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The National Portrait Gallery’s legal threat against Wikimedian Derrick Coetzee alleges four things:

1. Copyright infringement
2. Database right infringement
3. Unlawful circumvention of technical measures
4. Breach of contract

The copyright issue, of course, is the center of the dispute. UK law is unsettled on whether mechanical reproduction of a public domain work is eligible for copyright.

IANAL, but breach of contract and unlawful circumvention both seem moot if there is no copyright infringement. A bit of text at the bottom of page (with no mechanism for the user to acknowledge or refuse) setting restrictive use terms for something that is public domain wouldn’t hold much weight. Likewise, even apart from the fact that Zoomify is not a security measure and arguably was not “circumvented”, if the images are public domain then simply collecting and stitching together tiles from those images (whether automatically or by hand) is perfectly legitimate.

Database right, therefore, is the only thing does not turn on whether ‘sweat of the brow’ copyrights hold up. The law here seems vague, but again, IANAL. The key question is what constitutes a “substantial part” of the contents of the NPG’s database. If the paintings themselves are public domain, then the mere unorganized collection of them ought not infringe on the database right, but depending on how much metadata and categorization comes from the same database, porting images to Wikimedia Commons might cross the line. For the images at hand, it looks like the amount of metadata is modest: subject, author, date, and author’s date of death. The NPG database contains significantly more information: medium, size, provenance, and other contextual information, as well as links to related works and people. It is also possible that Coetzee’s actions fall under the “exceptions to database right“:

(1) Database right in a database which has been made available to the public in any manner is not infringed by fair dealing with a substantial part of its contents if -

(a) that part is extracted from the database by a person who is apart from this paragraph a lawful user of the database,

(b) it is extracted for the purpose of illustration for teaching or research and not for any commercial purpose, and

(c) the source is indicated.

Running an organization is difficult in and of itself, no matter what its goals. Every transaction it undertakes–every contract, every agreement, every meeting–requires it to expend some limited resource: time, attention, or money. Because of these transaction costs, some sources of value are too costly to take advantage of. As a result, no institution can put all its energies into pursuing its mission; it must expend considerable effort on maintaining discipline and structure, simply to keep itself viable. Self-preservation of the institution becomes job number one, while its stated goal is relegated to job number two or lower, no matter what the mission statement says. The problems inherent in managing these transaction costs are one of the basic constraints shaping institutions of all kinds.

From: Clay Shirky, Here Comes Everybody: The Power of Organizing Without Organizations, pp. 29-30 (my emphasis)

Shirky’s book is about “organizing without organizations”, a key example of which is the Wikimedia community (as distinct from the Wikimedia Foundation). The Wikimedia community can accomplish a lot of big projects–making knowledge and information and cultural heritage accessible and free–that traditional organizations would find far too expensive. And that paragraph from Shirky explains the root of the tension between the Wikimedia community and many traditional organizations with seemingly compatible goals–organizations such as the National Portrait Gallery in London, which sent a legal threat to Wikimedian Derrick Coetzee this week.

The NPG has a laudable mission and aims: “to promote through the medium of portraits 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”, and “to bring history to life through its extensive display, exhibition, research, learning, outreach, publishing and digital programmes.”

But in pursuing self-preservation first and foremost, the gallery asks a high price for its services of digitizing and making available the works it keeps: to fund the digitization of its collections and other institutional activities, the NPG would claim copyright on all the digital records it produces and prevent access to others who would make free digital copies. As one Wikipedian put it, the NPG is “trying to ‘Dred Scott‘ works already escaped into PD ‘back south’ into Copyright Protected dominion”.

If the choice is between a) waiting to digitize these public domain works until costs are lower or more funding is available, or b) diminishing the public domain and emboldening others who would do the same, then I’ll choose to wait.

I’ve been shopping on eBay lately for some original Harry Whittier Frees kitten photos. I have a feeling they might be very valuable some day (not that I would ever want to sell them if I do get any), and I can think of no greater service to Wikipedia than scanning and touching up a proto-lolcat (or a whole set) for featured picture status.

In lieu of a long post about the virtues and great significance of lolcats, allow me to share some LOLstuff I’ve found worthwhile:

• Hobotopia, the home of the Laugh-Out-Loud Cats by Adam Koford. See the complete archives on Flickr. (Thanks, Melinda.)
• Ethan Zuckerman’s Cute Cat Theory of Digital Activism, a fascinating post about what must have been a great presentation. (Thanks, reddit.)
• Like my blog? It’s even better through a LOL feed! This site takes random photos from the “Cute Cats” Flickr feed and combines them with headlines from any RSS feed. (Thanks, Ethan Zuckerman.)
• LOLCat Bible Translation Project, an epic win, if it ever makes it to completion. (Thanks, Wikipedia.)
• Яolcats – English Translations of Eastern Bloc Lolcats. (Thanks, SJ.)
• Gin, Television, and Social Surplus, Clay Shirky’s brilliant talk on cultures of participation (transcript). Among other great moments, it includes the instantly classic line “If you have some sans-serif fonts on your computer, you can play this game, too.”
• The one, the only, I Can Has Cheezburger? (Thanks, Melinda.) The only shortcoming is the near total absence of copyright/authorship details, making it tough to re-use good lolcats in free content projects, even though some are derived from free images. Compare the high-quality front page of icanhascheezburger to the abysmally unfunny lolcats on Wikimedia Commons. (And the somewhat decent, but way too small, set of “cat behavior” pictures, a.k.a., lol-ore.)

For the last week, I’ve been exchanging emails with curators at the Huntington Library about their use policies for digital images. For the Darwin Day 2009 Main Page effort on Wikipedia, I’ve been putting together a list of portraits of Darwin. Although a number of websites have significant collections of Darwin images, there isn’t any single comprehensive collection. One interesting shot I came across is an 1881 photograph, possibly the last one before Darwin’s death, that was allegedly “rediscovered” in the mid-1990s when a copy was donated to the Huntington. Press releases and exhibition descriptions invite people to contact the Huntington to request images, so I requested the Darwin photo. The response I got was typical of how libraries and archives deal with digital copies of rare public domain material.

The Huntington quoted distribution fees for the digital files (different sizes, different prices), and also asked for specific descriptions of how the image would be used, so that the library could give explicit permission for each use. Had I wanted to use it for more than just publicity (e.g., in a publication) more fees would apply. Apparently the curators were not used to the kind of response they got back from me: I politely but forcefully called them out for abusing the public domain and called their policy of attempting to exert copyright control over a public domain image “unconscionable”.

In the exchange that followed, I tried to explain why the library has neither the moral nor legal right to pretend authority over the image (although, I pointed out, charging fees for distribution is fine, even if their fees are pretty steep). A Curatorial Assistant, and then a Curator, tried to explain to me that the Huntington actually has generous lending policies (you don’t “lend” a PD digital image, I replied), that while the original is PD, using the digital file is “fair use” that library has the right to enforce (fair use, by definition, only applies to copyrighted works, I replied), that having the physical copy entails the right to grant, or not, permission to use reproductions (see Bridgeman v. Corel, I replied), that other libraries and museums do the same thing (that doesn’t make it right, I replied), that big corporations might use it without giving the library a cut if they didn’t claim rights (nevertheless, claiming such rights is called copyfraud and it’s a crime, I replied), and finally that I should contact the Yale libraries and museums and see if they do things any differently (a return to the earlier “everyone else does it” argument with a pinch of ad hominem for good measure, to which I see no point in replying).

Unfortunately, the Curator is right that copyfraud is standard operating procedure for libraries and archives. Still, I think it’s productive to point out the problem each time one encounters it; sooner or later, these institutions will start to get with the program.

As an aside, the copyright status of this image is rather convoluted. The original is from 1881. The photographer, Herbert Rose Barraud, died in 1896. The version shown here is a postcard from 1908 or soon after, making it unquestionably public domain. It comes from the delightful site Darwiniana, a catalog of the reproductions and reinterpretations of Darwin’s image that proliferated in the wake of his spreading fame. Apparently, when the image was “rediscovered” in a donation to the Huntington, they thought it had never been published and was one of but two copies; a short article about the photograph appeared in Scientific American in 1995. Had it actually never been published until then, it would arguably be under copyright until 2047 because of the awful Copyright Act of 1976. I say “arguably” because of the vague definition of “publish” and the rules for copyright transfer (“transfer of ownership of any material object that embodies a protected work does not of itself convey any rights in the copyright”) combined with the fact that another copy exists would seem to indicate that, at the very least, the Huntington has no place claming copyright. Paradoxically, publishing it for the first time in 1995 would have extended the copyright to 2047 but would have made the Huntington and/or Scientific American into violators of the copyright of whoever actually owned it (which would likely be indeterminable). But if it had remained unpublished, it would be public domain. I’m still unclear about whether it would have been public domain before 2002, when the perpetual copyright window of the 1976 law closed.

UPDATE – My thanks to the others who’ve linked to and discussed this post:

• http://stevelawson.name/seealso/archives/2009/02/special_collections_and_the_public_domain.html
• http://uncontrolledvocabulary.com/2009/02/04/uncontrolled-vocabulary-69-begun-the-star-e-wars-have/
• http://hnn.us/blogs/entries/61046.html
• http://friendfeed.com/e/ee608842-4f55-7367-9d85-bfdd39ae9a3f/Libraries-and-copyfraud/
• http://lisnews.org/libraries_and_copyfraud_special_collections_and_public_domain

The Obama transition team released most of its images and text under Creative Commons Attribution 3.0 License. Now this has carried over to the White House as well. Material produced by the federal government, of course, is public domain. But according to the copyright page on the new whitehouse.gov:

Except where otherwise noted, third-party content on this site is licensed under a Creative Commons Attribution 3.0 License. Visitors to this website agree to grant a non-exclusive, irrevocable, royalty-free license to the rest of the world for their submissions to Whitehouse.gov under the Creative Commons Attribution 3.0 License.

Such an endorsement can only be a good thing for the free culture movement.

This chart comes from a post by Terry Hancock at Free Software Magazine, “Impossible thing #2: Comprehensive free knowledge repositories like Wikipedia and Project Gutenberg“. It’s hard to come to grips with the scale of Wikipedia, which is growing faster than anyone could keep up with reading 24/7. But any well-stocked university library has two, sometimes three, orders of magnitude more content than English Wikipedia; the aggregate collection of library material is tens of thousands of times larger the Wikipedia. Of course, many books have overlapping content and encyclopedia articles will rarely go into as much detail as books on the same topic.

But most writing that was worth printing in the first place has something of relevance for Wikipedia.

The first CNN debate came and went. It’s been almost a full day, and still no word about CNN’s promise to release the debate videos “without restriction”.

In early May, CNN announced, with all due bloviation, they would release the video for their 2008 US Presidential debates for free use “without restriction” at the conclusion of each live debate. As a Wikipedian, I naturally wondered whether “without restriction” would mean “with too many restrictions for use on Wikimedia projects”.

LostRemote reports that an “industry source” email clarified that “As previously announced, CNN’s debate coverage will be made available upon the conclusion of the live telecast and may be used without restriction throughout the 2008 election cycle (emphasis added).” It’s an open question whether that qualification is a time limit on freedom or just a reminder that debates in the election cycle may not be released without restriction; if it’s a time limit, then CNN deserves a storm of angry emails.

Naturally, there are already spliced videos and snippets appearing in the political blogosphere, and bloggers and YouTubers can confidently rely on CNN’s vague promise of “without restriction” to know that they won’t be facing copyright lawsuits any time soon. But they would be making and uploading the same videos whether or not CNN allowed it, and they would still be safe under fair use in almost every case.

Unless “without restriction” means we can do something that we couldn’t otherwise do (e.g., store and distribute it perpetually, even commercially), CNN’s celebrated nod toward free culture is just a cheap and meaningless publicity stunt.

———-

My own take on the debates: My favorite part was the responses to the lame question “Gas prices are at record high levels…What would you do to reduce gas prices?” Dodd started off by going through a number of positive things that should be done with energy policy; he didn’t come out and say the straight answer to the question, but it was there between the lines. Then Gravel came right out and said it: the solutions to our energy problems are not going to involve lower gas prices, period. A couple others (Edwards and Richardson in particular) tried to pussyfoot around the issue, implying that investigations of energy company profit-taking would stop rising gas prices, but after Gravel, the tenor of the conversation definitely shifted. The sooner the public discourse moves away from thinking that the solution to energy problems is to lower gas prices, the better.

I really wish someone had taken Kucinich‘s bait on trade issues, for example, to debate the merits of NAFTA. I understand the union argument against NAFTA, but not the fair trade argument; Mexico and Canada aren’t problematic in terms of human rights abuses, so ceteris paribus, it seems like a clear case for the free market. On the related issue of immigration, there was some real conversation and some attempt to parse it in ways that move the public discourse closer to where it ought to be, treating immigration as primarily a moral issue. No one is yet willing to concede the rhetoric of “amnesty” or start from the premise that being born in America shouldn’t entitle one to a better life than someone born in Mexico. But with a path to citizenship in place, we’ll be moving in that direction.

I also liked the role call votes (and the way Clinton and Obama handled the lame ambiguous ones). The roll call was, for example, an effective way to wrap things up after Biden said all that needed to be said about Don’t Ask, Don’t Tell (“Peter Pace is flat wrong. Lemmee tell ya something. Nobody asked anybody else if they were gay. Brits, French, all our allies have gays serving. Our policy is not a rational policy.”). Biden had a number of blusterous moments that will probably help his poll numbers, but he’s driving the whole Democratic field to the right on military issues (except Gravel, and maybe not Kucinich, but their only purpose in the race is to pull the center of gravity leftward).

I spent this weekend attending the Access to Knowledge (A2K) conference (see wiki). A2K is a would-be social movement that ties together a number of existing intellectual property-related activism issues, ranging from free/libre open source software and copyleft, to copyright reform and fair use, to (abolishing) software patents, to patented crops and gene patents, to access to patented medicines in the developing world, to digital rights and privacy, to media regulation. I got to spend some time with Wikimedia board member and wiki developer Erik Möller, had a wonderful evening with a few friends, and met some interesting new people. And since I was in town for the weekend, I also got a chance to hear a wonderful talk by bad-ass historian of science Lorraine Daston on Enlightenment “observers” (naturalists, microscopists, and all-purpose obsessives) such as Charles Bonnet, who spent days on end (sleeping only occasionally and reluctantly) observing the every move of a single aphid, from birth to death, and on through several generations of parthenogenetic reproduction . Though their observations were considered a waste by their peers, Bonnet and other dedicated observers were consumed by their passion for observations (often sinking inherited fortunes into their projects); they never considered it work.

What, you ask, does A2K have to do with crazy Enlightenment patricians? After Daston’s talk, I was chatting with one of the authority figures in my department and let slip my own occasionally obsessive pastime. When I mentioned the Wikipedia history of biology article I had been working on (which became a Featured Article over the weekend–hooray!), I got a grumbling reply about peer reviewed publications and my C.V. This was the strongest disapproval this good-natured prof can project. He only perked up when I told him I had been invited to submit an opinion piece about Wikipedia and the history of science to the upcoming inaugural edition of Spontaneous Generations, a new open access history and philosophy of science journal. Now that there is an open access journal in the field, I said, I have somewhere to publish future work without feeling guilty. At this point I was reminded of what I already knew: it’s really tough to get humanists fired up about IP issues, even though these things ought to be high on their lists of social/political/cultural priorities (especially given the dreadful state of academic publishing).

The lawyers of the Yale Law School, on the other hand, are on the forefront of IP activism (hence hosting the A2K event). The conference was a mixed bag of interesting talks, old news, and random acts of scholarship. For the most part, the presenters from organizations I already liked (Wikimedia, Creative Commons, Internet Archive, Electronic Frontier Foundation) or should have already liked (Free Press) had the most interesting things to say, though presentations from Microsoft, Google, and Intel were also worth mentioning .

Erik encouraged me to put together a talk proposal for Wikimania 2007; if I can manage the logitistics, it’s an outside possibility.