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which, consistently with the strict right of the previous author, such use can be pronounced to be admissible. The question, whether very trifling injuries will be redressed by one class of the public tribunals, is entirely aside from the strict right to redress from some tribunal, which depends upon no considerations of judicial convenience, or limits of jurisdiction. Notwithstanding some dicta in a few cases, and the general principle, (which cannot be established at a fixed line,) by which what is called the fair use of a previous publication is obscurely hinted at, I apprehend that the doctrine of our law is and must be, that where an injury is caused, an infringement is, in point of strict right, made out.

1. Piracy, by reprinting the whole work verbatim.

In cases of this kind, there can ordinarily be no question to be determined, except the existence of the copyright. The object with which the original work is thus taken, and the form in which it is used, are immaterial. It is equally a violation, whether the whole of a smaller work is inserted in a larger one, or whether it is reprinted by itself, with notes. or additions, if the reprint works an injury to the proprietor.1

1 There are some very doubtful dicta of Lord Ellenborough, on this subject. In the case of Cary v. Kearsly, 4 Esp. N. P. C. 168, 170.

Erskine put this case:
"Suppose
a man took Paley's Philosophy, and
copied a whole essay, with observa-
tions and notes, or additions at the

2. Piracy by reprinting any part of a work, verbatim.

This class of cases involves the inquiry What use can lawfully be made of a previous publication, protected by copyright, in the way of quotation ?

end of it, would that be piracy?" His lordship is reported to have answered, "That would depend on the facts of whether the publication of that essay was to convey to the public the notes and observations fairly, or only to color the publication of the original essay, and make that a pretext for pirating it; if the latter, it could not be sustained. That part of the work of one author is found in another, is not of itself piracy, or sufficient to support an action; a man may fairly adopt the work of another; he may so make use of another's labors 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?"-The motives of public benefit and advancement of the interests of science are dangerous grounds on which to allow the taking of another's property; although these great objects are to be so far kept in view, as to justify a fair use of previous publications, that is, a use which does no injury. But whether any use, which works a direct injury, can be justified, is the crux argumenti. We may suppose a perfectly honest and praiseworthy intention to refute a book, believed to be erroneous, by means of commentary; and for this purpose the whole text of the work is republished. What tendency has the intention of the commentator to prove that the original author's copyright has not been infringed? That ques

tion has but two elements: first, whether the work is under the protection of copyright; second, whether anything has been done to render the exclusive privilege less valuable to the proprietor. If both these questions are answered affirmatively, the object or purpose with which the injury was done cannot palliate the responsibility.

There is a similar dictum of Lord Erskine's, in Matthewson v. Stockdale, 12 Ves. 275, where he said, "I admit no man can monopolize such subjects as the English Channel, the Island of St. Domingo, [charts] or the events of the world; and every man may take what is useful from the original work; improve, add, and give to the public the whole, comprising the original work, with the additions and improvements; and in such a case there is no invasion of any right." This is extravagant; but it has been equalled by a dictum of Sir L. Shadwell, V. C. in a recent case, where, however, the point was not involved.

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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. : Martin v. Wright, 6 Simons, 298. Mr. Justice Story has laid down the doctrine, that if the work of the defendant substantially includes the essential parts of the plaintiff's, so as to supersede it, it is a violation of the plaintiff's copyright, although the plan and objects of the defendant's book may be different from those of

By quotation, as here used, I mean the transfer of sentences, or passages, or paragraphs, literatim, whether with or without acknowledgment of the source from which they are taken.

The first circumstance to which we have to attend, in this inquiry, is, whether the use of matter by quotation, in a given case, tends to, or does, in fact, injure the sale of the book from which the extract is taken. The original author of the extract has the exclusive right to publish and sell it; and it is therefore a very material inquiry, to ascertain how far he is injured, or is likely to be injured, by its publication by another person.

It will be apparent, on reflection, that the quantity of matter taken cannot be decisive of this question. The most material and valuable part of a book, or other publication, may be embraced in a few paragraphs or even sentences, which contain all that is in fact original with the author. If a person, who had made a discovery in science, should choose to enunciate it in a work, of which, by securing the copyright, he intended to reap the profits, and should introduce the statement of his discovery into a general treatise on the branch of science to which it belonged, the matter of his treatise at large might be far from being original, while the portion of the

the plaintiff's. Emerson v. Davies, 3 Story's R. 768, 797. See also Mawman v. Tegg, 2 Russ. 385; Campbell v. Scott, 11 Simons, 31. In France, the same principles are applied. Any republication, either

by inserting a smaller in a larger work, or with the addition of notes or commentaries, is there treated as a piracy. Renouard, tom. ii. pp. 15, 16, 19, 20. Merlin, Questions de Droit, tit. Contrefaçon, iv.

work, containing the description of his discovery, would be purely and eminently novel. The republication of this part of the book would be a taking of that which constituted its chief value, and yet the proportion which it bore to the rest of the work might, in respect to quantity, be very inconsid

erable.

Quantity, therefore, is of itself no test, by which to determine whether a quotation amounts to a piracy; and it has accordingly been disregarded in some cases. Thus, where it was suggested by counsel, that the quantity taken by the defendant from the plaintiff's book would be an unfair quantity, even if the source had been acknowledged, Lord Cottenham, C. said, "When it comes to a question of quantity, it must be very vague. One writer might take all the vital part of another's book, though it might be a small proportion of the book in quantity. It is not only quantity, but value that is always looked to."1

This doctrine is not to be considered as affected by those decisions, in which courts of equity have declined to interfere, on account of the minuteness of the injury occasioned by a short extract. Applications for injunctions have been refused, where the value of the extract and the amount of injury have been so minute and trifling, as to induce the court not to interfere, and so to restrain the practice of occupying its time by applications in which it would

'Bramhall v. Halcombe, 3 Mylne & Cr. 737, 738.

2

be difficult to take an account of the alleged injury.' But even in such cases, the infringement might be apparent, and the remedy at the hands of a jury remains. There is, therefore, no material qualification of the general doctrine, that mere quantity does not determine the question of infringement. Be the quantity large or small, if the extract furnishes a substitute for the book from which it is taken, so as to work an appreciable injury, it is so far an actionable violation of the copyright.

The license of what is called fair quotation cannot, I apprehend, be said to furnish any different standard of determination, in cases of quotations or extracts. This license it is very difficult to define.3 On the one hand, there is a class of publications,

1 Bell v. Whitehead, 17 Law Journ. 142. Whittingham v. Wooler, 2 Swanst. 428. Tonson v. Walker, 3 Swanst. 672.

2 Ibid.

In Wilkins v. Aikin, 17 Ves. 422, 424, Lord Eldon said, "There is no doubt that a man cannot, under the pretence of quotation, publish the whole or a part of another's book, though he may use, what in all cases it is very difficult to define, fair quotation. This case suggests the quare, whether the copying of a map, as an illustration, in a fair history of all the maps of a county, would be restrained. Lord Eldon said, "Suppose a publication, professing to be an account of the improvement of maps of the county of Middlesex; compiling the history of all the maps of it ever published; pointing out the peculiarities belonging to them, and giving copies of them all; as well those the copy

right of which have expired, as those of which it was subsisting; it is not easy to say with certainty what would be the decision upon such a case. If it was a fair history of the maps of the county, which had been published, and the publication of the individual work was merely an illustration of that history, that is one way of stating it; but if a jury could perceive the object to make a profit by publishing the map of another man, that would require a different consideration" Perhaps this is only another form of stating that the question would be, whether the owner of the map is injured by the use made of it. But if his lordship intended to say, that the question would depend on the intention of the party to do an injury, it seems to me that other authorities do not uphold his doctrine, and that it is not consistent with principle.

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