Copyright consultation

The United Kingdom government's Intellectual Property Office published an "Issues Paper" in December 2008 discussing copyright law and requesting comments by 27 February. Wikimedia UK submitted the response below on 6 February.

In March the IPO said that over 120 responses had been received [1], discussions are currently taking place with stakeholders and they will start to identify emerging issues for further discussion in May.

In June they published a summary of their discussions with stakeholders. [2]

Useful links

• consultation page
• Response to a similar consultation from the Netherlands chapter
• Response to a similar consultation from the Hungarian chapter
• Details of the new Israeli copyright law (the previous one was based on UK law)
• Responses to a similar consultation from the European Commission, including responses from WM-NL, WM-CS, WM-DE, WM-IT and WM-HU

Submission

The following response was submitted from Wikimedia UK on 6 February:

About us

The Wikimedia Foundation is the US-based charity behind the most popular general reference work on the internet, Wikipedia. This encyclopaedia is available in over 200 languages with the English version containing over 2.5 million articles. The Foundation also hosts eight other projects, including a news source, a dictionary and a media repository. The Foundation's projects are collaboratively edited by over nine million volunteers worldwide and their content is released under free copyright licenses such as Creative Commons.

We are Wikimedia UK, the local association of Wikimedia volunteers. We were established to support the aims of the Wikimedia Foundation and to represent the over 1,500 people in the UK who regularly volunteer on Wikimedia projects. We are an independent non-profit organization, incorporated as a Company Limited by Guarantee under the name "Wiki UK Limited" and using Wikimedia UK as an operating name.

Access to works: The impact of the copyright protection of photographs of 2D public domain works

The "Access to works" section of the IPO Consultation Document begins with the following objective:

"The copyright system should maximise the availability of creative works to the public, ensuring that creative endeavour is rewarded while users can enjoy what has been created, on fair and reasonable terms."

We at Wikimedia UK are similarly committed to enabling public access to creative works, especially those in the public domain. At the moment though we are hampered in our efforts to enhance the accessibility of public domain art in the UK by the ambiguous copyright status in UK law of photographs of two-dimensional public domain works. We seek in this submission to present the case for a clarifying legislative amendment stating that photographs or other copies of 2D works in the public domain do not meet the originality standard required for copyright to subsist in the reproduction.

The core argument

Erik Möller, the deputy director of our parent organisation the Wikimedia Foundation (WMF), has summarised the Foundation's position as follows:

"WMF's 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. If museums and galleries not only claim copyright on reproductions, but also control the access to the ability to reproduce pictures (by prohibiting photos, etc.), important historical works that are legally in the public domain can be made inaccessible to the public except through gatekeepers."

British museums and galleries have adopted a variety of attitudes towards reproduction of such works. Some, such as the Victoria and Albert Museum, have encouraged dissemination of faithful reproductions of the two-dimensional public domain works of art in their collections, while others are doing their best to act as just such a gatekeeper, a situation which, in line with our charitable objectives, we at Wikimedia UK would like to see come to end.

The status of photographs of public domain 2D works outside of the United Kingdom

In 1999, the New York District Court held in the case of The Bridgeman Art Library Ltd v Corel Corp, (36 F. Supp. 2d 191, 1999) that "a photograph which is no more than a copy of a work of another as exact as science and technology permits lacks originality. That is not to say that such a feat is trivial, simply not original". We at Wikimedia UK stand by this conclusion and are keen for it to be represented in UK law, as it already is in that of Germany and Canada.

The status of photographs of public domain 2D works in the United Kingdom

In the prior action to the aforementioned Bridgeman v Corel case (25 F. Supp. 2d 421 (S.D.N.Y. 1998)) the (US) judge made reference to British case law as in accordance with his position, interpreting dicta from Interlego v Tyco [1989] AC 217 to hold that the UK statute did not provide copyright in photographs of public domain artistic works. However both older (e.g. Graves' Case (1869) LR 3 QB 715) and more recent cases (Antiquesportfolio.com v Rodney Fitch & Co LTD [2001] FSR 345 (relating to photographs of 3D objects)) provide support for the opposite conclusion, with Justice Blackburn concluding in the former that:

"An objection has been made as to the registration of the photographs, on the ground that they are photographs of pictures, and therefore are not within the words of the Act, which applies only to "every original painting, drawing, or photograph." It has been argued that the word "original" is to be taken as applying to the word photograph. The distinction between an original painting and its copy is well understood, but it is difficult to say what can be meant by an original photograph. All photographs are copies of some object, such as a painting or a statue. 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. As I have already pointed out, by s. 2, although it is unlawful to copy a photograph or the negative, it is permitted to copy the subject matter of the photograph by taking another photograph."

One objection to this argument is that there is no scope for making any of the usual artistic choices of photography in taking a photograph of a two dimensional art work; the photograph will inevitably be taken straight on, with minimal border and with diffuse light. Moreover, the effort, labour, skill, and time required to take such a photograph in the nineteenth century was greater than it would be today due to advances in photographic technology. Thus, even with the UK's relatively low threshold for originality, such photographs might not now meet the originality requirement for copyright to subsist in an artistic work under section 1 of the Copyright Designs and Patents Act 1988.

Were a similar case to Bridgeman v Corel to come to court in the UK it is possible that these arguments might succeed. However, were they to fail, as they certainly might, we would be left in a situation where Wikipedia could be forced to remove many of its images of the this country's great artists, leaving only prose to describe their works. We consider it imperative then for a legislative clarification to be made before a case is brought.

Conclusion

Britain's museums unquestionably provide a great service to the nation, and we respect their desire to recoup some costs through, for example, the sale of postcards of their artworks. However, we find it implausible that the free availability of the images of two-dimensional works of art used on postcards and similar items of merchandise would have any significant impact on the museums' revenues. In any case, any potential loss of revenue for museums must be balanced against the great value to the British public of the nation's (public domain) art collection being available for free online. Many school children in the north of England will never get down to London to explore its museums, yet potentially any of them can use their school's internet connection to explore those museums' works on Wikipedia. The requested small clarification on the status of photographs of public domain two dimensional works is all that is need to ensure that this remains the case in future.

Other areas

There are several other areas of UK copyright law in which we at Wikimedia UK would like to see changes, not least reducing the number of publicly funded works which are nonetheless not publicly copyable, due to crown copyright, as well as expanding fair dealing provisions to more closely resemble the US's ones for fair use. However, we consider the status of photographs of public domain works sufficiently important as to warrant focusing our response to this issues paper on this area. We would welcome further involvement in the consultation process on these and other areas, speaking as we do for the British editors of the largest freely accessible work ever created.

Please contact our board on: board email address.

Include standard footer with company address etc. when printed

A pdf version is available here.

Questions

The questions asked in the Issues Papers:

Rights of creators

Q. Does the current system provide the right balance between commercial certainty and the rights of creators and creative artist? Are creative artists sufficiently rewarded/protected through their existing rights?

?Looking to extend the current 50 year limit on recordings? (see)

looking at the intro to the question it's about preventing more absolute contracts. In effect limiting the rights the author can sign away.

• Don't answer?

• bad idea these kind of terms have the ability to play merry hell with things like free licenses.Geni 14:25, 9 February 2009 (UTC)

Licensing system

Q. Is our current system too complex, in particular in relation to the licensing of rights, rights clearance and copyright exceptions? Does the legal enforcement framework work in the digital age?

?Enforecement of copyright with file sharing?

Seems to be fair dealing/fair use issues and stronger enforcement (probably something like 3 strikes and you are out IP stuff).

• Don't answer? (see below...)

Supporting creativity

Q. Does the current copyright system provide the right incentives to sustain investment and support creativity? Is this true for both creative artists and commercial rights holders? Is this true for physical and online exploitation? Are those who gain value from content paying for it (on fair and reasonable terms)?

• Don't answer?

Authentication

Q. What action, if any, is needed to address issues related to authentication? In considering the rights of creative artists and other rights holders is there a case for differentiation? If so, how might we avoid introducing a further complication in an already complicated world?

• Don't answer?

Other issues

We would welcome comments from interested parties on the above questions and on other questions that are considered relevant to this work

• making more governmental sources PD? Cite US example. Possible starting points:
  • Statute book (i.e. the laws of the land?)
  • Hansard (proceedings in the Houses of Commons and Lords; see [3])
  • Ordnance Survey issue (protected by crown copyright; old maps not available freely; might be worth pursuing separately with OS directly)

I agree that this is important and relevant to us, but the Guardian are running a massive "free our data" campaign, so I'd expect many organisations (not least them) to be lobbying on this one already. Our efforts are hence perhaps best focussed elsewhere. --Cfp 22:04, 4 February 2009 (UTC)

Old maps are reasonably available. Scans less so. From what I understand OS itself doesn't have a very good collection of it's older maps So it's more a case of finding someone with a collection and digitalising it (university collections are your best bet here).Geni 02:33, 20 February 2009 (UTC)

• making "faithful reproductions of 2d public domain works of art" PD as per the US

Comes under the first question. See the pdf. [4] --Cfp 22:04, 4 February 2009 (UTC)

• publication rights which cause issues for even long since PD works. (Clarify? Is this regarding the UK's database right?)

(These points are related to the "Licensing system" question)

Both rights seem just about reasonable to me. See this doc for details [5]. The publication right only applies to things which have not been previously published in any way, and is clearly intended to incentivising people to publish e.g. writers letters/diaries, which take considerable effort to edit etc. The database right gives some level of protection to the maker of a database over the particular aggregation of data it embodies, incentivising people to invest effort in performing the aggregation in the first place. In any case, they come from EC law according to that doc, so it's highly unlikely they're going to be substantially changed in any case. --Cfp 22:04, 4 February 2009 (UTC)

The problem is the publication right can also cover things like photos where the effort involved for a single photo is fairly trivial. In either case the length of time granted is unreasonable.Geni 02:33, 20 February 2009 (UTC)

Geni's draft response

Q. Does the current system provide the right balance between commercial certainty and the rights of creators and creative artist? Are creative artists sufficiently rewarded/protected through their existing rights?

It is up to the creator to decide if they are sufficiently rewarded. If they feel they are not they are free not to create or not to enter into contracts that will not provide them with their desired level of reward.

Interfering with this creates significant risks in the area of free software and free content. Much of the infrastructure of the internet runs on free software such as linux and Apache HTTP Server. In order for the UK to continue to be involved in the development of these technologies it is important the UK creators to be able license their works, until the copyright expires, under any terms including not accepting any financial reward and allowing any form of reuse of their work.

Wikipedia is one of the top ten sites on the web and is only part of the free content community. If UK creators are going to be able (if they chose) to be involved in the free content community the ability to license their works, until the copyright expires, under any terms including not accepting any financial reward and allowing any form of reuse of their work needs to be preserved.

Q. Is our current system too complex, in particular in relation to the licensing of rights, rights clearance and copyright exceptions? Does the legal enforcement framework work in the digital age?

Copyright exceptions under UK law tend to suffer from being highly limited compared to their US equivalents. This difference creates significant cross border issues on a web where much of the content is hosted in the US.

The issue of rights clearance is mostly a side effect of overlong copyright terms and any attempt to deal with it without dealing with that core problem is unlikely to be very successful or risks causing significant collateral damage.

Q. Does the current copyright system provide the right incentives to sustain investment and support creativity? Is this true for both creative artists and commercial rights holders? Is this true for physical and online exploitation? Are those who gain value from content paying for it (on fair and reasonable terms)?

The free content and free software movements show that monetary payment isn’t the only incentive and it is important to allows those who chose to create for other incentives to continue to do so.

Q. What action, if any, is needed to address issues related to authentication? In considering the rights of creative artists and other rights holders is there a case for differentiation? If so, how might we avoid introducing a further complication in an already complicated world?

It is possible to confirm authenticity through Checksum comparison of files against known authentic copies. Author identity can be confirmed by imbedding digital signatures in the file. These are mature technologies and there is no need for legislation in this area.