It’s not often that copyright cases get into the news, although there are notable exceptions, such as Lucasfilm v Ainsworth last year, or the Harry Potter Lexicon case in the USA. But the current spat between the National Portrait Gallery and Wikipedia made the front page of the BBC news website a couple of days ago. At its heart (although there is more to it than this) is a simple copyright question: does a faithful copy of a work – in particular, a work that is now out of copyright – enjoy copyright protection in its own right?
The NPG is complaining that a Wikipedia user, Mr Coetzee, copied high-resolution images of some 3,300 paintings from its website and posted them on Wikipedia. In a letter from its solicitors it asserts that these images are all recent original photographs taken by the NPG and that the NPG therefore holds their copyright, and that Mr Coetzee has infringed this. Mr Coetzee’s position is that the paintings are out of copyright, and since the images he downloaded are quite literally copies rather than original or even transformed or derived works then there cannot be any copyright for him to have infringed.
This is an intriguing issue and for the last few days I have been discussing it with a number of my fellow volunteers for the Open Rights Group. This has been a very interesting experience, especially as several of them are considerably more qualified and experienced in IP law than I am, and I’m grateful for their agreement that I could summarise our discussion in this post. (I should add that ORG is not taking any active role in this dispute, although its legally-qualified volunteers are observing it with keen interest. Furthermore, any legal errors or misconceptions are entirely my own.)
Does the NPG have a case? It is relying on s.1 and s.4 of the Copyright, Designs and Patents Act 1988, which provides that original artistic works, including photographs, enjoy copyright protection. Of course, this leads to the question of what ‘original’ means. Every copyright course I have undertaken has stressed that in English law the originality bar is set very low indeed; in effect, if you create an artistic work such as a photograph, you automatically get copyright in it. In the case of a painting, this is undoubtedly true. It’s even true for a simple drawing; s.4 provides that copyright arises irrespective of artistic quality. It is true for a carefully composed photograph. But if artistic quality is not required, what about skill and effort? The ‘sweat of the brow’ argument, often deployed in considering literary copyright, holds that a certain minimum level of skill and effort must be expended for copyright to arise. What is not clear, particularly in respect of a photograph, is whether that skill and effort applies to all aspects of a work’s creation, or just its originality. This is particularly relevant in the NPG’s claim, as whilst it seems clear that a lot of skill and effort when into photographing its paintings, it was aimed at ensuring that the photographs were as faithful a copy of the paintings as possible – in other words, that no originality was introduced at all.
As early as 1869 it was held in Grave’s Case 4 LRQB 715 that a photograph of an engraving enjoyed copyright under the then-current legislation. However, this view has not invariably been followed; consider, for instance, the comments of Lord Oliver in Interlego v Tyco Industries  AC 217:
“It takes great skill, judgment and labour to produce a good copy by painting or to produce an enlarged photograph from a positive print, but no one would reasonably contend that the copy painting or enlargement was an "original" artistic work in which the copier is entitled to claim copyright. Skill, labour or judgment merely in the process of copying cannot confer originality.”
Now, this was a decision of the Privy Council, and furthermore was strictly obiter. However, it was applied in The Reject Shop Plc v Robert Manners  FSR 870, which was an appeal by way of case stated from a private criminal prosecution under s.107 CDPA 1988. In considering whether copyright subsisted in an enlarged photocopy Leggat LJ held that it did not:
“The process was wholly mechanical and there is nothing to suggest that enlargement was for any purpose of that kind. There was, in short, no evidence before the magistrate of the exercise in the production of what he called the “distorted photocopies” of any relevant skill and labour whatever. It follows that the final images were not original works and so no copyright could subsist in them.”
This is what I term the ‘photocopy argument’ – that if the method of reproduction amounts in nature if not exact technique to photocopying the original artwork, then no new copyright can arise. If the NPG possessed a very large flat-bed scanner and scanned its painting, then it would be hard to argue that the resulting digital image enjoyed independent copyright. If the painting was instead photographed and the image carefully processed to even out any lighting inconsistencies and eliminate distortion, then it would in principle be identical to a scanned image. Is it significant that extra skill and effort went into its creation if the only consequence of that skill and effort was to remove any element that distinguished it from a pure mechanical copy?
The counter-argument, which was originally presented by Kevin Garnett QC in an article in the European Intellectual Property Review (EIPR 22(5) 229-237) considers a photograph of a scene in which no copyright can subsist, such as a landscape. If the photographer exercises no skill or judgement and has limited capacity even to pick a particular viewpoint, then copyright still arises. This image, taken by me from the London Eye, has not been corrected or cropped, and I did not have the option of where to take it from or even, given that I was on a timed ticket, when I took it. Hundreds of similar pictures must be taken daily. But nonetheless, my picture undoubtedly enjoys copyright. So why shouldn’t another picture of a scene without its own copyright, such as an out-of-copyright painting, not also enjoy copyright, especially if the photographer in that instance employed much more skill and effort than I did.
I think it’s fair to sum up our discussion as concluding that the matter is open. There is no recent binding authority either way, although cases such as Interlego and Reject Shop point against copyright arising. Nonetheless, arguments can be made both for and against; my own feeling is that a straightforward application of the law would support the NPG, but that a reasoned argument could well be made against it.
A complicating factor is that Mr Coetzee is not in the UK; he is, as I understand it, in the USA. A US court has ruled on this very issue, in Bridgeman Art Library v Corel Corp. There, it actually sought to apply UK law and interpreted it such that a faithful photographic copy does not enjoy copyright, a position consistent with the US approach to this issue. But if the NPG does go on to sue Mr Coetzee, it would do so in an English court, which might be influenced by Bridgeman but would be under no obligation to follow it.
The NPG makes other claims, including breach of contract, bypassing of technical protection measures and database right infringement. The first would probably run into problems of consideration (or rather lack of it), whilst the second does not seem tenable – the software used by the NPG to display hi-resolution images by increasing the resolution as you zoom in is hardly in the same league as encryption or digital watermarking. The database rights claim is less clear-cut, though.
The usual case referred to in interpreting the sui generis database right is British Horseracing Board v William Hill  RPC 35. The point generally taken from this case is that significant investment in creating the database is necessary for the database right to arise. On that basis, I assumed that irrespective of the copyright point, the amount of effort put into acquiring the images of the paintings for the NPG’s database would give rise to a database right (which would almost certainly have been infringed by abstracting 3,300 entries from it.) However, a friend who manages a large commercial database reminded me when I was discussing this case that the ECJ decision that BHB is based upon also emphasised that this investment must be in the creation of the database itself. As confirmed by the Court of Appeal, the right arises where the database creator has invested effort in creation of a database of existing available data, rather than in creating or approving the data. Indeed, if the data is such that it is only available to the database creator, then the database right does not arise (see Kon and Heide, E.I.P.R. 2006, 28(1), 60-66).
And this could be a fatal hole in the NPG’s database claim. The whole basis of the NPG’s copyright argument is that it does not permit unauthorised copying of its paintings; the only body with legitimate access to the data that has gone into the NPG’s image database is the NPG itself. Nobody else is in a position to lawfully create such a database, no matter how much effort they put into doing so. On this argument, the NPG’s database does not attract database right protection.
It’s not at all clear at this stage what will happen. Mr Coetzee may well not acknowledge the claim in the hope that the NPG, even if it obtains judgment in default, may well not seek to enforce it in the US courts. But if it does come to court in England, then both the copyright and database right claims may well be a lot more open to argument than one might originally think.
Update: At TechnoLlama, Andres Guadamuz has looked in much more detail at the contract claim. I agree with him that formation is probably not in issue, but as I've noted in my comment to his post I think there are very serious problems with consideration (i.e. the NPG has received no payment or benefit from Mr Coetzee.)
Posts on this blog represent my opinion. It may be my considered opinion on the basis of my formal study of law and technology. But it is not legal advice. It must not be treated as, or acted upon as, legal advice and no liability is accepted for doing so.