Re: Injunction Notice
Understanding The Harry Potter Injunction:
Protecting Copyright and Confidential Information
by Barbara Grossman, Aaron Milrad and Annie Na of Fraser Milner Casgrain LLP.
(The authors represented the Canadian publishers and the author of Harry Potter and the Half-Blood Prince in obtaining the B.C. injunction discussed in this article,
as well as in all previous Canadian court proceedings in Ontario relating to the other books in the Harry Potter series.)
Excerpt: 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,
the sixth in the series, and J. K. Rowling, the author, a court order restraining anyone who had obtained an early copy of the book (“John/Jane Does”) 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, wide in its scope, also 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?
Read the full article
August 26, 2005
Letter to the Editor, Quill & Quire
Vancouver, B.C.
Michael Geist’s column in last month’s Quill & Quire (“Over the lines of the law,” September, page 9) raises good points. Professor Geist was, of course, writing about the legal action that Raincoast took to prevent the premature disclosure of content from Harry Potter and the Half-Blood Prince.
Please allow Raincoast to offer some context.
The Supreme Court of British Columbia, supported by a previous ruling in Ontario two years earlier, ruled that Raincoast’s request to suspend, for six days only, the premature sale and disclosure of content from the new Harry Potter book was reasonable.
Over the following week Raincoast sent out hundreds of copies of press releases, responded to endless emails, and granted almost a hundred interviews with journalists from across Canada. As Professor Geist describes, “Raincoast is a much admired publisher and to its credit, made an effort to respond to Canadians concerned by its actions.”
A healthy debate has ensued. Any concerned citizen who wants to read the wording of the injunction and decide for themselves the merits of the legal case can find details below. Raincoast’s legal case rests on the defense of copyright, as it pertains to setting a publication date, and breach of confidence, not defense of trade secrets as Professor Geist maintains.
There was no “crackdown” against innocents caught up in the situation. In fact Raincoast requested assistance, promised not to penalize those consumers involved, and threatened nothing more onerous than a signed bookplate and T-shirt. Many who stepped forward said that they did so because they did not want to spoil the surprise for millions of children around the world.
Despite some wonderful editorial cartoons, there were no police raids on Harry Potter fans, no charges laid, and, although many journalists asked, no private details offered about the people who came forward. All in all, a very Canadian outcome: a court asked Canadians to temporarily return books, Canadians voluntarily came forward and no one was made into an instant celebrity.
The BC Civil Liberties Association described the incident as “ ... a very, very small issue” in regards to freedom of expression, and noted “this is not like a publication ban on court proceedings where the public has a right to know. It’s not like banning a book.”
Professor Geist points to the seriousness of our discussions with The Globe and Mail, who announced that they would publish a review of Harry Potter at one minute after midnight on July 16. We had given our word to all media that there would be no review copies before July 16th and that we would ensure a level playing field. Raincoast acted to uphold a matter of law and our commitment.
We reached a compromise with The Globe and Mail, whereby two Globe correspondents in London received an authorized review copy from our publishing partner, Bloomsbury Publishing PLC, at one midnight past midnight U.K. time. Liz Renzetti and Doug Saunders’ excellent review made the front page of Saturday’s paper.
Sandra Martin’s equally fine online review was posted later on Saturday morning. Again, a classic Canadian solution.
The legal controversy might “be remembered long after the latest Harry Potter plot twist is forgotten,” but Raincoast believes that most fair observers will judge our actions as being far more benign than the controversy suggests.
They will remember the millions of avid readers from around the world who gathered together on July 16th to celebrate the magic of one author and one extraordinary book. How we as a publishing community can sustain this immense outpouring of goodwill and popular enthusiasm towards reading should be the common goal of publishers,
booksellers, librarians, and yes, civil libertarians, in the months and years to come.
(Jamie Broadhurst, Director of Marketing, Raincoast)
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July 19, 2005
Vancouver, B.C.
Raincoast Books’ actions in securing a court injunction against the premature circulation of content from Harry Potter and the Half-Blood Prince has triggered a passionate discussion on breach of copyright and breach of confidence and what legally constitutes the action of publishing a book.
Although the court ruling ordered the temporary return of unauthorized copies of Harry Potter and the Half-Blood Prince, from the outset Raincoast made a direct public appeal for books to be voluntarily returned in exchange for a JK Rowling autograph and gift pack.
Raincoast went to great lengths to describe these Canadians as honourable Harry Potter fans because they acted to keep the secret of July 16th for millions of ardent readers. Raincoast publicly promised that no legal action would be taken against innocent consumers who
had inadvertently purchased unauthorized copies of Harry Potter and the Half-Blood Prince and that we would protect their privacy. Raincoast has been true to both promises.
It is the portion of the injunction dealing with breach of confidence that has been interpreted by some to suggest that Raincoast was seeking to penalize fans. Again, Raincoast’s intention is not to penalize fans.
The injunction was sought to limit the effects of the breach of copyright and the breach of confidence, in particular to protect and reinforce the existing legal contracts Raincoast had with international partners, retailers and other vendors.
Raincoast is aware that its actions have triggered a greater discussion on breach of copyright and breach of confidence, and feedback and opinions on these issues are important elements to ongoing discussions about Canadian and international laws.
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July 13, 2005
Until July 16, Harry Potter and the Half-Blood Prince is an unpublished work
under copyright law definitions. A work is considered published only when it has been distributed by the owner of the
copyright to members of the public, in this case on July 16th.
While the book has been printed and shipped in sealed boxes to vendors around the world, the work is not considered published.
Raincoast is obligated to protect the confidential contents of the book until July 16, as promised to J.K. Rowling and according to her requests
regarding the publication.
In addition, Raincoast is responsible for ensuring existing contracts are upheld and that the conveyance, communication and misuse of confidential
information is prevented.
The content of Harry Potter and the Half-Blood Prince is confidential in nature. The content is neither public property nor public knowledge.
And significant measures have been taken to ensure the security of the Book and to ensure the contents remain confidential for everyone.
The fans who innocently purchased a copy would not ordinarily be entitled to obtain the confidential information.
The injunction asks them not to keep or disclose what they obtained from unauthorized copies of the Book.
This includes reading, reviewing and revealing the contents because it gives an unfair advantage over all others who comply with the on-sale date.
At the heart of the issue is Raincoast’s wish to provide Harry Potter fans the best book launch ever. The secrecy of the contents is an essential part of that release,
and the excitement of fans worldwide to participate in a collective unveiling of the book on a given date should be foremost in our minds.
If you wish to comment on this story, please feel free to email feedback@raincoast.com
UPDATES:
No wizardry in Potter injunction, reading book before Saturday is illegal by
Angela Pacienza, Canadian Press, July 13, 2005
“The Copyright Act grants a number of exclusive rights to the copyright holder,” explains Glen Bloom, a lawyer with Ottawa’s Osler, Hoskin and Harcourt,
a firm specializing in copyright law ... The copyright holder decides when others can read the material, he said. In this case, author J.K. Rowling has chosen Saturday at 12:01 a.m. local time around the world.”
Read full article
Potter fans return early copies by Lora Grindlay, Vancouver Province, July 13, 2005
“... injunction that prohibits the innocent consumers who bought the book from reading it, talking about it, selling it or copying it caught the attention of the B.C. Civil Liberties Association yesterday.
Policy director Micheal Vonn said it’s clear the publisher is trying to protect its commercial interests and it’s arguable the injunction is too broad. But when it comes to freedom of expression, she said,
it’s a ‘very small, small issue.’ ... ‘This is not like a publication ban on court proceedings where the public has a right to know. It’s not like banning a book. Civil libertarians are not tied up in knots about it.’ ”
Read the article
Read the injunction
Read the Notice to the Public
Further Notes:
In regards to the legal aspects of the injunction, Raincoast and Bloomsbury are the exclusive licensees of Harry Potter in English in Canada. Being the exclusive licensee means Raincoast is authorized, to the exclusion of all others, to distribute or disclose Harry Potter and the Half-Blood Prince in Canada.
Distribution or disclosure of the contents in advance of the on-sale date constituted a breach of the exclusive Canadian publication rights of Raincoast and Bloomsbury. It is also a breach of confidence. Breach of confidence is the conveyance of confidential information, the communication of confidential information and the misuse of confidential information.
Due to the protection and embargo agreements signed worldwide to protect the contents of the book, Harry Potter was considered confidential information until July 16. The Supreme Court of Canada has ruled that a breach of confidence applies to third party recipients of confidential information, even if innocent at the time of receipt.
The Supreme Court of Canada has also established that gains such as “springboard” or “head start” through breach of confidence should not be permitted. This is why the injunction prevents early disclosure and reviews of Harry Potter and the Half-Blood Prince.
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