[Foundation-l] At least 500 images will have to be deleted from the National Portrait Gallery

Michael Maggs Michael at Maggs.name
Wed Jul 23 18:50:16 UTC 2008

This publication thing is a complete red herring.   The country of 
publication would matter only if the images had _not _been published in 
the UK (or a specified country under section 155 of the Copyright, 
Designs and Patents Act 1988.)   If the images had been published _only 
_in, say, Afghanistan, then under S 155 no copyright would subsist at 
all.   But as the images have been published in the UK (at least) 
copyright _does _subsist and the UK courts have power over that 
copyright.  There is a clear UK nexus with the copyright owner, the 
place of the photography and the location of the paintings, and 
accordingly the UK court will apply UK law.  There is absolutely no 
doubt about it, I am afraid.

Michael Maggs

teun spaans wrote:
> Hi,
> i doubt you can say that the national gallery has choosen to publish in the
> USA. There servers are probably in the UK, so i'd say that they publish in
> the UK. That the pages can be viewed in the USA is a different matter.
> Analogy: If i print and publish/sell a book in the Netherlands, I publish it
> here in the Netherlands. If some USA retailer orders 2000 copies to sell in
> the states, that doesnt mean i publish them in the USA, merely that they are
> for sale in the USA.
> But a lot depends on the definition of "publication" / "publish"
> wish you health and happiness,
> Teun Spaans
> On Wed, Jul 23, 2008 at 7:10 PM, geni <geniice at gmail.com> wrote:
>> 2008/7/23 Michael Maggs <Michael at maggs.name>:
>>> An interesting theory, but it does not work, of course, or Commons
>>> policy would be in chaos.  You cannot arbitarily choose which country is
>>> the one in which the works were published to suit Commons' convenience.
>> That depends on the legal system. Under UK law the national gallery
>> has chosen to publish in the US. You will note the the BBC goes out of
>> it's way to limit what people from the US can view and listen to on
>> it's website. The national gallery was free to do that but did not.
>> Thus the images were published in the US and as long as they were
>> copied across by someone in the US are no different from any other
>> pure US image.
>>> There is no choice of law here: the photographs were taken in the UK, of
>>> paintings held in the UK, on behalf of a UK museum, and have been
>>> published by that museum on a UK website and by issuing postcards and
>>> other reproductions in the UK.   Why would any UK court think that US
>>> law should be applied?
>>> Michael
>> They wouldn't but they would think the photos have been published in
>> the US. They would of course argue that commons is publishing the
>> photos in the UK so UK law also applies but they would argue that
>> about all our photos.
>> --
>> geni
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