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for word. He maintained, that under this decree the Pandects of Pothier would be no subject of property, but would be open to the first occupant.1

The court held that the law extends to selections, compilations, and other works of that nature, when they require in their execution, discernment, taste, learning, and intellectual labor; when, in short, instead of being simply copies from one or more other books, they are at the same time the product of conceptions foreign and of conceptions peculiar to the author, in the union of which the matter receives a new form and a new character. The work in question possessed these characteristics, and the decree of the court of first instance was therefore annulled.2

4. It is upon principles somewhat analogous, but requiring perhaps a more careful discrimination than they have heretofore received, that translations and abridgments have been said to be original works and subjects of copyright.

3

Translations are so far original, as the labor spent in the translation may make them, and upon this ground they have been held to be undistinguishable from other works. It is undoubtedly true, that the translation of a work from a foreign tongue incorporates with the original so much new labor, that it may with propriety be treated, for some purposes,

1 See his eloquent vindication of the authorship of Pothier, ante, p. 177.

Merlin, Rep. de Jurisp. tit.

Contrefaçon, tom. 3, p. 701–708.
Wyatt v. Barnard, 3 Ves. &
B. 77. Drury on Injunctions, Part
II. ch. 2, § 20, p. 213.

as a new work. It is the policy of the laws which protect copyright to encourage this and every other species of literary labor, as far as may consist with the vested rights of authors. But it may perhaps admit of question, whether it is not necessary, in order that a translator should acquire a new title and a valid copyright in literary matter, originally composed by another, that the original should have been first published in a foreign country. If a British or American author should see fit to publish in his own country an original work in a foreign or a dead language, and should secure the copyright thereof in the manner required by law, can any person translate it, and by such translation acquire the right to publish it in the vernacular tongue ? The answer to this question must depend in a good degree upon the effect to be given to the act of translation, as a new labor, taken in connection with the fact that the original author has an undoubted copyright in the matter of the work, as he put it forth. Translation of a work published in a foreign country is the adoption of matter in which no one has an exclusive right in the country where the translation is made, since it is there publici juris; and the translator impresses upon that matter so much of a new character by his own labor, that the law treats his translation as a new product, and holds him entitled to a copyright, to protect this new product, as such. At the same time any one else may

make a new translation. But where the matter of the work is not publici juris, is the new form given to it by translation sufficient to override the exclusive right of the original author in the matter itself? Notwithstanding the general principle of the English law in relation to translations, this question, I appre‚I hend, would be not easy of solution, in the case of a scientific work written, for instance, in Latin, intended for the learned, and intended to convey a new discovery, or other information peculiarly original. It would be urged, in such a case, that the translation had given the work a new dress, in which the matter of it would be brought within the reach of a far greater number of persons; and this, it would be contended, was not only meritorious, but was a result of new labor of a purely intellectual kind. Still, the principle which allows the character of originality to the product of new labor upon old materials, would, in such a case, encounter the exclusive right of the original author in the matter of the work itself. In other analogous cases, this principle is not always of sufficient force to give to the mere labor of preparing a new dress, or a new form, the right to appropriate to itself the original matter of another author. Where the adoption and use of the matter of an original author, whose work is under the protection of copyright, is direct and palpable, and nothing new is added but form or dress, or an immaterial change of arrangement, the law will treat the alter

ation as merely colorable, and will stamp it with the character of piracy. Whether the change of form, or dress, produced by a close translation, in cases where the original work is under the protection of copyright, can have any greater effect than belongs to a change of form or dress, in other cases, is an interesting question, not determined, as it seems to me, by the general principle of the law of England, which treats translations as original works. This general principle was established only with reference to translations of foreign works, not under the protection of copyright.'

The same question might arise, where a treaty, establishing international copyright, subsists between two countries, without express provision being made for the case of translations. The British interna

The question here considered seems to have actually arisen once in England, but the case was disposed of upon grounds sufficiently absurd, which did not touch the point raised, if the imperfect report of it is correct. A bill was brought for an injunction to stay the printing and publishing a translation of Burnett's Archeologia Sacra, suggesting it to be an injury to the executor, in whom the property of the book was vested by 8 Anne, c. 19. It was insisted, for the defendant, that a translation of a book was not within the intent of the act. Lord Chancellor Parker said, that though a translation might not be the same with the reprinting the original, on account that the translator has 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 it proper to grant an injunction to the printing and publishing it in English; that he looked upon it, that this court has a superintendency over all books, and might, in a summary way, restrain the printing or publishing any that contained reflections on religion or morality. Burnett v. Chetwood, 2 Meriv. 441, note. For the talents and acquirements of Lord Ch. Parker, see Lord Campbell's Lives of the Chancellors.

tional copyright act contains a proviso, saving the right to publish and sell translations of any book, the author whereof and his assigns may be entitled to the benefit of the act.1

In like manner there is a general doctrine in the English law, that a bona fide abridgment of a previous work may be the subject of copyright in the person who makes it, upon the ground that it is a new work. The present chapter is not the appropriate place to consider in what cases an abridgment will constitute a piracy. This question will be discussed at large in a subsequent part of this work. But it is proper here to inquire into the doctrine which declares abridgments to be the subjects of new copyright, and to consider what discriminations ought to be made from the general position which some of the authorities appear to sanction.

The general doctrine is that a bona fide abridgment is in the nature of a new and meritorious work. The most elaborate general statement of this doctrine, found in the books, was that made by Lord Chancellor Apsley, assisted by Mr. Justice Blackstone, in a case relating to an abridgment of Hawkesworth's Voyages. His lordship is reported to have said, "that to constitute a true and proper abridgment of a work, the whole must be preserved in its sense; and then the act of abridgment is an act of understanding, employed in carrying a large work

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