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