August 3, 2009 | By Fred von Lohmann

EFF Defends Wikipedian's Right to the Public Domain

As has been widely reported, the National Portrait Gallery of London (NPG) recently sent a legal threat to an American Wikipedian, Derrick Coetzee, over his posting approximately 3,000 photos of public domain paintings to Wikipedia. Because of the importance of this issue for the public domain and the Internet generally, EFF has taken Mr. Coetzee as a client.

Here's the issue at the heart of this dispute: does something have to be in the public domain in every country on the planet before it can be posted to the Internet anywhere?

According to NPG, Mr. Coetzee copied digital photos from NPG's website and uploaded them to Wikipedia (where they are still available). Everyone agrees that the photographs are of public domain paintings in NPG's collection (e.g., this portrait of William Blake painted in 1807). It's also clear under U.S. law that simple reproductions of public domain paintings are themselves not copyrightable, since they lack any "originality" beyond the "sweat of the brow" of the photographer. NPG's lawyers argue that the rule is different under UK copyright law (although there is reason to doubt that it's as clear as NPG suggests) and that Mr. Coetzee is therefore a copyright infringer. NPG also makes several other claims, including that Mr. Coetzee has violated their website's "browsewrap" terms of use, that he violated the NPG's database right by extracting the images from their website, and that he has circumvented a technological measure (apparently Zoomify, which is no longer used on NPG's website) in violation of the UK's version of the DMCA.

As we explained to NPG in a letter sent on July 20, it's quite clear under U.S. law that Mr. Coetzee did nothing wrong -- as far as U.S. law is concerned, the photos are not copyrightable, the NPG website's "browsewrap" contract is unenforceable, there is no "database right," and using Zoomify on public domain images doesn't get you a DMCA claim. It's also clear that everything he's alleged to have done took place on his computer and Wikipedia's computers, none of which are in the UK.

In the offline world, that would certainly be the end of the matter. If Mr. Coetzee had flown to London, purchased posters of the same paintings at the museum store, brought them home, and started making copies for his friends, it's clear he would be well within his rights in doing so.

Why should the answer be different simply because he posted the photos to Wikipedia? NPG seems to think that UK law should apply everywhere on the Internet. If that's right, then the same could be said for other, more restrictive copyright laws, as well (see, e.g., Mexico's copyright term of life of the author plus 100 years and France's copyright over fashion designs). That would leave the online world at the mercy of the worst that foreign copyright laws have to offer, an outcome no U.S. court has ever endorsed.


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