By Lydiate, Henry
Art Monthly , No. 330
The digital revolution's radical transformation of information and communications technology has enabled public and private collections throughout the world to offer instant internet access to images of countless numbers of their artworks: virtual collections; invaluable 21st-century cultural services. Just as the general public's physical access to the UK's public collections is free of charge, so is internet access to their virtual collections. But should internet visitors also be able to copy and download those digital images, and use them for their own--even commercial--purposes, free of charge? This issue lies at the heart of the legal wrangle currently unfolding between the UK's National Portrait Gallery (NPG) and the free of charge online encyclopedia service Wikipedia (WKP).
In recent times NPG has spent around a million pounds creating a database of high-resolution digital photographs of its collection. WKP does not dispute that it downloaded over 3,000 images from NPG's database and uploaded them onto its own. NPG has instructed art lawyers, who have in recent months formally requested WKP to 'cease and desist' from using NPG's digital images. WKP has refused, and has now been formally notified of NPG's intention to take legal proceedings against it.
Key art law issues involved and arising in this dispute are not confined to the particular facts of this case, but are relevant to curators of all virtual collections and their online user communities. They are discussed below, and focus on a longstanding art law question that has never been decided by the UK courts: whether making a photographic copy of an out-of-copyright painting creates a new copyright in the photograph.
It is common knowledge in the arts and cultural fields that copyright lasts for a finite period of time: for the lifetime of the author and, in most countries, for 70 years after the author's death; after which period the copyright work falls into the so-called 'public domain', and can be freely copied and merchandised. However, in order to qualify for copyright protection there is a basic requirement in UK copyright law, as in many other countries, that a work must be original. That is to say, that the work must be created by an artist's independent skill and labour, and not, say, by copying another artist's work. NPG through its lawyers asserts that its digital photographs of out-of-copyright paintings in its collection do create new photographic copyrights. Evidently WKP and its lawyers disagree.
The situation is made more complex because of the existence of a case on this precise point, decided by a US Federal Court in 1999. In Bridgeman Picture Library v Corel Corporation the court ruled that a photograph of an out-of-copyright painting did not pass the legal originality test, and therefore failed to create a new photographic copyright. The court's thinking was that a photographic copy of, say, Leonardo's out-of-copyright Mona Lisa produces only that image, and must therefore be viewed as Leonardo's original image--not the photographer's original image. Although this US court decision strictly only operates in that country, the decisions of courts in other countries can and often do persuade UK courts to follow the approach of those foreign courts, especially when the key legal issues and facts are very similar or the same. Not only were the key issues and facts in Bridgeman/ Corel the same as in NPG/WKP, but also the US court decided the matter using UK law. (Bridgeman is a UK company and therefore had to satisfy the US court that UK copyright law gave it ownership of copyright in its digital images of out-of-copyright paintings.) In other words, because NPG would be required to satisfy a UK court that its digital images of out-of-copyright paintings do pass the legal originality test, it would doubtless face WKP's counter-arguments praying in aid the US court's decision in the Bridgeman/Corel case. …