To the limits of copyright

26.06.09 | Robin Fry

Yet another claim by an unknown author against Bloomsbury alleges copyright infringement by JK Rowling. This time, it's based on parallels between Harry Potter and the Goblet of Fire and Adrian Jacobs 1987 book The Adventures of Willy the Wizard No 1: Livid Land.

In fact, these kind of claims can be expected (and mostly shrugged off) by any successful author. The jeopardy for the publishers is more acute: they need to make a swift judgment call looking at any overlap either in terms of text or plot. And inevitably, with over 200,000 books published each year in the UK (not to mention short stories and unpublished works), there'll be at least one searching and indignant writer pointing at 'unexplained coincidences' and demanding a share of the spoils.

Publishers are intensely concerned that the claimant might just be proved right - if a book does cross the line (a couple of identical paragraphs or an unacceptable copying of a plotline) they could be liable to pay all their profits over as well as having to re-call all printed copies from wholesale and retail outlets for pulping. It also rather puts the mockers on the planned feature film. And on a reputational basis, the idea of plagiarism is a terrible claim to lay against any creative individual. 

And yet we read in the Government's "Digital Britain" report that over 6.5 million people regularly infringe copyright by illicit file sharing. 

We're therefore curiously ambivalent towards copyright infringement: "It's really no problem (big bad record companies). Oh no, hang on, it's terrible (I used to think she was a true original)."

The current laws are unyielding and are getting tougher, with little indulgence at the edges. Unlike in France, for instance, there is no allowance here for parody or caricature or creating derivative works. Andy Warhol had little trouble in the 1960's with his silk-screened multiples most of which were directly derived from contemporary photographs. The equivalent now, the pop art Barack Obama 'Hope' image, is at the centre of legal proceedings in New York between the artist and Associated Press. 

Copyright is not an absolute right of ownership (even if it's misleadingly called "property"). It's simply a balance between what we want to give to encourage other's creativity - and what we want to take and use for ours.  If we are to re-draw the boundaries between copyright and fair usage, we can choose to do so. A base starting point might be whether this other (currently illegal) use is damaging the commercial value, taken as a whole, of the original work. The author's integrity has also to be respected. Neither of these are absolutes.

Unfortunately these boundaries have become increasingly fortified with regular skirmishes either by or against authors and publishers - particularly when the possible recoveries are high. Do we need to move these lines back significantly? It all depends on whether we read children's stories in the evening with our family or share music with friends. Or both.

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