The National Portrait Gallery’s legal threat against Wikimedian Derrick Coetzee alleges four things:
- Copyright infringement
- Database right infringement
- Unlawful circumvention of technical measures
- 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“: