Further to this post, John Willinsky writes at slaw.ca about Harry Potter and the Scholar's Fair Use:
Still, I am distressed by [JK Rowling's] failure to realize the vital relationship between the pleasure of reading and scholarly inquiry. Actually, Rowling was fine with it, when Vander Ark’s The Harry Potter Lexicon was no more than a freely available website. She used the website herself, and only came to object when the lexicon was about to be published. I am also delighted, then, by Ms. Rowling’s respect for open access to research. But this celebrity endorsement of open access apart, fair use is necessary for scholars in all mediums and price points.
He also points to a further detailed New York Times' overview of the proceedings. Willinksy points out yet another facet of the proposed clamp-down on companion books: a stifling of scholarly research. After all, if you're doing research into the Potter universe, what facilitate's such research more than a compact, complete, cross-referenced compendium (wow, that was a lot of alliteration)? Rather than plowing through the hundreds of pages of individial novels to determine the lineage of a particular character, it is readily available - and the cross-referencing may prompt yet further fruitful enquiries.
Which means that, in addition to the "facts/information" argument I mentioned yesterday, there might be a "fair dealing" defence that would be available at Canadian law: a Section 29 research dealing. In the CCH v LSUC decision, the Supreme Court laid out the following criteria for assessing "fair dealing", and here's a quick stab at how they might play out:
- the purpose of the dealing
- there's an argument that the Lexicon constitutes fair dealing for research purposes - or at least it constitutes work done in order to facilitate further research; cutting against this argument would be the fact that the Court noted "research done for commercial purposes may not be as fair as research done for charitable purposes" (para. 54)
- the character of the dealing
- this would turn on the extent to which actual passages from the books were copied into the Lexicon - as the Court noted, however, in Sillitoe v. McGraw-Hill Book Co. (U.K.), [1983] F.S.R. 545 (Ch. D.), the importers and distributors of “study notes” that incorporated large passages from published works attempted to claim that the copies were fair dealings because they were for the purpose of criticism - so, potentially, even large amounts of copying might be permissible in the context of the new work
- the amount of the dealing
- again, this would turn on the extent to which actual passages from the books were copied into the Lexicon - a quick look at it indicates that there does not appear to be large chunks copied verbatim - snippets are taken and re-contextualized
- alternatives to the dealing
- here a court would assess whether there were any non-infringing alternatives available - in other words, was there a non-infringing source which could have been drawn upon? I think the answer would be "no" - in creating a reference work for a fictional universe, the only possible source would be the original fictional works themselves
- nature of the work
- the Court wasn't as clear as they could have been on this criteria: I would argue that the nature of both works (i.e., the original work and the allegedly infringing copy) should be assessed; in this case, we're looking at a work of fiction and an attempt to create a complete reference guide to that work - and the latter would not be possible without "infringing", in some sense, the original - as I mentioned yesterday, though, I think the "infringement" looks heavier on the "idea" side of the spectrum, rather than on the "expression" side
- effect of the dealing on the work
- as the Court noted, "if the reproduced work is likely to compete with the market of the original work, this may suggest that the dealing is not fair"; this would ultimately be a fact-driven assessment: if Rowling could introduce evidence that sales of her books would be negatively affected by the publication of the Lexicon, this point would go to her; as an observational matter, it would strike me that the fact that a fully-searchable, always available, free version of the Lexicon has not eaten into her sales would put to rest the possiblity of arguing that a pricey paper version of the same work would do so
Thoughts, anyone?
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