Wikilegal/Uploading UK Banknotes to Wikipedia

Introduction

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

In accordance with our Terms of Use (TOU), the Wikimedia Foundation (WMF) does not take an editorial role in Wikimedia projects. Generally, the community of users for the particular project in question decides what content should or should not be uploaded to a Wikimedia project. Similarly, once the decision is made that a specific piece of content should be uploaded, it is the community's responsibility to: (1) decide whether permission must be obtained from the rightsholder(s) of that content; and (2) actually obtain the necessary permissions from the appropriate parties. As such, regarding United Kingdom (UK) banknotes, it is the community's role to ask for permission from the appropriate authorities if the community decides such permission is needed.

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:

1. The copy is for a non-commercial purpose (directly or indirectly); and
2. 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:

1. The copying is done by the student or the person giving instruction;
2. The instruction is for a non-commercial purpose;
3. The source of the material is acknowledged; and
4. 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:

1. The work has been made available to the public;
2. The source of the material is acknowledged;
3. The amount of the material quoted is no more than is necessary for the purpose of the review; and
4. 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:

1. The source of the material is acknowledged;
2. The amount of the material quoted is no more than is necessary for the purpose; and
3. 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.

Conclusion

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

Introduction

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.

Conclusion

As stated in WMF’s Terms of Use, each user is legally responsible for any edits or contributions made on any of the Wikimedia projects. In this current instance, any uploading or re-use of UK banknotes without permission from the relevant authority might leave users open to both civil and criminal liability. As such, if a user is uploading any content that might result in criminal or civil liability, extreme caution should be exercised, especially if the user is in a jurisdiction subject to UK laws.

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