Do monkeys dream of electric copyright?

But first, let me take a #selfie

The popular press and the blogosphere are going ape over the news that Wikimedia has refused a take-down request by photographer David Slater of the self-portrait of a macaca monkey, arguing that it is in the public domain (I promise no more monkeying around with the puns). Wikimedia posted the following in their transparency report:

“A photographer left his camera unattended in a national park in North Sulawesi, Indonesia. A female crested black macaque monkey got ahold of the camera and took a series of pictures, including some self-portraits. The pictures were featured in an online newspaper article and eventually posted to Commons. We received a takedown request from the photographer, claiming that he owned the copyright to the photographs. We didn’t agree, so we denied the request.”

Quite a lot of the commentary that I have read so far seems to assume almost as a matter-of-fact that there is no copyright in the picture because it was taken by the monkey, and therefore it belongs in the public domain. When Wikimedia editors were thinking about the copyright issue, the discussion was settled by linking to a Wikipedia article on the public domain and non-creative works, which offers the state of copyright protection for non-human works citing US law and cases. Most of the legal discussion elsewhere also engages in a US-centric interpretation of the law. However, there is absolutely no reason why this case should be about United States copyright: the picture was taken in Indonesia, the camera owner is a British citizen, and Wikimedia is registered as a charity in the UK. As the photographer resides in the UK, and Wikimedia has an agent here, if the case ever goes to court, it would almost certainly be in the UK (personal jurisdiction case could apply), so we must look at the issue using UK copyright law.

In my opinion, what the case is about is originality, and whether the threshold has been crossed. It is often remarked that there is a big difference in the level of originality required in the US and UK for copyright protection, and while some commentators have noticed a shift towards US standards, the level of originality has remained roughly the same since Walter v Lane [1900] AC 539, which was found to be good law in Express Newspapers v News (UK) [1990] 1 WLR 1320. In Walter v Lane, a set of hand-written notes “involved considerable intellectual skill and brain labour”.

Assuming then that the US interpretation has no place in this analysis, and accepting that there is clearly a different approach to originality across the Atlantic, would the monkey selfie qualify for protection in the UK? This relies entirely on the issue of whether only a human can generate works subject to copyright. The UK CDPA is silent with regards to simian copyright, but it has an area that we could use as an analogy, computer-generated works. S 9(3) of the CDPA states that the author of a literary, dramatic, musical or artistic work which is computer-generated “shall be taken to be the person by whom the arrangements necessary for the creation of the work.” The law therefore is more than willing to accept that a non-human entity can generate a work subject to copyright protection as long as the author of the process that led to the creation of the work can be identified. In this case, that would be the Mr Slater.

Furthermore, Art 6 of the Copyright Term Directive (2006/116/EC) usefully explains that “Photographs which are original in the sense that they are the author’s own intellectual creation shall be protected…” The Directive’s preamble defines original as a work that is the “author’s own intellectual creation reflecting his personality”. The Court of Justice of the European Union interpreted the meaning of originality in Infopaq, where the Danish news-clipping service Infopaq International was taken to court by the Danish newspaper association over its reproduction of news cuttings for sale to its clients. The clipping process involved a data capture process consisting of scanning images of original articles, the translation of those images into text, and the creation of an 11-word snippet for sale to Infopaq’s clients. The court had to determine whether these snippets were original enough, as the process was highly mechanised. The most relevant part of this case for me is that the CJEU gave a lot of importance to the intellectual act of selection and arrangement of the snippets. Talking about word selection, the court said:

“Regarding the elements of such works covered by the protection, it should be observed that they consist of words which, considered in isolation, are not as such an intellectual creation of the author who employs them. It is only through the choice, sequence and combination of those words that the author may express his creativity in an original manner and achieve a result which is an intellectual creation.”

How is this analogous to the monkey taking the picture? There is obviously the setting up of the camera before, but most important for me, it is the selection process that came after the picture was taken. If you check the original account of the incident, what happened was not only an isolated act of a monkey taking a picture, it took hundreds. David Slater told the newspapers: ‘He must have taken hundreds of pictures by the time I got my camera back, but not very many were in focus. He obviously hadn’t worked that out yet.’

So there was an intellectual exercise in the selection of the hundreds of pictures, enough in my mind to meet the requirement in the law of an intellectual creation “reflecting his personality”. We universally recognise that the mechanical act of taking a picture itself is not what gives it copyright, what matters is what happens before and after.

Obviously, the law is not clear and this is an interesting borderline case, the above is my own interpretation of the status of originality in UK and EU copyright law, and a court could well decide differently. However, I am sure that this is not a question that should be looked at using US law, and I would love to see more UK-based experts giving their opinion. Am I reading Infopaq too broadly? Would another case apply? Is computer-generated work an adequate analogy?

David Slater does have a case, but he may have to go to court to be able to enforce it (must fight urge to finish with cutesy reference to going bananas, or a similar ape-related play of words).