At least 500 images will have to be deleted from the National Portrait Gallery

[Michael Maggs]

Klaus - You already have a reply to that point on Wiki.

Unfortunately, Moeller's comment does not help even if he was in fact
intending (which I doubt) to override longstanding Commons policy that
images must be PD in both the US and the source country.

Firstly, if you read the thread you will see that the comment was made
in response to the closure of
[http://commons.wikimedia.org/wiki/Commons:Deletion_requests/Images_from_Darwin_Online 
a DR relating to Darwin Online images] as "delete".  That DR has since
been re-opened and closed as "keep", and Commons policy has been changed
accordingly.

Secondly, the previous posting to which he was replying quoted Lord
Oliver in ''Interlego'' as saying "But copying, per se, however much
skill and labour may be devoted to the process cannot make an original
work".  As explained at [[Commons talk:When to use the PD-Art tag#Reply
to call for revision]], that quote has since been explicitly disapproved
by the Court of Appeal in the later Sawkin case.  It is not wrong, but
it applies in narrow circumstances only such as where an engineering
line-drawing has been copied.  The Court of Appeal has held that it does
not apply in cases such as the present where the photographer has to
apply significant skill and labour in setting up lighting, filters and
so on.

Nobody wants to delete these images but Commons policy is that the image
must be PD in both the and the UK.   According to this recent case law,
these are clearly copyright images in the UK.

Michael


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[geni]

2008/7/23 Michael Maggs <Michael@...>:
> Nobody wants to delete these images but Commons policy is that the image
> must be PD in both the and the UK.   According to this recent case law,
> these are clearly copyright images in the UK.
>
> Michael


Strangely no. Commons requires works to be PD in the US and country of
origin. Anywhere a work has been published will do as it's country of
origin. In their ah more extreme attempts to expand their jurisdiction
UK courts have decided that if a website is viewable in the UK it is
published there. Extending this doctrine we can conclude that they
would take the view that if a website is visible in the US the work is
published there. Since the works have been published in the US we only
need concern ourselves with US law.


--
geni

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[Michael Maggs]

An interesting theory, but it does not work, of course, or Commons
policy would be in chaos.  You cannot arbitarily choose which country is
the one in which the works were published to suit Commons' convenience.

There is no choice of law here: the photographs were taken in the UK, of
paintings held in the UK, on behalf of a UK museum, and have been
published by that museum on a UK website and by issuing postcards and
other reproductions in the UK.   Why would any UK court think that US
law should be applied?

Michael

geni wrote:

> 2008/7/23 Michael Maggs <Michael@...>:
>  
>> Nobody wants to delete these images but Commons policy is that the image
>> must be PD in both the and the UK.   According to this recent case law,
>> these are clearly copyright images in the UK.
>>
>> Michael
>>    
>
>
> Strangely no. Commons requires works to be PD in the US and country of
> origin. Anywhere a work has been published will do as it's country of
> origin. In their ah more extreme attempts to expand their jurisdiction
> UK courts have decided that if a website is viewable in the UK it is
> published there. Extending this doctrine we can conclude that they
> would take the view that if a website is visible in the US the work is
> published there. Since the works have been published in the US we only
> need concern ourselves with US law.
>
>
>  

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[geni]

2008/7/23 Michael Maggs <Michael@...>:
> An interesting theory, but it does not work, of course, or Commons
> policy would be in chaos.  You cannot arbitarily choose which country is
> the one in which the works were published to suit Commons' convenience.

That depends on the legal system. Under UK law the national gallery
has chosen to publish in the US. You will note the the BBC goes out of
it's way to limit what people from the US can view and listen to on
it's website. The national gallery was free to do that but did not.
Thus the images were published in the US and as long as they were
copied across by someone in the US are no different from any other
pure US image.

> There is no choice of law here: the photographs were taken in the UK, of
> paintings held in the UK, on behalf of a UK museum, and have been
> published by that museum on a UK website and by issuing postcards and
> other reproductions in the UK.   Why would any UK court think that US
> law should be applied?
>
> Michael

They wouldn't but they would think the photos have been published in
the US. They would of course argue that commons is publishing the
photos in the UK so UK law also applies but they would argue that
about all our photos.


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geni

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[Teun Spaans]

Hi,

i doubt you can say that the national gallery has choosen to publish in the
USA. There servers are probably in the UK, so i'd say that they publish in
the UK. That the pages can be viewed in the USA is a different matter.

Analogy: If i print and publish/sell a book in the Netherlands, I publish it
here in the Netherlands. If some USA retailer orders 2000 copies to sell in
the states, that doesnt mean i publish them in the USA, merely that they are
for sale in the USA.

But a lot depends on the definition of "publication" / "publish"

wish you health and happiness,
Teun Spaans

On Wed, Jul 23, 2008 at 7:10 PM, geni <geniice@...> wrote:

> 2008/7/23 Michael Maggs <Michael@...>:
> > An interesting theory, but it does not work, of course, or Commons
> > policy would be in chaos.  You cannot arbitarily choose which country is
> > the one in which the works were published to suit Commons' convenience.
>
> That depends on the legal system. Under UK law the national gallery
> has chosen to publish in the US. You will note the the BBC goes out of
> it's way to limit what people from the US can view and listen to on
> it's website. The national gallery was free to do that but did not.
> Thus the images were published in the US and as long as they were
> copied across by someone in the US are no different from any other
> pure US image.
>
> > There is no choice of law here: the photographs were taken in the UK, of
> > paintings held in the UK, on behalf of a UK museum, and have been
> > published by that museum on a UK website and by issuing postcards and
> > other reproductions in the UK.   Why would any UK court think that US
> > law should be applied?
> >
> > Michael
>
> They wouldn't but they would think the photos have been published in
> the US. They would of course argue that commons is publishing the
> photos in the UK so UK law also applies but they would argue that
> about all our photos.
>
>
> --
> geni
>
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[geni]

2008/7/23 teun spaans <teun.spaans@...>:
> Hi,
>
> i doubt you can say that the national gallery has choosen to publish in the
> USA. There servers are probably in the UK, so i'd say that they publish in
> the UK. That the pages can be viewed in the USA is a different matter.

UK courts would beg to differ see Lennox Lewis & Ors. v. Don King

> Analogy: If i print and publish/sell a book in the Netherlands, I publish it
> here in the Netherlands. If some USA retailer orders 2000 copies to sell in
> the states, that doesnt mean i publish them in the USA, merely that they are
> for sale in the USA.

2000? Try 20 we've had some interesting libel cases in the UK lately:

http://en.wikipedia.org/wiki/Funding_Evil#Libel_controversy


--
geni

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[Michael Maggs]

This publication thing is a complete red herring.   The country of
publication would matter only if the images had _not _been published in
the UK (or a specified country under section 155 of the Copyright,
Designs and Patents Act 1988.)   If the images had been published _only
_in, say, Afghanistan, then under S 155 no copyright would subsist at
all.   But as the images have been published in the UK (at least)
copyright _does _subsist and the UK courts have power over that
copyright.  There is a clear UK nexus with the copyright owner, the
place of the photography and the location of the paintings, and
accordingly the UK court will apply UK law.  There is absolutely no
doubt about it, I am afraid.

Michael Maggs

teun spaans wrote:

> Hi,
>
> i doubt you can say that the national gallery has choosen to publish in the
> USA. There servers are probably in the UK, so i'd say that they publish in
> the UK. That the pages can be viewed in the USA is a different matter.
>
> Analogy: If i print and publish/sell a book in the Netherlands, I publish it
> here in the Netherlands. If some USA retailer orders 2000 copies to sell in
> the states, that doesnt mean i publish them in the USA, merely that they are
> for sale in the USA.
>
> But a lot depends on the definition of "publication" / "publish"
>
> wish you health and happiness,
> Teun Spaans
>
> On Wed, Jul 23, 2008 at 7:10 PM, geni <geniice@...> wrote:
>
>  
>> 2008/7/23 Michael Maggs <Michael@...>:
>>    
>>> An interesting theory, but it does not work, of course, or Commons
>>> policy would be in chaos.  You cannot arbitarily choose which country is
>>> the one in which the works were published to suit Commons' convenience.
>>>      
>> That depends on the legal system. Under UK law the national gallery
>> has chosen to publish in the US. You will note the the BBC goes out of
>> it's way to limit what people from the US can view and listen to on
>> it's website. The national gallery was free to do that but did not.
>> Thus the images were published in the US and as long as they were
>> copied across by someone in the US are no different from any other
>> pure US image.
>>
>>    
>>> There is no choice of law here: the photographs were taken in the UK, of
>>> paintings held in the UK, on behalf of a UK museum, and have been
>>> published by that museum on a UK website and by issuing postcards and
>>> other reproductions in the UK.   Why would any UK court think that US
>>> law should be applied?
>>>
>>> Michael
>>>      
>> They wouldn't but they would think the photos have been published in
>> the US. They would of course argue that commons is publishing the
>> photos in the UK so UK law also applies but they would argue that
>> about all our photos.
>>
>>
>> --
>> geni
>>
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>>
>>    
> _______________________________________________
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>
>  

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[Michael Maggs]

You are attempting to apply libel laws in a copyright context. The
definition of publication is different.

Michael

geni wrote:

> 2008/7/23 teun spaans <teun.spaans@...>:
>  
>> Hi,
>>
>> i doubt you can say that the national gallery has choosen to publish in the
>> USA. There servers are probably in the UK, so i'd say that they publish in
>> the UK. That the pages can be viewed in the USA is a different matter.
>>    
>
> UK courts would beg to differ see Lennox Lewis & Ors. v. Don King
>
>  
>> Analogy: If i print and publish/sell a book in the Netherlands, I publish it
>> here in the Netherlands. If some USA retailer orders 2000 copies to sell in
>> the states, that doesnt mean i publish them in the USA, merely that they are
>> for sale in the USA.
>>    
>
> 2000? Try 20 we've had some interesting libel cases in the UK lately:
>
> http://en.wikipedia.org/wiki/Funding_Evil#Libel_controversy
>
>
>  

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[geni]

2008/7/23 Michael Maggs <Michael@...>:
> You are attempting to apply libel laws in a copyright context. The
> definition of publication is different.
>
> Michael
>

Under US law yes. Can you show that it is under UK law?


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geni

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[Mike Godwin-3]

Michael Maggs writes:

> Could I just check, please, whether you were just replying to an
> out-of-the-blue email from Klaus or whether you have replied after a
> review of
>
> [[Commons:Deletion requests/National Portrait Gallery images (first
> set)]] where your email has now been publicly quoted.

Are these my only two choices?

I'm aware, generally, of the ongoing discussion in Commons and  
elsewhere about about how to respond to the National Portrait  
Gallery's efforts to assert copyright interests in works that are  
otherwise public domain. I don't normally "review" such discussions  
(if you consider the volume of policy discussions on the projects  
generally, you can see why).

> The policy we at Commons have been working to is that images must be
> free in both the US and in the source country.  I assume that is still
> the WMF general position?

I'm not sure I understand the question, at least the way it's framed  
here. WMF doesn't administer Commons policy to any great degree --  
that's done by the community members at Commons.

> If it's official WMF policy that Bridgeman is assumed to apply in all
> countries....

I'm not trying to say this, or even to tell the Commons community how  
to apply Bridgeman at all.  What I'm saying is that there seems to be  
an effort to address a problem that, for the Foundation at least,  
hasn't yet been shown to exist.  (Believe me, I'd know it if we were  
getting lots of takedown notices or copyright lawsuits from the  
National Portrait Gallery.)

My strong belief is that there is no compelling reason to remove the  
National Portrait Gallery-associated images unless there's some kind  
of evidence of a legal problem for the Foundation. Thus far, there has  
not been such evidence.


--Mike





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