I came across a nice Isaac Asimov quote this week: “No sensible decision can be made any longer without taking into account not only the world as it is, but the world as it will be.”

The copyright dispute that went public this week between the UK’s National Portrait Gallery and the Wikimedia Commons is lodged firmly in the world as it is. Under UK law, it seems pretty clear that the 3,000-plus high-resolution images that a Wikimedia administrator copied from the museum’s website and uploaded to the Commons are copyrighted by the museum and are not, as the Wikimedia Foundation argues, in the public domain.

But the case is making waves in the blogosphere because it’s also about the world as it will be. Digital technology is making it possible to share near-perfect copies of priceless paintings and other cultural artifacts with anyone, anywhere, instantly. And because the cost of this sharing is now practically zero, many people now believe the information itself should also be free.

And perhaps it should. But unless we figure out a reasonable way to support the institutions that spend lots of money to make these images—namely, museums—very little of this material may actually be available for sharing in the future.

Free-culture activists are applauding Wikimedia for refusing to delete the disputed images, but this isn’t a simple Robin Hood story. If the Wikimedia Foundation prevails and gets to keep the images, it could lead to an overall reduction in sharing. Don’t get me wrong—I’m a public domain maniac. I’d love to see as much of the world’s heritage digitized and freely shared as institutions can manage. But what I fear is that the episode will prompt the National Portrait Gallery and other museums to either slow digitization efforts or place greater restrictions on access to their digital collections in the future—or both.

Let me back up and explain the Wikimedia case. The Wikimedia Commons is a public file repository maintained by Wikimedia Foundation, the same non-profit organization that runs Wikipedia. (Most of the images you see alongside Wikipedia articles are stored in the Wikimedia Commons.) In March, a volunteer Wikimedia administrator named Derrick Coetzee copied 3,300 high-resolution images from the National Portrait Gallery’s online database, some of them as as large as 2400 x 3200 pixels, or about 8 megapixels. He then uploaded all of the images to the Wikimedia Commons, where, for the moment, you can view them at your leisure—just be ready for lots of lace and powdered wigs.

Coetzee, a U.S. citizen, hasn’t spoken out about the case, so it isn’t clear whether he was merely trying to make it easier for others to see the portraits, or whether he was also hoping to goad the National Portrait Gallery into a confrontation. But that was certainly the effect. In April, the gallery’s solicitors asked the Wikimedia Foundation to remove the images. It refused, for reasons I’ll get into momentarily. On July 10, the solicitors, Farrer & Co. of London, turned to Coetzee himself, sending him a letter (which he promptly posted on the Wikimedia Commons) threatening to seek injunctions and damages unless Coatzee agrees to remove the images, delete all of his copies, and generally keep off the Gallery’s digital lawn.

The letter gave Coetzee until July 20 to comply. As of this writing, the images are still online, so it’s safe to assume Coetzee and the Wikimedia Foundation are digging in their heels. He posted an update saying he’s being represented in the case by Fred von Lohmann, an intellectual property attorney for the Electronic Frontier Foundation (EFF).

The main question in the dispute is not about the portraits themselves, most of which were painted more than 100 years ago and are indisputably in the public domain. Rather, it’s about who owns the digital images. Are they copyrighted by the National Portrait Gallery, which went to the expense of hiring professional photographers to document the original paintings, and should therefore (the solicitors argue) have the right to control their distribution and collect licensing fees from anyone who reproduces them? Or are they in the public domain and therefore … Next Page »

Wade Roush is a freelance science and technology journalist and the producer and host of the podcast Soonish. Follow @soonishpodcast

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