Appeared in the Toronto Star, July 18, 2005 as Harry Potter and the Amazing Injunction
Appeared in the Ottawa Citizen, July 21, 2005 as 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.

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 mgeist@uottawa.ca or online at www.michaelgeist.ca.