Art Isn’t Free: The Tragedy of the Wikimedia Commons
I came across a nice Isaac Asimov quote this week: “No sensible decision can be made any longer without taking into account not only the world as it is, but the world as it will be.”
The copyright dispute that went public this week between the UK’s National Portrait Gallery and the Wikimedia Commons is lodged firmly in the world as it is. Under UK law, it seems pretty clear that the 3,000-plus high-resolution images that a Wikimedia administrator copied from the museum’s website and uploaded to the Commons are copyrighted by the museum and are not, as the Wikimedia Foundation argues, in the public domain.
But the case is making waves in the blogosphere because it’s also about the world as it will be. Digital technology is making it possible to share near-perfect copies of priceless paintings and other cultural artifacts with anyone, anywhere, instantly. And because the cost of this sharing is now practically zero, many people now believe the information itself should also be free.
And perhaps it should. But unless we figure out a reasonable way to support the institutions that spend lots of money to make these images—namely, museums—very little of this material may actually be available for sharing in the future.
Free-culture activists are applauding Wikimedia for refusing to delete the disputed images, but this isn’t a simple Robin Hood story. If the Wikimedia Foundation prevails and gets to keep the images, it could lead to an overall reduction in sharing. Don’t get me wrong—I’m a public domain maniac. I’d love to see as much of the world’s heritage digitized and freely shared as institutions can manage. But what I fear is that the episode will prompt the National Portrait Gallery and other museums to either slow digitization efforts or place greater restrictions on access to their digital collections in the future—or both.
Let me back up and explain the Wikimedia case. The Wikimedia Commons is a public file repository maintained by Wikimedia Foundation, the same non-profit organization that runs Wikipedia. (Most of the images you see alongside Wikipedia articles are stored in the Wikimedia Commons.) In March, a volunteer Wikimedia administrator named Derrick Coetzee copied 3,300 high-resolution images from the National Portrait Gallery’s online database, some of them as as large as 2400 x 3200 pixels, or about 8 megapixels. He then uploaded all of the images to the Wikimedia Commons, where, for the moment, you can view them at your leisure—just be ready for lots of lace and powdered wigs.
Coetzee, a U.S. citizen, hasn’t spoken out about the case, so it isn’t clear whether he was merely trying to make it easier for others to see the portraits, or whether he was also hoping to goad the National Portrait Gallery into a confrontation. But that was certainly the effect. In April, the gallery’s solicitors asked the Wikimedia Foundation to remove the images. It refused, for reasons I’ll get into momentarily. On July 10, the solicitors, Farrer & Co. of London, turned to Coetzee himself, sending him a letter (which he promptly posted on the Wikimedia Commons) threatening to seek injunctions and damages unless Coatzee agrees to remove the images, delete all of his copies, and generally keep off the Gallery’s digital lawn.
The letter gave Coetzee until July 20 to comply. As of this writing, the images are still online, so it’s safe to assume Coetzee and the Wikimedia Foundation are digging in their heels. He posted an update saying he’s being represented in the case by Fred von Lohmann, an intellectual property attorney for the Electronic Frontier Foundation (EFF).
The main question in the dispute is not about the portraits themselves, most of which were painted more than 100 years ago and are indisputably in the public domain. Rather, it’s about who owns the digital images. Are they copyrighted by the National Portrait Gallery, which went to the expense of hiring professional photographers to document the original paintings, and should therefore (the solicitors argue) have the right to control their distribution and collect licensing fees from anyone who reproduces them? Or are they in the public domain and therefore owned by everyone—in which case the gallery has no right to prevent sharing and reproduction of the works?
The Wikimedia Foundation has a firm stance on the question. The foundation says its position “has always been that faithful reproductions of two-dimensional public domain works of art are public domain, and that claims to the contrary represent an assault on the very concept of a public domain.” It’s supported in this position by a 1999 New York District Court decision, Bridgeman Art Library v. Corel Corp., in which a federal judge ruled that a photograph intended merely as a faithful copy of a work of art lacks originality, and therefore isn’t entitled to copyright protection. If the work itself is in the public domain, under this interpretation, then the photograph is too.
The Bridgeman decision obviously doesn’t have any force in the United Kingdom, where the presumption is still that a photograph of a painting is copyrighted. Farrer & Co. make this argument at length in their letter—and a coalition of UK museums called the Museum Copyright Group goes even farther, arguing that the Bridgeman ruling “is of doubtful authority even in the USA.” (District court decisions aren’t necessarily binding on other courts, and the Supreme Court has never ruled on the question.)
But assuming that courts in the UK, where the images were made and stored, will find that Coetzee’s actions are an open-and-shut case of copyright violation, it still won’t be simple for the National Portrait Gallery to enforce its claims, given that Coetzee is an American citizen and that the Wikimedia Foundation’s Web servers are in the United States. Enforcing UK copyrights in the United States is “possible to do, but it can be quite expensive,” Struan Robertson, a copyright attorney at London-based law firm Pinsent Masons, told the UK tech news site The Register.
So untangling all the legalities may take a while. That will give Coetzee, the Wikimedia Foundation, and the EFF plenty of time to rally support around their argument, which will likely be that the decision in Bridgeman should be the model for copyright policy around the world, and that the National Portrait Gallery, by attempting to assert its copyright in the images, is showing itself to be an enemy of the free exchange of ideas.
But it would be unjust to paint the museum as the villain in all this. Before there are any digital images to be exchanged, somebody has to make them—and that costs money. The National Portrait Gallery says it has spent over £1 million over the last five years to digitize its collection, which now consists of more than 60,000 online images. Many other museums are undertaking similar efforts, including Boston’s Museum of Fine Arts (MFA), whose collection of more than 160,000 online images is believed to be the world’s largest.
Having made high-resolution images of their treasured artworks, museum curators would probably like nothing better than to give them away. But they can’t afford to. As you may have noticed, our non-profit cultural institutions aren’t exactly swimming in cash, especially now that the the economic crisis has hit their usual donors so hard. For art museums, licensing images for use on posters, T-shirts, book covers, calendars, textbooks, and all the rest provides a vital revenue stream. If anyone could make a coffee mug showing Van Gogh’s Houses at Auvers without having to pay the MFA, that stream would dry up, and the museum would have a harder time making its art available at all.
The National Portrait Gallery put the situation this way, in a statement e-mailed to one inquirer: “The Gallery supports Wikipedia in its aim of making knowledge widely available and we would be happy for the site to use our low-resolution images, sufficient for most forms of public access, subject to safeguards…The Gallery is very concerned that potential loss of licensing income from the high-resolution files threatens its ability to reinvest in its digitisation programme and so make further images available.”
For the sake of argument, let’s grant that the images Coetzee posted on the Wikimedia Commons are in the public domain (as they would be if they’d come from the UK gallery’s U.S. counterpart, the National Portrait Gallery at the Smithsonian Institution). That still doesn’t give Coetzee or the Wikimedia Foundation the moral authority to copy and reproduce them at full resolution. In believing that they do have this authority, they are likely falling into the Wikipedia mode of economic thinking.
Wikipedia works as a free global encyclopedia because it has found a way around the “free rider” problem. That’s an economic situation in which the majority of users pay nothing and consume far more than their fair share of a resource, while a minority do all the work and feel insufficently rewarded. As Chris Anderson observes in his new book Free: The Future of a Radical Price, there is no free rider crisis on Wikipedia—in fact, the more free riders, the better. That’s because exposure to the huge audience that Wikipedia provides is itself the reward for the small fraction of its users who are willing to write and edit articles for no pay.
But high-resolution photos of museum portraits are not like Wikipedia articles. They may lack originality, but the photographers and the institutions who make them can’t afford to do so for free, and the exposure that free distribution brings is not sufficient compensation. (At least, it hasn’t been sufficient in the past. I think there’s a case to be made that museums should be doing more to explore how giving away high-resolution digital art might actually help them increase revenues in other ways. But that’s a topic for another column.)
By publishing thousands of National Portrait Gallery images on the Wikimedia Commons, Coetzee has made all of us into free riders, with zero reward flowing to the gallery. I’m sure that he loves art and is committed to supporting the free exchange of ideas, which ultimately leads to more art. And I’m sure that many users of the Wikimedia Commons will find the images he’s uploaded enlightening. But there needs to be some way for the National Portrait Gallery to benefit from digitization and online sharing, or the result could be the very opposite of free exchange.
Museum curators don’t want to be seen as the high priests of art, jealously guarding access to their relics. They really want people to see, enjoy, and learn from the art under their care. But one has to assume that after a few more episodes of piracy, museum directors will either have to slap much stricter digital-rights management systems their online archives, or start facing harsh questions from their boards about why they’re spending so much money on digitization.
In the end, the shared cultural riches that all museum visitors draw upon might have to be put behind thicker walls. They call that the tragedy of the commons, and it would be a shame to see it affect such an important resource.
Addendum: After I finished this essay on Thursday, I discovered that Erik Moeller, the deputy director of the Wikimedia Foundation, had just published a blog post critical of the National Portrait Gallery’s legal threats.
An excerpt: “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. It is hard to see a plausible argument that excluding public domain content from a free, non-profit encyclopedia serves any public interest whatsoever.”
In my view, Moeller’s logic is somewhat backward. It’s clearly in the public interest for museums to exist and to digitize their works. There would be no threat to the revenue streams they earn from these digital materials—and therefore no need to lock them up—if those who wished to reproduce the material observed common-sense limits, or were willing to work with the museums to find some way for all parties to benefit.
As far as the Coetzee case itself, Moeller writes: “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.”