HARRY POTTER AND THE BATTLE OVER COPYRIGHT LAWS
Can the author come up with a legal spell to prevent the publishing of a HP encyclopedia?
J.K. Rowling is the renowned author of the famous fantasy books about the life of wizardry student Harry Potter. Since the release of the first book in 1997, the series have gained huge popularity worldwide. The books have spawned a series of Potter movies, Potter video games and themed merchandise. The commercial success of the Potter brand has made Rowling one of the highest-earning authors in history. Like with many popular and commercially successful products, there are others who try to get a share of the cake, sometimes illegally. In the past, Rowling (and/or formally her publisher and/or the film distributor) has had to wage legal battles to prevent (further) infringement of copyrights, including banning the sale of imitations and targeting owners of websites over the use of the Harry Potter domain name; and now once again, Rowling is involved in a legal dispute.
In this case, a devoted fan of the Potter series wants to publish a Potter encyclopedia, which would basically be a hardcopy version of his own popular website called “The Harry Potter Lexicon”. Now the author is suing to prevent publication of this encyclopedia. In the court case at a U.S. District Court in Manhattan, Rowling argues that the different characters in her books came out of her head hence they are her (intellectual) property. In her view, no one else may use them without her permission. In essence, the claim is that the decision to publish, or to even allow, material such as encyclopedias or reference guides which build upon the works of authors, is the authors’ alone. However the fan and his publisher say that the encyclopedia would not violate any copyright laws because the content thereof would be original. They have argued that the encyclopedia provides a significant amount of original elements, such as analysis and commentary concerning everything from insights into the characters, the meaning of various historical and literary references, as well as inconsistencies and mistakes in the books. Also, according to them, the right to literary commentary is at stake.
This case, and the legal issues raised therein, such as the question if and to what degree (i) someone may use and build upon the works of others and the question of whether (ii) the encyclopedia itself is a protected fair use creation, are interesting, also for observers outside of the U.S. The reason for this is that although many jurisdictions have their own laws regarding copyright and intellectual property in general, they are often based on the same or similar legal ideas and concepts, as is also the case with Dutch Caribbean law, which provides for numerous forms of legal protection of intellectual property, like patents, trademarks, and copyright.
The statutory provisions regarding copyright are set forth in the Netherlands Antilles Copyright Ordinance. According to the Ordinance, Copyright is the exclusive right of the author of a literary, scientific or artistic work, or his or her successors in title, to communicate that work to the public and to reproduce it, subject to the limitations laid down by law. According to the Ordinance this protection is automatic and does not depend on official procedures or formalities. The author is considered protected by copyright as soon as his work exists in a tangible form. However, although not required to obtain a copyright, registration may be wise for evidentiary purposes (date of creation of the work etc.) in case of possible infringement. A copyright expires after fifty years.
Works covered by copyright include for instance literary works such as books, newspapers, periodicals, and other writings; plays and musical works; artistic work such as drawings, paintings; architectural works and sculpture; photographic and cinematographic works; works of applied art and industrial designs and models, in fact generally any creation in the literary, scientific or artistic areas, whatever the mode or form of its expression. Reproductions of literary, scientific or artistic work in a modified form, such as translations, arrangements of music, cinematographic and other adaptations and collections of different works shall be protected as separate works, without prejudice to the copyright in the original work.
The Ordinance constitutes certain exclusive rights that an author has and may authorize others to use. Such rights may be enforced by several instruments in the civil and criminal courts. Apart from general indemnity claims, the author may apply to the court for rulings to require the infringer to surrender the profits derived from the infringement or to claim ownership of the infringing goods or to demand that they be destroyed. With its provisions for copyright, Dutch Caribbean law enables companies and persons to protect their rights effectively and in accordance with national and international standards such as the Berne Convention for the Protection of Literary and Artistic Works.
Karel Frielink / Ursus van Bemmelen
Dutch Antilles Attorneys / Lawyers
