Hi
I have a question about many copyright notices I see on UK museum digital collections.
They frequently ask for a fee or permission to use images that are to my knowledge public domain.
We have the same issue here in France with lots of museums, but many court decision show it's pure copyfraud and they aren't allowed to do so.
Bu I wonder if it's the same in the UK ? Do museum have a specific law on their side ? Like it is in Italy, were a specific law forces you ton ask permission to museums to use work of art they own (JP Gautier has a current trial with the office museum about this).
So is copyfraud a thing in the UK ? Or do museum have specific rights when they own a piece of art ?
For example, the university of manchester claims copyright on this 17th century manuscript...
https://www.digitalcollections.manchest ... AN-00003/1
They say : Images and Metadata made available for download are licensed under a Creative Commons Attribution-NonCommercial 4.0 International License (CC BY-NC 4.0).
But why ? If it's public domain...
Are most of UK museums guilty of copyfraud ?
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Jilgoodeker
- Regular Member
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- Joined: Tue Feb 22, 2022 8:37 am
Re: Are most of UK museums guilty of copyfraud ?
Hi again Jilgoodeker,
Unfortunately it's not illegal to claim copyright when none exists. Very often these institutions make vague claims and seem to think that if they have made high quality scans of a document or artwork, that constitutes sufficient 'creativity' to create a new copyright. Many will rely on an opinion written some years ago by an eminent barrister named Jonathan Rayner James KC which was produced for the Museums Copyright Group. You can read about it here. However what Mr Rayner James actually said was " ... as a matter of principle, a photograph of an artistic work can qualify for copyright protection in English law .. " (my added emphasis) which is perfectly true, where for instance a highly skilled photographer was employed to photograph a painting and made many individual personal decisions about how to light the painting, how to set the correct exposure in order to capture all the details, and then to carry out careful colour correction to ensure the painting has been faithfully reproduced, and so on. But that is not the process which is followed in most cases because it's too expensive. Instead a setup much like a giant photocopier will be used to make the digital images and the whole post production is handled by a computer rather than a human. The human is just there to turn the pages of the book!
There have been several scholarly papers on the subject and the consensus view is that copyright will only apply in a small minority of digitization cases, such the one I described above. The UK government, in the shape of the Intellectual Property Office, also supports this view.
The UK's National Portrait Gallery had an opportunity to test this matter in court some years ago when they alleged that the Wikimedia Foundation had infringed their 'copyright' but they decided to settle the issue by agreeing to release some lower resolution images of their stock into the public domain, rather than face the prospect of losing in court. Anyone who needs a high resolution version of a particular image has to pay a fee, but they still maintain their copyright claim.
Unfortunately it's not illegal to claim copyright when none exists. Very often these institutions make vague claims and seem to think that if they have made high quality scans of a document or artwork, that constitutes sufficient 'creativity' to create a new copyright. Many will rely on an opinion written some years ago by an eminent barrister named Jonathan Rayner James KC which was produced for the Museums Copyright Group. You can read about it here. However what Mr Rayner James actually said was " ... as a matter of principle, a photograph of an artistic work can qualify for copyright protection in English law .. " (my added emphasis) which is perfectly true, where for instance a highly skilled photographer was employed to photograph a painting and made many individual personal decisions about how to light the painting, how to set the correct exposure in order to capture all the details, and then to carry out careful colour correction to ensure the painting has been faithfully reproduced, and so on. But that is not the process which is followed in most cases because it's too expensive. Instead a setup much like a giant photocopier will be used to make the digital images and the whole post production is handled by a computer rather than a human. The human is just there to turn the pages of the book!
There have been several scholarly papers on the subject and the consensus view is that copyright will only apply in a small minority of digitization cases, such the one I described above. The UK government, in the shape of the Intellectual Property Office, also supports this view.
The UK's National Portrait Gallery had an opportunity to test this matter in court some years ago when they alleged that the Wikimedia Foundation had infringed their 'copyright' but they decided to settle the issue by agreeing to release some lower resolution images of their stock into the public domain, rather than face the prospect of losing in court. Anyone who needs a high resolution version of a particular image has to pay a fee, but they still maintain their copyright claim.
Advice or comment provided here is not and does not purport to be legal advice as defined by s.12 of Legal Services Act 2007
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Jilgoodeker
- Regular Member
- Posts: 16
- Joined: Tue Feb 22, 2022 8:37 am
Re: Are most of UK museums guilty of copyfraud ?
Thank you so much for your answer, and those links, I didn't saw it until today cause I didn't receive any email notification, sorry for that.
So you confirm what I thought about this copyright notice on the University of Manchester's website.
It's very difficult those days cause with public domain and digitized collections.
In France for example one of our biggest online public library (Gallica) got a right to ask for a fee to use their digital collection, a very disputable piece of law in 2016 allowed them to do that in fact.
In Italy museums are allowed to do so as well.
So I'm happy to see the UK still holds it despite those notices museums and library still show on their website...
And I hope all the people advocating for public domain in France and in other country will make those copyfrauds illegal to give back the public what's their.
So you confirm what I thought about this copyright notice on the University of Manchester's website.
It's very difficult those days cause with public domain and digitized collections.
In France for example one of our biggest online public library (Gallica) got a right to ask for a fee to use their digital collection, a very disputable piece of law in 2016 allowed them to do that in fact.
In Italy museums are allowed to do so as well.
So I'm happy to see the UK still holds it despite those notices museums and library still show on their website...
And I hope all the people advocating for public domain in France and in other country will make those copyfrauds illegal to give back the public what's their.
Re: Are most of UK museums guilty of copyfraud ?
Hi Jilgoodeker,
Your comments about France and Italy point to a fundamental difference between the type of copyright which exists in Britain, the USA and other Anglophone nations, when compared to most of continental Europe. The latter follow the droit d'auteur philosophy which sees purpose of their version of copyright being almost exclusively to honour the memory and reputation of the author of the work, with barely any thought about the value of, or need for, the public domain. These countries tend to grant moral rights (so-called paternity and integrity rights) to the authors and their heirs for enormously long periods - in the case of France, in perpetuity. This is all very well for great authors like Victor Hugo or artists like Gaugin, but hardly justifiable when it comes to the works of much less talented authors, composers and artists. Both France and Italy see their national cultural heritage as being inextricable from the individual works of its famous authors and artists, and so both have wide ranging laws covering these works.
This difference in approach also extends to works of architecture and certain pieces of sculpture. In Britain and some other parts of the world, a building or sculpture situated where the public can see it may be freely photographed without needing permission, and the images may be exploited commercially This is known as Freedom of Panorama. Countries which follow the droit d'auteur philosophy generally limit the freedom of panorama in one way of another. France and Italy do not allow any photgraphs to be taken for commercial purposes without permission, even though this is clearly unenforceable where publication occurs outside their respective jurisdictions.
Your comments about France and Italy point to a fundamental difference between the type of copyright which exists in Britain, the USA and other Anglophone nations, when compared to most of continental Europe. The latter follow the droit d'auteur philosophy which sees purpose of their version of copyright being almost exclusively to honour the memory and reputation of the author of the work, with barely any thought about the value of, or need for, the public domain. These countries tend to grant moral rights (so-called paternity and integrity rights) to the authors and their heirs for enormously long periods - in the case of France, in perpetuity. This is all very well for great authors like Victor Hugo or artists like Gaugin, but hardly justifiable when it comes to the works of much less talented authors, composers and artists. Both France and Italy see their national cultural heritage as being inextricable from the individual works of its famous authors and artists, and so both have wide ranging laws covering these works.
This difference in approach also extends to works of architecture and certain pieces of sculpture. In Britain and some other parts of the world, a building or sculpture situated where the public can see it may be freely photographed without needing permission, and the images may be exploited commercially This is known as Freedom of Panorama. Countries which follow the droit d'auteur philosophy generally limit the freedom of panorama in one way of another. France and Italy do not allow any photgraphs to be taken for commercial purposes without permission, even though this is clearly unenforceable where publication occurs outside their respective jurisdictions.
Advice or comment provided here is not and does not purport to be legal advice as defined by s.12 of Legal Services Act 2007
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Jilgoodeker
- Regular Member
- Posts: 16
- Joined: Tue Feb 22, 2022 8:37 am
Re: Are most of UK museums guilty of copyfraud ?
It's funny you mention Victor Hugo, as he was one of the hardest defensor of public domain in France.
We had a case a few years ago where Hugo's heirs claimed 2 millions to an author who wrote and published a new serie of "les misérables" books. They were furious the author did not ask for permission (and therefore paid them) so they suited him.
There were multiple trials, the initial trial, appeal and cassation.
But the heirs lost.
The judge cited Victor Hugo : "An authour should have only one true heir : public domain"
Anyway, if heirs can argue they own integrity rights, the institution I was mentionning (Gallica) is the one claiming false copyright on all books they digitized.
It includes american and UK authors so that's ridiculous...
We had a case a few years ago where Hugo's heirs claimed 2 millions to an author who wrote and published a new serie of "les misérables" books. They were furious the author did not ask for permission (and therefore paid them) so they suited him.
There were multiple trials, the initial trial, appeal and cassation.
But the heirs lost.
The judge cited Victor Hugo : "An authour should have only one true heir : public domain"
Anyway, if heirs can argue they own integrity rights, the institution I was mentionning (Gallica) is the one claiming false copyright on all books they digitized.
It includes american and UK authors so that's ridiculous...