Understanding The Harry Potter Injunction:
Protecting Copyright and Confidential Information
by Barbara Grossman, Aaron Milrad and Annie Na (see footnote 1)

October, 2005

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?

The “Embargo”

A convenient starting point is the decision of the author to set a single international release date for the book before which the content of the book would be kept secret. Such a process is referred to in the publishing industry as an “embargo.” (see footnote 2) An embargo is carried out through coordinated and expensive measures outlined in a series of formal embargo agreements entered into by the author, the publisher, book wholesalers and distributors, and booksellers, as well as all those involved in producing and handling the book prior to its release date.

Underlying the concept of an embargo is the basic fact that the content of the book (or, more precisely, those parts of the book that are original) is private property. This relationship between an author (or the person to whom the author has transferred her property rights) and her work is recognized by the Copyright Act of Canada, which grants the author certain exclusive rights relating to the work, called “copyright” in the work. These rights include the right to reproduce or publish the work. Part of the right to publish the work is the right to determine whether to allow the public access to the copyrighted work and, if so, when.

Thus, when Ms. Rowling and her publishers placed Harry Potter and the Half-Blood Prince under an embargo, deciding that the book will be published at 12:01 a.m., July 16, 2005, they did so as part of the exercise of their copyright in the book.

Legal Protection of Confidential Information

Just as the law protects copyright in one’s literary work, it also protects confidential information from being made public. Injunctions restraining disclosure and other misuse 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. If the first recipient of the confidential information passes it on to another person in breach of the obligation of confidence, does that other person have an obligation of confidence to the original party? The answer is yes, if at the time the information is passed on to him or subsequently, he becomes aware that he received the information through breach of confidence.

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 international release date, and the confidential status of the book until then was well publicized. When copies of the book were shipped by the publishers to wholesalers, distributors and booksellers before the release date, those parties were under a contractual duty of confidentiality, since they had 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 Court Order

On July 8, 2005, the Canadian publishers learned that some copies of Half-Blood Prince had been prematurely sold by a store in Coquitlam, B.C. 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 premature selling 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 John/Jane Doe 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 date of its publication 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 content of the book 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 the injunction made by the U.K. court about a month earlier to protect the confidentiality of the book in the face of an embargo breach in the U.K.

Public Reaction to the Court Order and Raincoast’s Response

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 members of the public seemed in agreement with that sentiment as well. However, others, particularly some media, objected to the court order.

Although the gist of the injunction was to restrain those in possession of copies of Half-Blood Prince from disclosing the content of the book, the order also included a number of ancillary prohibitions, including a prohibition against reading the book until the release date as anyone reading the book would obtain disclosure of its confidential content. It was this aspect of the order that appears to have attracted the most attention from the media. Some critics of this part of the order asserted that the prohibition penalized the innocent purchasers of the book and was contrary to the constitutional guarantee of the freedom of expression.

In its interviews with the media and statements posted on its website, Raincoast responded to these criticisms by explaining the legal bases on which it sought the injunction, namely, its right under copyright law and the law of confidential information to control the public’s access to the content of the book. Raincoast also made the following related 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 also responsible for containing the effects of the premature sale of some copies of the book so as to ensure that a breach of the embargo agreement by one or two booksellers did not operate to unfairly disadvantage 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 of them simultaneously on the release date. They were obligated to take all necessary steps to keep this promise.

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

- Nonetheless, Raincoast had no intention to penalize or intimidate innocent fans, and was only asking them to keep the contents of the book secret and to temporarily give up possession of the book until the release date. As an incentive, innocent fans who turned in their prematurely purchased copies were rewarded with a signed book plate and a T-shirt from the launch event in Scotland.

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, no real support for that assertion has been offered. In fact, the assertion seems incorrect for a number of 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 the particular circumstances of this case where the author and her publishers were attempting not to express anything before the release date. There is no judicial authority on this point.

Third, if the Charter applied to this case, and if freedom of expression includes 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.” Previous court decisions suggest that the answer to this question is yes. This is 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, a work of fiction, for a short period of approximately one week until the release date, a fact that seemed to get lost in the debate.

An example may help to put the issue in perspective. Suppose that a secret diary that you, as a private person, have kept without any intention of allowing anyone to read during your lifetime is taken by another person without your permission and then given to a third person, who we will call C. C knows, or comes to know, that the content of the diary is a secret and the diary was given to him without your permission. You would likely feel your rights have been violated if it is suggested that C is entitled to read the diary simply because he has the physical possession of it, even if he obtained it in circumstances involving no wrongdoing on his part.

The law gives effect to this feeling of violation. As the author of the diary, you have the copyright in it, and have the right to determine whether and when to publish it, that is, to determine who can read it and when. As the person who created the confidential content of the diary, you are also entitled to prevent C from misusing that content, whether by reading it or disclosing it. If it were asserted that your exercise of these rights would infringe upon C’s freedom to read, you would be able to answer that assertion with the above arguments.

Is there any legal difference between the diary scenario and the injunction in this case in terms of how the Charter principles should apply? It would be difficult to say that there is if copyright and the principles of confidentiality are to retain their essential meaning.

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 was designed to address the possibility that even a seemingly minor breach of the measures to protect the secrecy of the content of the book could lead to a wholesale disclosure. For example, even if just one person makes an early purchase of a copy of the book, if that person were to broadcast the content of the book on the Internet or through the media, the embargo would be largely nullified.

This almost occurred in connection with the fifth book in the Harry Potter series. In 2003, a copy of the fifth book was prematurely 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, 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 kind of scenario when it cited as one of the reasons for seeking the B.C. injunction the publishers’ responsibility for containing the effects of the early sale of some copies of Half-Blood Prince.

The broad terms of the B.C. injunction were also effective to prevent the publication of a review of the book after the release date if the review was based on the early reading of a copy sold before that date. As a result, the injunction stopped The Globe and Mail from publishing a review of Half-Blood Prince that it had announced would appear “at the stroke of midnight,” that is, simultaneously with the release of the book. The legal basis for this prohibition is that a person should not be allowed to reap the benefits of the violation of another’s rights by gaining a head-start on others (at least so long as the person knows of the violation of the rights). Even though notice of the B.C. 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 B.C. injunction order, an even playing field was maintained among all Canadian booksellers and media, and the excitement and mystery of Half-Blood Prince was preserved for all fans until the international release date, as promised.

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FOOTNOTES

(1) 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.

(2) Harry Potter 4, 5 and 6 have all been subject to embargos involving a single international release date. Embargos have also been used for the release of a number of other recent books, for example: My Life So Far by Jane Fonda (Random House, 2005); The Broker by John Grisham (Doubleday, 2005); Sinatra: The Life by Anthony Summers and Robbyn Swan (Knopf, 2005); The Truth about Hillary: What She Knew, When She Knew It, and How Far She’ll Go to Become President by Edward Klein (Sentinel, 2005); Disney War by James B. Stewart (Simon & Schuster, 2005); The 9/11 Commission Report (Norton, 2004); My Prison Without Bars by Pete Rose with Rick Hill (Rodale, 2004); My Life by Bill Clinton (Knopf, 2004); The English Roses by Madonna (Callaway, 2003); I Am a Soldier, Too: The Jessica Lynch Story by Rick Bragg (Knopf, 2003).

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