National Portrait Gallery vs Wikipedia

National Portrait Gallery’s (NPG) threat to sue a Wikipedia administrator for reposting 3,000 images caused a great deal of discussion on our lists and across the media.

It’s absurd to use the law to restrain access to creative works that are no longer protected by copyright. Once copyrights have expired – particularly if it resides in a publicly funded institution – that work should be free for all to reuse and remix.

Legal bloggers disagree as to the validity of the claim. Francis Davey, concentrating on the requirement for originality in copyright protection, indicates a UK court would most likely find there has been copyright infringement. Andres Guadamuz disagrees on that but argues the judge would still hold up the claim for breach of a click-wrap contract. Simon Bradshaw suggests there is good reason to doubt not only the claim under copyright but also that under the much-maligned database right.

This disagreement points to why the claim is so fascinating, because it takes in both contentious issues of law – click-wrap contracts, the database right, overzealous protection of copyright works – as well as retrograde practice in the the public sector.

Digital rights advocates like ORG will be looking closely to see if the case opens up the availability of these works in the public domain: as ever, the case justifying the closure of rights is weaker as distribution and reuse is that much easier. Whatever the legal merits, the social, economic and cultural case for the public domain gets stronger.