A Treatise Upon the Law of Copyright

Section I What Is an Original Book

Definition of a Book.—“Book” is defined by 5 & 6 Vict. c. 45, sec. 2, “to mean and include every volume, part or division of a volume, pamphlet, sheet of letterpress, sheet of music, map, chart, or plan separately published.”

As an exhaustive definition this is of little value. It only indicates what the outward visible form of the “book” must be, and gives no indication of the nature or quality of the literary matter which it must contain. Even as a guide to the form it is defective, since it is only a definition by example and not exhaustively descriptive. In the absence of an accurate statutory definition of a “book,” the Courts have given a very wide interpretation to the term, and both as to the form and the matter have strained the ordinary dictionary meaning of the word to the uttermost. In the light of the decided cases a “book” might be defined as original literary matter in such tangible form as readily conveys ideas or information to the mind of a reader.

Essential Elements of a Book.—There are three essential elements which must be found in every book, viz.:

I. A certain physical form.
II. Literary matter.
III. Originality.

I. Physical Form.—The form of the book need not necessarily constitute what in common parlance is known as a book or volume. Thus a single sheet of music16 or a printed leaflet such as an application form17 are both books within the meaning of the Copyright Acts.

In one case18 it was held that a newspaper was not a book, but that decision was not followed,19 and there can now be no doubt that a newspaper comes within the definition of a book as a sheet of letterpress.20

The form must be adapted for conveniently conveying to the mind of a reader the intellectual matter which the book contains. It will not be sufficient that it can possibly be used for conveying intellectual matter to the mind, it must be conveniently adapted for that purpose. Thus music in the form of a perforated scroll for use in an æolian or pianola is not a “book,”21 for although it can be deciphered and read by the eye no one in his senses would use it instead of an ordinary sheet of music. On the other hand literary matter may nevertheless be in “book” form although it requires a special training to decipher it. For instance a story written in shorthand characters is in book form,22 and no doubt also a story impressed in raised characters for the blind.23

The substance on which the literary matter is depicted and the manner of depicting it are probably immaterial; but presumably a “book” must be at least ejusdem generis as an ordinary printed volume or leaflet. It must be “something in the nature of a book.”24 Thus although copies in ordinary manuscript25 or even engraved on thin slips of ivory would be in “book” form, an epitaph on a tombstone probably would not.

The meaning of the words “separately published” in section 2 is by no means clear. They do not mean that the matter in which copyright is claimed must be issued physically separate from any non-copyright literary matter. In the statute of Anne the words “separately published” are not used in the definition of a book, but it was nevertheless argued that a “book” must be entirely the original work of the author and not bound up with other matter. In Cary v. Longman Lord Kenyon rejected such an argument. In giving judgment he said:

“The courts of justice have long been labouring under an error if an author have no copyright in any part of a work unless he have an exclusive right to the whole book.”26

Under the statute of Victoria parts of a book bound up with non-copyright matter have frequently been protected; notes to non-copyright works,27 illustrations to non-copyright works,28 a small portion of a serial story,29 a small part of a time table,30 have all been protected. Clearly therefore a person may have copyright in a book although he has not copyright in every part of it.31

In Johnson v. Newnes32 Romer, J., takes the view that “separately” published means clearly distinguishable. He says:

“Now in my opinion if you find in a volume separate parts, and distinguished or perfectly distinguishable from the other parts, and the volume is published, each part that is separate and clearly distinguished in the volume itself is separately published within the meaning of section 2.”

If we accept this as correct we exclude the case of a revised edition of an old work, the corrections and additions to which forming the new work are not clearly distinguishable from the old. I am inclined to think that the real explanation and meaning of “separately published” is that it does not apply to “volume, part, or division of a volume” at all, but only to “sheet of letterpress, sheet of music, map, chart, or plan” which are to be protected, even although they are “separately published,” i. e. not bound up into a volume. It was no doubt inserted as declaratory of the case law under the statute of Anne, which laid down that a single printed sheet was a “book” within the meaning of the Act.

II. Literary Matter.—No literary merit or great labour is required to be shown. Lord Halsbury, L. C., in Walter v. Lane,33 referring to the verbatim reports of Lord Rosebery’s speeches which were the subject-matter of that action, said:

“Although I think in these compositions (i. e. the work of the stenographer) there is literary merit and intellectual labour, yet the statute seems to me to require neither—nor originality either in thought or language... the right in my view is given by the statute to the first producer of a book, whether that book be wise or foolish, accurate or inaccurate, of literary merit, or of no merit whatever.”34

In many of the cases great stress was laid in argument at the bar on the preamble of the Copyright Act, 5 & 6 Vict. c. 45. The preamble runs as follows:

“Whereas it is expedient to amend the law relating to copyright, and to afford greater encouragement to the production of literary works of lasting benefit to the world....”

From this it is argued that the Act intends to protect only those works which are likely to prove a substantial addition to the world’s literature. Jessel, M. R., in his judgment in Maple v. Junior Army and Navy Stores,35 points out the fallacy of this argument:

“The Act does not say that it is expedient to afford greater encouragement to the production of literary works of lasting benefit to the world, and to amend the law of copyright relating thereto, but that it is expedient to amend the law of copyright generally, merely adding the principal reason for doing so. There is therefore nothing in the preamble to cut down the enacting part, even if the enacting part had not been clear.”36

Road-books,37 directories,38 tradesmen’s catalogues,39 mercantile statistics,40 telegraph codes,41 time tables,42 verbatim reports of speeches43 are all books within the meaning of the Act.

It is quite immaterial for what purpose the matter was composed or published. Personal correspondence,44 advertisements,45 and a mining report46 are all subjects of copyright if published.

There must be some composition or arrangement of words, figures, sentences, or paragraphs which by itself will convey to the mind of the reader some intelligible proposition.47 There cannot be copyright in a single word,48 even although it expresses a man’s opinion: there is no composition or arrangement. Neither can there be copyright in a pattern sleeve49 or the face of a barometer,50 because both are really instruments to be used in conjunction with something else, and although there may be words and sentences on them, by themselves they convey no intelligible proposition to the reader. Probably a drunken scrawl, absolutely unintelligible, would not be protected. A jury having found that such a document was not a literary composition, the Court of Appeal refused to interfere with their verdict.51

The illustrations in a book are protected as part of the book,52 and a number of drawings bound up together without any letterpress would be protected as a book,53 compliance with the provisions of the artistic Copyright Acts being in such a case unnecessary; but a single drawing or engraving separately issued can only be protected under the artistic Acts.

A map, whether bound in a volume or separately issued, is a book within the meaning of the Literary Copyright Act, and will be protected thereunder.54

III. Originality as an essential element of a book means that the composition in the “book” must not have been copied from some other literary composition in “book” form. Originality does not necessarily imply an original composition on the part of the author.55 Copyright is given not necessarily to the first composer, but to the first producer in “book” form of a literary composition.56 Thus a book would be an original book if the literary matter contained therein were taken by the author verbatim from the oral utterances of a public speaker,57 or probably if copied from some ancient monument or mural writing. It would not, however, be original if the author had merely transcribed the literary matter from some public manuscripts, even although difficult of access.58 Again, originality does not necessarily imply novelty. Another book exactly the same in every respect, word for word, may have been previously published, and yet a later book will be original if derived from common sources, and not copied from the earlier book. Thus two mathematicians may have independently made the same calculations,59 two travellers may have made a chart of the same island or district,60 or two reporters may have taken shorthand reports of the same speech.61 In each case there would be independent copyright,62 and the later book, even although published ten years after the first, would be original.

Composition may consist in composition in the ordinary sense of piecing together words, figures, sentences, and paragraphs, in order to convey certain intellectual ideas, or it may consist in the arrangement of material, as in the case of directories, lists of statistics, &c. Sometimes part may be copied and part may be original, as in the case of new editions,63 translations,64 abridgments,65 selections from non-copyright authors,66 precedents of conveyancing, &c.67 The new matter only is the subject of copyright.

Road Books.

Examples of what are Books.—Road-books68 were among the first works in the protection of which by the Courts it was recognised that copyright did not necessarily depend on the evidence of any high mental qualities in the composition. In 1786 an injunction was granted to restrain the piracy of “Paterson’s Road-Book.”69 Lord Chancellor Loughborough in his judgment said that a book in order to acquire copyright did not require to be an operation of the mind like the “Essay on Human Understanding.” There might be copyright even although the subject-matter lay in medio, so that every man with eyes could trace it, and the whole merit of the work depended upon the accuracy of the observation. In 1776 the Court of Session in Scotland protected a “Traveller’s Pocket-Book,” which contained nothing but a mere list of stages and their distances.70 The compiler of such a work may arrive at the same, or nearly the same, result as some other compiler working over the same country, but if each has made his own compilation, “counting the milestones for himself,”71 he will have copyright and can prevent any one else from infringing such copyright.

Directories.

Directories72 soon followed road-books in their claim for protection. Lord Chancellor Erskine in 1806 hesitated somewhat, “thinking it dangerous to carry this doctrine of copyright too far,” but ultimately decided that an East India calendar or directory73 containing the names and appointments on the Indian establishment, obtained with considerable labour and expense from the repositories in India House, was the subject of copyright. This decision was followed by Lord Chancellor Eldon in 1809 in the case of “A Court Calendar.”74 In 1861 a street directory of Birmingham was protected,75 and in 1866 “Kelly’s Post Office London Directory.”76 In this last-mentioned case it was suggested in defence that the various residents had given their names for public use, and that therefore any one could copy them; this contention, however, was rejected, and it was held that the information contained in a directory was similar to that in a road-book or map; it was open to all mankind, but that he who collected and described it was entitled to prevent any one else from taking the results of his labours. In Morris v. Ashbee,77 a trade directory, called “The Business Directory of London,” was protected. This work contained the names and occupations of merchants and traders carrying on business in or about London. Those traders who paid the proprietor of the directory one shilling annually were entitled to have their names printed in capital letters, and a further payment entitled them to “extra lines” descriptive of their vocations. The defendants took from this work the names in capital letters and the “extra lines,” and contended that they were entitled to do so; but it was held that the payment by the several persons whose names were inserted had not the effect of making the names and descriptions when inserted common property, and that as the plaintiff had incurred the labour and expense of getting the necessary information and arranging it, he was entitled to protection.

Trade Directory.

Sheet of Advertisements.

In Lamb v. Evans78 the defendants had copied extensively from a trade directory. The directory consisted of a list of tradesmen in various localities. In some cases their names and addresses only were entered, and in others more elaborate advertisements containing descriptions of articles in which the advertiser dealt. The entries in the directory were classified under headings, giving short descriptions of the particular trades; each separate heading was arranged so that the proper catch-words occurred first in alphabetical order, and each heading was repeated in three other languages after the English heading. The Court of Appeal held that although the plaintiffs had no copyright in each individual entry, they had copyright at least in the headings. They were the result of literary labour both as regards the composition of the headings themselves and their collocation and concatenation in the book.79 Their Lordships were also of opinion, although they said it was unnecessary to decide the question, that there was copyright in the mass of advertisements as collected and arranged. Lindley, L. J., said:

“I do not see myself the difficulty in the publishers having a copyright in a sheet of advertisements. I do see a difficulty in his having a copyright in one advertisement, because, as Mr. Justice Chitty pointed out, that might prevent the advertiser from republishing his advertisements in another paper, which is absurd. But to say that it follows from that that the proprietor, say of the Times, has no copyright in a sheet of advertisements so that he cannot restrain anybody from copying that sheet appears to me a very different proposition.”80

Catalogues.

Tradesmen’s catalogues, consisting of lists descriptive or otherwise of the articles in which they deal, have been often attacked as being devoid of literary merit. In Hotten v. Arthur81 the plaintiff’s copyright in a descriptive catalogue of old books which he had in stock was challenged. This catalogue was not a mere list of the books by name, but contained short notices of the contents and general nature of the various volumes. Page Wood, V. C., found no difficulty in deciding that such a catalogue was the subject of copyright, notwithstanding that the catalogues were for the purpose of advertising the plaintiff’s stock-in-trade, and were not themselves offered for sale. In Cobbett v. Woodward82 the doctrine laid down by Page Wood, V. C., received a check. In that case the plaintiff had published a catalogue containing numerous engravings and illustrations of designs and articles of furniture which were sold by his firm. Lord Romilly, M. R., refused to grant an injunction against a rival tradesman who, in a similar publication, appropriated at least fifty of the plaintiff’s illustrations, and in his judgment he said:

Advertisements.

“But at the last it always comes round to this, that there is no copyright in an advertisement. If you copy the advertisement of another, you do him no wrong, unless in doing so you lead the public to believe that you sell the articles of the person whose advertisement you copy.”83

The next case in which this question came before the Courts was Grace v. Newman.84 The book infringed was a volume containing lithographic sketches of monumental designs, and a little letterpress. The sole object of the book was to serve as an advertisement in the plaintiff’s business of “Cemetery Stone and Marble Mason.” Hall, V. C., granted an injunction, evading Cobbett v. Woodward85 and following Hotten v. Arthur.86 In 1882 Cobbett v. Woodward87 was expressly overruled in the Court of Appeal in the case of Maple & Co. v. Junior Army and Navy Stores.88 The plaintiffs published an illustrated catalogue consisting almost entirely of engravings of furniture with short descriptions and prices. The catalogue was prepared by selecting articles of furniture which were drawn by artists in their employment and then engraved. The Court of Appeal sustaining the opinion of Hall, V. C., in the Court below, held that the catalogue was the subject of copyright as a book. Jessel, M. R., said:

“The case which has done all the mischief is Cobbett v. Woodward.89... I think that is not law. I am not aware that the use to which a proprietor puts his book makes any difference in his rights. His copyright gives him the exclusive right of multiplying copies, and he may use them as he pleases. I think, therefore, that Cobbett v. Woodward90 will not bear legal examination.”91

Alphabetical Catalogue of Tradesmen’s Goods.

In Collis v. Cater92 North, J., protected a catalogue of medicinal articles which the plaintiff kept for sale. The articles were arranged by their common names in alphabetical order under various headings and sub-headings. The learned judge strongly negatived the contention that a tradesman’s catalogue would only be protected when, as in Hotten v. Arthur,93 some amount of skill or literary merit was shown. He said:

“A distinction is made between copyright in a large catalogue by a clever author which gives a great deal of information, and is interesting to persons who read it, and a catalogue like the plaintiffs, which is nothing whatever but a simple list of certain articles described by their common names, which every one is entitled to use with respect to them with the addition of the prices at which they are sold.... In one way or another a man engaged in preparing a catalogue of this sort has incurred labour in its preparation, or it may be expense and trouble in its preparation, and has done it for the advantage of having his own catalogue.... I cannot see any distinction between this and the publication of a directory. It seems to me to be exactly in pari materia.”

Telegraph Codes.

A list of telegraphic code words carefully selected so that, in their transmission by the Morse system of dots and dashes, they would not be liable to be mistaken or misspelt was admitted to be a copyright work in Ager v. P. & O. Steam Navigation Co.94 The same book, “The Standard Telegram Code,” was again protected in Ager v. Collingridge.95

Shipping Statistics.

Mineral Statistics.

Lists of statistics compiled from various sources of information are well recognised as original books. “The Clyde Bill of Entry and Shipping List,” containing a compilation of statistics collected from the official records and documents in the Custom houses, was protected in Scotland in 184696 and again in 1858.97 The “Mineral Statistics of the United Kingdom of Great Britain and Ireland” was protected in England in 1867.98 It consisted of an annual statement of returns in the City of London coal market, showing the quantity of coal imported into London from the various collieries, and was compiled by the clerk and registrar of the coal market from the day-books in the office. Page Wood, V. C., said:

“A great deal of time and labour must have been spent in this compilation, more, indeed, than in the case of a directory or guide, and there can be no doubt that he is entitled to be protected in the fruits of his labour.”99

Lists taken from public documents.

List of Bills of Sale.

Compilations made from public documents and records are protected in so far as there is selection or arrangement. A mere verbatim copy of a public document would not be protected.100 In Trade Auxiliary Co. v. Middlesborough,101 “Stubbs’ Weekly Gazette” was protected from infringement. The gazette contained a list of bills of sale registered under the Bills of Sale Act and of deeds of arrangement registered under the Deeds of Arrangement Act. The particulars of each bill of sale had been taken from the official records, not merely from the indexes on the official register but from the instruments themselves, for the inspection of each of which a charge of 1s. or 2s. 6d. is made. The same and other similar lists were also protected in Cate v. Devon.102

Specifications of Patents.

In Wyatt v. Barnard103 Lord Chancellor Eldon refused protection to a copy of specifications of patents taken from the patent office. If this decision meant that a selection, arrangement, or abridgment of the specifications in the patent office would not be protected, it cannot be considered sound law.

List of Foxhounds.

In Cox v. Land and Water104 Malins, V. C., although he refused to grant an injunction on the grounds of its probable inefficacy, expressed a strong opinion that a list of packs of foxhounds, with the hunting days of each pack and their respective masters and huntsmen, was the subject of property. The information contained in the list was obtained by issuing circulars requesting the masters of the hunt to fill up the required information. The Vice-Chancellor in his judgment said:

“It is clear that in this case the getting of the names of masters of hunts, the number of hounds, the huntsmen and whips, and so forth is information open to all those who seek to obtain it; but it is information they must get at their own expense, as the result of their own labour, and they are not to be entitled to the results of the labours undergone by others.”

Time Tables.

One of the leading cases in this branch of copyright law is Leslie v. Young,105 a Scotch appeal case. The pursuer’s book consisted of a monthly penny railway time table, published in Perth. It was compiled from the various railway companies’ time tables. Some of these were taken verbatim and some were abridged by the smaller stations being omitted, and to the whole was added a list of convenient circular tours around Perth compiled by the pursuer. The defender in compiling a rival time table, copied many of these tables and all of the circular tours from the pursuer’s book, either literally or with colourable differences only. As regards the time tables the House of Lords sustained the judgment of the Inner House in refusing an interdict. The mere publication, they said, in any particular order of the time tables which are to be found in railway guides and the publications of the different railway companies, could not be claimed as a subject-matter of copyright. In dealing with the abridged time tables Lord Herschell, L. C., said:

“Looking at these tables as a whole, and having regard to the fact that it is admitted that the defender’s work is, as regards these tables, not by any means in all respects a copy of the pursuer’s work, that it was not denied that there was a certain amount of original work done by them in compiling these tables, and that these are the differences which have been pointed out, I do not think that it can be said that as regards these tables there has been an appropriation by the defender of the pursuer’s work such as to entitle the pursuer to complain and to obtain the interdict which he claims. The real truth is that although it is not to be disputed that there may be copyright in a compilation or abstract involving independent labour, yet when you come to such a subject-matter as that with which we are dealing, it ought to be clearly established that, looking at these tables as a whole, there has been a substantial appropriation by the one party of the independent labour of the other before any proceeding on the ground of copyright can be justified.”

As regards the circular tours the House of Lords reversed the judgment of the Court of Session and granted an interdict. The Lord Chancellor said:

“It appears to me the only part of the work which can be said to indicate any considerable amount of independent labour and be entitled to be regarded as an original work.... It seems to me that this was a compilation containing an abridgment of information of a very useful character, and such as was likely to be taken advantage of by those who were travelling in the neighbourhood of Perth.”

Tables of Calculation.

Mathematical calculations are undoubtedly subjects of copyright. In Baily v. Taylor106 Sir John Leach, M. R., evidently assumed that they were, although in that case he refused an injunction on the grounds that a very small part had been copied, that what was copied could have been calculated again in a few hours, and that there was unreasonable delay in bringing the action. In M’Neill v. Williams107 protection was sought for “Comprehensive Tables for the Calculation of Earthwork as connected with Railways,” &c. Knight Bruce, V. C., refused an interim injunction, but he did not suggest that the calculations were not the subject of copyright.

Forms and Precedents.

Conveyancing Precedents.

Forms and Precedents and similar works are made and published for the very purpose that they should be bought and used in business or other transactions. To this extent copying is of course no infringement, but they will be protected from any copying other than that which is impliedly permitted by their publication. In Webb v. Rose108 precedents of conveyancing were stolen from a barrister’s chambers and printed against his will. The Court had not the least hesitation in restraining the defendant from printing and publishing them. In the Scotch case of Alexander v. Mackenzie109 the claim of “Styles and Precedents of Conveyancing” to protection under the Copyright Acts was recognised by the Inner House. The forms in question were drawn up from general directions contained in the “Heritable Securities and Infeftments Acts,” and it was contended that, as all who followed these directions must arrive at almost identically the same result, there could be no copyright in a precedent so produced. The Court was unanimously of opinion that although such work did not require the exercise of original or creative genius, yet it implied industry and knowledge, and was undoubtedly the subject of copyright.

Application Form.

In Southern v. Bailes110 a form of application by intending students to a “Lessons by Correspondence Department” was protected by Chitty, J. The learned judge granted an injunction against copying the plaintiff’s form, but thought it would be dangerous to extend the injunction in such a matter to colourable imitations, as there was a great deal in the form any one could have put together for himself.

Selections and Extracts from Non-copyright Works.

Collection of Cookery Recipes.

Topographical Dictionary.

Child’s A B C.

“Guide to Science.”

It was very early recognised that the skill and labour of selecting and arranging extracts from previously published books was sufficient to entitle the compiler to copyright in the new work thereby produced.111 Copyright can thus be obtained without the composition of a single sentence. There is composition, but the composition is of new arrangement and not of new matter. In Rundell v. Murray112 Lord Chancellor Eldon expressed his opinion that a collection of cookery recipes would have entitled the plaintiff who collected them to copyright, even if she had merely embodied and arranged them in a book. If, however, she had only collected them and handed them over to the publishers, he did not think that would give her copyright. In Lewis v. Fullarton113 “The Topographical Dictionary of England,” which consisted partly of compilations and selections from former works, was recognised as being the subject of copyright. In Lennie v. Pillans114 the Court of Session in Scotland were of opinion that “The Child’s A B C,” consisting in a great degree of extracts from and repetition of previous publications by other authors, was entitled to protection on account of the original arrangement, selection, abridgment, or amplification of such borrowed materials. In Jarrold v. Houlston115 Page Wood, V. C., granted an injunction against the piracy of Dr. Brewer’s “Guide to Science.” The book was intended for the instruction of tiros in science, and was composed largely from previous works, aided by notes taken from time to time of popular ideas concerning various scientific phenomena. The Vice-Chancellor said:

“That an author has a copyright in a work of this description is beyond all doubt. If any one by pains and labour collects and reduces into the form of a systematic course of instruction those questions which he may find ordinary persons asking in reference to the common phenomena of life, with answers to these questions and explanations of these phenomena, whether such explanations and answers are furnished by his own recollection of his former general reading or out of works consulted by him for the express purpose, the reduction of questions so collected, with such answers under certain heads and in a scientific form, is amply sufficient to constitute an original work of which the copyright will be protected.”

French Dictionary.

The same judge, in Spiers v. Brown,116 in considering an alleged infringement of “Spiers’ School Dictionary,” said:

“In a large part of his work Dr. Spiers could have no copyright as to words and expressions, though he might have it as to new words introduced or new acceptations, or as to the order and arrangement by which he improved the particular work he had in hand.”

Selections of Poetry.

In an Indian case Palgrave’s “Golden Treasury of Songs and Lyrics” was protected. It consisted in a selection and arrangement of poems and fragments of poems from the non-copyright works of many poets. The defendant took the selected portions, rearranged them, and made a few additions. His book was condemned as an infringement.117

Abridgments.

Lawfully made abridgments are protected on account of the judgment which the abridger must exercise in order to do his work well.118

Translations.

Lawfully made translations are also protected as if they were original works.119 The protection will only extend to the work of the translator. A translator by translating a non-copyright work acquires no exclusive right to translate. Others may do the same from the original non-copyright source.

Adaptations.

An author is entitled to copyright by reason of lawful adaptation of a book from one form to another; thus, if he dramatizes a novel, or by material alteration and rearrangement produces a new version of an old play.120 The adaptation of music, for instance an opera score for the pianoforte,121 or the rearrangement of an old tune,122 is the subject of copyright.

New Editions and Notes.

New editions either of copyright or non-copyright works are protected as original books, but only to the extent to which they consist of original material in the way of notes to, or substantial revision and alteration of the old text. Lord Chancellor Hardwicke123 granted an injunction against the piracy of a new edition of Milton’s “Paradise Lost” containing original notes by Dr. Newton. In Cary v. Longman124 new material added to an old road-book was protected. In Murray v. Bogue125 in the case of a subsequent edition of a guide-book, Kindersley, V. C., said:

“If a man prints a second edition, not being a mere reprint of the first edition, but containing considerable and material alterations and additions, quoad those, it is a new work.”126

In Cadell v. Anderson127 the Court of Session in Scotland held that the pursuers had the sole right of printing and reprinting “Blackstone’s Commentaries;” and as regards those editions in which there were corrections and continuations, their term of copyright began to run afresh with respect to such new material. In Black v. Murray & Son128 the notes in Lockhart’s edition of Scott’s “Border Minstrelsy” were protected, the copyright in the original edition of the “Border Minstrelsy” having expired. Lord President Inglis, in the course of a long and elaborate judgment, said:

“Questions of great nicety and difficulty may arise as to how far a new edition of a work is a proper subject of copyright at all; but that must always depend upon circumstances. A new edition of a book may be a mere reprint of an old edition, and plainly that would not entitle the author to a new term of copyright running from the date of the new edition. On the other hand, the new edition of a book may be so enlarged and improved as to constitute in reality a new work, and that just as clearly will entitle the author to a copyright running from the date of the new edition.... That there may be copyright in the notes, even when the book is not under the protection of copyright, is quite a fixed principle in the law, and most desirably so. There is no doubt that the compilation of good notes to a standard work is a task worthy of the highest literary talents and reputation.... Of the 200 notes the defender’s counsel tells us that 15 only consist of original matter, while the remaining 185 are quotations from other books and authors. Now this seemed to be considered to be a sort of disparagement of the value of the notes, in which I cannot at all agree.... The quotations are, in many places, most apposite, and highly illustrative of the text, and exceedingly interesting to the reader, and certainly the selection and application of such quotations from other books may exercise as high literary faculties as the composition of original matter.”

If a new edition is a mere reprint of what has been published in “book” form before, it is obvious that no new or independent copyright can be claimed in it.129 So also if there are only slight corrections, verbal alterations, and the like. Lord Mackenzie, in the Scotch case of Hedderwick v. Griffin,130 said:

“I doubt very much if there can be right of literary property in the exclusion from an edition of the works of any author of articles not truly written or published by that author, or in the correction of accidental errors, or in the mere order and titles of articles which seem to be all, or nearly all, that can be claimed by the pursuers in this case.”131

The publication of an old work with an index not previously published would undoubtedly be copyright as to the index.132

In Black v. Murray133 Lord Deas was of opinion that the alteration of a single word in a poem was sufficient to give a new edition an independent copyright, inasmuch as the alteration was very important and entirely altered the meaning of the line in which it was used. The other judges, however, did not altogether concur in Lord Deas’ opinion; and it would seem that his lordship stretched the law as to new editions too far.

Reports.

Law Reports.

The question whether a verbatim report of oral proceedings is a “book” within the meaning of the Copyright Acts was long a moot question. That there might be copyright in law reports and similar matter, in so far as they consisted of a summary of the proceedings in the author’s own language, was early recognised. In Butterworth v. Robinson134 the “Term Reports”; in Sweet v. Shaw,135 Meeson and Welsby’s reports, and others; and in Sweet v. Maughan136 the reports in the “Jurist” were protected; but it does not appear in the reports of these cases whether any copyright was claimed in the verbatim reports of the judgment of the Court. In Saunders v. Smith137 Lord Cottenham, L. C., refused an injunction against “Smith’s Leading Cases” on equitable grounds, but said he would not decide the legal question as to whether that publication infringed the copyright in the “Term Reports” and others. In Sweet v. Benning138 the defendants published a “Monthly Digest” into which were copied numerous head notes of cases taken bodily from the “Jurist.” The Court held that these head notes were copyright, and that the defendant’s work was an infringement.

“The head note or the side or marginal note of a report is a thing upon which much skill and exercise of thought are required to express in clear and concise language the principle of law to be deduced from the decision to which it is prefixed, or the facts and circumstances which bring the case in hand within some principle or rule of law or of practice.”139

Verbatim Reports.

So far, therefore, as appears from the reports of these cases our Courts had only recognised copyright in the matter of reports to the extent to which that matter was the composition of the author, only, in short, when it was a description in his own language of what had taken place. The American Courts had held140 that there was no copyright in the verbatim report of a judgment of the Court, but their decisions were based to a large extent on the ground of public policy. The judgments of the Court, they said, were published to the whole of the people of the United States, and no individual could acquire a monopoly with respect to them. Walter v. Lane141 has to a large extent cleared up the doubtful state of our law as regards reports, but it cannot be said that it has done so entirely. Walter v. Lane142 decides that a reporter can have copyright in a verbatim report of the oral utterances of another from whom he derives no title. In that case certain reporters of the Times were present at various meetings at which Lord Rosebery made speeches. These speeches were taken down in shorthand and appeared in the Times the following morning, reproducing as nearly as possible verbatim the words which Lord Rosebery had spoken. Lane, a publisher, subsequently published a book entitled “Appreciations and Addresses: Lord Rosebery,” and purporting to be a collection of some of Lord Rosebery’s speeches. Five of the speeches in this book were taken from the reports in the Times, as was admitted by the defendant, substantially verbatim. The House of Lords reversing the judgment of the Court of Appeal and restoring the judgment of North, J., held that the reports in the Times were copyright, and that the reporters’ assignees, the proprietors of the Times, were the owners of the copyright. Lord Chancellor Halsbury in his judgment said:

“My Lords, I should very much regret it if I were compelled to come to the conclusion that the state of the law permitted one man to make profit and to appropriate to himself the labour, skill, and capital of another. And it is not denied that in this case the defendant seeks to appropriate to himself what has been produced by the skill, labour, and capital of others. In the view I take of this case I think the law is strong enough to restrain what to my mind would be a grievous injustice.... The speeches and the sheets of letterpress in which they were contained were books first published in this country; and I confess, upon looking at the definition and the right conferred, I am wholly unable to discern why they are not protected by the statute from being pirated by unauthorised persons. The sole ground, as I understand the judgment of the Court of Appeal, is that in their judgment the producer of a written speech, unless he is the original speaker, cannot be an ‘author’ within the meaning of the Act. My Lords, it seems to me that this argument is based upon too narrow and misleading a use of the word ‘author.’... The producer of this written composition is, to my mind, the person who is the author of the book within the meaning of the statute.... I do not find the word ‘original’ in the statute, or any word which imparts it as a condition precedent, or makes originality of thought or idea necessary to the right.”143

We must be careful not to carry the doctrine of Walter v. Lane144 further than the actual decision warrants. It should be noticed, for instance, that the essence of the case is that the reporter was entitled to copyright, because it was he who first reduced to “book” form the literary composition contained in Lord Rosebery’s speeches. If, therefore, Lord Rosebery had, before delivering his speeches, done as some statesmen and many clergymen do, i. e., reduced them to writing, the reporter would probably not have had copyright, since his report would then have been a mere copy of the speaker’s original manuscript, a very different thing from being the first manuscript.145 Again, it must be noticed that Lord Rosebery claimed no proprietary right in his speeches. It was admitted by counsel that he had freely abandoned his words to the world so that any one might make of them what use he pleased. Lord Rosebery might have secured a right in his own speeches if he had cared to do so. He might have delivered them to a limited audience146 under an implied contract that those who heard his speeches should make no other use of them except by listening to them and benefiting by the entertainment and general information conveyed. Possibly he might also have secured a statutory copyright in them as lectures by giving notice in writing two days before delivering the same to two justices living within four miles of the place of delivery.147 If in either of these ways Lord Rosebery had secured a proprietary right for himself it is doubtful whether a reporter unauthorised by him could have acquired copyright in his report. The report would have been an infringement of Lord Rosebery’s rights, but the reporter might nevertheless be held to have a copyright against the rest of the world. It should also be noticed in connexion with this case that it was expressly stated by the judges in the House of Lords that any number of reporters could make a report of the same speech, and each would have a separate copyright. In Walter v. Lane148 the defendant admitted that he took his book from the Times’ report. It is obvious, however, that if a speech were reported in, say, six newspapers, any one could reprint it, and by careful correction of the parts in which the reports varied baffle any one of the newspaper proprietors in an attempt to prove that the speech was taken from his newspaper. Another question with regard to verbatim reports, which is not necessarily covered by Walter v. Lane,149 is in reference to verbatim reports of judgments in the Courts. Will the American doctrine be adopted that it is against public policy that there should be any monopoly in them?150

Mechanical Devices.

Cricket Scoring Card.

The law of copyright does not protect anything in the nature of a mechanical device, except in so far as apart from any mechanical application it conveys ideas or information to the person reading it. In Page v. Wisden151 it was claimed by the plaintiff that he had literary copyright in a cricket-scoring card, the only novelty in which was a line along which could be indicated “Runs at the fall of each wicket.” Malins, V. C., held that such a thing was not a book within the Act, and characterised it as absurd to contend that a particular mode of ruling a book constituted an object for a copyright.152

Shadow Trick.

Barometer Face.

In Cable v. Mark,153 Bacon, V. C., refused to protect under the Literary Act “The Christograph—the Christian’s Puzzle: suitable for all sects and denominations.” This consisted of an envelope on which the above title was inscribed. Inside the envelope was a card perforated in such a way that when held up in a strong light it threw upon the wall a shadow which was supposed to represent the picture “Ecce Homo.” The Vice-Chancellor in his judgment described it as a mere child’s trick and nothing else. The face of a barometer was held by Chitty, J., in Davis v. Comitti154 not to be a book. It consisted of a circular card on which were printed various words such as “set fair,” “high winds,” &c., and on which the hands of the barometer moved. The learned judge said:

“Separated from the instrument it was not intended to have and has no use or meaning whatever. Regarded as a card apart from the instrument it not only foretells nothing, but tells nothing. By reading the printed matter on the card alone, no intelligible proposition is arrived at.”

Sleeve Chart.

Protection was claimed in Hollinrake v. Truswell155 for a cardboard pattern sleeve called the “Cosmopolitan Sleeve Chart.” It consisted of a piece of cardboard cut to suitable shape and size and marked with figures and directions, such as “measure round the thick part of the arm,” and it was intended to be used for the purpose of measuring and cutting out sleeves. The Court of Appeal reversed the judgment of Wright, J., and dismissed the action. Lord Herschell said:

“The object of the Copyright Act was to prevent any one publishing a copy of the particular form of expression in which an author conveyed ideas or information to the world. These may be retained by any one, although the book, map, or chart which embodied them has passed out of his possession. If he were to commit to memory the contents of the book or the information disclosed by the map or chart, he would be as much in possession of the author’s ideas or information as if the book, map, or chart were physically in his hands. But this is not the case with the words or figures upon the sleeve chart. They are intended to be used, and can only be used in connection with that upon which they are inscribed.... I think it clear, therefore, that what the plaintiff has sought to protect under the Act for the protection of literary productions is not a literary production, but an apparatus for the use of which certain words and figures must necessarily be inscribed upon it.”156

Railway Ticket.

In a Canadian case a railway ticket containing the names of stations on the line and dates so arranged that when punched it indicated where the holder was entitled to travel, was refused protection. It was said that without the application of the conductor’s punch, the ticket was senseless and meaningless.157

Scroll for Mechanical Instrument and Directions thereon.

In Boosey v. Whight158 it was held that a sheet of music was not infringed by a perforated scroll for use in a mechanical instrument; and further, that the directions in the printed music, e. g. pp., crescendo, were not the subject of copyright apart from the printed sheet, and therefore might be taken and used in conjunction with the perforated scroll. It seems to follow that neither the perforated scroll nor the directions thereon would constitute a “book” within the meaning of the Act.

Sporting Tips.

Chilton’s Special Guide published weekly sporting information. Among other matter it contained their sporting prophet’s “tips” for the big races in the ensuing week. This was contained in a list, thus:

One Horse Selections.
Tuesday		Keelson.
Wednesday		Priestholm.
Thursday		Cœlus.
Friday		Dromonby.

The Progress Printing and Publishing Company published daily at the various race meetings racing sheets with the day’s “tips” from various sporting papers, thus:

The Specials, One Horse Trials.
The Jockey		Rusina
Racing World		Keelson
Gale’s		Keelson
Chilton		Keelson.
Grant’s Opinion		Juda.
Turf Marvel		Kenney.

The Court of Appeal held159 that there could be no copyright in the individual selections for each day, but suggested that there might be copyright in the list of selections for the week, and that it would be an infringement to take it bodily. Lindley, L. J., in giving judgment, said:

“Unless you find the one horse selection and that block which is headed by the title ‘One Horse Selections’ in the shape in which the plaintiff has published it, I doubt whether you can bring it within literary composition at all. Perhaps the whole of that might be called literary composition; but there is no literary composition in the word ‘Priestholm.’”160

Illustrations.

To Non-copyright Letterpress.

Engravings, prints, designs, or other reproductions of artistic matter will be protected under the law of literary copyright either when published in the form of a volume or when published in connexion and together with letterpress. By this means compliance with the stringent requirements of the Acts relating to artistic copyright is avoided. The first case where an illustration was held to be part of a book, and therefore protected under 5 & 6 Vict. c. 45, was Bogue v. Houlston.161. The plaintiff published some old non-copyright tales, including “Reynard the Fox,” and illustrated them with original drawings of animals. These woodcuts were pirated by the defendants, and used as illustrations in their serial publication, “The Story-Book for Young People, by Aunt Mary.” The plaintiff did not claim copyright in any letterpress.162 The defendants maintained that the woodcuts not having been published so as to comply with the provisions of the Engravings Acts, could not be protected from piracy. It was held, however, that they were part of a book. Parker, V. C., in giving judgment, quoted the definition of a book from the Act 5 & 6 Vict. c. 45, and continued:

“This definition does not extend to prints or designs separately published, but only to the prints and designs forming part of a book, and the book is not less a book because it contains prints or designs or other illustrations of the letterpress. This Act vested in the proprietor of such book duly registered the right to sue in respect of any invasion or infringement of the copyright of his book. It appears to me that a book must include every part of the book; it must include every print, design, or engraving which forms part of the book as well as the letterpress therein which is another part of it.”163

No Letterpress.

Christmas Card.

Plate issued separately.

In Maple & Co. v. Junior Army and Navy Stores,164 the engravings in an illustrated catalogue, containing almost no letterpress, were protected under 5 & 6 Vict. c. 45. “There may be such things,” said Jessel, M. R., “as picture-books for those who cannot read letterpress.”165 In Hildesheimer & Faulkner v. Dunn & Co.,166 protection was claimed for a Christmas card cut out and painted in the form of a lady’s hand. It opened out book-wise, and inside were delineated the lines of life according to the rules of palmistry, and on one side there was an original verse. This work was registered both under 5 & 6 Vict. c. 45 as a book and 25 & 26 Vict. c. 68 as a painting. Kekewich, J., in granting an injunction against a piracy, said he would not decide whether the work was a picture or a book, but as it was well registered under both Acts, an action lay. In Comyns v. Hyde,167 a coloured plate representing an Orpington cock was issued with the weekly number of a serial publication called The Feathered World. The plate was not in any way physically connected with the rest of the publication, but it was illustrative of an article in the journal, and a copy was given to every purchaser. Stirling, J., held that it must be protected as part of the book. If a plate or picture has been previously published in separate form, without complying with the provisions of the Engravings Acts, it will not subsequently receive protection by reason of its incorporation into a volume.168 In Strong v. Worskett169 a magazine was before publication advertised by means of illustrated posters. The same illustration as appeared on the posters was afterwards reproduced in the magazine. It was held that it could not be protected as part of the magazine. The result of these decisions appears to be that an artistic work will be protected under the Literary Copyright Act, 1842, if it is bound up with other artistic works in the form of a volume, or if it is published in connexion with letterpress. The picture on a Christmas card on which there are also verses, would, it is submitted, be protected as a book, and, it would seem, whether or not the verses were copyright, and whether or not (but this is more doubtful) the picture was in any way illustrative of the verses. It is also submitted that an engraving published in a magazine without any relation to the letterpress, except that of physical connexion, would be protected as part of the book; but an engraving or print which had neither any relation to the letterpress nor physical connexion would probably not be protected even although issued gratis with every copy of the magazine.

It need hardly be said that anonymous works are entitled to copyright. The publication of a work without the author’s name is not to be construed as an abandonment of the literary property.170

Maps.

Maps, charts, and plans are expressly included in the definition of a “book.” If incorporated in a volume they will be protected with the rest of the volume under its general title; if published separately they will be protected as “books” by themselves. The meaning of “maps,” &c., will be literally construed; but it must be something which in itself conveys information to the person studying it. Davey, L. J., in speaking of maps, said[171]:—

“I agree... that a ‘map’ is not confined to what is popularly known as a map—viz. a geographical map; and that a ’chart’ is not confined to what is popularly called a chart—viz. a map of a portion of the seas showing the rocks, soundings, and such-like information for the use of navigators.... There may, no doubt, be an anatomical and physiological plan showing the structure and distribution of the muscles and bones of the human arm, or any other part of the human frame, which would be protected by the Copyright Act.”

Music.

The exclusive right of making copies of original music is expressly protected by the Act of 5 & 6 Vict. c. 45 under the definition of a book. Under the statute of Anne it was protected by case law, “book” being held to include a volume or sheet of music.172