Art Isn’t Free: The Tragedy of the Wikimedia Commons

7/17/09Follow @wroush

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.

The Wikimedia Commons page collecting the UK National Portrait Gallery imagesLet 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.

Houses at Auvers, Vincent Van Gogh

Houses at Auvers, Vincent Van Gogh

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.”

Wade Roush is a contributing editor at Xconomy. Follow @wroush

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  • Jussi-Ville Heiskanen

    What amuses me personally most about this whole thing is that the museums are wanting to have it both ways. At first the argument against letting Public Domain be Public domain was that if not curated by museums in a painstaking fashion, what would spread on the net would be poor quality images. Now the shoe is on the other foot, and the museums would be *ever so happy* to have poor quality images spread on the web, as long as they had a wholly unjustified monopoly on high quality reproductions that are faithful to a Public Domain work.

  • http://professor-moriarty.com/ overton

    Technology has advanced to a stage where it is now possible replicate these works using 3D laser scanning and 3D printing. The result being that you can then make copies which are exact replicas. One page 2 of this article is a Van Gogh painting, these replicas would faithfully reproduce the exact painted surface.

    The final digital files to control the 3D printer would fall even further into the category of “slavish copy”, and in wiki-logic should be made freely available, despite the fact that the act of creating them would cost £1000s.

    Who would risk such an enterprise?

  • anon

    There is one major point that everyone seems to be ignoring: what if the paintings are not worth it?

    I mean, people have heard of these famous painters; it’d definitely be nice to be able to freely use their digitised work, but do people really care about it so much that they’d be willing to sacrifice their public domain rights in order to get them?

    And if the public cared so much, wouldn’t the museums be getting enough money from them not to have to resort to looking for commercial revenue?

    I say, this whole art thing is grossly overrated.

  • Eivind Kjørstad

    Actually, I think your central thesis, that if it’s permissible to freely copy such high-resolution photocopies of PD-works, then nobody will want to finance the digitization of such work is flawed.

    By your own numbers 60K paintings where digitized for a million, which isn’t infact very expensive, it comes out as 15/painting.

    My bet is, there are plenty of Wikipedians and others who’d gladly produce high-quality digitizations of paintings, if one would only LET THEM. Witness how Project Gutenberg has digitized thousands of PD-works, and scanning, ocring and manually correcting the unavouidable OCR-errors is a process that is MUCH more work than taking a professional digital photo of a painting.

    Essentially, the museums position seems to be “If we took the photo, you may not copy it, and you may not take the photo yourself”, which comes pretty close to saying “This work may not be available on wikipedia at all, despite it being in public domain”.

  • Amateur6

    I agree in principle with Eivind — perhaps this will move duplication efforts out of the hands of (private, for-profit) museums and into the hands of (public, non-profit) organizations such as Project Gutenburg.

    Project Warhol, anyone?

    (you know, for the whole “multiple copies” thing)

    And by the way, Wade, are you sure you’ve completely squared this post with your position on Google Book Search? Seems to me they may be more comparable than you might think.

  • pianom4n

    You act like the US and Wikipedia are the free riders here, which is just false. Do you know how many US taxpayer dollars go to putting works in the public domain? Try billions. Everything ever made the Federal Government, meaning everything from the Library of Congress, everything from NASA, etc.

    The free riders are smaller and third world countries who don’t contribute works like this. (not that I have a problem with it)

    And Eivind os 100% correct. This would nowhere near a problem if you were allowed to take photos (without flash) of the paintings. But they don’t. They’re trying to impose a perpetual copyright, and that’s the real problem.

  • mjkerpan

    Comparing the situation of the National Portrait Gallery to that of, say, the MFA in Boston is a bit disingenuous. First, the NPG is a public, governmental entity, rather than a private (albeit nonprofit) one. The NPG’s situation is rather more akin to that of the Library of Congress’s or the Smithsonian’s art collections, both of which are made available (in high resolution, even) for all non-commercial use. In some cases, those institutions are even the ones who have POSTED the materials in question. If such a strategy works for the Smithsonian and LoC (which also have free admission, btw), why can’t it work for the NPG in the UK? Is UK governmental funding for the arts even worse off that in the US or something?

  • HaeB

    According to the NPG’s 2007/2008 annual, the surplus from their reproduction rights sales (the “Picture Library”) was £130,000, less than 1% in size compared to the overall budget of £16,610,000.

    And that includes all media. According to a 2009 Freedom of Information Act request, the NPG’s income from licensing to other websites was between £10,000 and £19,000 during the last five years.

    How exactly is that “a vital revenue stream”?

  • http://www.dailygrommet.com Jules Pieri

    The biggest issue here is that the horse is out of the barn and it’s really hard to get him back in. You address this in the article….the sheer availability of digital content has devalued it. I spent a few months in a startup that was trying to provide a legitimate, easy platform for people to “do the right thing”–share their images, writing, photos, videos under their terms (Creative Commons licenses) and also be compensated when desired. It was a long row to hoe given the basic psychology of free. I have to admit that even after working in this business, I once used a photo in my blog without proper credit to the creator, and she rightly busted me. So even KNOWING all the ins and outs of this issue, I behaved badly. Most people don’t even know about the issues!

  • http://professor-moriarty.com/ overton

    pianom4n This would nowhere near a problem if you were allowed to take photos (without flash) of the paintings.

    If you’d be satisfied with a photo taken without flash, you ought to have been satisfied with the medium resolution files they did provide. At least they don’t have parallax and perspective problems, or incorrect colour.

    As for the LoC images the vast majority of those online are 1K along the longest side.

    HaeB How exactly is that “a vital revenue stream”?

    If they’d make a lot they’d be accused of profiteering, if they make a little its not worthwhile. Damned if they do damned if they don’t.

  • Joey Castellana

    The free-give-me-free crowd are, of course, simply sad.

    Computer geeks, the sexless set, people who think text messages are relationships and today’s “music” is art .. the great unwashed slightly chubby masses of the free-give-me-free crowd particularly prominent in the USA with their 44 ounce big-slurp-eee drinks, Clif Bars and blogs.

    Socialists, communists, the free-give-me-fee crowd, simple burglars, fat wanabees who can’t make the team but complain .. it’s all the same.

    How do they sleep at night … not very well. They are desperate to run counter to the entire thrust of human creation; they are desperate to “take down” the awake, creating, leaders.

    But they can’t because the total nature of humans is to create rather than steal; the free-give-me-free crowd don’t sleep.

    So they turn again to the Excitment of writing on computer bulletin boards, ranting (ultimately to themselves), masterbating hopelessly and .. again .. tweeting, twitting, ‘booking and posting.

  • Fritz

    While you are rather poetic, Joey, I fail to see an innate human desire for copyright–in fact the history of folk music suggests that reworking songs as you like is the most commonplace.

    But that’s not the point. If America chooses not to support a strong public domain that is it’s right. We are not limiting your ability to practice the law as you want _in your country_. If you choose to support a neutered public domain which puts duplication as a copyrightable act then that is your choice but don’t expect other countries to respect that. In the meantime take the gift of our federally funded public domain NASA galleries as a gift from a nation which (at lease sometimes) promotes the idea that a strong public domain is vital for society. But after a work has been published for a hundred years I fail to see why someone has a monopoly over profits derived from that work. It’s not a question of wanting everything free, it’s about being able to reasonably put images of public domain works online. Let the UK prosecute its own citizens who break their laws, that is not the job of the American government to enforce.

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  • J. van Doesburg

    There is some scientific discussion on the commons. In general the issue is not ” free or not free “, but sustainability. The museum’s argument is of course to have their contrribution to the commons returned (in order to be able to do another contribution for example), where as Coetzee’s and Wikimedia do not offer an argument how they could sustain in the long term the museums contribution. Elvind’s suggestion could be a way out, and recently already put into practice at van Gogh Museum in Amsterdam. Still I think Coetzee and Wikimedia should make an offer to the museum before can put the pictures at a public space. In general maintaing the commons means hard work, and sometimes also some kind of investment.

  • http://rolfblijleven.blogspot.com Rolf Blijleven

    We read: Coetzee copied 3,300 high-resolution images from the NPG’s online database, some of them [high resolution]. It is common practice for museums to put some digital image in low resolution on the web. High resolution images are normally kept under much tighter control, not accessible to the public, but to employees and e.g. researchers.

    So the question is: did Coetzee have permission? How did he get access to them? Coetzee studies computer sciences. Has he been hacking, or writing a tool to harvest images from sites, unbeknownst to the owners?

    Even if NPG has been negligent, they still are the proprietors of the digital images. So Coetzee and WikiMedia may argue, but they should settle for the low-res images that NPG does want to share.

  • http://www.xconomy.com/author/wroush/ Wade Roush

    Thanks, everyone, for your trenchant comments.

    @anon: I think you’re a bit too dismissive about the art, but thanks for the reminder that at bottom, this is all about the art itself — and if no one is interested in talking about the actual portraits, that may say something, about us or about the art or both…

    @eivind, @amateur6, @pianom4n: I agree it’s problematic that no one else is allowed make copies of the NPG images. It’s hard to see what real-world effect the “public-domainness” of the images has under these circumstances.

    @amateur6: I admit I have not squared this post with my post on Google Book Search. My thinking on Google Book Search has been evolving and I intend to get around to writing a new column about that soon. In short, I’m still of the opinion that we should give a lot of credit to anyone willing to do the work of scanning/digitizing/reproducing old materials (Google scanning old books in that case), but that doesn’t mean they should get monopoly control over the materials.

    @mjkerpan, @haeB: I don’t pretend to understand the NPG’s finances. There is a tradition in the U.S. (admirably upheld by NASA) of putting most images obtained at public expense in the public domain. If the NPG says they need the revenue from the licensing of these images to fund further digitization, they’re likely telling the truth.

    @J. van Doesberg: Yes, that’s exactly what I’m saying. This is about sustainability. We need to rise above the Napsterish debate over the place of copyright and talk about how to actually support the sharing of this work.