All of the NPG images on their website have “Unauthorised reproduction prohibited” embedded in their EXIF data regardless of size. And historically they have asked for fees for all images at all resolutions.

I don’t know if Wikimedia failed to respond to the latest round of complaints, but NPG has been making similar complaints for years and in most cases been unreceptive to any form of collaboration or compromise. It would be misleading to suggest that the NPG was uninformed of Wikimedia’s position on this issue.

Mr. Coatzee may have forced the issue by adding a large number of high resolution images all at once, but the NPG has been trying to restrict access to their public domain collection for years. Unlike many other institutions that have accepted invitations to work collaboratively with Wikimedia, the NPG has decided that they would prefer to fight the issue.

So, now we have a high profile test case to see who is really right about UK law. Derrick Coatzee has accepted pro bono representation from the Electronic Frontier Foundation. They have not announced their strategy, but it seems very likely they will push for a Bridgeman v. Corel style ruling in the UK. The Copyright, Designs and Patents Act of 1988 (controlling law in the UK) says that copyright extends to “original literary, dramatic, musical or artistic works”. The position of the WMF and almost certainly the one that would be argued in this case is that photographic copies of existing artwork lack sufficient originality to be subject to UK copyright at all.

NPG will of course argue the opposite, and their view could be considered traditional, but there is no real precedent in the UK on what “original” really means since the CDPA replaced pre-existing copyright law in 1988.

If the WMF gets the ruling they are looking for, it will have far reaching implications, but I believe it would be the right result. Allowing the NPG to restrict the use and distribution of creative content in the public domain merely because they are the physical owners of those works is an affront to the very concept of the public domain.

I was not being disingenuous about the ‘funding situation’. It is far more complex than you imply and saying ‘only 2%’ might not sound like much but every single penny counts when you are paying for expertise (that don’t get paid that well) and when certain income is ring-fenced for certain activity, e.g. more digitisation, more access. You almost imply that NPG make a profit from being a part-publicly funded cultural institution which is misleading.

I have commented elsewhere that the nature of such art collections is very different to artefact-based collections in terms of the desirability of their images and so they will be understandably nervous about how they are used by others. I don’t think you can accuse NPG of not having public access in mind when they put the zoomified collections online in the first place.

One of the reasons I am glad NPG prohibits photography is because when you are a visitor trying to appreciate paintings, it is incredibly irritating to have people looming towards you so they can get a quirky photo of a Holbein or whatever. Other museums, like the British Museum, do allow photography in their galleries.

I do not know NPG’s access policy for research and study so I cannot confirm or deny your assertion about access fees.

However, all this said, I think my original points need reassertion and if you had read all of my post, seen previous ones and seen my latest comment you would know that I am a strong advocate of more open access. What I do not countenance is things being done dishonourably. I maintain that the _way_ in which their images were scraped was dishonourable.

If we are upset that we see NPG as a public cultural institution then we should outline all the reasons why it should do/allow much better access to their collections, and also suggest ways how.

Don’t forget that you are working against generations of tradition and this is not going to be easily overcome overnight. Throwing missiles is not going to help in this regard.

Please can I also reiterate that there isn’t a decent, well-defined concept of ‘public domain’ in the UK and so perhaps it is here we should begin. And in any case it would not be difficult to argue that digitised works of out of copyright original works are _new_ works and therefore subject to a new run of copyright. Even if a public institution was considered Crown Copyright, that’s 50 years.

A major (related) problem is finding out exactly WHO does own copyright/rights. There are so many images floating around the web – and for many of them it is impossible to determine the “owner”. Oh, and while on this topic I’ve been disappointed to see so many photos loaded on sites like flickr with “all rights reserved”. I love those uploaders who use Creative Commons style licences. I am more than happy to attribute them.

From their fiscal 07-08 report:
http://www.npg.org.uk/assets/files/pdf/accounts/npgaccounts2007-8.pdf

The NPG had 16.6M pounds annual revenue, 11.1M pounds of which came in the form of grants and public donations. By contrast, only 380 thousand pounds of annual revenue came from licensing their collection. (The relevant numbers are around page 40 in the report.)

Given that the NPG derives 2/3rds of their income from the generosity of public and private donors, I would argue that they do have an obligation as stewards of the public trust to use those funds to make their collection as widely visible as possible. If doing so means forgoing the 2% of the income that derives from licensing, then I would say that is a reasonable sacrifice.

I doubt the people donating are doing so with the intent that the NPG should lock up public domain works in their collection behind access and licensing fees. We donate to charities to foster the public good. Sometimes charitable purposes will necessarily run directly counter to an organization’s private commercial advantage. I would say that this is simply one of those times and that trying to wring as much money from their collection as possible simply isn’t the right response for the NPG to be engaged in.

Also, keep in mind that the NPG prohibits all photography of their collection unless access fees are paid. If it were just a matter of the reproduction expenses, then surely they wouldn’t have objected to others doing that work for them. By contrast, the Victoria and Albert Museum (also in London), has been very supportive in allowing Wikimedians to come in and freely photograph their collection.

http://en.wikipedia.org/wiki/Wikipedia:Wikipedia_Signpost/2009-07-13/Open_letter

My own impulse is towards the former and so I do include myself somewhat in the challenge to come up with new and good arguments for why it is beneficial to those who err towards controlled access on their terms to do so.

I do take the comparison with the music industry as a salutary warning to cultural institutions, particularly those with art collections whose images, let’s say, are more commercially desirable than those of institutions with a broader spectrum of digitised collections spanning social history, archaeology or natural history.

What I am advocating I suppose is that those of us who are for more open access as a way of improving the standing and exposure of cultural institutions like NPG are less adversarial in the way they discuss it and so for that reason I am cynical about taking the ‘inevitable’ line on things.

I would like our arguments to be more positive, to encourage confidence in institutions who fear the implications, often misinformed, of the kind of access we all want. We don’t want to ‘wind people up’ just to shock them into acting the way we want them to.

As people who care for the institutions and their collections we should talk about the ethics of _how_ things are done and in this instance, I think there is a good case for criticising actions that would be seen as dishonourable by many.

On the other hand, more institutions need to show good will and a bit of trust towards the vast majority of their users who just want to enjoy, blog about and pass on information, including images, of things that have stimulated them or caused them some thought.

Let’s be a little less apocalyptic about the inevitability (even if it is) and more positive about the benefits to institutions and UK culture more generally about the ways in which we can improve the relationship between institutions who are guardians and those who support that institution by visiting them, reading, viewing and listening to their web content and talking about them to others. I feel that at the moment too many of the sentiments that want institutions to loosen up are unnecessarily derogatory, sneering and ultimately unhelpful.

Whatever is happening in music and newspapers, let’s get our own house in order first in a way that could even be an example to those other ‘industries’.

I’d just like to respond to one part of your post in particular:

“Whatever the legal rights and wrongs of all this two things are clear: in all acts, even ones purporting to be for the greater good need to be honourable and this one clearly was not, whether through naivity or not. Secondly, those who campaign for absolute open access to everything for free really need to start coming up with new arguments for how this could be made possible”

Unfortunately, even though I agree, unfortunately there is no choice. We simply CANNOT ask that people act honourably, and can’t expect it (well, we could, but it wouldn’t make any difference). The music and movie industries have tried this for years, with high-profile warnings and multi-million pound lawsuits. It is absolutely 100% certain that piracy will not only continue (for music, movies, images, etc – anything digital that can be distributed at no cost), but will almost certainly increase as it becomes easier for not just ‘hackers’ but for ordinary consumers to obtain this content. We can’t fight it; it’s human nature.

Which means that your second point (those who campaign for open access need to start coming up with new arguments) is also not really correct; it’s the *institutions* who need to come up with new arguments, because there is no ‘choice’ (perhaps we should be working together to come up with these arguments, rather than battling between ourselves?). Even if all the people who advocated ‘open access’ suddenly changed their minds and joined the other team (advocating closed, limited access), the inevitable force of piracy and mass digital distribution would still go ahead. We cannot blame those who merely ’see it coming’ and are trying to figure out how to deal with it.

So ultimately, like in the music industry, it is going to be up to the galleries to find the new arguments, as the inevitable is… inevitable! Whether or not they realise that they need to find these ‘new arguments’ before the inevitable happens (as is possibly happening in the newspaper industry), well, who knows!