You may well have read that a Canadian bookstore released the latest Harry Potter story “the Half-Blood Prince” to a number of its customers somewhat early. The customers almost certainly were entirely innocent in this as they probably knew nothing of the PR plans for a global coordinated release. They probably bought the book in good faith and read it in the same manner.
Cue hysteria by Raincoast Books Ltd who stomped into the Canadian courts to obtain an injunction against those who had bought it early. The injunction reportedly required the buyers not to read the book, to return it and not to discuss it with anyone. Canadian intellectual property lawyers backed this up as lawful:
“The Copyright Act grants a number of exclusive rights to the copyright holder,” explains Glen Bloom, a lawyer with Ottawa’s Osler, Hoskin and Harcourt, a firm specializing in copyright law.
The copyright holder decides when others can read the material, he said. In this case, author J.K. Rowling has chosen Saturday at 12:01 a.m. local time around the world.
“All you get when you buy a book is the piece of paper,” said Bloom. “You don’t get any rights with it other than possession of the paper.”
“The law says that this is a secret, and until it’s no longer a secret you can’t go find the secret just because you’ve got a book that somebody broke the law by selling,” Bloom said.”Once you get to the publication date everybody has the right to read the book, but until then nobody has the right to read the book even if you’ve paid for it.”
I know sweet fuck all about Canadian copyright law except that, like English copyright law, it is Common Law based and therefore we gave it to them. What I do know about is English copyright law and I can say confidently that under it this is bollocks.
Sweaty hairy bollocks at that. I strongly suspect that this is so in Canada as well.
The commentator is conflating several different legal theories: contract law, copyright law, confidence and trade secrets law. Not inherently wrong as a process but one needs to be rigorous when dealing with different legal disciplines. Copyright gives an author a number of exclusive rights: the right to copy, the right to make derivative works of the original and the right to distribute the work (among other rights). In English law, and I suspect US and Canadian, copyright law reading is not one of these exclusive rights. Save for the transient impression of photons on retinal cells, reading does not cause any form of copying to occur. Reading is not copying and so long as the book is lawfully obtained the author does not get the right to say who reads it and when. At least under copyright law, that is. That does not end it however as other legal theories come into play, one of which is confidence/trade secrets.
English law is rather less developed that US law on the issue of trade secrets since we have far fewer cases that come to court. But it is not clear that US common law jurisprudence would be accepted in the UK; we have rejected numerous US doctrines in IP law, so the US approach cannot be predicted to be accepted here. Canadian jurisprudence seems, statistically, to be better regarded but nonetheless their cases should still be taken with a pinch of salt.
So how would a UK court take the early “Half-Blood” sales? Some of the generic underlying legal ideas that would be exposed in court are: “who is to blame?”, “which parties are likely to suffer” “how do we balance the parties interest in the instant case?”. We can certainly say the bookstore fucked up. How dumb is it to release one of the most important books it is ever going to get, early? they must have had reams of confidentiality stuff to sign and pep talks on coordinated releases etc etc but all the Eng. Lit. PhD’s manning the tills still fucked up. That is certainly grounds for sackings and suings but how does it affect Joe Reader who, it is safe to assume, didn’t know of the coordinated PR release, or their distribution contract, or that there was an embargo? is there any legal obligation on him to keep a secret he wasn’t aware of? I rather doubt it. What is the real interest that the publisher is protecting and what financial damage will an early release cause? What of the innocent buyers right to read a book bought honestly? what of his freedom to discuss contemporary literary events?
I suggest, and predict , than an English court would take a more robust attitude. On the one hand the publishers would lose the benefit of a globally coordinated release. Yea, big deal, how many lost sales will that cause? 1 or 2 worldwide max. On the other hand readers have to relinquish, but only for a week or so, property obtained honestly and in good faith: annoying but not really a personal disaster. 1 - 1 score so far. But they also have to refrain from critical review or comment. That very temporary interference with free speech is somewhat of a bigger deal given their lack of their fault. The balance probably just falls against any injunctive prior restraint.
Two questions are likely to settle it: “what is the financial damage?” and “what is the blame of all the parties?”. A sensible judge will likely say “let the damage fall where it may. And such financial damage as there is should be paid by the negligent bookstore.”
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