It is rather depressing
to hear that once again
Wikimedia is
being threatened with a copyright suit for publishing digital images
of works of art which are themselves in the public domain. Like the
spat between the UK's
National Portrait Gallery and Wikimedia
back in 2009, the current case involves another museum, this time
it's the
ReissEngelhorn Museum in Mannheim, Germany. Arguably Germany's
domestic copyright law is less sympathetic to facsimile photographic
copying of works of art than is thought to be the case under UK law.
In fact of course both jurisdictions are likely to follow the EU
acquis found principally in the
Infopaq case where the CJEU decided
that the test for originality was whether the new work was an
expression of the spirit of the author. No doubt, like the 2009
dispute, the Reiss Engelhorn's complaint may well feature other
matters such as database right and/or technical prevention measures,
however this posting is concerned just with the copyright aspect.
The latest development
is depressing for a number of reasons, not least because one might
have hoped this would be settled law by now, considering that one of
first test cases on the subject - the
Graves Case - took place in
1869, a mere seven years after copyright protection in the UK had
been extended to include photographs. In that case the photographer
Henry Graves won his case, with the trial judge (Blackburn J)
concluding "And it seems to me that a photograph taken from a
picture is an original photograph, in so far that to copy it is an
infringement of this statute [the Fine Art Copyright Act 1862]."
Despite this slightly elliptical reasoning, the courts in England
and Wales have not seriously upset this finding ever since. Although
the test for originality more generally has been refined on many
occasions, most notably in recent times in
Designers Guild [2001],
Hyperion Records [2005],
Baigent v Random House [2006] and more
specifically with regard to photography, in
Antiquesportfolio.com v Rodney Fitch [2001], the line taken by the UK courts has been that if
the photographer uses sufficient skill and labour in his or her
choices (such as the timing, choice of viewpoint, exposure, depth of
field, lighting etc) then the resulting photograph would be entitled
to copyright as an original work. In contrast to this, in the US case
of
Bridgeman Art Library v Corel Corp [1999], the District Court of
the Southern District of New York sought to apply UK law to the
subject of photographs of classic works of art, and came to the
opposite conclusion, namely that copyright did not subsist in mere
photographic reproductions. And that was at a time when such
photography was based on the use of film which arguably required
greater skill on the part of both the photographer and the printmaker
when it came to correctly reproducing the colours of a painting. By comparison, today's digital photography together with the widespread use of
sophisticated editing software to faithfully recreate colours requires rather less skill and labour. And
although not a case about photography, in
Interlego AG v Tyco Industries, the UK Privy Council found that where design drawings
were being manually copied, "[t]here must in addition be some
element of material alteration or embellishment which suffices to
make the totality of the work an original work. But copying per se,
however much skill and labour be devoted to the process, cannot make
an original work"
In mainland Europe,
photography has always been something of a Cinderella artform. A
typical response of the national courts can be seen in the
Jimi Hendrix portrait case reported on by Marie-Andree a couple of months ago.
And as well as
Infopaq, in
Painer [2001] we have a decision of the
CJEU which provides additional clarity on the specific subject of
originality in photographs. Taking German national law and the two
CJEU decisions,
Infopaq and
Painer, all together, I wouldn't rate the
Reiss Engelhorn Museum's chances of success in court as being too good.
And although the matter
was settled, it is worth looking back at the outcome of the NPG &
Wikipedia dispute from six years ago. According to the Wikipedia
article referred to above, it would appear that the NPG resolved from
an early stage not to resort to litigation, and the status quo today
is that Wikimedia continues to host the images at the heart of the
dispute. No money appears to have changed hands, so are we to
conclude that the NPG effectively lost the battle? They have
certainly
amended their conditions of access allowing a large number of low resolution images to be freely
accessed, and have made higher resolution images available 'for free'
to the academic community. But it remains to be seen whether the
Reiss Engelhorn will be forced to adopt a similar outcome.
There is without doubt
a valid argument that works in the public domain should be readily
accessible by the public, especially in the digital age, but where
each work is unique and often very valuable (such as art), can such
access invariably be free? There is considerable expense involved in
the digitisation process itself, in preserving, restoring and
protecting the original artworks, and in making them available to be
viewed in person as well as online. Museums and art galleries cannot
be expected to absorb this cost without passing at least some of it
on to the public, although many institutions seek to offset these
costs by charging commercial publishers and the like for access to
high resolution images, rather than by charging higher public entry
fees. But should copyright be used, possibly fraudulently, to
underpin this business model? And if so, how can any work of art
which is not already sited in a public place, ever be said to be
truly in the public domain? And given that the
EU has recently given
museums, libraries and archives greater ability to make their orphan
works available to the public, while recouping no more than the cost
of digitization, how does this new right sit with the less
justifiable (ab)use of copyright in cases where the copyright in the
original is known to have expired long ago?
Three American copyright scholars have released a study into the impact of copyright takedowns on free expression in America: Notice and Takedown in Everyday Practice, by Jennifer Urban (UC Berkeley), Joe Karaganis (Columbia), and Brianna L. Schofiel (UC Berkeley) uses detailed surveys and interviews and a random sample from over 100,000,000 takedown notices to analyze the proportion of fraudulent, malformed or otherwise incorrect acts of censorship undertaken in copyright's name, using the Digital Millennium Copyright Act's takedown procedure. The findings suggest that whether notice and takedown “works” is highly dependent on who is using it and how it is practiced, though all respondents agreed that the Section 512 safe harbors remain fundamental to the online ecosystem. Perhaps surprisingly in light of large-scale online infringement, a large portion of OSPs still receive relatively few notices and process them by hand. For some major players, however, the scale of online infringement has led to automated, “bot”-based systems that leave little room for human review or discretion, and in a few cases notice and takedown has been abandoned in favor of techniques such as content filtering. The second and third studies revealed surprisingly high percentages of notices of questionable validity, with mistakes made by both "bots" and humans. TechDirts take is somewhat evident from the headline DMCA's Notice And Takedown Procedure Is A Total Mess, And It's Mainly Because Of Bogus Automated Takedowns. 
