[WikiEN-l] Used-with-permission images, a modest proposal

[Andrew Gray]

On 05/07/05, Haukur Þorgeirsson <haukurth at hi.is> wrote:

IANAL, but I'm sitting in a UK law library just now...
 
> Ah, but you see - British copyright laws may
> not require any creativity for a work to become
> copyrighted, unlike U.S. laws. Look at these
> definitions from the laws:

...

> For the record I think the idea that the British Library
> can copyright this image to be evil. There are lots of
> pictures of old artworks at their website which I'd love
> to plunder. But it would be nice to establish the legal
> status of doing so under British law.

Reading through "The Modern Law of Copyright and Designs" (a wonderful
book, which keeps quoting poetry at unexpected moments) [1], we find
that copyright in a photograph requires it to be both original and
artistic. Artistic, however, is explicitly defined - any photograph is
considered to be artistic irrespective of nature.

So, original. (3.37) "It is clear, first, that the mere fact that the
work is in part derived from antedecent material does not deny it
originality; a drawing of St. Pauls cathedral may be copyright even
one might say most of the credit ought to go to Sir Christopher Wren."

(3.56) "Originality presupposes the exercise of substantial
independent skill, labour, judgement and so forth. For this reason it
is submitted that a person who makes a photograph merely [a footnote
here emphasises "merely"] by placing a drawing or painting on the
glass of a photocopying machine and pressing the button gets no
copyright at all, but he might get a copyright if he employed skill
and labour in assembling the thing to be photographed, as where he
made a montage."

So, photocopying Magna Carta [2] doesn't give me a copyright over the
end product, but photographing Magna Carta artistically displayed with
a selection of other historical artifacts from the c13th would. No
problems there.

(3.56 again) "It will be evident that in photography there is room for
originality in three respects. First, there is originality ... which
resides in such specialities as angle of shot, light and shade,
exposure, effects obtained by means of filters, developing techniques
etc. ... Secondly, there may be creation of the scene or subject to be
photographed. We have already mentioned photo-montage, but a more
common instance would be arrangement or posing of a group; this might
also involve work in setting up or controlling the illumination of the
subject to be photographed. Thirdly, a person may create a worthwhile
photograph by being at the right place at the right time."

The third coverage, whilst v. important for news photographs, is not
relevant here. It comes down to the first two.

We can assume that the original photograph was made by a professional,
that it was planned to some degree, the material was handled
carefully, &c. This allows us to say, as a result, that originality
probably subsists in the first part - the "artistic" section, as it
were. The photograph, as described, is not just of the book; it is of
"the book, framed by a ruler and colour scale". This is *certainly*
covered under the second part. The existence of a colour scale implies
a technical attention to detail sufficient to class as "skill, labour,
&c."; it's not a hurriedly tossed-off snap by someone with a Polaroid.

So, yeah. This is almost certainly covered by that copyright, which as
far as I can tell would then subsist in the British Library - it's an
original work under British copyright law.

I hope this has been clear. If not, please let me know and I'll teach
myself some more and then explain it again...

Oh, and the obvious follow-on question - can we use it in the UK under
fair dealing? No.

> When I've asked questions about such things in the past
> I'm told that since the Wikipedia servers are in the U.S.
> we can rely on U.S. laws (in this case Bridgeman v. Corel).
> I'm fine with that personally, and it would be almost
> impossible to revert that policy by now. But people should
> at least be aware of the issues that may arise for someone
> publishing Wikipedia outside of the U.S. They're potentially
> more serious than a few clearly tagged used-with-permission
> images would be.

I have wondered about this - recently we've started having servers in
France, and elsewhere, if memory serves. Does this then require
simultaneous compliance with French law?

-- 
- Andrew Gray
  andrew.gray at dunelm.org.uk

[1] When 'Omer smote 'is bloomin' lyre,
       He'd 'eard men sing by land an' sea;
   An' what he thought 'e might require,
       'E went an' took—the same as me!     - it seemed appropriate...
[2] Erp. The thought alone of what the National Archives would do to
me for contemplating that sort of copying...