20 August 2003

Poor Joanne Rowling. By now she must be like everyone else… and hate lawyers.

   As noted at TheBookseller, she won her lawsuit to enjoin publication of an unauthorized translation of the Harry Potter novels. She thus fared considerably better in the Indian courts than did Barbara Taylor Bradford. I will haughtily refrain from making any judgment as to whether the comparative literary merits justified the results independently of the law. Oops. I just did. Haughtily.

   In any event, there is a clear distinction between the two cases. (Whether that distinction should matter is for another time.) Bradford's suit concerned allegations of infringement of her textual work by a many-part Bollywood-produced TV serial of a different title. In other words, whether infringement existed would have been a matter of fact (in the US, probably sufficiently unclear as to require a jury trial). Rowling's suit concerned direct translation of her works in the same form, without any transformation of content or medium not introduced as an artifact of the translation itself. Thus, the fact of infringement under Berne Convention standards was clear, leaving only the matter of any privilege that the publisher may have had under Indian law to make such a translation.

   This last point may be surprising at first blush, but perhaps not after consideration. For example, a Braille edition of a book, even in the same language, is for copyright purposes a derivative work. However, in the US (among other nations) producing an edition exclusively for the blind is privileged (17 U.S.C. § 121). The interesting question that this raises is a technological rather than a legal question: What kinds of editions fall within § 121? Similarly, some nations allow the "infringement" of publishing a foreign-language work in their native tongues under circumstances that make an authorized translation virtually unheard of.

   The moral of this little story? You expect a moral from a lawyer?