Original URL: http://www.theregister.co.uk/2009/07/17/national_portrait_gallery_wikipedia/

Wikipedia's Gallery guy hung up to dry?

Facing up to National Portrait Gallery

By Charles Eicher

Posted in Media, 17th July 2009 11:39 GMT

Exclusive Wikimedia Foundation says it's standing behind Wikipedia contributor Derrick Coetzee in his defence against legal threats from the National Portrait Gallery.

But Coetzee has been stripped of administrator privileges, which leaves him unable to comply with the Gallery's request, El Reg has learned.

This leaves Coetzee directly in the line of fire, at risk from a lawsuit that could be a test case for public domain rights. Rather than supporting him, Wikipedia appears to have used the contributor as a shield. Coetzee has been obliged to fend for himself for legal representation.

In April the Gallery demanded that Wikimedia remove over 3000 copyrighted images of public domain artworks. Coetzee had downloaded the images from the NPG website and uploaded them to the Wikimedia Commons. The organisation didn't respond. On Friday, the Gallery wrote to Coetzee personally. In exclusive correspondence with The Register, Coetzee explained that he cannot comply.

"As a consequence of the conflict of interest resulting from legal pressure, my administrator rights on Wikimedia Commons were temporarily revoked, so that I can't even delete files."

Wikimedia Foundation did not respond to the NPG's original takedown request in April 2009, so the NPG is pursuing Coetzee directly. Coetzee is now being represented pro bono by attorney Fred von Lohmann of the Electronic Frontier Foundation.

The case revolves around differing usage rights permitted by US and UK copyright laws. Under UK law, photographs of public domain artworks can be copyrighted. But under US law, the photographs cannot be copyrighted and retain the public domain status of the original artwork. El Reg has previously given extensive coverage to this issue. The Gallery asserts the files were downloaded from their server in the UK, so UK law applies. Wikimedia is located in the US, so they are asserting protection under US law. As Coetzee lives in Seattle, he could not be extradited for mere civil offences, so the NPG could have difficulty prosecuting him in a UK court.

But the NPG's complaint goes beyond copyright.

You've hacked our institution

They also assert Coetzee violated their Database rights, reformatting the contents of the NPG's proprietary database for use by Wikimedia. No equivalent of Database Rights exists under US law.

Yesterday, Wikimedia Foundation released a statement of support, "The Wikimedia Foundation has no reason to believe that the user in question has violated any applicable law, and we are exploring ways to support the user in the event that NPG follows up on its original threat. We are open to a compromise around the specific images, but our position on the legal status of these images is unlikely to change."

Ultimately, this case is a conflict between two philosophies. The NPG believes its role is as a custodian of British heritage, and reserves its right to control its artworks. Wikimedia believes it is a custodian of public domain images, even over the objections of institutions that control access.

The NPG is spending £1m of taxpayers' money to digitize these artworks, and says it recouped over £380,000 last year in royalties for the public. But such a monumental investment in digitization would be futile if the Gallery's work instantly escapes its control once it appears on their website. Aggressive prosecution would establish their rights; failure could discourage further digitization.

Wikimedia's argument is that the Gallery, by making the images publicly available, hadn't really made them available:

"The Wikimedia Foundation sympathizes with cultural institutions' desire for revenue streams to help them maintain services for their audiences. And yet, if that revenue stream requires an institution to lock up and severely limit access to its educational materials, rather than allowing the materials to be freely available to everyone, that strikes us as counter to those institutions' educational mission." ®

Charles Eicher is an artist and multimedia producer in the American Midwest. He has a special interest in intellectual property rights in the Arts and Humanities. He writes at the Disinfotainment weblog, and wrote about Copyfraud here for The Register.