French student arrested for posting non-authorized copies of Harry Potter

November 13, 2007 by Orlaith Kane

Being an enthusiastic fan of J.K Rowling’s Potter novels I was infuriated to hear the French student arrested for publishing his own translation of the seventh chapter of the Potter tale would not be prosecuted.  An agreement was made with J.K Rowling not to seek damages from the student for violation of intellectual property rights.  The French publisher of the novel claimed to support the investigation of the unauthorised copy “to remind people that piracy harms the basic rights of authors and creators.”

From a Canadian perspective the issue appears to be a straightforward breach of copyright.  The Copyright Act protects literary works and confers upon the copyright owner control over a list of activities. The right to translate is specifically mentioned in the Act as a subsidiary right of reproduction.  It encompasses changing a work in one language or dialect into another.

However, it must be asked whether such legislative protection is justifiable. Does such legislation facilitate or impede the flow of ideas, knowledge and expertise in society?  At the core of any intellectual property dispute is the practice of balancing the interests of the stakeholders involved.  The student in this case translated the Potter novel for the benefit of other enthusiasts for no commercial gain.  The public interest is often overlooked when the judiciary are faced with such a balancing act.  A clear argument in support of copyright enforcement laws is that such protection encourages creativity, originality and inventiveness.  Legislative protection can operate as an incentive for creativity because it reassures a creator will be rewarded for their contribution to society.  Without an incentive for ingenuity and creativity sub-optimal property may be created which in turn will act as a disservice to the common good by decreasing the pool of ideas and knowledge.

Counter to this argument questions where the appropriate line is to be drawn to ensure overprotection doesn’t ensue?  If intellectual property rights frustrate public access to research, knowledge and expertise such laws cannot be justified.  Vaver’s text refers to Lord Mansfield’s “two extremes equally prejudicial”, that of depriving a creator of their “just merits” and the “progress of the arts” which must not be “retarded.”

Although the student’s skill and initiative is admirable J.K Rowling had assigned the right to translate to a specific French publisher, Gallimard.  Due to the unprecedented success of Rowling’s seventh novel this is evidently a very lucrative right.  The argument in favour of accessibility of works to the public would fail in this case as it was merely a matter of time before an authorised edition of the book was published in French.  In my opinion, the specific inclusion of the right to translate in the copyright act is not overprotective or excessive.  The Harry Potter novels have been translated into sixty four languages which exemplifies such legislative protection is tantamount to safeguarding the basic rights of creators and authors. 

A key determinant in the decision not to sue lay in the fact the student made no commercial gain from his activities.  Had the issue of commercial profitability arisen it is likely the French student would have faced prosecution for violation of intellectual property rights. There are numerous organised translators’ networks which make available infringing work at extensive profits.  These unauthorised copies act as market substitutes to undercut the right-holder’s market. In my opinion had this been such a case it would be imperative for the judiciary to sanction heavy fines in order to deter future infringement.

The medium by which the unauthorised copy was made available is also an important factor which should be addressed.  By posting the translation online the infringing work was made available to a much wider audience constituting a more significant breach.  This results in a greater extent of secondary infringement.

Although J.K Rowling had assigned the right of translation to Gallimard, her moral or non-pecuniary rights may still be legally enforceable.  The moral right of association may become an issue with regard to the website on which the unauthorised copy is posted.  For example the content, such as banner advertisements, of the website may prejudice the author’s honour or reputation.  The copyright breach took place in France where moral rights are strongly embraced by the civilian tradition.    

I strongly disagree with the decision not to sue.  In my opinion it would have been worthwhile to allow the case operate as a strong precedent to deter organised networks which post pirated book translations online.  I feel there are a myriad of arguments why the case should have proceeded before a court.  It is vital that the basic rights of authors are protected in order to continue to the flow of such literary masterpieces in society.