The plan, the arrangement, and the combination of these notes-in the form in which they are collectively exhibited in Gould's Grammar-belong exclusively to this gentleman. He is, then, justly to be deemed the author of them, in their actual form and combination, and entitled to a copyright accordingly. If no work could be considered by our law as entitled to the privilege of copyright-which is composed of materials drawn from many different sources, but for the first time brought together in the same plan and arrangement and combination-simply because those materials might be found scattered up and down in a great variety of volumes, perhaps in hundreds, or even thousands of volumes, and might, therefore, have been brought together in the same way and by the same researches of another mind, equally skillful and equally diligent, —then, indeed, it would be difficult to say, that there could be any copyright in most of the scientific and professional treatises of the present day. What would become of the elaborate commentaries of modern scholars upon the classics, which, for the most part, consist of selections from the works and criticisms of various former authors, arranged in a new form, and combined together by new illustrations, intermixed with them? What would become of the modern treatises upon astronomy, mathematics, natural philosophy, and chemistry? What would become of the treatises in our own profession, the materials of whichif the works be of any real value-must essentially depend upon faithful abstracts from the reports, and from juridical treatises, with illustrations of their bearing? Blackstone's Commentaries is but a compilation of the laws of England, drawn from authentic sources, open to the whole profession: and yet it was never dreamed that it was not a work

in the highest sense original: since never before were the same materials so admirably combined and exquisitely wrought out, with a judgment, skill, and taste absolutely unrivalled."

173. The principle already examined, which obtains in questions of this kind is, that the fact of the imitation or infringement may depend upon the value rather than the quantity of the selected and conveyed materials, as where, for example, in a review or an abridgment only the unimportant parts are omitted, and the substance of the original work retained.

It is upon this principle that the decision in Low v. Ward,' assigning copyright in part only, of a work which was only valuable as a whole, would seem to depend. And so the addition of words, prelude, and accompaniment to an old musical air, would give the adapter a copyright in the whole composition; and the rule will be the same if the adapter procured another to compose the accompaniment instead of doing it himself.s

2

In the case of Boucicault v. Wood, it was held that a person who writes a play, and borrows certain incidents from a published novel, will still be held to be its author. "The mere copyist," said the judge in that case (Shipman), "or the slavish imitator, who produces old materials substantially in their old form, without new combination, is entitled to no protection under the statute. But the law rests upon no code of comparative criticism. It protects alike the humblest efforts at instruction or amusement; the dull productions of plodding mediocrity and the most original and imposing displays of intellectual power. The

1

L. R. 6 Eq. 418, post, chapter on Copyright.

' Lover v. Davidson, 1 C. B. N. S. 182.

"Leader v. Purday, 7 C. B. 4.

5 Blatchf. 87.

law should be liberally construed in favor of authors, and, leaving their comparative merits to be settled by critics, at the tribunal of public opinion, it should protect and encourage their labors. The fruits of their literary toils should be secured to them by the highest title, for they keep open the springs of thought which feed the intellectual life of the nation."

174. A question of some nicety, however, arises as to translations. While a translation of a foreign work, not under the protection of copyright in the country where the translation is made, is, of course, an infringement of no one's rights, it is a matter of some legitimate doubt whether or not, if the untranslated version is protected by copyright, the translation would violate it. Translations are, it would seem, from the considerations already submitted, original works, although not productions de génie, but rather productions de l'esprit (to use the French distinction of M. Merlin). They are laborious and diligent works, involving the individual mental labor of the translator; and as a no unimportant means of spreading and diffusing knowledge, they are regarded with favor by the law, and will be encouraged by the law as far as possible, consistently with vested rights.1

The law of England unquestionably treats translations as original works, and this is probably the rule in the United States. The particular question as to where a work in a language classical, or " caviar to the general," seems not to have met with any authoritative decision in either country. A case exactly in point, however, was that of Burnett v. Chetwood," where a bill was brought to restrain the publication of a trans1 Curtis on Copyright, p. 187.

22 Meriv. 441 (note).

lation of "Burnett's Archæologica Sacra,"-a book in which the complainant had a vested right under the statute 8 Anne, c. 19. The opportunity for an enunciation upon this mooted point was all that could be desired; but the lord chancellor (Parker) ignored the question altogether, and granted an injunction to restrain its publication, upon entirely different grounds,. namely, that the work was one not innocent in its character as tending to disturb religious beliefs; grounds which, to say the least, were gratuitously suggested by his lordship, which, at the present day, appear to be sufficiently absurd.'

1

The opinion seems to be, that in cases where a copyright of the original exists within the jurisdiction when the translation is made, that the unauthorized translation would be considered as an interference with the rights of the proprietor.

Still, much is to be said in favor of an opposite view. The translation would not only have given the work a new dress, have increased its circulation and influence, but it would be a new labor expended upon old materials, which, as we have seen, cannot be forbidden. If the work was scientific in its character, however, the original writer in the foreign tongue might

'The lord chancellor said that, though a translation might not be the same with the reprinting of the original on account that the translator had bestowed his care and pains. upon it, and so not within the prohibition of the act, yet-this being a book which, to his knowledge (having read it in his study) contained strange notions intended by the author to be concealed from the vulgar in the Latin language, in which language it could not do much hurt, the learned being better able to judge of it—he thought proper to grant an injunction to the printing and publishing it in English; that he looked upon it that this court had a superintendence over all books, and might, in a summary way, restrain the printing or publishing any that contained reflections on religion or morality.

claim protection in the peculiar system, arrangement, and design of his treatise, under the well-known rule of Judge Story, who draws an analogy from the law of patents. Said he, Said he, "A man who constructs a new machine, is entitled to a patent therefor, if the combination and arrangements thereof are new and his own invention, although he uses old materials and old. mechanical apparatus and powers, in constructing such machine. He may use wheels, or levers, or screws, or toggle-joints, or cranks, or any other known modes. of accomplishing given mechanical ends, if he combines them in a new manner, and thus produces a beneficial result. The steam-engine, the steamboat, the cut-nail machine, the card machine, are all but new combinations of old materials, old processes, and old mechanical powers and apparatus. And so," he argues," although the last compiler or arranger, does not, by his new arrangement, acquire the right to appropriate to himself the materials which were common to all persons before, so as to exclude those persons from a future use of such materials, still he is entitled to use such materials, with his improvements superadded, whether they consist in plan, arrangement, or illustration, or combinations; for these are strictly his own." And so, also, a patent will be granted for an improvement, just as no inconsiderable number of the more useful and laborious works in all the range of literature, are annotations of preceding texts, and, of course, copyrightable.

175. There may be cases, however, in which the ownership of literary property centers in one, not its actual author, and not its proprietor by contract of assignment or purchase, though, undoubtedly, the

1

In Emerson v. Davies, 3 Story, R. 968; and see Gray V. Russell, 1 Id. 11.