[DMCA-Activists] Harry Potter and the Right to Read

[Seth Johnson]

-------- Original Message --------
Subject: [IP] Harry Potter and the Right to Read
Date: Thu, 21 Jul 2005 13:29:36 -0400
From: "David Farber" <address@hidden>
Reply-To: address@hidden
To: <address@hidden>



-----Original Message-----
From: "Michael Geist"<address@hidden>
Sent: 21/07/05 12:27:04 PM
To: "address@hidden"<address@hidden>
Subject: Harry Potter and the Right to Read

Dave,

Of possible interest -- my latest Law Bytes column (posted
below)  answers the question of what Harry Potter, Beethoven, the
Internet  Archive and an 1800s painter named Paul Kane have in
common.  It  focuses on the damage that can occur when copyright
law goes awry  including the disturbing Harry Potter court order
which barred  Canadians from reading the latest Harry Potter book
before its  authorized release.  The order was used to compel
innocent purchasers  to return the book and to bar the Globe and
Mail from publishing its  book review since the publisher argued
that the review was based on  an "unlawful reading." 

A second story is less known: the attempt by a Manitoba school 
district to obtain the rights to use a photography of Paul Kane,
a  well-known Canadian painter during the 1800s.  The National
Gallery  of Canada sought a significant sum for the public domain
picture as  well as control over how the photograph might be
used.

The column notes that 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.

Column at
<http://www.canada.com/technology/story.html?id=f95face1-6ad5-485b-a5e4-a6a77f5ce935>

Freely available hyperlinked column at
<http://www.michaelgeist.ca/index.php?option=content&task=view&id=896>

MG

HARRY POTTER AND THE RIGHT TO READ

Along with millions worldwide who scooped up the latest Harry
Potter  tome over the weekend, the 41 schools that make up
Manitoba's  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 
children's 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 children's 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 book's 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 Canada's 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, "The Spirit Chief," 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 "does not need advice on protecting
Canadian culture" given  that "it is the story of her life".

If protecting Canadian culture means putting it under a pricey
lock  and key, she is correct.  Minister Frulla's 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
government's  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.

-- 
**********************************************************************
Professor Michael A. Geist
Canada Research Chair in Internet and E-commerce Law
University of Ottawa, Faculty of Law
57 Louis Pasteur St., Ottawa, Ontario, K1N 6N5
Tel: 613-562-5800, x3319     Fax: 613-562-5124
address@hidden              http://www.michaelgeist.ca

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