The Pirate is off the hook in liability Never-Never Land

The Pirate is off the hook in liability Never-Never Land

In August 2007, an unnamed 16 year old from Aix-en-Provence, France, was arrested, detained, and subsequently released for posting his own unauthorised French translation of The Deathly Hallows (the seventh and last chapter in the lucrative Harry Potter series). The book was released at midnight on July 21, and the teen translated the 784 pages within a few days. On August 7, the police arrested him and took his translation, which they described as surprisingly semi- professional, off the web. The authorized French publisher, Gallimard, in agreement with the author, J.K. Rowling, decided not to sue or seek compensation. Although the teen was not held liable for his actions, we should consider the potential severity of his unlawful actions and the costs to both the author and the authorized French publisher.

In translating and posting the work without JK Rowling’s authorization, the teen breached the author’s moral and legal rights under France's copyright laws within its Intellectual Property Code (The Code). The Code specifies that translation and other reproductions made without the consent of the author or author’s successors in title or assignees is unlawful (L122-4) (He also infringed the copyright owner’s legal rights under UK Copyright, Designs and Patents Act 1988, which specifies that translation is a form of adaptation as grounds for copy-right infringement (21(3)(a)i). In posting his own translation of the author’s work on the internet before the authorized and eagerly anticipated French translation was released, the precocious translator breached the author’s right to control the method (time and the medium) to divulge her work (L121-2). The translator’s copyright infringement is a criminal offense. Under the Code, “infringement in France of works published in France or abroad shall be liable to a three-year imprisonment and a fine of € 300.000” (L335-2).

In addition to his criminal offense, the translator breached the publisher’s distribution rights, which is a civil offense. For unauthorised distribution of copyrighted material, publishers have a right to indemnification for the cost of existing stock. Although the teen did not distribute Gallimard’s licensed translation, the posting of his own French translation is arguably just as damaging—if not more damaging—for the publisher, and is grounds for him to indemnify Gallimard. The wunderkind’s “semi-professional” translation—which implies that it could be read and understood by any eager French reader—was made globally accessible three months before the authorized translation was to become available, and it was free.

It’s hard to gauge the extent of damage done to both Rowling and Gallimard in the time between the posting in late July and the early August crack-down. Once a reproduction or translation is disseminated on the web, there is really no way to control or to keep track of the number of people who access, download, copy, or alter the material, and near impossible to accurately quantify the costs of the publisher’s (or author’s) lost revenue. In the case of the Harry Potter series, the costs could be exceptionally high. The highly anticipated last chapter of the series sold over 11 million copies in North America and the UK within its first weekend of sales; although the French version has yet to be released, the sales will presumably be high, given the success of the previous chapters in France and internationally and the hype around the French release.

The teen’s costly actions are inexcusable. He said that he had not intended to profit from his translation; however, his lack of intent to profit is legally irrelevant. His crime was not profiting; rather, his crime was the act (and presumably intention) of creating a French translation and making that translation publicly available. His acts of translation and posting were a copyright infringement, for which he is criminally liable under French law, and a breach of the publisher’s distribution rights, for which he is civilly liable. Before posting an unauthorized translation, it was his responsibility to make himself aware of the applicable laws, the ignorance of which is no excuse.

So why is the pirate off the hook? In order to reclaim their losses from his illegal actions and to deter future pirates from following suit, I would think that Rowling and Gallimard would be inclined to sue and seek compensation from the teen and to press criminal charges for copyright infringement. Perhaps their decision to drop the charges is strategic; it is possible that the author and publisher would have incurred a hefty cost in terms of their international image, popularity, and ultimately their sales, if they had arrested or sued the teen. In the eyes of their market of adolescent and teen readers, suing the unauthorized translator might have been a gross and unforgivable overreaction to an innocent fan.