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UK's National Portrait Gallery Threatens To Sue Wikipedia User 526

Posted by Soulskill
from the pictures-of-pictures dept.
jpatokal writes "The National Portrait Gallery of London is threatening litigation against a Wikipedia user over his uploading of pictures of some 3,000 paintings, all 19th century or earlier and firmly in the public domain. Their claim? The photos are a 'product of a painstaking exercise on the part of the photographer,' and that downloading them off the NPG site is an 'unlawful circumvention of technical measures.' And remember, the NPG's taxpayer-funded mission is to 'promote the appreciation and understanding of portraiture in all media [...] to as wide a range of visitors as possible!'"
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UK's National Portrait Gallery Threatens To Sue Wikipedia User

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  • by BadAnalogyGuy (945258) <BadAnalogyGuy@gmail.com> on Saturday July 11, 2009 @10:25AM (#28659791)

    The paintings may be in the public domain, but the photographs are copyright to the photographer.

    So good luck to the dipshit user who uploaded them.

    • by John Hasler (414242) on Saturday July 11, 2009 @10:30AM (#28659827) Homepage

      > The paintings may be in the public domain, but the photographs are copyright to the
      > photographer.

      Under UK law. As the letter from the lawyer admits, they are probably not protected by copyright at all in the US. Unfortunately, the parties appear to be residents of the UK. Where are the Wikipedia servers on which the photos now reside located?

      • by Raul654 (453029) on Saturday July 11, 2009 @10:37AM (#28659893) Homepage

        The user they threatened, and the servers, are both located in the US. There's really no way for them to pursue this.

        • Re: (Score:2, Informative)

          by drinkypoo (153816)

          The user they threatened, and the servers, are both located in the US. There's really no way for them to pursue this.

          Copyright law is international. Only a handful of nations have not signed on in whole or in part to the concept of copyright as it is known in the USA.

          • by Raul654 (453029) on Saturday July 11, 2009 @10:50AM (#28660009) Homepage

            If they sue him in the US, it'll get tossed out on the basis that the US does not recognize these works as having copright (or any "slavish" reproductions thereof, according to Corel v. Bridgeman); if they sue him in the UK, he can ignore the lawsuit, have a default judgement entered against him, and good luck to them in pursuing it.

            • Re: (Score:3, Funny)

              by causality (777677)

              he can ignore the lawsuit

              I'm not a lawyer or anything ... but that just sounds like a really, really bad idea.

              • by Bigjeff5 (1143585)

                How so? The UK has no power to enforce a lawsuit in the US.

                Seriously, what are they going to do? Fine him if he ever goes to England?

            • by nbauman (624611) on Saturday July 11, 2009 @11:49AM (#28660545) Homepage Journal
              Corel v. Bridgeman http://en.wikipedia.org/wiki/Corel_v._Bridgeman [wikipedia.org], that's what I was trying to remember. Thank you.
          • > Copyright law is international.

            No it isn't. While there are treaties that obligate the signatories to bring their copyright laws into conformance with some general principles the actual laws are national and are enforced only by national courts.

          • The Berne convention states that a work copyrighted in one signatory country will be treated as being copyrighted in all of the signatory countries. Note, that this just means that local copyright laws apply in all countries. For example, if you have two countries, one with 50-year copyright terms and one with 75-year terms, and you copyright a work in the former, then 60 years later it will still be in copyright in the second country but not the first.
            • by Bigjeff5 (1143585)

              And in the US, where the supposed violation took place, copying and posting these pictures does not violate copyright law. Copyright may have been broken if it were in GB, but it wasn't in GB, it was in the US and it wasn't broken here.

              The UK can have copyright here, and it will be honored according to US law, but it will NOT be honored according to British law.

      • by yincrash (854885)
        I believe this is true of the US as well, but IANAL.
      • Nope - the uploader is in the US, the servers are in the US, the WMF is in the US. This was unambiguously legal in the US under well-established copyright law.

        They're making threats because they think they can bully him anyway.

    • Re: (Score:2, Interesting)

      by Anonymous Coward

      Well that may be true under the law, but who cares? The laws is being written to serve corporate power elites, there's no reason to respect it anymore, just do what's right, not what's legal.

    • Re: (Score:3, Informative)

      by Vinegar Joe (998110)

      The paintings may be in the public domain, but the photographs are copyright to the photographer.

      So good luck to the dipshit user who uploaded them.

      Doesn't that depend on whether or not the photos were made "work for hire"? Does the concept of "work for hire" exist in UK copyright law?

      http://nylawline.typepad.com/photolawyer/work_for_hire/ [typepad.com]

      • by hedwards (940851)
        Not in this case. Since there isn't a valid basis for claiming copyright, it doesn't belong to anybody.

        This is a pretty clear case of catalog photography as in photographs for the purpose of cataloging the items. Any work that was done in the pre-Disney era is not going to be subjected to copyright protection and since these photos weren't creative in nature rather an attempt to duplicate public domain work, they aren't entitled to copyright protection. They may feel entitled to being paid, but they're n
    • False - Bridgeman v Corel. Mere sweat of the brow does not create a new copyright.

      If you read the NPG's letter, they acknowledge that the uploader (an American) hasn't done anything against the law in the US. They're suing to bully.

  • by h4rm0ny (722443) on Saturday July 11, 2009 @10:25AM (#28659793) Journal
    Really, who took them? The site is Slashdotted, so we don't know. If a visitor to the gallery took the photographs and uploaded them, then it sounds fair enough. If a photographer working for the gallery itself took them, then it seems reasonable to say that they're the gallery's. Actually, the site has just loaded and it seems that the user downloaded the photographs from the NPG's own website. So TFS is misleading again. Is it me or is the sole aim of Slashdot editors to provoke flame wars to increase traffic and ad-revenue on their site?
    • > So TFS is misleading again.

      How?

    • by TorKlingberg (599697) on Saturday July 11, 2009 @10:49AM (#28660005)

      A photographer working for the gallery itself took them. They do not allow visitors to take photos to protect their monopoly of reproductions of public domain paintings. In the US, a simple photo of a painting is not copyrighted because it has no original input. The gallery claims it is different in the UK, but who knows?

      • As a matter of UK law, the gallery's position is most likely correct. How it enforces this against Wikipedia and/or the user in question is a different story...

    • In as much as I'm 99% certain that the National Portrait Gallery doesn't allow photography in the site, I'd say that these are not the user's photos.

  • Copyright mess (Score:3, Interesting)

    by enrevanche (953125) * on Saturday July 11, 2009 @10:31AM (#28659837)
    Unfortunately photos are always copyrighted, even if they are just an attempt at reproducing something not currently covered. You can always copy the text of something out of copyright, photo reproduction should be no different. If the photos are taken in a way to represent more than just the original image, then they should be considered original work. But when they are an attempt to represent just the original image, they should not be copyrightable. It is after all, the original image that was the creative work.
    • by ShakaUVM (157947)

      >>Unfortunately photos are always copyrighted, even if they are just an attempt at reproducing something not currently covered.

      Uh, sorta. It really depends if they're considered duplicates or original works. Duplicates generally have the same rights as the original.

    • Re:Copyright mess (Score:4, Informative)

      by John Hasler (414242) on Saturday July 11, 2009 @10:36AM (#28659889) Homepage

      > But when they are an attempt to represent just the original image, they should not be
      > copyrightable.

      And in the USA they aren't. Unfortunately these events are occuring in Europe.

      • Re:Copyright mess (Score:4, Informative)

        by Raul654 (453029) on Saturday July 11, 2009 @10:54AM (#28660031) Homepage

        Unfortunately these events are occuring in Europe. - no, they are not. The user they threatened is in the US, and the servers he uploaded to are in the US.

        • Then he is safe. He had their permission for the initial download. Their complaint is about what he with those copies after he downloaded them, but he did that in the USA where UK courts have no jurisdiction and US courts say that what he did is legal.

    • by Renraku (518261)

      Wasn't it said a while back that a plain photograph of a public domain image automatically goes into public domain, unless it can be proven that the photograph is, in some way, unique? It sets a scary precedent if not.

      Imagine being able to rescue your about-to-expire work of video/audio/music by re-recording it and calling it new? The base film would never be allowed to hit public domain because they could just sue anyone that uploads it, claiming that it's a re-recorded version with copyright.

      • > Wasn't it said a while back that a plain photograph of a public domain image
        > automatically goes into public domain, unless it can be proven that the photograph
        > is, in some way, unique?

        That is USA law. The NPG is in the UK. Fortunately, the guy they are threatening to sue is in the USA, as are the servers with the pictures.

  • by Bazman (4849) on Saturday July 11, 2009 @10:38AM (#28659911) Journal

    http://www.npg.org.uk/business/images/use-on-web.php [npg.org.uk]

    ----

    Using our images on websites

    Do the right thing!

    You need permission to use our images on your website.

    Here's how to apply (it's easy):

          1. Tell us which images you would like to use (e.g. NPG 1, William Shakespeare).
          2. Tell us how you would like to feature the image, and how long for.
          3. Tell is whether your website is personal, academic, commercial or corporate.
          4. Provide us with the URL and your postal address.
          5. Let us know who is sponsoring the site (i.e. who pays the bills!).

    Why not send your application now, by e-mail to rightsandimages@npg.org.uk.

            * We will then reply, to let you know if permission is available.
            * We will also let you know how much it is going to cost.
            * If you confirm you order in writing and provide full payment, we will fulfil your order as quickly as possible and supply the images with a licence to use them in your project.
            * The specific terms of the licence are set out in the invoice (you'll need to get further permission if you want to use the images in any other way) while the general terms are spelt out carefully in our terms & conditions.

    For a guide to our rates, or if you would like more details before applying, download our standard pdf website information pack comprising

            * an introduction
            * an application form
            * a table of current rates
            * our full terms & conditions

    ----

      Maybe I'll get sued for copying their FAQ text now...

    • by BasilBrush (643681) on Saturday July 11, 2009 @10:56AM (#28660045)

      It makes it clear how the National Portrait Gallery WANTS to make additional money from reproductions of classical artworks. It doesn't make it clear whether that is right. If the lawyer's interpretation of the law i right, the NPG does have the right under UK copyright law to do so. However it's morally wrong because:

      1) The law is flawed: The act of photographing a painting with the best quality of reproduction of the original is a technical exercise, not a creative act. It's not essentially different from an experienced photocopier operator making a photocopy. It should not therefore add additional copyright privileges over and above the item that is being photographed.

      2) The National Portrait Gallery is a public body who receive public funds on the basis that they display and educate a many people as possible about the artworks they have. The ability to disseminate high quality reproductions via the internet at no cost to them should be thought of as a godsend, not as a financial loss. They are supposed to be serving the public good, not acting like a corporation. Thus even if the law could prevent this happening, they shouldn't use it.

  • by Antique Geekmeister (740220) on Saturday July 11, 2009 @10:44AM (#28659961)

    I've read the complaint. (OK, I admit it, I'm a Slashdot user who Reads The Fine Article.) They've being completely reasonable: they explain the law, they ask for (almost entirely) reasonable steps to avoid the lawsuit, and they offer to cooperate in providing _low resolution_ images for the use of Wikimedia.

    If I ever get sued, I want to be sued by these people. They're working with the law and with their client's needs, and not violating the public's needs for information.

    • by Raul654 (453029) on Saturday July 11, 2009 @10:51AM (#28660019) Homepage

      They're threatening an american user for doing what is perfectly legal in the US on servers based in the US. Their copyright claims have no merit whatsoever.

      • Re: (Score:2, Insightful)

        by jameslore (219771)

        Did they obtain the images from a British server?

        Jurisdiction is a messy topic on the internet. If you want to play silly buggers with it then you can probably expect such websites to be restricted to UK IPs. Shame, but if good faith isn't shown they won't have much choice to protect their rights under local law.

      • I must have missed something: how is this legal in the US?

        • Re: (Score:3, Informative)

          by Raul654 (453029)

          US courts have already ruled [wikipedia.org] that "slavishly accurate" reproductions of public domain works have no copyright protection.

        • by jrumney (197329)
          Copyright only applies to original artistic works, a mechanical reproduction made many years later does not extend the copyright or have a copyright of its own.
  • by purduephotog (218304) <hirschNO@SPAMinorbit.com> on Saturday July 11, 2009 @10:45AM (#28659971) Homepage Journal

    I have a modified IR camera I use that I built to photograph artwork- it's amazing what you can sometimes see 'underneath' the paints the artist chose.

    In one gallery in Germany I saw a work of art in IR that had been severely damaged and retouched- it was clearly evident in the IR photograph but not in the VIS photograph. I showed them to the curator (I spoke no German and he spoke no English) and tried to ask what had happened to it in its history (as there was no statement of that on the work).

    I swear the man was going to shit a brick. He had a look of pure panic on his face when he saw the IR photograph- I think he immediately ran up there to check on it. I don't think he understood what he was seeing (not surprising) so my wife and I left ASAP.

    Now to me, IR would bring value- so would UV photographs of the artwork. I know there are places that can do this much more professionally ... but hey, a hobby is a hobby.

    The museum is out of line. In a 'real world' they'd lose. They'll probably respond by banning photography and forcing anyone that does want to do shots to sign a waiver.

    • > The museum is out of line. In a 'real world' they'd lose. They'll probably respond by
      > banning photography and forcing anyone that does want to do shots to sign a waiver.

      They do ban photography.

    • Re: (Score:3, Informative)

      They already banned photography.

    • Re: (Score:3, Interesting)

      by Reziac (43301) *

      Now I'm curious... got any examples online that I could look at, of IR vs VIS?

  • He could have.... (Score:4, Informative)

    by julian67 (1022593) on Saturday July 11, 2009 @11:03AM (#28660099)

    He could have just asked for permission to use the pictures. The NPG is not some corporate hawk, it's publicly funded, having an ethos of education and self improvement for all, in the Victorian tradition. The person who obtained the images chose to ignore this and harvest thousands of high resolution images (why does Wikipedia need high-res to display 96dpi???), circumventing copy protection in the process. The sale of these images, at extremely reasonable and non-commercial rates, is one of the sources of funding for the NPG.

    Dcoetzee has brought into conflict two organisations which should normally benefit from each other, damaged the reputation of Wikipedia and all around acted like an idiot.

    • by David Gerard (12369) <slashdot@NospAm.davidgerard.co.uk> on Saturday July 11, 2009 @11:11AM (#28660171) Homepage

      False. Wikipedia doesn't do "for Wikipedia" licensing, and can't - its mission is to make reusable content.

      Also, you're saying the NPG has to lock up culture to promote it, and sue people who actually promote it. This doesn't actually make sense.

      The NPG actually acknowledges in their letter that the poster's actions were entirely legal in America, and that they're making a threat just because they think they can.

      The Wikimedia community and the WMF are absolutely on the side of these public domain images remaining in the public domain.

      The NPG will be getting radioactive publicity from this. Imagine the NPG being known to American tourists as somewhere that sues Americans just because it thinks it can.

      • False. Wikipedia doesn't do "for Wikipedia" licensing, and can't - its mission is to make reusable content.

        Doesn't publishing things that are in copyright in parts of the world go against this? Anyone who copies the pictures off Wikipedia in the UK, now, will be committing copyright infringement. It makes Wikipedia a lot less useful if you don't know whether it's legal to copy images from it, even with attribution.

        The real question is whether the NPG would have been willing to CC license these if Wikimedia's foundations first action had been to ask, rather than copy without permission.

        The NPG will be getting radioactive publicity from this. Imagine the NPG being known to American tourists as somewhere that sues Americans just because it thinks it can.

        Perhaps you're not aware

      • by julian67 (1022593)

        The NPG does not "lock up culture". It's a *public* gallery with *no admission charge*. The images of all the works are already *freely* and publicly viewable online. The collections are made available nationally and globally by means of touring exhibitions. Why does Wikipedia need to surreptitiously and illegally obtain high res versions?

        As to reputation, it has nothing to do with the person's nationality. Imagine Wikimedia being known as an entity that disregards, undermines and damages the world's f

  • For several years, the National Portrait Gallery has claimed copyright over public domain images in their possession. Wikimedia has ignored these claims, occasionally laughing. (Bridgeman v. Corel [wikipedia.org]. Sweat of the brow is not creation in US law; go away.) Our official stance in this time has been "sue and be damned."

    So the National Portrait Gallery has tried. Here's their letter [wikimedia.org]. A lollipop for every misconception or unlikely or impossible demand. This was sent after (so they claim) the WMF ignored their latest missive. The editor they sent the threat to is ... an American [wikipedia.org].

    A UK organisation is threatening an American with legal action over uploading images that are public domain in the US to an American server — unambiguously, in established US law, not a copyright violation of any sort. I wonder how the case will go.

    The letter is particularly odious in that it admits that his actions were completely within US law, but threatens to make his life a misery just because they think they can unless he (an individual) can actually make the WMF do something the NPG wants. This is actually worse than the RIAA.

    It's most unfortunate that the National Portrait Gallery considers this in any way sensible behaviour, considering how well we've been going with museum partnerships for Wikipedia Loves Art [wikipedia.org] — the V&A [wikipedia.org] were fantastically helpful and lovely people, who realise that spreading their name and exhibits far and wide is much more likely to get them money and fame than claims of copyright over works hundreds of years old.

    I can't see this ending well for the National Portrait Gallery, whatever happens. Anyone who could speak on their behalf at this level won't be in until Monday; I wonder if they'll be surprised at the people politely queueing with pitchforks and torches.

    I'll be calling them [npg.org.uk] first thing Monday (in my capacity as "just a blogger on Wikimedia-related topics") to establish just what they think they're doing here. Other bloggers and, if interested, journalists may wish to do the same, to establish what their consistent response is.

    • by julian67 (1022593) on Saturday July 11, 2009 @11:52AM (#28660583)

      "his actions were completely within US law"

      Circumventing copy protection? DMCA anyone? If he did this to a US site he would be charged with a felony. As the lawyer's letter states the act of circumvention of copy prevention took place on UK based servers and he's guilty under UK law.

      "Unlawful circumvention of technical measures

      s.296ZF(1) of the CDPA provides as follows:

              "In sections 296ZA to 296ZE, "technological measures" are any technology, device or component which is designed, in the normal course of its operation, to protect a copyright work other than a computer program."

      s.296ZA(1) of the CDPA provides as follows:

              "This section applies where -
              (a) effective technological measures have been applied to a copyright work other than a computer program; and

              (b) a person (B) does anything which circumvents those measures knowing, or with reasonable grounds to know, that he is pursuing that objective.

      As you know, the images from our client's website that you have copied were made available from our client's website using "Zoomify" software. As you know, Zoomify is an application that is used to publish photographic images in such a way that an entire high resolution image is never made available to a user although high-resolution extracts or "tiles" are made available one-at-a-time. Our client used the Zoomify technology to protect our client's copyright in the high resolution images.

      By deliberately posting images from our client's website to the Wikipedia website in which the Zoomify software has been circumvented you have therefore acted in breach of section 296ZA(1) of the CDPA.

      [edit] "

      If you contend that the act of circumvention took place in the US then he's guilty under the far more onerous US law. Whichever way you look at it he did something that if discovered inevitably leads to either litigation or criminal prosecution. The NPG made an attempt to deal with this on a less formal basis and was rebuffed, hence litigition ensues.

  • by Lemming Mark (849014) on Saturday July 11, 2009 @11:14AM (#28660199) Homepage

    The NPG's UK taxpayer-funded mission.

    So they're working under UK law. It kinda sucks that our copyright laws and, in some ways, less friendly than the US. Even stuff the government itself produces is not public domain over here. But that's the law here, that's how it works.

    Making a high resolution reproduction of a work of art requires special equipment and skills, so I really think it's fair enough if that's copyright - somebody has invested money, skills and effort in making the reproduction be as good as possible. The situation is different in the US but the NPG ain't in the US. If the UK taxpayer funded it and UK law says that it's copyrightable, you can understand the NPG feeling the need to protect the UK taxpayer's investment by maintaining control of the images.

    Given they control their own reproductions of the pictures, would it be acceptable for them to deny visitors the right to take their own photographs? I think not. But that's a separate debate because this guy didn't go there and invest the time to make photographs that he would then have had copyright on under UK law, he downloaded them from the National Gallery's website. I agree with the many posters before me that whilst it somewhat sucks that these creative works aren't available digitally in the public domain, the NPG are really being pretty reasonable about this - they've offered to work out terms for lower resolution imagery to be made available to Wikipedia, which is a lot more constructive than you'd expect from a corporate entity. It really looks like they're trying to defend their legal position sensibly whilst still facilitating the transfer of information - good for them.

    But, please, Wikipedia users and everyone else - feel free to increase pressure on our government and institutions (and those in other countries) to have a strong public domain and sensible, fair copyright laws. We still have further to go, it's just a question of how we choose to represent ourselves.

    • No (Score:3, Insightful)

      Making a high resolution reproduction of a work of art requires special equipment and skills, so I really think it's fair enough if that's copyright - somebody has invested money, skills and effort in making the reproduction be as good as possible.

      It takes a lot of special equipment and skills to take apart a 1957 Chevy completely, and then put it back together. Somebody has invested money, skills, and effort into putting it back together as completely as possible. Is the resulting work copyrightable? Of course not. Copyright law rewards creative works, not "hard work" or investment of time and labor.

  • by gurps_npc (621217) on Saturday July 11, 2009 @11:21AM (#28660271) Homepage
    This issue strikes at the heart of the international nature of the internet.

    1. In the UK, it would be a crime.

    2. In the USA it is not a crime.

    3. The act was done in the USA.

    QED no crime was committed. The problem is that by inference we need a single global law for all electronically copyable information. That includes all photos, art, music, movies, books, etc.

    The thing that makes the problem difficult is A. There is no global organization with anything close to the authority or trust to create such a global law and B. There are SIGNIFICANT philosophical differences about the kinds of laws we need. Whether it is is Freedom of the Press issue, a slander issue, or even business model issues (I personally think a 10 year renewable with sequel, copyright system would work best) there is HUGE disagreement still on what is fair and workable.

  • by bcrowell (177657) on Saturday July 11, 2009 @11:38AM (#28660417) Homepage

    I got one of these letters in 2004:

    Dear Sir,

    We notice you have an image of Isaac Newton on your website www.lightandmatter.com/ , which is of a portrait in the
    collection of the National Portrait Gallery, London (NPG 2881).

    As we do not appear to have licensed a copy of this portrait for use on your website, we wondered whether you would
    let us know the source from which you obtained the reproduction.

    Although there may no longer be copyright in original portraits from this period, there is copyright in recently taken
    photographs, or scans such as those that appear on our website.Unauthorised reproduction of such photographs or scans
    may be an infringement of copyright law.

    I look forward to hearing from you regarding this matter.

    Yours sincerely,

    Bernard Horrocks
    Copyright Officer
    National Portrait GallerySt Martin's PlaceLondon WC2H OHE

    I'm in the U.S., and the server is in the U.S. IIRC, I sent them back an email with a link to this article [wikipedia.org] on Bridgeman Art Library v. Corel Corp., explaining that their copyright wasn't legally valid in the U.S. Never heard from them again.

    The letter quoted in TFA does sound a lot more aggressive than what I received. Possibly they're more interested in pursuing this case since the number of images is large, and WP has a high public profile. It would be interesting to hear from someone with some legal expertise on whether there would be any practical effect on WP or Dcoetzee if they just ignored the threat and allowed a default judgment to be entered against Dcoetzee in the UK. If Dcoetzee or Jimmy Wales take a vacation in Scotland, do jackbooted thugs meet them at the airport terminal and take them away to Euro-Copyright Prison, where they'll have to spend a 20-year sentence wearing black turtlenecks and listening to French pop music?

    • Re: (Score:3, Interesting)

      by DerekLyons (302214)

      It would be interesting to hear from someone with some legal expertise on whether there would be any practical effect on WP or Dcoetzee if they just ignored the threat and allowed a default judgment to be entered against Dcoetzee in the UK. If Dcoetzee or Jimmy Wales take a vacation in Scotland, do jackbooted thugs meet them at the airport terminal and take them away to Euro-Copyright Prison, where they'll have to spend a 20-year sentence wearing black turtlenecks and listening to French pop music?

      IANAL - b

  • Bridgeman vs. Corel (Score:4, Informative)

    by Animats (122034) on Saturday July 11, 2009 @11:38AM (#28660419) Homepage

    In the US, this is completely legal. That's been settled law since Bridgeman vs. Corel (Corel issued a CD of photos of public domain paintings) and Feist vs. Rural Telephone (phone books not copyrightable; no creativity.). In fact, in Feist, the Supreme Court held that it's a constitutional issue; Congress's right to make copyright law is limited to creative works. Nor does the US have "database copyright", despite lobbying attempts for it. There's also Meshwerks vs. Toyota, which reinforces Bridgeman at the appellate level.

    UK law in this area is still iffy. Which is going to be a problem here.

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