.

It is generally felt that Coetzee’s acts (and Wikipedia’s removal of his administrator rights, which effectively prevents him from removing the images) do not fall within the special circumstances set out in Interlego, and therefore the general view that photographic works can be considered as original works, protected by copyright, may well prevail.

Meanwhile, the NPG’s source of licensing fees will decrease, as some users will bypass the MPG’s database of fee paying images, and instead use the Wikipedia copies.

Should all archivists stop investment in digital databases? I would argue not – but whilst planning the database, the should include sufficient technological protection of the digital assets to help prevent the wide scale copying that took place in this case.

After all, no one would build a gallery and not invest in attendants, alarms, and door locks.