Lawyer says biography in breach of copyright
By Thomas Claridge
The
Globe and Mail
Toronto, Ontario
2 December 1987
p. D-14
Copyright Bell Globemedia Publishing Inc. or its licensors. All rights reserved.
A bid to block Canadian publication of an unauthorized biography of L. Ron Hubbard, founder of the Church of Scientology, was portrayed yesterday by a lawyer for the would-be publisher as "an attempt to circumvent the rule that the dead cannot sue for libel." David Potts also told Mr. Justice Bud Cullen of the Federal Court of Canada that the bid for a temporary injunction was a masquerade and an abuse of process.
The injunction is being sought by New Era Publications International, ApS. Based in Copenhagen, New Era has told the court it has an exclusive right to publish works for which copyright is held by the estate of Mr. Hubbard, who died in January, 1986.
The injunction bid is based on an assertion that the unauthorized biography infringes on the copyrights.
But Mr. Potts told Judge Cullen that if New Era really saw British author Russell Miller's The Bare-Faced Messiah: The True Story of L. Ron Hubbard as a copyright violation, it would have tried to stop publication of the book in Britain.
Mr. Potts and Julian Porter are representing Key Porter Books, which acquired Canadian rights to the book and had arranged for printing of an initial 5,000 copies to start Friday.
The court was told that Key Porter — owned by Mr. Porter's wife, Anna — originally had planned to publish the book in October but instead waited for the conclusion of a British court action launched by the Church of Scientology.
The British case involved different grounds, including defamation, but the courts eventually permitted publication of the full book.
The New Era suit was not initiated until last month. A massive statement of claim was filed in court by the Danish company Nov. 19, nine days after the firm says the Hubbard estate gave it "an exclusive right to publish the works." In seeking a permanent injunction against publication or distribution of the book, New Era contended that Mr. Miller lifted whole sections of copyrighted materials and acquired copies of unpublished Hubbard writings without permission.
The claim was supported by massive extracts from the Miller book and the alleged sources, ranging from published works of the Scientology founder to letters and internal memorandums purportedly obtained from disaffected Scientologists.
Some of the extracts showed that Mr. Miller had lifted entire paragraphs of authorized biographical material, even to the point of reproducing a dangling modifier from the Scientology book Mission Into Time. ("With the death of his grandfather, the Hubbard family returned to the United States . . .) Kenneth McKay, lawyer for New Era, contended that previous court rulings have established that any author who copies portions of copyrighted materials cannot save himself by adding literary work of his own.
In urging Judge Cullen to order the temporary ban on publication, Mr. McKay said the publisher would suffer little or no harm because of the small initial press run and protection it enjoyed under its contract for Canadian rights against any damages for libel.
But Mr. Porter maintained that with the book being published in Britain and therefore available to Canadians, the only damage from the injunction would accrue to Key Porter.
He also contended that no injunction should be granted when there was no proof that New Era actually possessed the right in copyright.
Admitting that Mr. Miller had quoted from some Hubbard works, Mr. Porter said such quotations were essential for an author who was writing a critical review.
Advising Judge Cullen that his main defence was "fair dealing" on the part of Mr. Miller, he added: "You cannot criticize accurately without citing in some instances the work you are criticizing." He also told the court that some of the unpublished writings were in the public domain already, having been sent to departments of the United States Government or included in Scientology bulletins.
Both he and Mr. Potts argued that the real plaintiffs in the case were the Scientologists, who Mr. Potts said, "do not come to court with clean hands." He quoted from previous court judgments that were highly critical of the church's treatment of its critics, particularly when they were former adherents.
The hearing continues today.
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