Harry Potter and the International Order of Copyright.

The law, lawyers, and the court.
June 27 2003 12:42 PM

Harry Potter and the International Order of Copyright

Should Tanya Grotter and the Magic Double Bass be banned?

If you're a serious Harry Potter fan, you finished The Order of the Phoenix over the weekend and are already impatient for the sixth book. While you wait (and wait) for it, how about trying some of the international versions of Potter? In China last year, it was easy to buy the unusual Potter sequel Harry Potter and Leopard-Walk-Up-to-Dragon, in which Harry encountered sweet and sour rain, became a hairy troll, and joined Gandalf to re-enact scenes from The Hobbit. The book, while credited to J.K. Rowling, wasn't authorized or written by her, but that didn't prevent it from selling like butterbeer.

Meanwhile, in Russia, you can still meet Harry's Slavic twin: "Tanya Grotter," star of Tanya Grotter and the Magic Double Bass. Tanya rides a double bass, sports a mole instead of a bolt of lightning, and attends the Tibidokhs School of Magic. In an interview with journalist Steve Gutterman, author Dmitry Yemets called her "a sort of Russian answer to Harry Potter," and described his books as "cultural competition" for the original. Grotter is a hit: Yemets has already sold more than 1 million copies. And next door in Belarus you'll find Porri Gatter and the Stone Philosopher. In something of a departure, Harry's Belarussian clone wields a grenade launcher and re-fights the White Russian wars.

You're unlikely to be able to get your hands on any of these works, since J.K. Rowling and her publisher have launched an aggressive worldwide legal campaign against the unauthorized Potter takeoffs. It began last year when Rowling and Time-Warner threatened the publishers of Chinese Potter, who agreed to stop publication. On April 4 of this year, Rowling persuaded a Dutch court to block the import of Tanya Grotter to Holland. Harry Potter in Calcutta, in which Harry meets up with various characters from Bengali literature, was recently pulled by its Indian publisher under threat. Potter takeoffs have become international contraband.

Rowling's ability to stop the Potter pretenders is largely a function of the new regime of international copyright. Until recently, countries varied considerably in how they protected literary works, especially works from abroad. The United States, for instance, has a long history of providing less protection than the Europeans. Benjamin Franklin was a kind of pirate: He did good business as a printer of unlicensed English writing. In the 19th century, the United States generally refused to recognize foreign copyrights, allowing American readers to get the latest Dickens and Doyle cheaply. And the borrowing of characters itself has a longer tradition. For example, the princess we know as Cinderella originally hails from China, where she goes by the name Yeh-Shen and relies for help on a magic fish who gives her golden slippers.

Today, nations still maintain and enforce their own copyright laws, but for members of the World Trade Organization (that is, nearly everyone that matters), those statutes must meet extensive minimum standards. Under the Trade Related International Property treaty, original authors "enjoy the exclusive right of authorizing adaptations, arrangements and other alterations of their works." In other words, there is little scope for secondary authors to write local adaptations of the Potter-clone variety, since their country must abide by the international norms guaranteeing Rowling's monopoly everywhere. The result: Rowling can use the courts in WTO-compliant countries to club her Potter rivals.

You might think it a good thing that Rowling can stop the Potter cloning industry, whether it is in Brighton, Bangalore, or Bratislava. Who wants to see Harry turned into a hairy troll or forced to gallivant with foreign literary figures? But on closer examination the argument for letting Potter crush his international competition is quite weak.

The case for preventing literal copying—in which a foreign publisher simply reprints a work without permission—is strong. But Potter follow-ons are different from the American Dickens piracy of the 19th century and DVD piracy of today. Literal copies are what come out when you use a photocopier. Potter's takeoffs are different: They either borrow characters and put them in a new, foreign context (Potter in Calcutta) or just use the themes and ideas of Potter (as in Tanya Grotter's case) as inspiration for a different kind of story. They aren't a direct replacement for a Potter book, the way a literal copy is, but rather a supplement or an adaptation.

One of the main justifications for a unified and strong global copyright system is that it is supposed to facilitate international trade. That's why it's a part of the WTO system. But as trade economists will tell you, trade often works when countries imitate and improve the inventions of others. America invents the hi-fi, Sony turns it into the Walkman, and then Chinese companies make still cheaper imitations.

This is basically what's going on in the world of Harry Potter. The English original is clearly the best. The imitators aren't as good but are cheaper and come out much more frequently (there are already three Tanya Grotter books). There is, in short, a secondary Potter market. Isn't this the international trading system at its best?

Moreover, the writers of secondary Potters are probably better at creating versions of Potter suited to local conditions. According to Reuters, at least some Russian children prefer Tanya Grotter to Harry, some on account of her Russian name. Local writers do things to Harry that Rowling can't, like introducing him to local literary figures and putting him in local wars. It may be good and it may be bad, but it's a market failure to prevent it.

Potter's publishers, in defense of strong global copyright, would say that works like Tanya Grotter are theft, and such theft destroys the incentive to write in the first place. But the incentives argument is surprisingly unpersuasive in the international setting. To say Rowling will stop writing for fear of international parody is a difficult case to make. Only the most famous and lucrative works are parodied overseas. If an international adaptation is a sign you've made it rich, how can it be a serious financial deterrent for new writers?

The truer complaint is that Potter's overseas competitors may mean slightly less profit for Rowling and her publishers. It is also true that Burger King means slightly less profit for McDonald's. You could say that Burger King and Wendy's stole the idea of a fun, plastic burger joint from McDonald's and are unfairly profiting from their evil deed. But when it comes to burger joints, we accept that the consequence of a competitive market is less profit for the first mover (McDonald's). Copyright should be no different. So long as it provides Rowling sufficient incentive to write, it should strive to maintain as much competition and facilitate as much international trade as possible.

It is also true that these rip-off works make authors angry and may tarnish the reputation of the character. But what makes authors angry is precisely what they are least likely to write, and therefore often what copyright needs to permit. For example, in 1989 the rap group 2 Live Crew recorded an obscene version of Roy Orbison's song "Pretty Woman." Orbison's "Pretty Woman" became, successively, "big hairy woman," "bald woman," and eventually, "two-timin' woman." There was little question that it made Orbison's estate angry, tarred the reputation of the original, and was a commercial competitor that threatened Orbison's profits. But the U.S. Supreme Court found it a parody: a non-infringing fair use. The faux Potter books are not quite parodies, but they're similar. Just as refusing 2 Live Crew permission to parody would have destroyed the market for parodies (since authors rarely parody their own works), so Rowling's campaign destroys the market for international follow-ons, since Rowling could never write a Potter book that could capture the Russian spirit the way Grotter does. Rowling is using the cudgel of international copyright not to destroy something she could have created, but to destroy something she could never create.

In the end, few people are likely to mistake Tanya Grotter for Harry Potter; it is akin to mistaking Burger King for McDonald's. The international copyright system is justified in preventing the most basic forms of piracy. But it doesn't need to stop works like Tanya Grotter. The original Harry Potter is good enough to compete with its foreign cousins. So let a hundred Harrys bloom and let a hundred schools of magic contend.