[IP] Harry Potter and the Right to Read
-----Original Message-----
From: "Michael Geist"<mgeist@xxxxxxxxx>
Sent: 21/07/05 12:27:04 PM
To: "dave@xxxxxxxxxx"<dave@xxxxxxxxxx>
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@xxxxxxxxx http://www.michaelgeist.ca
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