Circumvention:

The “zoomify” tool works like this:

A user using zoomify to see an image, is shown the high resolution image for that image part at a time. Individually, no circumvention is needed to see those parts. Any user may save those parts when shown, and from them put together, jigsaw fashion, the entire image. There is no circumvention involved in that process, nor effort made to prevent them doing so.

In essence, looking purely at the claim of breaching a technical means of prevention (separate from contract or copyright), the case is this: –

John gives Jane a 20 piece jigsaw and specifies that she may see only one piece at a time, but there is no technical obstacle in the game to prevent her duplicating each piece for herself and doing as she will with it. (Dealing here not with moral, copyright or contract but purely with technical actions needed.) Can one say that Jane is breaching a “technical means of prevention” if she does just that – by copying for herself each piece (without effort or breaching), she then freely and without obstacle reassembles the same image.

Contract:

It would be a matter of fact whether a contract existed (actual or implied) concerning the accessing of the image pieces and then saving them locally. It was not anticipated by NPG that they would, it was believed it would be inconvenient, but was a contract in place forbidding it?

The question of whether NPG got a benefit (that they may not have actually wished for) such as extra visitors to their website, would be a part of the decision whether to sue, not a reason there was or was not a contract. Likewise whether or not Coetzee got benefit from his actions or not, is not material. The sole question is, did he have an agreement not to do as he did. There’s a complication here, in that contract law itself varies, not just copyright law.

Assuming that visiting a UK website, Coetzee bound his visit terms to be governed by UK law — and ignoring that CDPA says no right similar to copyright may arise other than by copyright law (a separate issue) — then one might argue:

Offer, acceptance and consideration:

The strongest argument would be something like this: NPG offers to the world, the ability to view one or more digital images from its archives, on conditions linked to from its website. A person accepts those conditions when, notified conditions exist, they nonetheless then visit the viewing page and are provided (by NPG) a means to view the images.

Unfortunately NPG’s own letter undermines that argument, to my mind fatally. They state:

(I have to rely on this as the image viewing system has since been removed)

“Clearly visible on every page of our client’s website where an image can be seen there is a ‘Use this Portrait’ menu on which two links are clearly visible:

‘License this image’ and
‘Use this image on your website’

If you click on either of these links the first thing that you are told is that you need permission to reproduce our client’s images….”

In other words, the wording did not say “these are conditions for access”, or “by accessing this section you agree to terms” or anything like that. In fact they were not presented as terms or conditions of the offer made. They were presented as ancilliary offers on a menu titled “use this image”; that users with some kinds of interest _might_ wish to visit additional pages, for example if they wished to license them, or use them on their website. A visitor _might_ visit those links, but might not. There is no requirement stated to do so, nor is it a condition they have done so to view the image. Even a visitor who wished to view the image for their website is not mandated to do so only on certain conditions. It’s presented as a pure option.

(I can’t be sure – the site may have changed – but the wording suggests an even more fatal flaw. “Clearly visible on every page… where an image can be seen”. The terms of the offer must be accepted first; they cannot be retrospectively required after acceptance. If this text means that the links were presented only when the image was viewed, they cannot be terms of viewing that image.)

Unenforceability:

The final barrier to contract would be an argument – possibly a strong one – either that this contract, or contracts of this kind by certain kinds of body, were “not in the public interest”, or the term was an unfair one (Unfair Contract Terms Act 1977 or Unfair Terms in Consumer Contracts Regulations 1999).

However, the same benefit could have been given to the NPG if medium-resolution images were provided by the NPG to Wikipedia, which is what I believe the NPG has offered to do.

In the meantime, I can only quote a similar case from Norway. Galleri NOR is the image database of the Norwegian National Library (and, I think, at least one other Norwegian museum). A while back, they asked to have some images taken down from Wikimedia sites claiming copyright. I wasn’t party to the discussions (nor do I have any right to speak for those who were), but they were persuaded to check the traffic statistics on their website. Result: 60% of hits on their website came directly from Wikimedia sites! Taking into account that the people coming from Wikimedia sites were more likely to look around the Galleri NOR site than those who came directly (logical, the people who come directly already know about the site, so probably know what they’re looking for), they estimated that Wikimedia was responsible for 80% of their total traffic.

The figures would be lower for the National Portrait Gallery, I’m sure, because it has a higher profile (and is based in a country with a larger population) than Galleri NOR. As you say, it will be interesting to find out what they really are.

For example, if one searches for “Francis Bacon,” both the NPG site and image are buried many pages into the search results. However, the Wikipedia article for Francis Bacon is the first result, and the first image on that page is the NPG image uploaded by Coetzee. And the reason it is the lead image is because it is of a higher quality than the previous image in that location, so a Wikipedia user replaced the image on the article shortly after Coetzee’s uploads. In effect, Coetzee has provided a shortcut for the NPG (web search -> Wikipedia article -> Wikipedia image description -> NPG), as compared to relying on its relatively low webrank, that has raised its profile and drove traffic to its site. While I don’t know whether the financial benefits of this webtraffic at least even out the possible losses from distribution, it certainly assists the NPG’s 1856 stated goal “to promote the appreciation and understanding of portraiture in all media.”

I would thus disagree strongly with Simon’s conclusion: “where is the consideration from Mr Coetzee to the National Gallery? He is not publicising material that would not otherwise in some form be online, as the images are available for viewing. He is, according to the NPG, risking damage to their revenue stream. This transaction, if you want to construe it as such, benefits Mr Coetzee but not the NPG, so their claim that it is a valid contract must surely fail.” Mr. Coetzee’s sole gain from his work, prior to dubious fame after becoming the center of an international copyright dispute, was the appreciation of his fellow editors on the website, as he is not paid and even edits under a pseudonym. In return, he raises the profile of and drives traffic to the NPG and provides images of value to the projects of the not-for-profit Wikimedia Foundation, which coincidentally assists the NPG in its mandate. This seems to me to clearly be “something of value.”

There is no UK copyright in the NPG images, something that the NPG should have known had it made even the most cursory examination of the relevant law.