Julie Hilden, in response to Joe Nocera's "A Tight Grip Can Choke Creativity" piece on the JK Rowling/RDR Books matter (otherwise known as the Harry Potter Lexicon case - in which RDR proposes to publish a print version of its online compendium), offers a technical analysis of whether RDR can rely on a fair use defence under US law. (ht: Media Law Prof Blog) Hilden concludes that Rowling has the better argument, though she notes that the potential win would not be a "walkover" and damages would likely be limited. Nocera's piece addresses policy questions about whether Rowling's copyright should extend to prevent the type of activity in which RDR is proposing to engage.
The issues raised by the lawsuit are near to my heart, for a variety of reasons, not least the fact that my LLM thesis addressed the contours of protection available for "ideas", and the point at which unprotected "idea" becomes protected "expression". I think the idea/expression dichotomy provides another useful lens through which this case can be addressed, and I'm going to take a quick stab at canvassing what I think the arguments under Canadian law might look like.
Take a look at the Lexicon itself - even if you're not a fan of the Harry Potter boooks (and, as I haven't read the books, I can't count myself among them), I think you can't help but be impressed by the level of dedication and enthusiasm (and the sheer volume of work) required to compile the website. That, however, doesn't address the issue of whether copyright infringement has occurred (the dispute revolves not around the website itself, which apparently has the tacit approval of Rowling, but around the proposed print publication only). Setting aside any trade-mark or passing off issues, at some level what the website is engaged in is compiling facts or information - two concepts which resolutely should not be the subject of copyright protection.
Copyright protects the expression of ideas, but not ideas themselves. The content which makes up the Lexicon is perhaps best analyzed on an "idea/expression" spectrum (for purposes of this discussion, I'm limiting myself to JK Rowling's expression as embodied in the novels themselves, and ignoring the movies). Take, for example, the character Dumbledore. If we analyze Dumbledore on an idea/expression spectrum, the two poles of that spectrum might be, at the farthest reach of the "idea" end, "a wizard", and, at the farthest reach of the "expression" end, a collection of descriptions, quotations and other textual information relating to Dumbledore (and when I describe the "expression" end of the spectrum, I mean a literal word-for-word collection of the textual material). Moving along the spectrum from "idea" to "expression" involves adding more and more detail to the "concept" of Dumbledore - so you'd be moving from "a wizard" to "a wizard with a white beard" to "a wizard with a white beard who is headmaster at Hogwarts", etc. Somewhere along that spectrum you cross a line from "idea" to "expression" - and the question becomes whether what the Lexicon is doing is simply creating its own expression out of unprotected "ideas" or copying protected "expression". But even if one concedes that "expression" has been copied, there is another limiting factor which serves to restrict the scope of copyright protection: information itself cannot be the subject of copyright protection (an axiom which has, regrettably, been overlooked, ignored or wilfully weakened far too frequently by our courts).
There is, I think, a cogent argument to be made that the Lexicon is dealing only with a compilation of facts, expressed in a new form, and so Rowling's writ cannot extend to prevent the print publication. Otherwise, publishers would never be able to publish "unauthorized" compendiums - a recent example of which are books dedicated to the television show Lost (see, e.g., this book). However, Canadian courts have recently and, I assert, contrary to basic copyright principles, been moving towards extending copyright protection to facts and information on the basis that the "copyist" is misappropriating the labour of the plaintiff (see, e.g., British Columbia Jockey Club v Standen (c.o.b. Winbar Publications)(1985), 8 CPR (3d) 283 (BCCA) and Edutile Inc. v Automobile Protection Assn.) - and on the basis of that authority, Rowling might find Canadian courts to be welcoming venues for her action.
Comments