Wikilegal/Uploading UK Banknotes to Wikipedia
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- 1 Introduction
- 2 Is WMF, as opposed to the community, responsible for seeking permission to display banknotes issued by the Bank of England?
- 3 If the community does not obtain any permissions from the applicable rightsholder, is there any legal risk for the uploader of the banknotes?
- 3.1 Wikimedia Foundation Policies
- 3.2 UK Copyright Law and Fair Dealing
- 3.2.1 UK Copyright Law and Infringement
- 3.2.2 Infringement Defense: Fair Dealing
- 3.2.3 Conclusion
- 3.3 Forgery and Counterfeiting Act of 1981
- 3.4 Conclusion
Wikipedia seeks to be a free content encyclopedia. This means it encourages people to submit content that does not bear copyright restrictions on the right to redistribute, modify and improve, or otherwise use the work for any purpose in any medium, even commercially. However, current Wikipedia policies recognize that not all content submitted can be free and at times one must use non-free content to illustrate a specific article.
With this in mind, there has been some community discussion on the procedures and the risk involved in uploading copies of banknotes issued by the Bank of England to English Wikipedia. The community has asked specifically: (1) Is the Wikimedia Foundation, as opposed to the community, responsible for seeking permission to display banknotes issued by the Bank of England; and (2) If the community does not obtain any permissions from the applicable rightsholder, is there any legal risk for the uploader of the banknotes?
Please understand that due to legal ethics constraints we cannot give legal advice. Furthermore, we are not UK attorneys. This post relies on publicly available information on relevant UK law and may not include all pertinent law related to this topic. We will try to address the community’s concerns as best we can in this post within this constraints, but we encourage members of the community to consult UK counsel if they have specific questions about this subject.
Is WMF, as opposed to the community, responsible for seeking permission to display banknotes issued by the Bank of England?
Wikimedia Foundation Policies
If the community does not obtain any permissions from the applicable rightsholder, is there any legal risk for the uploader of the banknotes?
Wikimedia Foundation Policies
Before discussing any potential legal liability an uploader might incur, we must reiterate that users are responsible for their own edits and submissions as per the TOU. The Foundation requires that submitted content comply with U.S. law, including U.S. fair use standards (although the community or individual projects may impose stricter standards than those required by U.S. law). However, users should also observe the laws of the country where they are viewing or editing content. Users should exercise caution and may want to avoid contributing any content that might result in criminal or civil liability in a country that can claim jurisdiction over the user (such as violating UK laws while a UK citizen). If a user is unsure as to whether or not he or she is in compliance with local laws, he or she should consult with a local attorney.
UK Copyright Law and Fair Dealing
UK Copyright Law and Infringement
Copyright is an international right that gives the creators of literary, dramatic, musical, and artistic works the right to control the ways in which their material may be used. The current legislation that governs copyright law in the United Kingdom is the Copyright, Designs and Patents Act of 1988 (CDPA). Section 1 of the Act states:
Copyright is a property right which subsists in accordance with this Part in the following descriptions of work-
(a) original literary, dramatic, musical or artistic works,
(b) sound recordings, films, broadcasts or cable programmes, and
(c) the typographical arrangement of published editions.
A copyright owner has the exclusive rights to do the acts specified in Chapter II as the acts listed are restricted by copyright. The relevant parts of Chapter II Section 16 states:
(1) The owner of the copyright has, in accordance with the following provisions of this Chapter, the exclusive right to do the following acts in the United Kingdom-
- (a) to copy the work (see section 17); [...]
- (d) to communicate the work to the public (see section 20)
(2) Copyright in a work is infringed by a person who without the licence of the copyright owner does, or authorises another to do, any of the acts restricted by the copyright.
There are eight banks in the United Kingdom that are authorized to print pound sterling banknotes. Each of the eight banks holds the copyright to its own notes. For example, on the £20 note issued by the Bank of England, there is an international copyright symbol along with the words “Bank of England” on the back of the bill. If a person copies images of the banknote to Wikipedia, or makes available images of UK banknotes by posting them on a public site so that people could access them anytime, without the copyright owner’s permission, then that act could potentially be considered copyright infringement under the CDPA unless the defendant can establish a defense to infringement.
Infringement Defense: Fair Dealing
If a person is sued for copyright infringement in the UK, fair dealing is an affirmative defense that may be available to them. Fair dealing is much more limited than the law of fair use in the United States. Under fair dealing, if an alleged copyright infringer’s use falls into one of the five acceptable use categories, the alleged infringer is no longer liable for copyright infringement. The following section is an overview of the five different acceptable uses and how we believe that the current display of U.K banknotes on Wikipedia probably does not fall into any of the acceptable use categories, and thus would probably not be considered fair dealing.
Section 29: Research and Private Study
Copying parts of a literary, dramatic, musical, or artistic work for the purpose of private study is allowed if:
- The copy is for a non-commercial purpose (directly or indirectly); and
- The person making the copy does not make available copies of the materials for other people.
Copying for the purpose of research is allowed if the above requirements are met and the source of the material is acknowledged.
The display of UK banknotes on Wikipedia most likely does not fall constitute fair dealing for the purposes of research of private study because of the prohibition on making available copies of the materials for other people. As the banknote is an image uploaded to Wikipedia, a copy of the banknote has been made available to many other people.
Section 32: Instruction or Examination
Copying parts of a literary, dramatic, musical, or artistic work or a sound recording, film, or broadcast for the purpose of instruction or examination is allowed if all of the following condition are met:
- The copying is done by the student or the person giving instruction;
- The instruction is for a non-commercial purpose;
- The source of the material is acknowledged; and
- The copying is not done via a reprographic process.
Reproduction of UK banknotes on Wikipedia would probably not fall under this category of use because it requires the uploader to be a student or instructor and copying is not allowed.
Section 30: Criticism or Review
Quoting parts of a work in order to criticize or review a work is allowed if all of the following conditions are met:
- The work has been made available to the public;
- The source of the material is acknowledged;
- The amount of the material quoted is no more than is necessary for the purpose of the review; and
- The material quoted must be accompanied by some actual discussion or assessment (to warrant the criticism or review classification).
Generally, displaying banknotes on an online encyclopedia indicates that the images of the banknotes are being used for informational purposes rather than for critical purposes. In most cases, the banknotes will be displayed in the context of a Wikipedia article presented in a neutral point of view, which means that it is unlikely that the images will be used for criticism or review. Thus, such use is similarly unlikely to meet the requirements of this category.
Section 30: News Reporting
Using a work in order to report current events is permitted if:
- The source of the material is acknowledged;
- The amount of the material quoted is no more than is necessary for the purpose; and
- The work is not a photograph.
This use would usually not be applicable to the display of UK banknotes in Wikipedia because copies of UK banknotes contained within Wikipedia articles are generally not used in the context of news reporting. However, if images of the banknotes were displayed in connection with an article reporting a newsworthy event that involved the banknotes, that use may fall under this category.
Section 31: Incidental Inclusion
The last acceptable use is incidental inclusion. This is when part of one work is unintentionally included in another work. If an artistic work, sound recording, or film is included in another work only incidentally, then it is not considered infringement. An example of this is when a news crew rushes to the scene of an event and inadvertently records a copyrighted poster in the background. As long as the poster is not the focus of the broadcast or given much attention, then its inclusion is permitted.
If copies of a UK banknote are contained within another work appearing on Wikipedia and are only incidental to that work, such use may fall into this category. However, if the UK banknotes are being displayed on their own and not as part of another work, it's unlikely that such use would fall into this category.
Displaying copies of UK banknotes on Wikipedia may infringe on the copyright of the applicable bank under UK copyright law, unless the particular use of a UK banknote copy falls into one of the five categories qualifying as fair dealing. The community must complete a fair dealing evaluation on each individual use of a UK banknote copy to determine whether such use is infringing or protected under fair dealing. If a particular use does not fall under an enumerated fair dealing category, the uploader may risk copyright liability under UK law. Similarly, downstream re-users of the UK banknote copy may face copyright liability under UK law if their own use of the UK banknote copy does not fall within a fair dealing category. In addition to civil liability for copyright infringement, the uploader might also have criminal liability under the Forgery and Counterfeiting Act of 1981, as explained below.
Forgery and Counterfeiting Act of 1981
The Forgery and Counterfeiting Act of 1981 (FCA) is an act of the UK Parliament that dictates how forgery and counterfeiting is to be treated under UK law. Part I of the FCA deals with forgery, while part II deals with counterfeiting money.
Section 18: The Offence of Reproducing British Currency Notes
Section 18 of the FCA deals with the offense of reproducing British currency notes. It states in relevant part:
“It is an offence for any person, unless the relevant authority has previously consented in writing, to reproduce on any substance whatsoever, and whether or not on the correct scale, any British currency note or any part of a British currency note.”
UK law in this area does not leave much flexibility -- we could not find any exceptions for reproduction of banknotes for educational or noncommercial uses, nor could we find any statutory exceptions for copies of UK banknotes containing watermarks such as "Specimen" or "Sample" that would reduce the likelihood of misuse. Additionally, the act is intended to cover all means of reproduction as the act makes it an offense to reproduce “on any substance whatsoever”. This is seen in the Bank of England’s efforts to help develop and distribute anti-counterfeiting software to computer and software manufacturers, making it so that error messages are generated if one attempts to scan banknotes into programs such as Adobe Photoshop. Therefore, a user who uploads a copy of a UK banknote to Wikipedia without the permission of the issuing bank and who is under the jurisdiction of the UK may risk criminal liability under UK law, specifically Section 18 of the FCA. Similarly, a downstream re-user of such an image who is subject to UK jurisdiction may risk being held criminally liable under this statute for re-use of such an image if he or she did not obtain the appropriate permissions.
One way to avoid potential criminal liability under Section 18 would be to seek the relevant authority’s permission in writing before reproducing a UK banknote. Note that Section 18 defines the relevant authority as “the authority empowered by law to issue notes of that description.” For example, if a user wishes to upload an image of a Bank of England-issued banknote, the user must obtain written permission from the Bank of England. If the note is issued by the Bank of Scotland, the user will need to obtain written permission from the Bank of Scotland.
In order to obtain a bank’s permission, the user will also have to abide by that bank’s specific rules for reproduction. For example, the Bank of England requires three specific conditions to be fulfilled before permission for any reproduction in electronic media is granted:
|Condition 3. Reproductions may not appear in an offensive or inappropriate context or in such a manner that the Bank, in its sole opinion, believes would undermine the integrity of the currency.|
|Condition 4. There should be no distortion to the Queen's image (apart from an enlargement, reduction or slant).|
|Condition 6. The banknotes must also include the word SPECIMEN twice in solid black capital letters. Once from the bottom left corner to the top centre and again from the bottom centre to the top right corner of the banknote [...]. The word SPECIMEN must be not less than one-third of the length of the reproduction in length and not less than one-eighth of the height of the reproduction in height. This applies whether the entire banknote is reproduced or just part.|
Once permission is granted, the user should theoretically be able to upload the image without worrying about criminal liability under Section 18. (Again, please consult with a UK attorney to be sure.) However, any other users downstream who wish to re-use the image will need to seek individual permission from the appropriate bank before doing so.
Legal Consequences of Violating the FCA
Section 22(5) of the FCA lays out the penalties that a person might incur if they are found guilty of violating Section 18. If a person is found guilty, he or she could be liable (a) on summary conviction, to a fine not exceeding the statutory maximum; and (b) on conviction on indictment, to a fine.
- Most content on Wikipedia is licensed under the Creative Commons Attribution ShareAlike 3.0 Unported License or is in the public domain.
- Copyright, Designs and Patents Act, 1988 (UK).
- Id. at S.1.
- Id. at S.16.
- BANK OF ENGLAND, http://www.bankofengland.co.uk/banknotes/Pages/current/current_20.aspx (last visited Apr. 10, 2014).
- Copyright, Designs and Patents Act, 1988 at S.17 (“Copying in relation to a literary, dramatic, musical or artistic work means reproducing the work in any material form. This includes storing the work in any medium by electronic means.”).
- Id. at S.20 (“References in this Part to communication to the public are to communication to the public by electronic transmission, and in relation to a work include-[...] (b) the making available to the public of the work by electronic transmission in such a way that members of the public may access it from a place and at a time individually chosen by them.”).
- Please keep in mind that this post does not consider any jurisdictional defenses, choice of law issues, or any other legal considerations that might be applicable to any particular case. If you have any questions on how the law would apply to a specific case, please consult with an attorney in your jurisdiction.
- Copyright, Designs and Patents Act, 1988, Chapter III Acts Permitted in Relation to Copyright Works (UK).
- See Giuseppina D’Agostino, Healing Fair Dealing? A Comparative Copyright Analysis of Canada’s Fair Dealing to U.K. Fair Dealing and U.S. Fair Use, 53 McGill L.J. 309, 314 (2008) (“Fair dealing, as found in the United Kingdom’s existing copyright framework, has been widely characterized as restrictive, featuring an exhaustive list of defined exceptions. Its U.S. “cousin”, fair use, has been seen (mainly by non-U.S. scholars) as a more robust vehicle for users.”).
- Copyright, Designs and Patents Act, 1988 at S.29: "(1) Fair dealing with a literary, dramatic, musical or artistic work for the purposes of research for a non-commercial purpose does not infringe any copyright in the work provided that it is accompanied by a sufficient acknowledgement (1B) No acknowledgement is required in connection with fair dealing for the purposes mentioned in subsection (1) where this would be impossible for reasons of practicality or otherwise. (1C) Fair dealing with a literary, dramatic, musical or artistic work for the purposes of private study does not infringe any copyright in the work. [...] (3) Copying by a person other than the researcher or student himself is not fair dealing if— [...] (b) in any other case, the person doing the copying knows or has reason to believe that it will result in copies of substantially the same material being provided to more than one person at substantially the same time and for substantially the same purpose."
- Copyright, Designs and Patents Act, 1988 at S.178 (defining private study as not including any study “which is directly or indirectly for a commercial purpose.”).
- Copyright, Designs and Patents Act, 1988 at S.32: "(1) Copyright in a literary, dramatic, musical or artistic work is not infringed by its being copied in the course of instruction or of preparation for instruction, provided the copying— (a) is done by a person giving or receiving instruction, (b) is not done by means of a reprographic process, and (c) is accompanied by a sufficient acknowledgement, and provided that the instruction is for a non-commercial purpose."
- Id. at S.178 (defining reprographic purpose as a process for making multiple copies whether through an appliance or electronic means).
- Id. at S.30 (“Fair dealing with a work for the purpose of criticism or review, of that or another work or of a performance of a work, does not infringe any copyright in the work provided that it is accompanied by a sufficient acknowledgement and provided that the work has been made available to the public.”).
For the purposes of subsection (1) a work has been made available to the public if it has been made available by any means, including—
(a) the issue of copies to the public;
(b) making the work available by means of an electronic retrieval system;
(c) the rental or lending of copies of the work to the public;
(d) the performance, exhibition, playing or showing of the work in public;
(e) the communication to the public of the work,
but in determining generally for the purposes of that subsection whether a work has been made available to the public no account shall be taken of any unauthorised act.
- See Hubbard v. Vosper  2 WLR 389 (“It is impossible to define what is “fair dealing.” It must be a question of degree. You must consider first the number and extent of the quotations and extracts [...] Next, you must consider the proportions. To take long extracts and attach short comments may be unfair. But, short extracts and long comments may be fair.”).
- See Fraser-Woodward Ltd. v. British Broadcasting Corp. Brighter Pictures Ltd  EWHC 472 (CH) paragraph 35-37.
- Copyright, Designs and Patents Act, 1988 at S.30 ("Fair dealing with a work (other than a photograph) for the purpose of reporting current events does not infringe any copyright in the work provided that [...] it is accompanied by a sufficient acknowledgement.”).
- See supra note 16 and accompanying text.
- Copyright, Designs and Patents Act, 1988 at S.31.
- Forgery and Counterfeiting Act, 1981 (UK).
- Id. at S.18: “"British currency note' means any note which— (a) has been lawfully issued in England and Wales, Scotland or Northern Ireland; and (b) is or has been customarily used as money in the country where it was issued; and (c) is payable on demand".
- Id. (“‘the relevant authority’, in relation to a British currency note of any particular description, means the authority empowered by law to issue notes of that description.”)
- Id. (emphasis added).
- Tony Thompson, Security Clampdown on the Home PC Banknote Forgers, THE GUARDIAN, June 05, 2004.
- Id. at S.18
- BANK OF ENGLAND, Bank of England Reproduction Guidelines, (last visited Apr. 09, 2014).
- Id. at S.22.