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A person who merely procured a drawing or design to be made was held not entitled to relief under 8 Geo. 2, c. 13. (a) CHAPTER VII But the proprietor of a periodical containing translations made from foreign works by persons employed and paid by him and from works imported by him at considerable expense, obtained an injunction to prevent the unauthorised publication of these translations. (b)

Where a person, employed as a performer and stage manager of a theatre, agreed to write a play which was to be performed in the employer's theatre so long as it should continue to draw good audiences, it was held in America that the person who wrote the play was the proper person to take out the copyright, and that the employer had no right or interest in it, except the privilege of having it performed at his theatre. (c)

A Scotch publisher brought out an edition of the works of Dr. Channing, the American author, which had already been published in America. Various slight alterations and corrections were made with the assistance of Dr. Channing for this edition, and the publisher sent him by way of acknowledgment a sum of money, but not as the result of any contract entered into. Another publisher having published a new edition reprinted from the former, it was held by the Court of Session that the former publisher had no copyright in his edition, and could not prevent the publication of a reprint of it.(d)

must be original.

How far a book must be original in order to entitle its How far book author to copyright in it is a question to which only a general answer can be given. It may be expressed thus: the law will secure to a man the property in every genuine product of his own mental labour, whether that product take the form of compilation, abridgment, new arrangement, or wholly original work-if, indeed, there can be any such thing as a wholly original work. On this subject an eminent American Judge (Story) says, with great propriety, (e) "In truth, in literature, in science, and in art,

(a) Jeffreys v. Baldwin (Amb. 163); see Pierpoint v. Fowle (2 Wood. & Min. 46) and Binns v. Woodruff (4 Wash. 53), and as to alterations in a musical composition made for another person, Átwill v. Ferrett (2 Blatch. 46). See further as to the authorship of musical compositions, Reed v. Carusi (8 Amer. L. Rep. O. S. 411).

Wyatt v. Barnard (3 Ves. & B. 77).

(c) Roberts v. Myers (13 Mo. L. Rep. 400, cited Law's Digest of Patent, Copyright, and Trades Mark Cases, p. 211).

(d) Hedderwick v. Griffin (3 Scotch Sess. Cas. 2nd Ser. 383).

(e) Emerson v. Davies (3 St. 779); see also in Gray v. Russell (1 St. 16).

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there are and can be few, if any, things which, in an CHAPTER VII. abstract sense, are strictly new and original throughout. Every book in literature, science, and art borrows, and must necessarily borrow and use, much which was well known and used before. No man creates a new language for himself, at least if he be a wise man, in writing a book. He contents himself with the use of language already known, and used and understood by others. The thoughts of every man are more or less a combination of what other men have thought and expressed, although they may be modified, exalted, or improved by his own genius or reflection. If no book could be the subject of copyright which was not new and original in the elements of which it is composed, there could be no ground for any copyright in modern times; and we should be obliged to ascend very high even in antiquity to find a work entitled to such eminence."

Test of originality.

In

The law requires no such impracticable standard of originality as that alluded to in the extract just made. It requires only that the work should contain something distinctively the property of the author, which gives a character to it. "Something he must show to have been produced by himself; whether it be a purely original thought or principle, unpublished before, or a new combination of old thoughts, and ideas, and sentiments, or a new application or use of known and common materials, or a collection, the result of his industry and skill. whatever way he claims the exclusive privilege accorded by these laws, he must show something which the law can fix upon as the product of his own and not another's labours. But in order that the law should do this ample justice to the great variety of claimants it is necessary that its rules should be capable of adaptation to the objects of their labour. They must include in their range everything that can be justly claimed as the peculiar product of individual efforts; otherwise they would exclude from the benefits of literary property objects which are as clearly the products of individual labour as the most original thoughts ever written, namely, new and important combinations and arrangements, or collections of materials known and common to all mankind." (a)

The test "whether the claimant's book contain any substantive product of his own labour?" has been recognised and applied in several cases. In 1797, one Cary was employed to make a survey of the different roads in Great Britain. Having completed his survey he published (a) Curtis on Copyright, 171, 172.

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a book called "Cary's New Itinerary," which followed the plan and contained much of the materials of an older work CHAPTER VII. called "Patterson's Road Book," but contained also many corrections of and additions to it. A person named Faden having published a book bearing the same relation to Cary's that Cary's did to Patterson's, Cary filed a bill in Chancery to restrain Faden from publishing his book, on the ground that it was not original, but either in whole or part a copy of Cary's. The Lord Chancellor (Loughborough) refused to grant an injunction, thinking the two books very different. He said, "What right had the plaintiff to the original work? If I were to do strict justice I should order the defendants to take out of their book all that they have taken from the plaintiff, and reciprocally the plaintiff to take out of his all he has taken from Patterson. I think the plaintiff may be contented that a bill is not filed against him?"(a) An action was brought in 1801 by the same plaintiff against Messrs. Longman and Rees for publishing a pirated edition of the same or a similar work, the book published by the defendants being professedly a twelfth edition of the original work by Patterson, but containing nine-tenths of Cary's alterations and improvements. The plaintiff was held entitled to recover. Lord Kenyon, C.J., said, "certainly the plaintiff had no title on which he could found an action to that part of his book which he had taken from Mr. Patterson's; but it is as clear that he had a right to his own additions and alterations, many of which were very material and valuable : and the defendants are answerable at least for copying those parts in their book. . . . . The courts of justice have been long 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 work."(b)

According to Lord Eldon, (c) if a person collects an account of natural curiosities and such articles, and employs the labour of his mind by giving a description of them, that is as much a literary work as many others that are protected by injunction and by action. It is equally competent to any person perceiving the success of such a work to set about a similar work, bonâ fide his own; but it must be in substance a new and original work, and must be handed out to the world as such.

other

common.

The fact that the subject of the work is common does not where subject is deprive an author of copyright in the product of the labour which he has bona fide spent on it, or render it less neces

(a) Cary v. Faden (5 Ves. 23).

(b) 1 East. 358.

See judgment in Hogg v. Kirby (8 Ves. 221).

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PART I.

sary for any subsequent author to have recourse to th CHAPTER VII. Original sources; as we learn from the case of Patterson' Road Book, already referred to. (a) So in Longman v. Win chester (b) the plaintiffs were held entitled to copyright in the "Court Calendar," a work consisting of lists of member: of the Houses of Peers and Commons, &c., and an injunction was granted restraining the defendants from copying anc publishing the plaintiffs' work. "The question before me," said Lord Eldon, "is whether it is not perfectly clear that in a vast proportion of the work of these defendants no other labour has been applied than copying the plaintiffs' work. From the identity of the inaccuracies it is impossible to deny that the one was copied from the other verbatim et literatim. To the extent, therefore, in which the defendant's publication has been supplied from the other work the injunction must go; but I have said nothing that has a tendency to prevent any person from giving to the public a work of this kind if it is the fair fruit of original labour; the subject being open to all the world; but if it is a mere copy of an original work this Court will interpose against that invasion of copyright." (c)

A work entitled "The Guide to Science," which laid no claim to any originality with reference to the scientific doctrines treated in it, but contained in the form of questions and answers a scientific exposition of some of the ordinary phenomena of human life, in parts digested from different works, was held to constitute an original work in which the author was entitled to copyright. (a) Wood, V.C., said, "That an author has a copyright in a work of this description is beyond all doubt. If anyone 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 those questions and explanations of those 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

(a) "Take the instance of a map describing a particular county; and a map of the same county afterwards published by another person; if the description is accurate in both, they must be pretty much the same; but it is clear the latter publisher cannot on that account be justified in sparing himself the labour and expense of actual survey, and copying the map previously published by another :" (Per Lord Eldon in Longman v. Winchester, 16 Ves. 269.) (b) 16 Ves. 269.

(c) And see the remarks of Wood, V.C., in Kelly v. Morris (L. Rep. 1 Eq. 702; 14 L. T. N. S. 222; 35 L. J. 423, Ch.; 14 W. R. 496). (d) Jarrold v. Houlston (3 K. & J. 708).

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purpose, the reduction of questions so collected, with such answers under certain heads and in a scientific form, is amply CHAPTER VII sufficient to constitute an original work of which the copyright will be protected. Therefore, I can have no hesitation in coming to the conclusion that the book now in question is in that sense an original work, and entitled to protection." "This I hold to be clearly settled," said Lord Jeffrey, in Alexander v. Mackenzie, (a) "that even though the materials from which a work is taken be in medio, as it is called, yet if those materials be arranged in a new form, the effect of that will be to afford the author the protection of copyright in that form. In all cases, in short, although the materials are expressly in medio, and open to everybody, when a particular degree of judgment in the selection of those materials has been used, and when the subject in medio, so open to the world at large, has been to a certain extent snatched at and appropriated, such selection is in itself recognised as a certain degree of mental effort, which is entitled to the benefit of copyright." In that case the Court of Session held the pursuer entitled to copyright in certain practical forms or styles of the writs and instruments introduced by the Heritable Securities and Infeftment Acts, those Acts giving only general descriptions of the forms to be used. "It is said," observed Lord Fullerton in his judgment, (b) "that owing to the particular nature of the styles they cannot be the subject of copyright, because they are drawn up precisely after the form prescribed in the statute, and because any styles relating to the same subjects as those given by the complainer must, if the directions of the statutes and phraseology of conveyancers were used, be expressed in the same manner exactly as those proposed by the complainer. Now, it may be quite true that if the statute had supplied certain forms by which the operations intended to be thereby regulated were to be done, if the statute had contained, as such statutes sometimes do, an appendix exhibiting certain schedules of forms which it was only necessary for anyone to copy in order to avail himself of the provisions of the Act, then I hold that the reprinting of such forms in a separate publication would not give him a copyright in those forms. But the case here is different, for the statute only gives very general directions and descriptions of the styles that are to be used. The schedules are very general in their terms, and it is no doubt of great practical importance to suit these general directions to each case falling under the statute as (a) 9 Scotch Sess. Cas. 2nd Ser. 758, 27 Feb. 1847. (b) Id., pp. 754, 755.