Harry Potter and the Right to Read
http://www.michaelgeist.ca/index.php?option=content&task=view&id=896
Appeared in the Toronto Star, July 18, 2005 as Harry Potter and the Amazing
Injunction
Along with millions worldwide who scooped up the latest Harry Potter tome
over the weekend, the 41 schools that make up Manitoba¹s Frontier School
Division no doubt purchased several copies for their students.
The link that connects Harry Potter and the school division that serves
northern Manitoba extends beyond a mutual interest in children¹s books.
Both were at the centre of situations last week that illustrate how good
news culture and heritage stories can easily be transformed when copyright
law goes awry.
The Harry Potter incident is widely known since it generated global
attention. A grocery store in Coquitlam, British Columbia inadvertently
sold 14 copies of the new Harry Potter book prior to its official sale date
of July 16, 2005. Reports indicate that Raincoast Books, the Canadian
publisher, mistakenly failed to include a notice on the shipping box that
the books were not to be sold in advance.
When Raincoast was informed of the sales, it joined with author J.K. Rowling
and Bloomsbury Publishing, the British publisher, to seek a court order from
the British Columbia Supreme Court to keep the book and its contents under
wraps.
Had Raincoast limited the requested order to stopping Canadian booksellers
from selling the book, the issue would have attracted little attention.
Rather than adopting that approach, however, Raincoast also directly
targeted the 14 purchasers who had lawfully purchased copies of the book.
The order compelled anyone with a copy of the book to return it to the
publisher along with any notes and other descriptions of its contents.
Moreover, it prohibited Canadians from reading or discussing any aspect of
the book.
This bears repeating. In a free and democratic society, a book publisher
sought and obtained a court order banning reading and discussion of a
children¹s book. In fact, Raincoast had asked the court to go even further,
by compelling purchasers to disclose the names, addresses, and other contact
information of any other person with whom they discussed the book¹s
contents.
After the public objected to the order (including at least one call for a
Harry Potter boycott), Raincoast issued a public explanation that cited
copyright and trade secret law as the legal basis for its actions.
The copyright law claim was particularly puzzling. While copyright law
does provide copyright owners with a basket of exclusive rights, the right
to prohibit reading is not among them. In fact, copyright law has very
little to say about what people can do with a book once they have purchased
it. As far as the law is concerned, they are permitted to read it, resell
it, or use it as a door stop if they wish. Attempts to use copyright law to
create a new form of end-user license that establishes restrictions on the
permitted uses of a book is at odds with longstanding legal principles.
While Raincoast was embroiled in the Harry Potter controversy, the Manitoba
Frontier School Division was facing a similarly troubling situation. Last
year, the Stark Museum in Orange, Texas donated four reproductions of
paintings by Paul Kane, one of Canada¹s leading artists during the 1800s.
The paintings were seen as a homecoming of sorts since one of the portraits
features the only known likeness of aboriginal elder Ogemawwah Chack, ³The
Spirit Chief,² who is a direct ancestor of many local residents.
To help educate their students about this period in Canadian history, the
school district wanted a photograph of Kane to accompany the display of the
paintings. When it discovered that the National Gallery of Canada had such
a photograph, it asked for a copy.
The National Gallery sought $150 to complete the request, more than ten
times the fee charged by the National Archives for a similar service.
Moreover, the Gallery claimed the right to see and approve final design
proofs for the use of this public domain image.
Officials from the school division were stunned since they had purchased
hundreds of copies of archival photographs and never paid more than the cost
of reproduction. They wrote to Liza Frulla, the Minister of Canadian
Heritage, who recently told the House of Commons that she ³does not need
advice on protecting Canadian culture² given that ³it is the story of her
life².
If protecting Canadian culture means putting it under a pricey lock and key,
she is correct. Minister Frulla¹s office declined to intervene, despite the
fact that the museum is part of her mandate.
Last week, officials from the school division went public with their
concerns, as they sought to call attention to the misuse of copyright law to
restrict access to Canadian culture. While their story did not match Harry
Potter for front page headlines, it nevertheless offers a vivid
demonstration of the potential damage that can result from overbroad
application of copyright laws.
Stories of this sort are not limited to Canada. As the Harry Potter and
Manitoba events were unfolding, in the United Kingdom classical music
producers criticized the BBC for offering free downloads of Beethoven
symphonies, while in the United States, the Internet Archive, a remarkable
resource of archived Internet content, was sued for copyright infringement.
Sadly, there is every indication that these cases represent only the tip of
the iceberg in Canada. Bill C-60, the federal government¹s proposed
copyright bill, envisions ever more limitations on the ability for
individual Canadians to interact with their culture, while doing precious
little to facilitate access in our libraries, schools and homes.
The Minister of Canadian Heritage or a judge on the British Columbia Supreme
Court may be unwilling to stand up for cultural issues, but surely someone
must be willing to do so. When copyright law is used to stop children from
reading or learning about their cultural heritage, it is clear that
something has gone wrong.
Michael Geist holds the Canada Research Chair in Internet and E-commerce Law
at the University of Ottawa, Faculty of Law. He can reached at
[EMAIL PROTECTED] or online at www.michaelgeist.ca.
Jul. 17/05
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