UK Copyright v. US Public Domain

© National Portrait Gallery, London

Queen Victoria

by Aaron Edwin Penley
watercolour, circa 1840
16 in. x 13 3/8 in. (405 mm x 340 mm) uneven
Given by John Steegman, 1959
NPG 4108

Astute readers of this blog may question why the National Portrait Gallery would claim copyright in the above reproduction of a portrait of Queen Victoria done circa 1840.

I'm glad you asked. There's potentially important litigation brewing from the UK directed at an American guy named Derrick Coetzee who likes to download high res photo images of public domain paintings. etc. from the UK National Portrait Gallery ("NPG") and upload them for free distribution on Wikimedia. He's done over 3,000. Here's the story, along with the rather unusually detailed C&D letter sent by the UK solicitors.

Here's the Guardian story and blogs from IPKat and 1709.

The suit apparently would take place in the UK on the arguably dubious basis that:

1. The servers on which our client’s website is hosted are based in the UK and therefore, technically, your unlawful downloading (which give rise to some of the copyright, database right and breach of contract claims described herein) took place in the UK;

(Don't see how, since Coetzee and presumably his computer and Wikimedia are all in the USA)

and the marginally less dubious basis that:

2. The pages of the Wikipedia website on which you have reproduced our client’s images are clearly directed at (amongst others) UK users of the website.

Of course, just about everyone realizes that, the in the USA, or at least in the highly influential Second Circuit, there is no copyright in a slavishly accurate photo of a public domain work. See Bridgeman v. Corel 36 F. Supp. 2d 191 (S.D.N.Y. 1999).

There's also an interesting allegation that Coetzee bypassed an arguably rather weak TPM to get the high res images.

The UK Courts have not always been bashful or modest when it comes to extraterritorial assertion of the their libel law, and have earned a reputation for “libel tourism” as a result. It'll be interesting to see how they deal with this in the context of copyright law.

And if the NPG should sue in the USA, other really interesting questions arise, such as the “be careful what you wish for” implications. If NPG can persuade a US court to apply UK copyright law in the USA, the logical implication would be that any American could freely download any material in the public domain located in sensible countries such as Canada with a sensible copyright term, namely the Berne term of life + 50 years.

HK