Chapter XXX: Section II: What Is a Piratical Copy

Literary property may be invaded in three ways:

(i) Open Piracy;
(ii) Literary Larceny;
(iii) Commercial Fraud.[518]

With the first there is no difficulty once a title has been established and the pirate caught. It consists in a bodily reprinting and publishing of the whole or of large portions of a copyright book. The third is not properly speaking an infringement of copyright. It is the invasion of the common law rights of an author or publisher, and will be dealt with later. The second, literary larceny, gives rise to many difficult questions and is dealt with in this section.

The question put by the law is, in its simplest form: "Is the alleged infringement an unauthorised copy of the whole or part of a copyright work?" The statute does not attempt to define what a copy is, and such rules as there are for determining whether one work is a copy of another are entirely derived from the case law on the subject. It is impossible to lay down any very definite rules as to infringement; it is really a question of fact not of law; and although now almost invariably tried by a judge sitting alone, it was at one time constantly referred to the decision of a jury. The judges either in giving their own decisions or in directing juries have from time to time laid down general rules as an aid to determining these questions of fact.

The Copyright Acts have always received a liberal interpretation in favour of the author, and against the plagiarist. "If we can construe the Act so as to promote fair and honest dealing, such a construction is to be preferred."[519]

=What is a Copy.=--A copy is that which will provide a substitute for the whole or for a substantial part of the original book.[520] The owner of the copyright has the sole and exclusive liberty of printing or otherwise multiplying copies. It has been held that the right is not in any way limited by section 15 of the Copyright Act, 1842, which section applies its remedy only to cases where the subject-matter is multiplied by printing.[521] Thus copies produced by writing,[522] lithography,[523] type writing,[524] photography,[525] are copies within the meaning of the Act. The symbols used matter little in themselves; the question in each case is whether the defendants are multiplying copies.[526] It is not necessary that the copy should be primarily intended to be used for the same purpose as the original. Thus a copy in shorthand characters intended for instruction in shorthand was held to be an infringement of a story in a magazine.[527] But the copy must provide a reasonable substitute for the whole or part of the original work. A perforated scroll used for the mechanical reproduction of music from an instrument is not a copy, since no reasonable being would use it as a substitute for the original sheet of music.[528]

=A Substantial Part must be Taken.=--In other words, _De minimis non curat lex_.

"Part is not necessarily the same as particle, and there may be a
taking so minute in its extent and so trifling in its nature as
not to incur the statutable liability."[529]

In _Sweet_ v. _Benning_,[530] Jervis, C. J., said:

"It is undoubtedly exceedingly difficult, perhaps absolutely
impossible, to lay down any general rule upon this subject. I do
not assent to the argument that every publication of a portion of
a work in which there is subsisting copyright will afford a ground
of action: it is a question of degree which must depend upon the
circumstances of each particular case."

In _Chatterton_ v. _Cave_,[531] Brett, J., said:

"Unless there is a taking of a material and substantial part there
is no infringement of copyright. It is true that the question
under the second section is not only whether the whole production
has been copied, but also whether a part has been copied; but by a
part this section must mean a material and substantial part."[532]

In _Chatterton_ v. _Cave_,[533] two small points or incidents were taken from one drama by the author of another, and it was held that the taking was not of a substantial part. In _Pike_ v. _Nicholas_,[534] in the case of two rival essays on the same subject, one quotation from a classical author was taken by the defendant directly from the plaintiff's book; Lord Hatherley, L. C., and Giffard, L. J., were of opinion that it would not do to show merely one or two passages; some material part of the book must be shown to have been taken.

The question is not altogether one of quantity, it is perhaps mainly one of quality,[535] and depends on the character of the work and the relative value of the material taken.[536]

"The question of the extent of appropriation which is necessary
to establish an infringement of copyright is often one of extreme
difficulty: but in cases of this description the quality of the
piracy is more important than the proportion which the borrowed
passages bear to the whole work."[537]

"It ought to be clearly established that, looking at the works 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."[538]

"When it comes to a question of quantity it must be very vague.
One writer might take all the vital[539] part of another's book,
though it might be but a small proportion of the book in quantity.
It is not only quantity, but value that is always looked to."[540]

"The principle of the cases is that, when one man for his own
profit puts into his work an essential part of another man's work
from which that other may still derive profit, or from which but
for the act of the first he might have derived profit, there is
evidence of piracy."[541]

Although it is no excuse for infringement to say that the matter taken has been improved upon or added to, yet there may be so much new matter that the part borrowed becomes so insignificant that the Courts will not interfere. In _Mawman_ v. _Tegg_,[542] Lord Chancellor Eldon says:

"After the quantity of matter which has been copied has been
ascertained, the quantity of matter not piratical with which the
piratical matter has been intermixed is still a circumstance of
great importance."

The materiality of the part taken may sometimes be judged more by the proportion which it bears to the defendant's work than to the work from which it is taken. Thus in _Neale_ v. _Harmer_[543] the plaintiff had prepared and published an elaborate work intituled "The Abbey Church of St. Alban," containing about 200 architectural drawings. The defendant took and published three of these in a magazine article on St. Alban's Abbey, and they were the only strictly architectural drawings illustrating the article. It was held to be an infringement. Kekewich, J., said in his judgment:

"It is said that these drawings did not form a material part of
the plaintiff's work. In one sense that is true. The plaintiff's
work is a large one, and it is a very learned work. The test is
not so much what proportion of the plaintiff's work had been
taken, but rather what portion of the defendant's work is the
plaintiff's."

In questions of amount it is material to inquire whether the matter was taken so as to compete with the plaintiff's work,[544] but an infringement need not necessarily be shown to be in competition with the work infringed, since it is sufficient if the defendant has made such a use of part of the plaintiff's work as the plaintiff might himself have done.

If matter is taken regularly and systematically by one periodical from another, and particularly if it is taken and claimed to be taken as of right, a very small amount will suffice.[545] As to a claim of right, North, J., said in _Cate_ v. _Devon_:

"That of itself is sufficient to put the plaintiff in the wrong in
the action and get over any question as to the amount of matter
actually taken."[546]

Although the Court will not grant a remedy for a trifling infringement, it will not refuse an injunction merely on account of the minute inquiries into detail which, in some cases, may be necessary to establish even an extensive piracy.[547]

=No Animus Furandi need be Proved.=--In _Cary_ v. _Kearsley_[548] Lord Ellenborough's judgment contained a reference to the _animus furandi_ in cases of infringement, from which a mistaken idea seems to have arisen that in all cases of infringement the _animus furandi_ must be proved.[549] Lord Ellenborough said:

"That part of the work of one author is found in another is not in
itself piracy or sufficient to support an action; a man may fairly
adopt part of the work of another; he may so make use of another's
labours for the promotion of science and the benefit of the
public, but having done so the question will be, was the matter so
taken used fairly with that view and without what I may term the
_animus furandi_."[550]

This did not mean that in every case of infringement alleged it was necessary to prove an _animus furandi_ or guilty intention. Lord Ellenborough in a subsequent case[551] said:

"The intention to pirate is not necessary in an action of this
sort; it is enough that the publication complained of is in
substance a copy whereby a work vested in another is prejudiced.
If A takes the property of B the _animus furandi_ is inferred from
the act."[552]

In _Scott_ v. _Stanford_,[553] Page Wood, V. C., after quoting the above passage from Lord Ellenborough's judgment in _Cary_ v. _Kearsley_,[554] said:

"It is urged that this is a case in which no _animus furandi_ can
be found on the part of Mr. Hunt, who has taken these statistics
in perfect good faith and with the fullest acknowledgment[555]
in his book of the source from which they are derived. But if in
effect the great bulk of the plaintiff's publication--a large and
vital portion of his work and labour--has been appropriated and
published in a form which will materially injure his copyright,
mere honest intention on the part of the appropriator will not
suffice, as the Court can only look at the result and not at
the intention in the man's mind at the time of doing the act
complained of, and he must be presumed to intend all that the
publication of his work effects."[556]

Although the _animus furandi_ does not require to be proved, it is a useful aid to proof, and where it appears piracy is more readily presumed.[557]

=Taking not necessarily for Profit.=--The prohibition in section 15 of the Copyright Act, 1842, is against printing or causing to be printed "either for sale or exportation," but as this has been held not to confine piracy to copying by means of printing, neither does it confine it to copying for sale or exportation, and the purpose for which the copy when made is to be used is immaterial. In _Alexander_ v. _Mackenzie_[558] the Society of Writers to the Signet in Edinburgh prepared for the use of their own members a book of forms taken largely from a similar copyright work. The Court of Session held that this was an infringement of copyright. A catalogue of books, although not intended for sale, may be an infringement of another catalogue;[559] manuscript copies of a copyright song distributed exclusively among the members of a philharmonic society,[560] and a telegraphic code distributed only among the agents of a shipping firm have also been prohibited.[561] In _Ager_ v. _The P. & O._, Kay, J., said:

"It has long been settled that multiplying copies for private
distribution among a limited class of persons is just as illegal
as if it were done for the purpose of sale."

It is submitted that making a single copy for private use is an infringement.

=Copying may be Indirect and Unintentional.=--If matter in which copyright exists is taken it is immaterial that the appropriation was made not directly from the original work but indirectly through some other work, copyright or non-copyright, authorised or unauthorised. Thus a book may be infringed by retranslating or copying a translation of it,[562] and a drama may be infringed by dramatizing a novel founded on the drama.[563] In _Cate_ v. _Devon and Exeter Constitutional Newspaper Company_,[564] it was argued that an indirect copying could not be considered an infringement, because since the copyist is ignorant of what works he is indirectly copying, he cannot know whether or not he is infringing any copyright books, but this argument was rejected. Ignorance on the part of the copyist does not excuse him from the consequences of his act.[565]

=Custom of Trade= has been pleaded in defence of what was otherwise clearly a piracy. A custom was alleged whereby provincial newspapers were entitled to make large extracts, without criticism, from articles in magazines which were sent to them;[566] and in another case "a usual practice" among publishers of magazines to take articles from each other[567] was pleaded. It is clear that no such customs can be admitted. In _Walter_ v. _Steinkopff_[568] the _St. James' Gazette_ alleged that there was a universal understanding among journalists and newspaper proprietors that paragraphs of news may be quoted verbatim by one daily paper from another without express consent, provided (1) the source was acknowledged, (2) the papers were not direct rivals, (3) there is give and take between the papers, and (4) no expressed objection. The _St. James' Gazette_ took articles from the _Times_ on this alleged footing. North, J., held that they had not complied with these conditions, and that even if they had it would have been no defence.

"The plea of the existence of such a habit or practice of copying,
as is set up, can no more be supported when challenged than the
highwayman's plea of the custom of Hounslow Heath."[569]

=Fair Use.=--When an author writes on a subject in which there are common sources of information he must do the work of research and compilation for himself, and the only use he can lawfully make of a prior copyright work on the same subject is--

i. Using the information or the ideas contained in it without
copying its words or imitating them so as to produce
what is substantially a copy.
ii. Making extracts (even if they are not acknowledged as
such) appearing under all the circumstances of the case
reasonable in quality, number, and length, regard being
had to the objects for which the extracts are made and
to the subjects to which they relate.
iii. Using one book on a given subject as a guide to authorities
afterwards independently consulted by the author
of another book on the same subject.
iv. Using one book on a given subject for the purpose of
checking the results independently arrived at by the
author of another book on the same subject.[570]

_No one can monopolize a Field of Labour._--Although an author has been the first to deal with a particular subject, his priority gives him no exclusive right therein.[571] Any one else can do exactly the same as he has done. If a man draws a map of a newly-discovered island, or writes a book on the habits of its natives, he acquires no right to prevent any one from competing with him in the publication of maps and books dealing with that island.[572] His only right is to prevent any one else from taking matter from his book. In one of the older cases it was suggested that there was a usage among booksellers--a sort of comity among them--by which if one preoccupied a certain subject he was considered a sort of proprietor.[573] In that case Lord Eldon repudiated the idea that such could be the law, and now no monopoly of the kind could be suggested.

"All human events are equally open to all who wish to add to
or improve the materials already collected by others making an
original work."[574]

_No Infringement to take Facts._--It is no infringement to state a fact or an opinion which another man has stated for the first time: but you must not take his mode of expression or his selection or arrangement of facts which he has thought proper to state. Thus there is no copyright in a mere piece of news, for instance, "The Emperor of China is dead." If one newspaper proprietor received a telegram from abroad to that effect, another could take the information as published and print it in his newspaper. But although there is no copyright in news as such, the smallest taking of a selection or arrangement of news will be prohibited. In a case in Victoria[575] the defendants had taken the plaintiff's telegrams, rearranged them, and altered the expression, and yet they were held to have been guilty of an infringement.

_No Infringement to take the General Scheme or Idea of another Book or the Theories therein._--Copyright does not extend to ideas or schemes or systems or methods: it is confined to their expression; and if their expression is not copied the copyright is not infringed.[576] Thus in _Jarrold_ v. _Houlston_,[577] Page Wood, V. C., said that even although Dr. Brewer's "Guide to Science," which purported to give popular scientific information under various headings in the form of question and answer, had been the first book of the kind, there was nothing to prevent another person from originating another book in the same general form, provided he did so from his own resources.[578] In _Pike_ v. _Nicholas_, the case of two rival historical essays on "The Origin of the English Nation," James, V. C., said:

"There is no monopoly in the main theory of the plaintiff, or
in the theories and speculations by which he has supported
it, nor even in the use of the published results of his own
observations."[579]

A careful distinction must be drawn between the taking of a scheme and the taking of it as applied to certain material, _i. e._ the taking of the expression. For instance, in _Kelly_ v. _Morris_,[580] the plaintiff had adopted a "very ingenious form of arrangement" in his "Street Directory." The defendant was held to have infringed the plaintiff's copyright by taking his list of streets from the plaintiff's work. The only thing he was entitled to do was to adopt the "ingenious form of arrangement" and apply it for himself.

_Every Author must do his own Work._--In _Longman_ v. _Winchester_,[581] the action being for the infringement of copyright in a court calendar, Lord Eldon drew an analogy to the case of a map describing a particular county and a map of the same county afterwards published by another person, which, if the description be accurate in both, must be very much the same, yet he said:

"It is clear the latter publisher cannot on that account be
justified in sparing himself the labour and expense of actual
survey."

In _Lewis_ v. _Fullarton_,[582] Lord Langdale, M. R., said:

"Any man is entitled to write and publish a topographical
dictionary and to avail himself of the labours of all former
writers whose works are not subject to copyright, and of all
public sources of information: but whilst all are entitled to
resort to common sources of information, none are entitled to save
themselves trouble and expense by availing themselves for their
own profit of other men's works still subject to copyright and
entitled to protection."[583]

In the case of Dr. Brewer's "Guide to Science,"[584] Page Wood, V. C., said:

"In publishing a work in the form of question and answer on a
variety of scientific subjects the defendant had a right to look
to all those books which were unprotected by copyright, and to
make such use of them as he thought fit by turning them into
questions and answers. He had also a further right if he found a
work like Dr. Brewer's, and perusing it was struck by seeing--as
I think has been the case in the present instance--that the
author had been led up to particular questions and answers by the
perusal of some other work to have recourse himself to the same
work, although possibly he would not have thought of doing so but
for the perusal of the plaintiff's book.... It would also be a
legitimate use of a work of this description if the author of a
subsequent work, after getting his own work with great pains and
labour into a shape approximating to what he considered a perfect
shape, should look through the earlier work to see whether it
contained any heads which he had forgotten."[585]

In _Hotten_ v. _Arthur_[586] the same judge held that the defendant had infringed the plaintiff's descriptive catalogue of books for sale:

"The only fair use you can make of the work of another of this
kind is where you take a number of such works, catalogues,
dictionaries, digests, &c., and look over them all, and then
compile an original work of your own founded on the information
you have extracted from each and all of them: but it is of vital
importance that such new work shall have no mere copying, no
merely colourable alterations, no blind repetition of obvious
errors."

In _Kelly_ v. _Morris_,[587] a directory case, there is another clear dictum from the same judge:

"In the case of a dictionary, map, guide-book, or directory, when
there are certain common objects of information which must, if
described correctly, be described in the same words, a subsequent
compiler is bound to set about doing for himself that which the
first compiler has done. In case of a road-book he must count the
milestones for himself. In the case of a map of a newly-discovered
island he must go through the whole process of triangulation
just as if he had never seen any former map; and generally he
is not entitled to take one word of the information previously
published without independently working out the matter for himself
so as to arrive at the same result from the same common sources
of information, and the only use he can legitimately make of a
previous publication is to verify his own calculations and results
when obtained. So in the present case the defendant could not take
a single line of the plaintiff's directory for the purpose of
saving himself labour and trouble in getting his information....
What he has done has been just to copy the plaintiff's book and
then send out canvassers to see if the information so copied
was correct.... The work of the defendant has clearly not been
compiled by the legitimate application of independent personal
labour."[588]

In _Scott_ v. _Stanford_,[589] Page Wood, V. C., held that certain tables of statistical returns in the coal market had been pirated. In his judgment he said:

"The defendant, after collecting the information for himself,
might have checked his results by the plaintiff's tables, but that
is a widely different thing from this wholesale extraction of the
vital part of his work. No man is entitled to avail himself of the
previous labours of another for the purpose of conveying to the
public the same information, although he may append additional
information to that already published."

In _Morris_ v. _Ashbee_,[590] Giffard, V. C., held that the copyright in a business directory had been infringed in so far as the compilation and arrangement of the advertisements and names of traders were taken from the plaintiff's directory. In giving judgment he commented on _Kelly_ v. _Morris_,[591] pointing out that the decision in that case was not based solely on the fact that the information was reprinted bodily by the defendants and then verified when possible:

"The decree is general in its terms, following _Lewis_ v.
_Fullarton_,[592] and the substance of the judgment is that in a
case such as this no one has a right to take the results of the
labour and expense incurred by another for the purposes of a rival
publication, and thereby save himself the expense and labour of
working out and arriving at these results by some independent
road."

In reference to the case before him the Vice-Chancellor said:

"It is plain that it could not be lawful for the defendants
simply to cut the slips which they have cut from the plaintiff's
directory and insert them in theirs. Can it be lawful to do so
because in addition to doing this they sent persons with the slips
to ascertain their correctness? I say, clearly not. Then, again,
would their acts be rendered lawful because they got payment and
authority[593] for the insertion of the names from each individual
whose name appeared in the slips? And to this again I answer,
clearly not. They had no right to make the results arrived at by
the plaintiff the foundation of their work or any material part of
it, and this they have done."[594]

In _Morris_ v. _Wright_,[595] another case of alleged infringement of the same business directory, Giffard, L. J., distinguished it from _Kelly_ v. _Morris_[596] and _Morris_ v. _Ashbee_,[597] inasmuch as the plaintiff's work had only been used by the defendant as a guide to original sources. He held that there was no infringement. Referring to the passage quoted above from the judgment of Page Wood, V. C., in _Kelly_ v. _Morris_,[598] he said:

"This passage does not mean that a subsequent compiler may not
look into the book for the purpose of ascertaining whether it was
worth his while to call upon that person or not, but it means that
he may not take that particular slip and show that to the person
and get his authority as to putting that particular slip in."[599]

So also quotations from and references to previous authors must not be taken bodily from a rival work. They may be used as a guide and as a guide only. Lord Hatherley, L. C., in _Pike_ v. _Nicholas_,[600] a case of rival historical works on the same subject, said:

"Although the defendant might have been led to look more minutely
into _Prichard_ than he otherwise would have done by referring
to the plaintiffs work, still the plaintiff could not say, 'I,
having found these passages in _Prichard_, will prohibit all the
world who may find the same passages from making use of them.'
The moment he had given that degree of light to the defendant
which led him to refer to that common source, if the defendant did
really and _bonâ fide_ look at that common source, he did all that
this Court required him to do. He must not simply copy the passage
from the plaintiffs book, but, having been put on to the track,
and having looked at that particular part of the book which the
plaintiff led him to, he was entitled to make use of every passage
from that author which the plaintiff had made use of."[601]

In this case the quotation was proved to have been taken directly from the plaintiff's work, but this was considered to be so small a taking that the bill was dismissed, though without costs, the Court being satisfied "that the book of the defendant was his own composition in this sense, that wherever he got the materials from they were worked up by him into his own language."[602]

It is no excuse for piracy to say that with a little labour the copyist could have produced identically the same result.[603] The fact that the result may be identical is a reason for not making a new book, but it is no reason for copying another's book.

_Work with a Different Object._--An author is much less restricted in the use which he may make of a previously published copyright book if such book is of an entirely different nature or has a different scope or object from his own work. Considerable portions may then be taken for the purpose of comment, criticism, or illustration. Lord Eldon suggested in one case[604] that a copyright map might be taken bodily for the purpose of insertion in a book giving an historical account of all the different maps of a particular district. In _Bradbury_ v. _Hotten_,[605] Kelly, C. B., suggested that a picture might be reproduced amongst a large collection published for an entirely different object from that which the first publisher had in view.

"We must consider in each case the intent of the copyist and the
nature of the work. A traveller publishes a book of travels about
some distant country like China. Amongst other things he describes
some mode of preparing food in use there. Then the compiler of a
cookery book republishes the description. No one would say that
was a piracy. So, again, an author publishes a history illustrated
with woodcuts of the heads of kings, and another person writing
another history of some other country finds occasion to copy one
of these woodcuts. That again would not be a piracy."[606]

These _obiter dicta_ illustrate sufficiently well the distinction between taking for a rival work and taking for an entirely different object; it is probable, however, that some of them go too far and tend to follow the mistake of the older view of infringement in looking more to the value of the work done by the plagiarist than to the value of the material taken. As authoritative _dicta_ they must, therefore, be accepted with caution. The best test of infringement or no infringement in a taking of this kind is to inquire whether the subsequent work by reason of the taking provides a substitute for the whole or any substantial part of the prior publication. In _Bradbury_ v. _Hotten_,[607] nine cartoons, illustrative of the career of Napoleon III., were published in _Punch_ in nine several weekly numbers. The defendants published a volume entitled "Story of the Life of Napoleon, as told by popular Caricaturists of the last thirty years," which contained among numerous other illustrations taken from French and English comic journals the nine cartoons first produced in _Punch_. This was held to be an infringement of the copyright in _Punch_. In _Nicols_ v. _Pitman_[608] the defendant published in an educational work for the purpose of instruction in shorthand writing a lecture delivered by the plaintiff on "The Dog as the Friend of Man." The Court held there was an infringement, because although the lecture was reproduced in shorthand characters, it might by those who could read shorthand be reasonably used as a substitute for the lecture printed in ordinary characters. A compiler of an encyclopædia or similar work would probably be allowed to quote to a certain extent from copyright monographs, but this must not be carried to such an extent as to supersede the original work.[609] Several cases have been before the Courts on the verbatim copying of law reports in whole or in part into legal treatises of various kinds. The collection of all the reports on a particular branch of law such as "Poor Law"[610] or "Registration of Voters,[611] is an infringement of copyright if they are copied verbatim from previously published copyright reports. This will be so even although they are collected from the reports of many different reporters.[612] In _Sweet_ v. _Benning_,[613] a digest compiled by taking verbatim the head notes from copyright law reports and arranging them under appropriate titles was held to be an illegal publication, the Court being of opinion that the defendant had been guilty of an abuse of the fair right of extract, which the law allows for the purpose of comment, criticism, or illustration. No doubt in text-books large portions of the head notes, arguments of counsel, and judgments may be taken verbatim. In an ordinary legal text-book it would require a very free use of verbatim quotation to found the necessary argument that the text-book provided even to the smallest extent a substitute for the original reports. A more difficult question arises where volumes of leading cases are published, the cases being reproduced verbatim from the original reports but with extensive notes and comment. In _Saunders_ v. _Smith_,[614] the Court refused to decide whether "Smith's Leading Cases" constituted an infringement of the original reports, judgment going for the defendants on the ground of acquiescence. In the Irish case of _Hodges_ v. _Welsh_[615] a similar problem was suggested but not decided. The better view probably is that such a wholesale taking is an infringement of the copyright of the original reporters.

_Extract for Purpose of Criticism._--Lord Eldon, in _Mawman_ v. _Tegg_,[616 says:

"Quotation is necessary for the purpose of reviewing, and
quotation for such a purpose is not to have the appellation of
piracy affixed to it; but quotation may be carried to the extent
of manifesting piratical intention."

Considerable quotation may be made for the _bonâ fide_ purpose of criticising a copyright book;[617] in one case[618] nearly a quarter of a controversial article in a magazine was quoted in a reply thereto published in another magazine, and the Court held that this constituted no infringement, as the extracts were clearly inserted for the purpose of criticism and argument. The question is whether so much of the original work is extracted that the review substantially communicates the same knowledge as the book reviewed.[619] Thus in _Campbell_ v. _Scott_,[620] the defendant published "The Book of Poets" containing, _inter alia_, an essay and biographical notice of the poet Campbell, and, as the defendant said, by way of illustrating the poet's works, a large number of his poems and extracts therefrom were appended to the biographical notice without any particular observations in the way of notes to individual pieces or extracts. This was clearly an infringement of the poet's copyright. In a similar case, _Smith_ v. _Chatto_,[621] the defendants published a book entitled "Thackerayana." It purported to be a critical essay on the life and works of Thackeray, and contained extensive quotations from his writings, prefaced and interspersed with comments by the writer of the book. Hall, V. C., held in fact that the defendants had inserted the extracts for the purpose of increasing and enhancing the value of their book, and that they had therefore infringed the copyright in Thackeray's works.

_Improvement or Addition of New Matter no Excuse._--In the earlier cases of taking material from a rival publication if it was shown to have been greatly improved and added to, this was accepted as an excuse for the piracy, on the ground that a new and more useful work had been given to the public. Thus in _Sayre_ v. _Moore_[622] Lord Mansfield said:

"If an erroneous chart be made, God forbid it should not be
corrected even in a small degree if it thereby become more
serviceable and useful for the purposes to which it is applied."

In _Cary_ v. _Kearsley_,[623] Lord Ellenborough said:

"While I shall think myself bound to secure every man in the
enjoyment of his copyright, one must not put manacles on science."

In _Martin_ v. _Wright_,[624] Shadwell, V. C., says:

"Any person may copy and publish the whole of a literary
composition provided he writes notes upon it so as to present it
to the public connected with matter of his own."

The theory of these early cases on infringement seems to have been--colourable alteration is not to be allowed, but no check must be put on the taking of material when it is taken _bonâ fide_ in the interests of scientific or literary knowledge. Gradually, however, the Courts in questions of infringement came to look more to the interests of the author than to those of the public, and regarded the law of copyright more as a means of securing rights of property to the individual than as an unnatural monopoly created for the purpose of encouraging and developing literary effort. Thus in _D'Almaine_ v. _Boosey_,[625] in 1835, it was held to be an infringement to publish the music of an opera in the form of waltzes and quadrilles, and this notwithstanding that these waltzes and quadrilles would, if taken from the music of a non-copyright opera, have been protected as original works.[626] Since then many cases have followed on the same lines, and no addition, correction, or improvement will now be accepted as an excuse for taking a material part of a copyright publication.[627] But although improvement and addition is no excuse for taking a substantial portion of another author's work, the fact that there has been such improvement and addition is not to be entirely ignored in questions of infringement. It may be an important factor in determining whether or not there has been a taking of a substantial part.[628] We have seen that to determine that question the two works must be taken as a whole and their relation to one another considered, and particularly the relative value of the material taken.[629]

_Dramatization of a Novel._--The representation on the stage of a dramatized version of a copyright novel is not in itself an infringement of copyright in such novel, since copyright only prohibits the reproduction of copies, and representation on the stage does not necessarily imply that a copy of the whole or any material part of the novel has been made.[630] But if in dramatizing any substantial passages are taken from the novel, it is an infringement of copyright to print and publish the drama,[631] and in _Warne_ v. _Seebohm_[632] Stirling, J., held that the making of four manuscript or typewritten copies of a drama taken from a copyright novel--one for the Lord Chamberlain and the other three for use in representation--constituted an infringement of the copyright in the novel. In this case, as in _Tinsley_ v. _Lacy_,[633] considerable passages in the play had been extracted verbatim from the novel.

Whether if no actual sentences be taken it is an infringement of copyright to take the characters, the sequence of events, and scenes, in short, the plot, is doubtful. In _Warne_ v. _Seebohm_ it was suggested by Stirling, J., in his judgment, that a novel might be lawfully dramatized if a few copies of the novel were purchased and a drama compiled therefrom by cutting out and pasting in the passages which it was thought desirable to take. This, however, would involve a copying of the arrangement of scenes and events, and it is suggested that even that might be an infringement.

_Abridgments._--Probably an abridgment in the ordinary sense of the word, that is, the reproduction of a book in a shorter form, retaining the general scheme and arrangement, and the sequence of ideas, would now be held to be an infringement.[634] In the earlier cases, which tend to excuse a taking by reason of the utility of additional work bestowed upon the material taken, an abridgment is recognised as a lawful use of a copyright book. In 1740 Lord Hardwicke, L. C., in dealing with an alleged abridgment of Sir Matthew Hale's _Historia Placitorum Coronæ_,[635] said:

"Where books are colourably shortened only they are undoubtedly
within the meaning of the Act of Parliament, and are a mere
evasion of the statute and cannot be called an abridgment. But
this must not be carried so far as to restrain persons from
making a real and fair abridgment, for abridgments may with great
propriety be called a new book, because not only the paper and
print but the invention, judgment, and learning of the author is
shown in them, and in many cases are extremely useful though in
some instances prejudicial by mistaking and curtailing the sense
of an author."

It will be noticed how completely this argument is founded on the idea that an author may take the materials of another so long as he sufficiently modifies it by such addition, extraction, or correction as to give it the character of a new work. It is a good argument in favour of a plaintiff who has dealt with a non-copyright work and desires protection, but it would not now be considered a sound answer to a charge of infringement. Since _Gyles_ v. _Wilcox_[636] it seems to have been accepted as law that what was called a fair abridgment would be allowed.[637] In _Dodsley_ v. _Kinnersley_[638] the Court went so far as to admit as a fair abridgment a magazine article containing about one-tenth of Dr. Johnson's "Prince of Abyssinia." Selections were, it appears, taken and reproduced verbatim. The same doctrine as to abridgments was repeated in _D'Almaine_ v. _Boosey_:[639]

"It is a nice question what shall be deemed such a modification
of an original work as shall absorb the merit of the original in
the new composition. No doubt such a modification may be allowed
in some cases, as in that of an abridgment or digest. Such
publications are in their nature original. Their compiler intends
to make of them a new use, not that which the author proposed to
make. Digests are of great use to practical men, though not so,
comparatively speaking, to students. The same may be said of an
abridgment of any study, but it must be a _bonâ fide_ abridgment,
because if it contains many chapters of the original work or such
as made that work most saleable, the maker of the abridgment
commits a piracy."[640]

When the view as to plagiarism being excusable on account of its utility began to alter, and the Courts began to look more to what was taken and the value of it than to what labour was expended on it afterwards, the view taken of abridgments began to change too. In 1844 one of Dickens' Christmas stories was abridged evidently much in the same way as Dr. Johnson's tale in _Dodsley_ v. _Kinnersley_.[641] Knight Bruce, V. C., held that there was an infringement:[642]

"The defendant has printed and published a novel, of which
fable, persons, names, and characters of persons, the age, time,
country, and scene are exactly the same, the style of language in
which the story is told is in many instances identical, in all
similar, except where certain alterations by way of extension or
substitution have been made, as to which whether they improve or
do not improve upon the original composition it is not necessary
for me to express any opinion. Now this has been said to be an
abridgment, and as an abridgment to be protected. I am not aware
that one man has the right to abridge the works of another. On
the other hand, I do not mean to say that there may not be an
abridgment which may be lawful, which may be protected; but to
say that one man has the right to abridge and so publish in an
abridged form the work of another without more is going much
beyond my notion of what the law of this country is."

In 1864 Lord Hatherley, then Sir William Page Wood, said:[643]

"The Court has gone far enough in the direction of sanctioning
fair abridgments; and it is difficult to acquiesce in the reason
sometimes given that the compiler of an abridgment is a benefactor
to mankind by assisting in the diffusion of knowledge."

_Translations._--There are two recent decisions in India to the effect that the translation of an English book into an Indian language is not an infringement of the author's copyright.[644] If we are to be guided by the general principles of the law of copyright now accepted by our Courts, I think these Indian decisions must be held to be wrong. A translation takes everything in a book but the actual words; it takes the selection of material and its arrangement, and is certainly a very material taking of the work and labours of another. The translator is making a profit from the author's work by using it in a manner in which the author might have himself used it and made a similar profit. The only real answer which the translator has is that he has expended a great deal of skilled labour in putting the author's book into another form. This might have been a defence fifty years ago, but I do not think it is a good defence now. In England there is no direct decision; although there are several _obiter dicta_ to the effect that a translation is not an infringement. In _Burnett_ v. _Chetwood_,[645] in 1720, there is a _dictum_ of Lord Chancellor Macclesfield, in which he expressed his opinion that a translation might not be within the prohibition of the Act (8 Anne c. 19), "on account that the translator had bestowed his pains upon it." In _Millar_ v. _Taylor_,[646] Yates, J., and in _Prince Albert_ v. _Strange_,[647] Knight Bruce, V. C., suggest that a translation is not an infringement. In _Wyatt_ v. _Barnard_[648] it was held that a translation would be protected as a new work, but it does not follow that it is not an infringement of an old one. I think that these English _dicta_ are practically useless as authorities, since it cannot now be maintained that the translator will be permitted to take the work of an original author merely because he "bestows his pains upon it." In _Murray_ v. _Bogue_,[649] Kindersley, V. C., said that if an English book were translated into a foreign language and then retranslated into English without authority such translation would be an infringement of the original work. If this is so, it is difficult to see why the translation into the foreign language is not also an infringement if done without authority. The translation and the retranslation appear to be exactly on the same footing, both take the substance of the book, the plot, the arrangement, the selection of material; neither takes the author's words. If it is said that one competes with the original which the other does not, the answer is that it is no defence to say that an infringement is made for a wholly different market from that which the original commands.[650] An author is entitled not only to the uses which he does make of his work, but also to the uses which he might make of it.

=Licence.=--A licence in writing[651] granted by the plaintiff to the defendant is a good defence to an action for infringement. The licence need not be written or signed by the proprietor himself. It may be granted by an agent having authority.[652] It would seem that a licence might be valid without being signed by any one. The onus of proving a written licence lies upon the defendant in an action. An assignee of the copyright is not bound by the licence granted by his assignor, unless at the date of assignment he has notice of the licence.[653] A licence, unlike an assignment, may be given before the copyright has come into existence, or even before the work is composed.[654] A licence from the Dramatic Authors' Society was held to include the dramas composed by the members of the society after the date of the licence.[655]

If an oral licensor were to sue in respect of acts done by the defendant under his oral licence, the plaintiff's conduct would probably be considered fraudulent, with the result that he would be refused an injunction, get nominal damages, and have to pay the defendant's costs.[656]

It need hardly be said that when the use for which a book is published and sold includes a copying of the whole or part of it, such copying is not an infringement, even although no express consent in writing is obtained from the author, for instance, in the case of copy-books, school maps, precedents of conveyancing. This, however, does not entitle any one who uses the book to make a larger use of it in the way of multiplying copies than that which must be presumed from the nature of the publication.[657]

It has been suggested that a foreigner resident abroad, who had obtained a copyright in the United Kingdom, could grant an oral licence, if by the law of copyright in his own country an oral licence would be valid.[658] I do not think this is sound.

=Abandonment.=--Copyright may be abandoned by giving a general licence to print. Probably, however, this could only be done by some declaration in writing.[659] The Common Law right in an unpublished manuscript might be abandoned by leaving it for a long time in the hands of others.[660] Copyright would not be lost or abandoned by the fact of a book, during the life of the author, being allowed to remain out of print.[661]

=Acquiescence and Delay.=--This is no ground of defence, unless in the view of the Court it would make it a fraud afterwards to insist on the legal right. It would seem that the defendant must show some act on the part of the plaintiff inducing the defendant to infringe or continue an infringement of the copyright.[662] At the best, the defence is only an equitable one, and will avail no more than to prevent the plaintiff from getting an injunction or substantial damages, and as the costs are always in the discretion of the Court, he might be ordered to pay the defendant's costs.

=Provision against the Suppression of Books.=--After the death of an author, if the proprietor of his published work refuses to republish it, and the book is thereby withheld from the public, the Judicial Committee of the Privy Council may, on complaint, grant a licence to the complainant to publish such book on such conditions as they may think fit.[663] There is no record of any attempt to put in force the provisions of this section.

CHAPTER V

PERFORMING RIGHTS