Barklund.org

I’ve been reading up on the matter of the National Portrait Gallery in the United Kingdom and their threatening letters to the Wikimedia Foundation about the legal status of the digitised works created by said public institution.

After reading up on UK copyright law, my judgment is unclear – but mostly in favor of the NPG and thus against Wikimedia.

The CDPA of 1988 clearly states in the very first paragraph:

1. Copyright and copyright works
   1. Copyright is a property right which subsists in accordance with this Part in the following descriptions of work—
      1. original literary, dramatic, musical or artistic works,
      2. [...]

To me, one crucial part is the word “original”. This removes the possibility of claiming, that merely taking a photograph of another work is copyrightable in itself. The law goes on to specify what each of the four here-described works are, and it is clear, that taking a photo is an artistic work (defined in §4 sec. 1.a), but it is not an original work (in my opinion), when it is a photograph of a painting.

But the manipulation done by the conservationists when digitizing the photos includes a lot of work, which is definitely craftsmanship, but if deemed as artistic craftsmanship, it is in itself covered by the CDPA in §4 section 1.c:

4. Artistic works
   1. In this Part “artistic work” means—
      2. [...]
      3. a work of artistic craftsmanship.

My conclusion is thus, that it is irrelevant whether it is a derivative work or not (non-original works are never copyrightable) – the matter of the case is, whether the work of conservationists is artistic craftsmanship or not. And I’m leaning towards a “yes”, but I’m pretty sure the case cannot be settled without a court ruling, as it is clearly a case of interpretation. You can argue that a conservationist is merely a scientist, not an artist – but even scientific papers and articles are subject to copyright, and thus I believe, that the work of a conservationist is subject to copyright given that it is artistic craftsmanship and/or original scientific work.

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