Database right and the NPG threat

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 –

Self-preservation and the National Portrait Gallery’s dispute with the Wikimedia community

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.