any type of legal process, even mediation, is more than most GLAMs can afford despite whether the parties proceed to trial where the rule on a loser bearing costs would apply. But because these factors prevent access to or use of courts to settle the matter, GLAMs resort to using cease-and-desist notices of infringement. In 2009, the National Portrait Gallery did exactly this in a letter to Wikipedia editor Derek Coetzee, which is now publicly available online.[1] It is much cheaper (and usually less public) to resolve disputes this way. The nature of the UK legal system thus presents deterrents to judicial resolution.
There was unanimous consensus among interview participants that no GLAMs previously had or planned to enforce copyright claims beyond a cease-and-desist. Notices primarily pertain to egregious reuses or infringement of in-copyright collections. Many noted they lacked resources (and staffing) to issue notices.
2.4.2. Voluntary resolution is unlikely
Few GLAMs employ policies that align with the UK IPO’s Copyright Notice. The majority position is to make copyright claims despite the IPO authority. Moreover, despite two decades of data indicating that licensing incurs losses, GLAMs continue to operate such services.[2]
Recent data suggests these sources of limited income are shrinking with each GLAM’s shift to open access. In other words, licensing images of public domain works is neither a present nor future revenue scheme with any potential for growth. UK GLAMs must operate within a global marketplace for image licensing where high-resolution images are increasingly released by other GLAMs to the public domain for any reuse. As one participant commented, “You can’t compete with free.”
As early as 2002, studies by Simon Tanner and Marylin Deegan reported the majority of institutions were funnelling income back into running the service, which operated at a greater cost than it brought in.[3] Subsequent studies across libraries, archives and special collections have reinforced these findings.[4] During the House of Lords debate, Lord Freyberg raised this and other publicly available UK data showing that between 2013-2017:
- Government Art Collection operated at a loss, except for a profit of £180 made in 2017.
- National Gallery received between £121,014 (2013) and £107,847 (2015) for all image licensing* operated through the National Gallery Company. From 2016, the Gallery received a flat income of £100,000 per year based on licensing its image collection to the National Gallery Company on an annual basis. As a private entity, the National Gallery Company is not subject to the Freedom of Information Act 2000.
- National Galleries Scotland received between £8,543 (2013) and £19,720 (2016) in profit.
- National Portrait Gallery brought in between £225,001 (2014) and £114,137 (2017) in profit for all image licensing*, while spending between £216,161 (2014) and £245,941 (2017) in total costs related to all departmental work. Notably, the 3,300 high-resolution images uploaded in 2009 by user Derek Coetzee to Wikimedia Commons remain online more than a
- ↑ https://commons.wikimedia.org/wiki/User:Dcoetzee/NPG_legal_threat
- ↑ See Section 1.
- ↑ https://kclpure.kcl.ac.uk/portal/en/publications/exploring-charging-models-for-digital-cultural-heritage-in-europe(5f0e70c0-8753-4d71bbf9-881dfa5352a9)/export.html, p 1; https://kclpure.kcl.ac.uk/portal/en/publications/reproduction-charging-models--rights-policy-fordigital-images-in-american-art-museums(95d04077-f8ec-4094-b8c1-d585c6b16d9b).html, p 40
- ↑ See: https://meridian.allenpress.com/american-archivist/article/74/2/522/24193/Copyfraud-or-LegitimateConcerns-Controlling; https://www.clir.org/pubs/reports/pub157/; https://pro.europeana.eu/post/making-impacton-a-small-budget; https://rbm.acrl.org/index.php/rbm/article/view/435; https://journals.sub.uni-hamburg.de/hjk/ article/view/1191; https://www.scienceopen.com/document?vid=72172cf4-9b91-46cc-a494-bf95694a8610
