CHAPTER II

WHAT BOOKS ARE PROTECTED

THE following books are protected by statute throughout the British Dominions: 1

1. Every original book: 2

2. First published within the British Dominions: 3

3. [The author of which is a British subject or resident within the British Dominions at the time of first publication : *]

4. Which is innocent: 5

6

5. And has been registered before action : *

6. For 42 years, or the author's life and 7 years, whichever period is the longer.?

SECTION I.WHAT IS AN ORIGINAL BOOK.

Definition of a Book." Book" is defined by 5 & 6 Vict. c. 45, sec. 2, "to mean and include every volume, part or division of a volume, pamphlet, sheet of letterpress, sheet of music, map, chart, or plan separately published."

As an exhaustive definition this is of little value. It only indicates what the outward visible form of the "book" must be, and gives no indication of the nature or quality of the literary matter which it must contain. Even as a guide to the form it is defective, since it is only a definition by example and not exhaustively descriptive. In the absence of an accurate statutory definition of a "book," the Courts have given a very wide interpretation to the term, and both as to the form and the matter have strained the ordinary dictionary meaning of the word 1 5 & 6 Vict. c. 45, secs. 15, 2. 2 Infra, Section I.

3 Infra, Section II., p. 36. Foreign works first published in certain foreign countries are protected subject to the conditions of the International Copyright Acts, and are dealt with in a separate chapter. Chapter X., p. 193.

This requisite for protection is extremely doubtful. Probably there is no restriction as to nationality of the author. See infra, Section III., p. 42.

5 Infra, Section IV., p. 46. 6 Infra, Section V., p. 46. 7 Infra, Section VII., p. 56.

In the light of the decided cases a

"book"

to the uttermost. might be defined as original literary matter in such tangible form as readily conveys ideas or information to the mind of a reader.

Essential Elements of a Book.-There are three essential elements which must be found in every book, viz. :I. A certain physical form.

II. Literary matter.

III. Originality.

I. Physical Form.-The form of the book need not necessarily constitute what in common parlance is known as a book or volume. Thus a single sheet of music1 or a printed leaflet such as an application form are both books within the meaning of the Copyright Acts.

3

In one case it was held that a newspaper was not a book, but that decision was not followed, and there can now be no doubt that a newspaper comes within the definition of a book as a sheet of letterpress.5

The form must be adapted for conveniently conveying to the mind of a reader the intellectual matter which the book contains. It will not be sufficient that it can possibly be used for conveying intellectual matter to the mind, it must be conveniently adapted for that purpose. Thus music in the form of a perforated scroll for use in an æolian or pianola is not a "book," for although it can be deciphered and read by the eye no one in his senses would use it instead of an ordinary sheet of music. On the other hand literary matter may nevertheless be in "book" form although it requires a special training to decipher it. For instance a story written in shorthand characters is in book form, and no doubt also a story impressed in raised characters for the blind.

The substance on which the literary matter is depicted and

1 Clementi v. Golding (1809), 2 Camp., 25; Storace v. Longman (1788), 2 Camp., 26 n. ; Hime v. Dale (1803), 2 Camp., 27 n.; White v. Geroch (1819), 2 B. and Ald., 298.

2 Southern v. Bailes (1894), 38 Sol. J., 681.

3 Cox v. Land and Water (1869), L. R. 9 Eq. 324.

4 Walter v. Howe (1881), 17 Ch. D., 708; and see Platt v. Walter (1867), 17 L. T., 157.

5 Trade Auxiliary v. Middlesborough (1889), 40 Ch. D., 425; Cate v. Devon (1889), 40 Ch. D., 500. 6 Boosey v. Whight [1900], 1 Ch., 122.

7 Nicols v. Pitman (1884), 26 Ch. D., 374. Both this case and Boosey v. Whight are cases of infringement, but they would seem equally to apply to a question whether a certain scroll or document would be a "book" entitled to copyright under the Acts.

8 See Stirling, J., in Boosey v. Whight (1899], 1 Ch., at p. 842.

the manner of depicting it are probably immaterial; but presumably a "book" must be at least ejusdem generis as an ordinary printed volume or leaflet. It must be "something in the nature of a book." Thus although copies in ordinary manuscript or even engraved on thin slips of ivory would be in "book" form, an epitaph on a tombstone probably would not.

The meaning of the words "separately published" in section 2 is by no means clear. They do not mean that the matter in which copyright is claimed must be issued physically separate from any non-copyright literary matter. In the statute of Anne the words "separately published" are not used in the definition of a book, but it was nevertheless argued that a "book" must be entirely the original work of the author and not bound up with other matter. In Cary v. Longman Lord Kenyon rejected such an argument. In giving judgment he

said:

"The courts of justice have long been 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 book." 3

Under the statute of Victoria parts of a book bound up with non-copyright matter have frequently been protected; notes to non-copyright works, illustrations to non-copyright works, a small portion of a serial story, a small part of a time table, have all been protected. Clearly therefore a person may have copyright in a book although he has not copyright in every part of it.8

7

9

In Johnson v. Newnes Romer, J., takes the view that "separately" published means clearly distinguishable. He says:

"Now in my opinion if you find in a volume separate parts, and dis. tinguished or perfectly distinguishable from the other parts, and the volume is published, each part that is separate and clearly distinguished in the volume itself is separately published within the meaning of section 2."

1 See Stirling, J., in Boosey v. Whight [1899], 1 Ch., at p. 842.

2 White v. Geroch (1819), 2 B. and Ald., 298. See p. 38.

3 (1801), 1 East., 358; and see White v. Geroch (1819), 2 B. and Ald., 298; Tonson v. Walker (1752), 3 Swanst., 672.

4 Black v. Murray (1870), 9 M., 341; Sweet v. Benning (1855), 16 C. B., 459.

5 Bogue v. Houlston (1852), 5 De Gex and Smale, 267.

6 Low v. Ward (1868), L. R., 6 Eq., 415.

7 Leslie v. Young [1894], A. C., 335.

8 Lindley, L. J., in Lamb v. Evans [1893], 1 Ch., at p. 223.

9 [1894], 3 Ch., 663.

If we accept this as correct we exclude the case of a revised edition of an old work, the corrections and additions to which forming the new work are not clearly distinguishable from the old. I am inclined to think that the real explanation and meaning of "separately published" is that it does not apply to "volume, part, or division of a volume" at all, but only to "sheet of letterpress, sheet of music, map, chart, or plan" which are to be protected, even although they are "separately published," i.e. not bound up into a volume. It was no doubt inserted as declaratory of the case law under the statute of Anne, which laid down that a single printed sheet was a "book" within the meaning of the Act.

II. Literary Matter.-No literary merit or great labour is required to be shown. Lord Halsbury, L.C., in Walter v. Lane,1 referring to the verbatim reports of Lord Rosebery's speeches which were the subject-matter of that action, said:—

"Although I think in these compositions (ie. the work of the stenographer) there is literary merit and intellectual labour, yet the statute seems to me to require neither-nor originality either in thought or language... the right in my view is given by the statute to the first producer of a book, whether that book be wise or foolish, accurate or inaccurate, of literary merit, or of no merit whatever." 2

In many of the cases great stress was laid in argument at the bar on the preamble of the Copyright Act, 5 & 6 Vict. c. 45. The preamble runs as follows:

"Whereas it is expedient to amend the law relating to copyright, and to afford greater encouragement to the production of literary works of lasting benefit to the world. . . .”

From this it is argued that the Act intends to protect only those works which are likely to prove a substantial addition to the world's literature. Jessel, M.R., in his judgment in Maple v. Junior Army and Navy Stores, points out the fallacy of this argument :

3

"The Act does not say that it is expedient to afford greater encouragement to the production of literary works of lasting benefit to the world, and to amend the law of copyright relating thereto, but that it is expedient

1 [1900], A. C., 539.

2 [1900], A. C., p. 548.

3 (1882), 21 Ch. D., 369.

to amend the law of copyright generally, merely adding the principal reason for doing so. There is therefore nothing in the preamble to cut down the enacting part, even if the enacting part had not been clear." 1

5

3

Road-books, directories, tradesmen's catalogues, mercantile statistics, telegraph codes, time tables, verbatim reports of speeches are all books within the meaning of the Act.

8

It is quite immaterial for what purpose the matter was composed or published. Personal correspondence, advertisements,10 and a mining report" are all subjects of copyright if published.

14

There must be some composition or arrangement of words, figures, sentences, or paragraphs which by itself will convey to the mind of the reader some intelligible proposition.12 There cannot be copyright in a single word,13 even although it expresses a man's opinion: there is no composition or arrangement. Neither can there be copyright in a pattern sleeve 1 or the face of a barometer,15 because both are really instruments to be used in conjunction with something else, and although there may be words and sentences on them, by themselves they convey no intelligible proposition to the reader. Probably a drunken scrawl, absolutely unintelligible, would not be protected. A jury having found that such a document was not a literary composition, the Court of Appeal refused to interfere with their verdict.16

The illustrations in a book are protected as part of the book," and a number of drawings bound up together without any letterpress would be protected as a book,18 compliance with the provisions of the artistic Copyright Acts being in such a case unnecessary; but a single drawing or engraving separately issued can only be protected under the artistic Acts.

A map, whether bound in a volume or separately issued, is

1 21 Ch. D., at p. 378.

▲ Infra, p. 18.

7 Infra, p. 22.

10 Infra, p. 19.

12 Hollinrake v. Truswell [1894], 3 Ch., 420.

13 Chilton v. Progress [1895], 2 Ch., 29; Maxwell v. Hogg (1867), L. R., 2 Ch., at p. 318.

14 Hollinrake v. Truswell [1894], 3 Ch., 420.

15 Davis v. Comitti (1885), 52 L. T. (N. S.), 539.

16 Fourmat v. Pearson (1897), 14 T. L. R., 82.

17 Infra, P. 34.

18 Maple v. Junior Army and Navy Stores (1882), 21 Ch. D., 369.