My latest Law Bytes column (Toronto Star version, freely available hyperlinked version) brings together two Canadian copyright stories from last week that demonstrate the damage that can occur when copyright law goes awry.
The first is well known: the very 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."
The second 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.
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.
“freely available” nice touch
I noticed you put “freely available” for the download link. I take it this is in reaction to Bill C-60 insofar as to anything on the internet that does not specifically state “freely available” or “royalty free” etc., the content in question is not for public use?
Anyway, you are correct in that this is basically the first step in a downward spiral. Canadians are in danger of losing access to their culture and heritage to those who do not see it as our right, but see it as a way to make a quick $.
Why was the injunction granted?
what “copyright” means
I wrote Raincoast Books an email to express concern about the astonishing ability of a company to restrict freedom to read and freedom to express an opinion about what one has read. However short the time frame of these restrictions, they seem to me to be setting an alarming precedent. I received a response from the Internet Marketing Manager of Raincoast, who says:
“”Publish” according to copyright law encompasses all aspects: production, dissemination of work from manufactures to distributors to the general public. Inherent in that right is the ability to set precisely when and
how the work will be made available to the public. As the holder of copyright, JK Rowling, Bloomsbury, Raincoast decided on the publication date of July 16 and have kept the contents of the book strictly confidential and under embargo.”
I’m certainly not a lawyer, but the right to determine when and how a work is released to the public still (I would think) should not give a copyright holder the right to restrict reading. If a book is manufactured for public sale and for reading by a public audience, how can it be a copyright issue for that audience to read it a day early? That’s a distribution issue. Indeed, how on earth can “copyright” have anything whatsoever to do with the right to read and the right to personal expression? Copyright is about the right to _copy_, is it not?
She goes on to explain:
“The injunction is not a copyright issue only, it primarily reinforces the contractual arrangements Raincoast has with the global licensees of Harry Potter, the author, retailers and other vendors. Raincoast is required to
protect and uphold those contracts–to ensure that no further copies are sold in advance of July 16.”
This seems to be perfectly reasonable. But the contract does not extend to the legitimate purchasers of the book. If, as the Raincoast representative says, “Raincoast’s intention is not to penalize readers. Raincoast is asking readers temporarily not to read or discuss the book,” then it should have been just that: a request. Readers may or may not have honoured it, but the contract between publishers and vendors (I would think) didn’t extend to the readers in any case. The fact that this was a legal order curtailing legitimate activities is really the issue here. We shouldn’t be so passive about the control that corporations have over individual rights and freedoms.
Allison Muri
http://headlesschicken.ca
Thanks for keeping on top of this
I think the judge who authorized this “unlawful reading” BS should face some serious heat. In light of the fact that the publisher forgot to put the warnings that the books weren’t to be sold early on the package, punishing them is pretty “Riddikulus”.
As a law professor, is there any way you can find out what legal arguments were involved in this case? Surely the Globe and Mail must be pretty annoyed to have their right to free speech questioned. Can’t they keep this in the eyes of the public?
“But the contract does not extend to the legitimate purchasers of the book.”
There are no legitimate purchasers of the book. You can’t buy something from a seller who does not own it. At best you can sue the seller for having wrongfully sold you something they did not own. (Like swampland in Florida.)
“When copyright law is used to stop chi
“When copyright law is used to stop children from reading”. This is inflammatory.
JK Rowling, from every account I have read, loves writing for children. She has led a resurgence in childhood reading in this era of video games and instant messaging. JK Rowling wanted to be the first to read _her_ book to children and launch it to the world. Why shouldn’t she (and her publisher) keep control over her creative work — and when it is published and read? I would hope that the courts are not intimidated by this “free-reading” backlash and continue to protect the rights of authors. The order was finite- kids with the early copies could read it when everyone else could.
Try this on: a mother discovers her son about to read his sister’s private journal. Because his mother moved it out of her daughter’s personal desk when she was cleaning up, her son was able to pick it up when he otherwise wouldn’t have access. Should she to allow him to scurry off to his room, crack open the journal and read his sister’s private words?
Library and Archives vs. National Galler
I think that the difference in reproduction costs between prints from these institutions can be partially explained by their respective mandates. Not reproducing photos for a fair cost is more obviously against the mandate of the Archives, in my opinion.
LAC has this in their mandate:
To serve as a source of enduring knowledge accessible to all, contributing to the cultural, social and economic advancement of Canada as a free and democratic society.
NG mandate:
to develop, maintain and make known, throughout Canada and internationally, a national collection of works of art, historic and contemporary, with special but not exclusive reference to Canada; and to further knowledge, understanding and enjoyment of art in general among all Canadians.
I was just wondering about what rights the National Gallery had with respect to the images in question. The Gallery has many works that have been donated to it, but a large portion of those donated works come with limited or non-existant reproduction (analog, digital or otherwise) rights. Projects like the Gallery’s Cybermuse were constrained because in many cases the rights holders for a donated work refused to allow copies of any resolution to be posted, despite the piece being part of the Gallery’s collection. Where reproduction rights stay with the donating party, the Gallery usually has to negotiate with those parties when they do reproduce the work (or there are standard rates/fees/processes in place for doing so). Did the Gallery itself ever comment on why the fees were so high?