Aarthi S. Anand
Earlier this month, with the publication of The Tales of Beedle the Bard, a children’s fictional book and plot device that first appeared in the seventh and last Harry Potter novel, Harry Potter and the Deathly Hallows, avid fans who bemoaned the end of the series received some reprieve. Even though the series has ended, the slew of copyright cases prohibiting other creative expression around Harry Potter filed by the author, J.K Rowling, continues unabated.
Since copyright issues are often being obfuscated by legalism, the salience of the Potter series provides an apt opportunity for Main Street to infuse common sense into laws and demarcate the boundaries of copyright. Copyright is being expanded from a shield protecting authors from unscrupulous copying (through printing press technology) into a sword guaranteeing monopoly over the ideas, colonising adjacent markets, and inhibiting further creative expression.
The incongruity of copyright protectionism is epitomised in the Durga Puja pandal context when Ms Rowling and her publishers sued to prevent Durga Puja organisers from erecting pandals replicating Hogwarts Castle on the basis of copyright. The question is not whether authors have rights in the characters they create but whether copyright was intended to be deployed to chill creative expression.
Copyright was the legal instrument invented upon the advent of the printing press to prevent unregulated copying and sale of books. The issue is not whether other writers should be allowed to copy and publish excerpts of Ms Rowling’s books but whether a model made of canvas and wood would violate her copyright in her books and characters. More so when the models were evidently not intended for a commercial purpose whereas copyright was the legal instrument aimed at correcting inexpensive copying made possible by the printing press.
The Delhi High Court did not grant the Rs.2 million relief sought by Ms Rowling as compensation for the copyright violation owing to the castle replica. However, by passing an order that the pandal would be a one-time grant of permission, the court held in effect that such models would constitute copyright infringement and has thereby restrained others from engaging in any expression related to Harry Potter.
The Durga Puja pandal was indisputably a non-commercial event (it had no profit motive), and Warner Bros & Co’s argument that “the event fell outside their guidelines to help charitable and not-for-profit organization to run small-scale themed events that protect fans and allow everyone to enjoy Harry Potter books, films and events in the spirit in which they are created” begs the question: was that the purpose for which the legal shield of copyright was created? Was copyright invented to be used to discourage other creators or to provide publishers with control over subsequent creators?
The anomaly of such copyright expansion is exacerbated by legal provisions of copyright, which allow publishers to pursue online auction platforms without pursuing actual sellers of pirated work. The Indian copyright law allows for publishers to sue not only sellers of infringing works but also those whose premises are used to make the sale and was evidently directed at discouraging intentional trafficking in pirated works. However, Ms Rowling and others have utilised this provision to sue online auction platforms like eBay rather than pursue the sellers of pirated copies.
In Rowling v. eBay, the Delhi High Court ordered that eBay should prevent pirated e-books from being uploaded for sale on the website. This reading of ‘premises’ to include online auction sites that do not actually funnel physical copies has meant that copyright owners may conveniently choose to pursue auction sites instead of infringers. This creates two-fold problems. Liability will chill e-commerce as online sites will be compelled to introduce checks, police all sales, thereby increasing the time and costs of e-commerce and undermining the easy commerce of the online marketplace. Secondly, infringement liability will result in traders becoming censors and declining to carry books on mere infringement doubts, thus potentially blocking access by readers.
India is not the only market experiencing copyright vigilantism as the U.S. experience demonstrates. It is significant that the expansionist efforts are being made in key publishing markets so as to shape the terms of global copyright regulation. The most glaring deployment of copyright in one book to guarantee monopoly in additional book markets is visible in the nearly yearlong suit in New York for the prohibition of the publication of a Harry Potter lexicon by school librarian Steve Vander Ark with RDR Books. Even though Ms Rowling herself has not published any Harry Potter lexicon, she prevented the publication of Mr. Vander Ark’s lexicon arguing that it “borrowed too much” from her books.
Given the different purposes of a lexicon and a storybook, a layperson would be forgiven for being mystified that a lexicon could be considered as ‘copying’ from a series of storybooks. However, determination of copyright infringement is not made on the basis of the work in its entirety (and functionality) but on the number of identical words. While this approach may make sense if it involved similar books (for example, two storybooks), it renders a skewed result when two different kinds of work are being compared. The problem is that copyright was intended to prevent counterfeiters from denying authors profits by dealing with similar works; the intention clearly was not to provide a monopoly in adjacent goods. Secondly, any infringement claim on the basis of Ms Rowling’s potential future lexicon would go along the following lines: Mr. Vander Ark ought to pay Ms Rowling compensation for copying work that she may produce in future. This is legal sleight of hand devoid of common sense.
All this only demonstrates the increasing trend of utilising copyright to acquire strategic monopolies over adjacent markets. Given the size of the Indian entertainment and media pie (estimated at Rs. 1,157 billion by 2012, according to a FICCI-PwC estimate made before the global economic slowdown), India can no longer rely in the global village on a non-litigious Indian. It is therefore vital that it readies appropriate copyright regulation for the digital age and provides a stable legal climate (without unnecessary litigation and fines) conducive to the production of creative work.
Copyright has, as intended, incentivised creative expression by assisting artists reap the benefit of their work – Ms Rowling has emerged as the richest author of all time. However, earning from one’s expression is separate from arguing that without a legal guarantee prohibiting all future work in that area, creators would not engage in creative expression. Any argument that Michaelangelo would not have painted the Sistine Chapel if the law would not prevent prints from being included in art books sold outside Central station is patently absurd.
The new technology provides a unique opportunity to re-affix copyright to its roots. India, given its information technology expertise, may not only be well equipped to craft a copyright law that leads the world from the printing press era into the internet age. It may also be particularly well suited to correct imbalances in copyright, given its historical lore of creative expression.
(The author is a corporate attorney, intellectual property law specialist, and a Rhodes scholar. Email id: firstname.lastname@example.org.)