Harry Potter and the Right to Read

["David Farber" <dave () farber net>]

-----Original Message-----
From: "Michael Geist"<mgeist () pobox com>
Sent: 21/07/05 12:27:04 PM
To: "dave () farber net"<dave () farber net>
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
mgeist () pobox com              http://www.michaelgeist.ca

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