Chapter XIV: 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 music[16] or a printed leaflet such as an application form[17] are both books within the meaning of the Copyright Acts.

In one case[18] 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 manuscript[25] 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. _Newnes_[32] 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 speeches[43] 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 report[46] 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 sleeve[49] 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.

[Sidenote: Road Books.]

=Examples of what are Books.=--Road-books[68] 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.

[Sidenote: Directories.]

Directories[72] 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 directory[73] 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.

[Sidenote: Trade Directory.]

[Sidenote: Sheet of Advertisements.]

In _Lamb_ v. _Evans_[78] 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]

[Sidenote: 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. _Arthur_[81] 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. _Woodward_[82] 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:

[Sidenote: 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. _Woodward_[85] and following _Hotten_ v. _Arthur_.[86] In 1882 _Cobbett_ v. _Woodward_[87] 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. _Woodward_[90] will not bear legal
examination."[91]

[Sidenote: Alphabetical Catalogue of Tradesmen's Goods.]

In _Collis_ v. _Cater_[92] 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_."

[Sidenote: 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]

[Sidenote: Shipping Statistics.]

[Sidenote: 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 1846[96] 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]

[Sidenote: Lists taken from public documents.]

[Sidenote: 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]

[Sidenote: Specifications of Patents.]

In _Wyatt_ v._ Barnard_[103] 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.

[Sidenote: List of Foxhounds.]

In _Cox_ v. _Land and Water_[104] 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."

[Sidenote: 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."

[Sidenote: Tables of Calculation.]

Mathematical calculations are undoubtedly subjects of copyright. In _Baily_ v. _Taylor_[106] 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. _Williams_[107] 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.

[Sidenote: Forms and Precedents.]

[Sidenote: 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. _Rose_[108] 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. _Mackenzie_[109] 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.

[Sidenote: Application Form.]

In _Southern_ v. _Bailes_[110] 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.

[Sidenote: Selections and Extracts from Non-copyright Works.]

[Sidenote: Collection of Cookery Recipes.]

[Sidenote: Topographical Dictionary.]

[Sidenote: Child's A B C.]

[Sidenote: "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. _Murray_[112] 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. _Fullarton_[113] "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. _Pillans_[114] 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. _Houlston_[115] 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."

[Sidenote: 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."

[Sidenote: 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]

[Sidenote: Abridgments.]

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

[Sidenote: 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.

[Sidenote: 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.

[Sidenote: 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 Hardwicke[123] granted an injunction against the piracy of a new edition of Milton's "Paradise Lost" containing original notes by Dr. Newton. In _Cary_ v. _Longman_[124] new material added to an old road-book was protected. In _Murray_ v. _Bogue_[125] 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. _Anderson_[127] 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 & Son_[128] 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. _Murray_[133] 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.

[Sidenote: Reports.]

[Sidenote: 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. _Robinson_[134] the "Term Reports"; in _Sweet_ v. _Shaw_,[135] Meeson and Welsby's reports, and others; and in _Sweet_ v. _Maughan_[136] 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. _Smith_[137] 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. _Benning_[138] 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]

[Sidenote: 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 held[140] 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. _Lane_[141] 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. _Lane_[142] 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. _Lane_[144] 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 audience[146] 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. _Lane_[148] 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]

[Sidenote: Mechanical Devices.]

[Sidenote: 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. _Wisden_[151] 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]

[Sidenote: Shadow Trick.]

[Sidenote: 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. _Comitti_[154] 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."

[Sidenote: Sleeve Chart.]

Protection was claimed in _Hollinrake_ v. _Truswell_[155] 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]

[Sidenote: 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]

[Sidenote: Scroll for Mechanical Instrument and Directions thereon.]

In _Boosey_ v. _Whight_[158] 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.

[Sidenote: 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_ Coelus.
_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 held[159] 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]

[Sidenote: Illustrations.]

[Sidenote: 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]

[Sidenote: No Letterpress.]

[Sidenote: Christmas Card.]

[Sidenote: 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. _Worskett_[169] 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]

[Sidenote: 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."

[Sidenote: 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]