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Is this 'wholesale theft'?

5 May 2008

J K Rowling's argument against the publisher which is intending to publish a Harry Potter Lexicon written by Vander Ark seems a clear one. The case, which was in court in New York last month and is now awaiting a verdict, raises a number of issues relating to copyright. Warner, which owns the Harry Potter trademark through its acquisition of the film rights, is actually fighting the case, but the author clearly feels threatened by it in a very personal way.

Although sales of the seven Harry Potter books have now topped 375 million, part of the reason that J K Rowling feels under pressure is that she herself planned to write a Harry Potter encyclopedia, and to give the royalties to charity. Worse still, the Harry Potter Lexicon has come out of a free fan website with the same name, which claims 25 million annual visitors.

So, is it just a case of a rich author turning on her fans? Well, not really, as the publishing project comes from publisher RDR Books, a Michigan-based independent. Rowling claims that 2,034 of the book's 2,437 lines are lifted straight from the Harry Potter titles, saying: 'I believe this book constitutes wholesale theft of 17 years of my hard work. It adds little if anything by way of commentary; the quality of that commentary is derisory; and it debases what I worked so hard to create. What particularly galls me is the lack of quotation marks. If Mr Vander had put quotation makes around everything he had lifted, most of the book would be in quotation marks.'

The case rests on two distinct alleged offences. The first of these is infringement of copyright, which should not be hard to prove in view of the amount of material taken from the books, as the law requires publishers to seek permission when reproducing substantial amounts of copyrighted material. There's also the charge of 'passing off', in that the book misleadingly implies that it has been officially endorsed, which may be harder to prove. The judge may consider that the author's support of this and other Harry Potter fan sites in the past implies endorsement of unofficial guides.

Rowling takes the whole thing very personally: 'These characters meant so much to me, and continue to mean so much to me, over such a long period of time. It's very difficult for someone who is not a writer to understand. The closest I can come is to say to someone, "How do you feel about your children?'

On the other side of the equation, there are concerns that the outcome of the case could cramp freedom to publish, particularly reference and scholarly works. The publisher is being represented by lawyers who are working pro bono and their view is that Rowling 'appears to claim a monopoly on the right to publish literary reference guides and other non-academic research relating to her own fiction. This is a right no court has ever recognised... It would threaten not just reference guides but encyclopedias, glossaries, indexes and other tools that provide useful information about copyrighted works.'

The Internet and the changes it has brought continue to put copyright under threat and to throw up new challenges such as this. We await the verdict with interest. The protection of copyright is essential to authors, if they are to have control over their work and the reassurance that they will receive the income from the fruits of their labour.