When a French teen becomes the target of police and is subjected to their interrogation while spending a night behind bars, one would imagine that perhaps the teen had committed a serious criminal act. Not so in this case. In July 2007, just a few days after the final Harry Potter novel was released in English, a 16-year-old student posted his very own French translation of the entire book, months ahead of the official publication date for the French language version of the popular book. He had intended to provide a benefit to French speaking Potter fans who would otherwise have had to wait an additional three months before being able to read it. While seemingly drastic, his arrest was initiated because of complaints regarding various international criminal syndicates of translators who intended to profit from sales of illegal translations of the book.
One thing is clear: the teen violated copyright law which prohibits the reproduction of copyrighted work without the consent of the copyright holder, J.K. Rowling and her French publisher. Using the Canadian Copyright Act as an example, the teen’s translation of the entire book and published online is an infringement under s.27(1) in relation to s.3(1)(a) [right to publish translations of the work]. Nevertheless, Rowling and her publisher chose not to pursue copyright infringement charges against the boy, especially since he had no intention to profit from his illegal translations.
Although everyone should be able to exercise their freedom of choice, a copyright holder’s decision not to pursue infringement charges with respect to a renowned copyrighted work belittles the importance of abiding by copyright law and hence, the significance of copyright law itself. The underlying purpose of copyright legislation is to protect the copyright owner and ensure that they can benefit financially or otherwise from their efforts to acquire the copyright – whether achieved through the creation of an original work or through moneys paid out to acquire the copyright. Rowling and her publisher’s decision seems to endorse the notion that as long as potential infringers infringe without intending to profit off of original works, they will escape liability. This clearly sends the wrong message because people may be encouraged to continue engaging in unauthorized translations with altruistic motives despite it being just as illegal as any criminal act. Flowing from this, there would be negative financial implications for copyright holders as a certain portion of the audience, however small, decide to read the book online for free rather than pay the full price. There may also be cases where fans feel that great literary works such as Harry Potter should be accessible to everyone for free and their actions would thus result in incidental harm done to the copyright holder without specifically intending to do so. Additionally, there are no guarantees that unofficial translations will meet any minimum standard of quality. They may be so inferior that they end up prejudicing an author’s reputation as a good writer, a particularly valuable moral right of integrity in Rowling’s case. Even courts have dismissed the idea of using intention as a factor to consider in determining whether infringement has occurred: Hawkes and Son Ltd. v. Paramount Film Service Ltd.. In Hawkes, it was held that “mere honest intention on the part of the appropriator will not suffice, as the court can only look at the result, and not the intention in the man’s mind at the time of the [commission of the act]”.
Nevertheless, it should be recognized that this was an isolated incident and Rowling knew that eager young fans simply wanted to share their joys of reading book seven with others. Having an arrest made of a teen fan was an exaggeration, but one that has rarely occurred for the benefit of protecting lesser known authors who have an equally important copyright in their work. Had a copyright infringement action actually commenced against the teen, he probably wouldn’t have had any successful fair dealing defences since he had translated the book for the public to read. However, pursuing this action could greatly damage Rowling’s reputation as an author who loves her readers and who encourages literacy.
Despite concerns over the propriety of suing a teen fan who “innocently” infringed copyright, in order for the public to take copyright law seriously, copyright holders should exercise their civil law right of action to pursue infringers – including unintentional ones – for the purpose of underlining the importance of intellectual property, copyright law and the need to abide by these laws.
I agree that Rowling would easily succeed in an action for copyright infringement. I can not agree that a right holder “should” pursue all infringers through civil proceedings for the purpose of “underlining the importance of intellectual property”.
Firstly, IP rights are hardly in the same category as, for example, basic civil rights where, over the past 100 years or so, various court cases have been vital in securing protection for vulnerable and minority groups. With the exception perhaps of Moral Rights, IP generally relates to economic rights. It is therefore not necessary for any private party to take it upon themselves to be a ‘crusader for the cause’.
Secondly, because IP rights are economic, the decision whether or not to sue is therefore an economic one. What gain could Rowling really expect to realize from a 16-year-old student? She could sue for damages resulting from lost sales (or even resulting from infringement of moral rights, for that matter), but alas, the French teen likely has no money. It is not reasonable to expect a holder of an economic right to sue if the cost of court action outweighs the value of a judgment.
Finally, the most appropriate remedy in this case – an injunction – was granted de facto because the translation was immediately removed from the internet. The issue was resolved privately between the parties, grounded in knowledge of their rights under the law. This is proof that IP laws are respected and that the system is working efficiently in the absence of litigating every infringement.
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