Understanding The Harry Potter Injunction: Protecting Copyright And Confidential Information

Tuesday, November 1, 2005 - 01:00
Barbara Grossman
Aaron Milrad
Annie Na

On July 9, 2005, the Supreme Court of British Columbia granted Raincoast Books and Bloomsbury, the Canadian publishers of Harry Potter and the Half-Blood Prince, and J. K. Rowling, the book's author, a court order restraining anyone who had obtained an early copy of the book and everyone who received notice of the order from disclosing any information from the book to anyone else before the international release date of 12:01 a.m. local time on July 16, 2005. The injunction order prohibited, among other things, reading or making any use of the book before that time and required the temporary return of the books to Raincoast until the release date.

How did this court order come about? And what was the legal basis of the order?

The "Embargo"

J.K. Rowling decided to set a single international release date for the book before which the book's content would be kept secret. In the publishing industry, this practice is called an "embargo." It is carried out through a series of formal embargo agreements entered into by the author, the publisher, booksellers, book wholesalers and distributors, as well as printers, carriers, and warehousers.

The book's content is the private property of the author. This relationship between an author and her work is recognized by the Copyright Act of Canada, which grants the author certain exclusive rights to the work, called "copyright" in the work. These rights include the right to determine whether to allow the public access to the copyrighted work and, if so, when.

Therefore, when Ms. Rowling and her publishers placed Harry Potter and the Half-Blood Prince under an embargo, deciding that the book's content would be made public at 12:01 a.m., July 16, 2005, they were exercising their copyright in the book.

Legal Protection Of Confidential Information

Just as the law protects copyright in one's literary work, the law also protects confidential information from being made public. Injunctions restraining disclosure are the most common and preferred legal remedy for protecting confidential information.

Under the law relating to confidential information, a person who receives confidential information from another person is obligated to maintain the confidentiality of the information and not misuse it. In the case of Half-Blood Prince, extensive measures were taken to keep the book (except for the title and the cover art) confidential until the release date, and the confidential status of the book until then was well publicized. When the publishers shipped copies of the book to wholesalers, distributors and booksellers before the release date, those parties were bound to signed agreements not to unpack, display or sell the book or otherwise make the book public before the release date.

Premature Sale Of The Book And The BC Court Order

On July 8, 2005, the Canadian publishers learned that copies of Half-Blood Prince had been prematurely sold by a store in Coquitlam, BC. The next day the Canadian publishers and the author brought an urgent application for an injunction to restrain anyone who had prematurely obtained copies of Half-Blood Prince from disclosing the content of the book or engaging in other related activities until the release date. The store had voluntarily stopped selling the books soon after the publishers were alerted to the situation. Notice of the court application was given to the store but no notice could be given to the purchasers whose identities were unknown at the time of the court application.

The application was based on two grounds:

(1) As the exclusive Canadian English-language publishers of Half-Blood Prince, Raincoast and Bloomsbury had the sole right to determine the publication date in Canada. Before that date, the book was considered unpublished, regardless of when the book was printed or shipped to retailers. Therefore, anyone who disclosed information about the book's content before the release date would violate the Canadian publishers' copyright in the book.

(2) The content of Half-Blood Prince was not public property or public knowledge. A store that sold the book was in breach of its contractual obligation of confidence under the embargo agreement. Anyone who obtained copies of the book also had the same obligation, so long as the person either knew or later came to know that the book was confidential.

The Supreme Court of British Columbia granted the injunction in terms similar to an injunction made by a court in the United Kingdom about a month earlier to protect the book's confidentiality in the face of an embargo breach there.

Public Reaction To The Court Order And Raincoast's Reponse

Most of those who prematurely purchased Half-Blood Prince voluntarily returned their copies to Raincoast, expressing their desire to abide by the court order and to respect the secrecy of the book until its release date. Many people seemed to agree with that sentiment as well. However, others, particularly in the media, objected to the court order.

The order included an ancillary prohibition against reading the book until the release date because anyone reading the book would learn its confidential content. This aspect of the order appears to have attracted the most attention from the media, and some critics asserted that the prohibition penalized the innocent purchasers of the book and was contrary to the constitutional guarantee of freedom of expression.

Raincoast responded by explaining its rights under copyright law and the law of confidential information to control the public's access to the book's content. Raincoast also made the following points:

  • The publishers had a contractual obligation to the author to protect the confidential content of the book until the release date in accordance with her wishes.

  • The publishers were responsible for containing the effects of the premature sale of some copies of the book to ensure that a breach of the embargo by one or two booksellers did not unfairly disadvantage the many others who were respecting the embargo, including the many who had planned elaborate release date events.

  • The publishers and author had promised Harry Potter fans that the secrets contained in Half-Blood Prince would be revealed to all simultaneously on the release date. They were obligated to take steps to keep this promise.

  • Harry Potter fans who purchased copies of Half-Blood Prince would not ordinarily be entitled to obtain confidential information. This fact did not change merely because they acquired copies of the book that were sold in breach of the embargo and in breach of confidence.

  • Raincoast did not intend to penalize or intimidate innocent fans, and was only asking them to keep the book's contents secret and to temporarily give up the book until the release date. As an incentive, customers who turned in their prematurely purchased copies were rewarded with a signed book plate and a T-shirt from the book launch in Scotland.
  • The Right To Read And The Freedom Of Expression

    Although some have asserted that the prohibition against reading is contrary to the freedom of expression guarantee in the Canadian Charter of Rights and Freedoms, this assertion seems incorrect for three reasons.

    First, the Charter is intended to govern the actions of the government as they relate to individuals. Therefore, it is doubtful that the Charter would even apply to a court order like the injunction in this case, which arose from a private dispute having no connection to the government.

    Second, the Charter does not contain an explicit guarantee of the freedom to read. Therefore, even if the Charter were to apply to the Harry Potter injunction, it would be necessary to ask whether freedom of expression can be said to include the freedom to read generally, and in this specific case, where the author and her publishers were attempting not to express anything before the release date. Although the rights and freedoms under the Charter are generally interpreted broadly, there is no authority on this point.

    Third, even if the Charter did apply to this case, and if freedom of expression does include the freedom to read, the final issue would be whether the Charter infringement caused by the injunction is justified under section 1 of the Charter as a reasonable limit "prescribed by law as can be demonstrably justified in a free and democratic society." Court decisions dealing with this section suggest that the answer would be yes, because of the desirability of protecting the right of a copyright holder to control the publication of her intellectual property and the right of a person to keep confidential information confidential. Moreover, the injunction did not impose a significant burden on the premature purchasers or Harry Potter fans generally, since it only prevented reading of the book approximately one week until the release date, a fact that seemed to get lost in the debate.

    The Impact Of The Injunction On The Media

    The injunction also prohibited anyone who knew of the order from making any use of the book before the release date. This broad prohibition addressed the possibility that even a seemingly minor breach of the measures to protect the secrecy of the book's content could lead to a wholesale disclosure. For example, if just one person had made an early purchase of the book, and if that person had broadcast the book's content on the Internet or through the media, the embargo would have been nullified.

    This almost occurred in connection with the fifth book in the Harry Potter series, Harry Potter and the Order of the Phoenix . In 2003, a copy of the fifth book was sold before the international release date, and the purchaser "rented" the copy to a national newspaper chain, which proceeded to prepare an early review of the book. The Canadian publishers and author prevented the publication of the planned early review through a similar Ontario injunction order, but had they not done that, the story, plot, and characters would have been disclosed to the public prior to the international release date. Raincoast was referring to this scenario when it cited the publishers' responsibility for containing the effects of the early sale of some copies of Half-Blood Prince in seeking the BC injunction.

    The broad terms of the BC injunction also prevented the publication of a review of the book after the release date if the review was based on the reading of the book before that date. As a result, the injunction stopped The Globe and Mail from publishing a review of Half-Blood Prince that the newspaper had announced would appear "at the stroke of midnight," that is, simultaneously with the release of the book. A person should not be allowed to reap the benefits of the violation of another's rights by gaining a head-start on others (as long as the person knows of the violation of the rights). Even though notice of the BC injunction was given to all major media organizations as soon as the injunction order was made, none of them moved to set aside the order, and all abided by it in the end.

    With the assistance of the BC injunction order, an even playing field was maintained among all Canadian booksellers and media, and the excitement and mystery of Harry Potter and the Half-Blood Prince was preserved for all fans until the international release date, as promised.

    Barbara Grossman, Aaron Milrad, and Annie Na are lawyers at Fraser Milner Casgrain LLP in Toronto. They have represented the Canadian publishers and J.K. Rowling in all court proceedings in Canada relating to the Harry Potter series.

    Please email the authors at barbara.grossman@fmc-law.com, aaron.milrad@fmc-law.com or annie.na@fmc-law.com with questions about this article.