Last week, the British Association of Picture Libraries and Agencies alerted its members that it is supporting the National Portrait Gallery in its intent to pursue legal action against Wikipedia. Following the download of 3,000 high-resolution images from the its Web site and their subsequent appearance on Wikimedia Commons, the Gallery has attempted to discuss the issue with the online encyclopedia and, in the absence of a response, issued a lawyer’s letter to a Wikipedia administrator. Wikipedia is saying the Gallery does not have a case.
Founded in 1856, London-based Gallery holds the most extensive collection of portraits in the world. It aims to promote “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.” The Gallery is supported by government, donors and proceeds of self-funded commercial activities, such as exhibitions and image licensing.
During the last five years, the Gallery has spent £1 million on digitizing portions of its collection in an effort to broaden its exposure through online distribution. So far, over 60,000 digital images have been made available online. In March 2009, a Wikipedia volunteer appropriated 3,000 high-resolution files from the Gallery’s Web site and published on Wikipedia without permission.
Precisely how the volunteer was able to accomplish this remains unclear. Presumably, such high-value assets would be protected by some online security measures. (Selling Stock was not able to reach either BAPLA or the Gallery by press time.)
The Gallery issued a statement that offered support to Wikipedia’s aim of making knowledge widely available. The museum also offered to allow Wikipedia to use low-resolution images, which the Gallery feels are sufficient for most forms of educational and cultural public access. The appropriation of high-resolution images, however, threatens potential loss of licensing income and thus the Gallery’s ability to reinvest in digitizing its collection.
The interesting legal issue here is that the Gallery does not own the copyright to the works in its collection. Its Web site does an admirable job of explaining the nuances of U.K. copyright law in lay language, as well as the Gallery’s responsibility to “tightly control the circumstances and quality of reproductions from the Collection” through the image-licensing department. The Web site also expressly forbids any reproductions of any kind in any medium.
Yet BAPLA alludes to previous cases of similar interactions with Wikipedia, where representatives of the user-generated encyclopedia reportedly said that Wikipedia regards all images of out-of-copyright material as public-domain content and disputes that the producer of a digital copy of an original work has any rights to restrict its uses. According to recently appointed BAPLA executive director Simon Cliffe, this position is contrary to U.K. law: “The copying of original works for commercial use requires skill and expertise and has a financial cost to the producer. The 1988 U.K. Copyright, Designs and Patents Act recognizes this.”
The Wikimedia Foundation, however, is backing the actions of its volunteer. Erik Moeller, the deputy director of the Wikimedia Foundation, responded to the Gallery’s allegations in a blog post. Moeller said the Gallery did not extend an offer of compromise to Wikipedia but sent a letter asking to destroy all images. While Moeller makes a credible case for the public’s right to access public-domain content, he avoids the key argument that centers around the high resolution of the images in question.
On behalf of BAPLA, Cliffe urged observers to pay close attention to how the case unfolds. “As we continue to fight for a fair deal across the online landscape, we would urge you to watch this case as it may prove pivotal,” he said.