a book within the meaning of the Literary Copyright Act, and will be protected thereunder.' III. Originality as an essential element of a book means that the composition in the "book" must not have been copied from some other literary composition in "book" form. Originality does not necessarily imply an original composition on the part of the author. Copyright is given not necessarily to the first composer, but to the first producer in "book" form of a literary composition. Thus a book would be an original book if the literary matter contained therein were taken by the author verbatim from the oral utterances of a public speaker, or probably if copied from some ancient monument or mural writing. It would not, however, be original if the author had merely transcribed the literary matter from some public manuscripts, even although difficult of access. Again, originality does not necessarily imply novelty. Another book exactly the same in every respect, word for word, may have been previously published, and yet a later book will be original if derived from common sources, and not copied from the earlier book. Thus two mathematicians may have independently made the same calculations, two travellers may have made a chart of the same island or district, or two reporters may have taken shorthand reports of the same speech. In each case there would be independent copyright, and the later book, even although published ten years after the first, would be original. Composition may consist in composition in the ordinary sense of piecing together words, figures, sentences, and paragraphs, in order to convey certain intellectual ideas, or it may consist in the arrangement of material, as in the case of directories, lists of statistics, &c. Sometimes part may be copied and part may be original, as in the case of new editions,10 translations, abridgments,12 selections from non-copyright 1 Stannard v. Lee (1871), L. R., 6 Ch., 346; see infra, p. 148. 2 Walter v. Lane [1900], A. C., 539. 5 Wyatt v. Barnard (1814), 3 V. and B., 77. Baily v. Taylor (1829), 1 Tamlyn, at p. 299 n. 7 Matthewson v. Stockdale (1806), 12 Ves., 270. 8 Walter v. Lane [1900], A. C., 539. 3 Ibid. 4 Ibid. • Walter v. Lane [1900], A. C., 539. See Brougham, L., in Jefferys v. Boosey (1854), 4 H. L. C., at p. 965. 10 Infra, p. 26. Road Directories. authors,1 precedents of conveyancing, &c.2 The new matter only is the subject of copyright. 3 Examples of what are Books.-Road-books were among the first works in the protection of which by the Courts it was recognised that copyright did not necessarily depend on the evidence of any high mental qualities in the composition. In 1786 an injunction was granted to restrain the piracy of "Paterson's Road-Book." Lord Chancellor Loughborough in his judgment said that a book in order to acquire copyright did not require to be an operation of the mind like the "Essay on Human Understanding." There might be copyright even although the subject-matter lay in medio, so that every man with eyes could trace it, and the whole merit of the work depended upon the accuracy of the observation. In 1776 the Court of Session in Scotland protected a "Traveller's PocketBook," which contained nothing but a mere list of stages and their distances.5 The compiler of such a work may arrive at the same, or nearly the same, result as some other compiler working over the same country, but if each has made his own compilation, "counting the milestones for himself," he will have copyright and can prevent any one else from infringing such copyright. 7 Directories soon followed road-books in their claim for protection. Lord Chancellor Erskine in 1806 hesitated somewhat, "thinking it dangerous to carry this doctrine of copyright too far," but ultimately decided that an East India calendar or directory containing the names and appointments on the Indian establishment, obtained with considerable labour and expense from the repositories in India House, was the subject of copyright. This decision was followed by Lord 3 Taylor v. Bayne (1776), Mor. Dic., 8308; Carnan v. Bowles (1786), 2 Bro. C. C., 80; Cary v. Faden (1799), 5 Ves., 24; Cary v. Longman (1801), 1 East., 358; Cary v. Kearsley (1802), 4 Esp., 168. 4 Carnan v. Bowles (1786), 2 Bro. C. C., 80; 1 Cox. Ch. Cas., 283. 5 Taylor v. Bayne (1776), Mor. Dic., 8308. 6 Kelly v. Morris (1866), L. R., 1 Eq., 697; Page Wood, V.C., at p. 701. 7 Matthewson v. Stockdale (1806), 12 Ves., 270; Longman v. Winchester (1809), 16 Ves., 269; Kelly v. Morris (1866), L. R., 1 Eq., 697; Morris v. Ashbee (1868), L. R., 7 Eq., 34 ; Morris v. Wright (1870), L. R., 5 Ch., 279; Kelly's Directories v. Gavin & Lloyds [1901], 1 Ch., 374; Garland v. Gemmill (1887), 14 S. C. R. (Canada), 321. 8 Matthewson v. Stockdale (1806), 12 Ves. 270. 2 Chancellor Eldon in 1809 in the case of "A Court Calendar.”1 In 1861 a street directory of Birmingham was protected, and in 1866 "Kelly's Post Office London Directory." 3 In this lastmentioned case it was suggested in defence that the various residents had given their names for public use, and that therefore any one could copy them; this contention, however, was rejected, and it was held that the information contained in a directory was similar to that in a road-book or map; it was open to all mankind, but that he who collected and described it was entitled to prevent any one else from taking the results of his labours. In Morris v. Ashbee, a trade directory, called "The Business Directory of London," was protected. This work contained the names and occupations of merchants and traders carrying on business in or about London. Those traders who paid the proprietor of the directory one shilling annually were entitled to have their names printed in capital letters, and a further payment entitled them to "extra lines" descriptive of their vocations. The defendants took from this work the names in capital letters and the "extra lines," and contended that they were entitled to do so; but it was held that the payment by the several persons whose names were inserted had not the effect of making the names and descriptions when inserted common property, and that as the plaintiff had incurred the labour and expense of getting the necessary information and arranging it, he was entitled to protection. 5 Directory. In Lamb v. Evans the defendants had copied extensively Trade from a trade directory. The directory consisted of a list of tradesmen in various localities. In some cases their names and addresses only were entered, and in others more elaborate advertisements containing descriptions of articles in which the advertiser dealt. The entries in the directory were classified under headings, giving short descriptions of the particular trades; each separate heading was arranged so that the proper catch-words occurred first in alphabetical order, and each 1 Longman v. Winchester (1809), 16 Ves., 269. [1893), 1 Ch., 218. B Sheet of Advertisements. Catalogues. heading was repeated in three other languages after the English heading. The Court of Appeal held that although the plaintiffs had no copyright in each individual entry, they had copyright at least in the headings. They were the result of literary labour both as regards the composition of the headings themselves and their collocation and concatenation in the book. Their Lordships were also of opinion, although they said it was unnecessary to decide the question, that there was copyright in the mass of advertisements as collected and arranged. Lindley, L.J., said : "I do not see myself the difficulty in the publishers having a copyright in a sheet of advertisements. I do see a difficulty in his having a copyright in one advertisement, because, as Mr. Justice Chitty pointed out, that might prevent the advertiser from republishing his advertisements in another paper, which is absurd. But to say that it follows from that that the proprietor, say of the Times, has no copyright in a sheet of advertisements so that he cannot restrain anybody from copying that sheet appears to me a very different proposition." 2 Tradesmen's catalogues, consisting of lists descriptive or otherwise of the articles in which they deal, have been often attacked as being devoid of literary merit. In Hotten v. Arthur 3 the plaintiff's copyright in a descriptive catalogue of old books which he had in stock was challenged. This catalogue was not a mere list of the books by name, but contained short notices of the contents and general nature of the various volumes. Page Wood, V.C., found no difficulty in deciding that such a catalogue was the subject of copyright, notwithstanding that the catalogues were for the purpose of advertising the plaintiff's stock-in-trade, and were not themselves offered for sale. In Cobbett v. Woodward the doctrine laid down by Page Wood, V.C., received a check. In that case the plaintiff had published a catalogue containing numerous engravings and illustrations of designs and articles of furniture which were sold by his firm. Lord Romilly, M.R., refused to grant an injunction against a rival tradesman who, in a 1 Bowen, L.J. [1893], 1 Ch., at p. 227. 2 Lindley, L.J. [1893], 1 Ch., at p. 222; and see Morris v. Ashbee (1868), L. R., 7 Eq., 34. 3 (1863), H. and M., 603. 4 (1872), L. R., 14 Eq., 407. similar publication, appropriated at least fifty of the plaintiff's illustrations, and in his judgment he said : "But at the last it always comes round to this, that there is no copyright in an advertisement. If you copy the advertisement of another, you do him no wrong, unless in doing so you lead the public to believe that you sell the articles of the person whose advertisement you copy."1 The next case in which this question came before the Courts was Grace v. Newman.2 The book infringed was a volume containing lithographic sketches of monumental designs, and a little letterpress. The sole object of the book was to serve as an advertisement in the plaintiff's business of "Cemetery Stone and Marble Mason." Hall, V.C., granted an injunction, evading Cobbett v. Woodward3 and following Hotten v. Arthur. In 1882 Cobbett v. Woodward was expressly overruled in the Court of Appeal in the case of Maple & Co. v. Junior Army and Navy Stores. The plaintiffs published an illustrated catalogue consisting almost entirely of engravings of furniture with short descriptions and prices. The catalogue 6 was prepared by selecting articles of furniture which were drawn by artists in their employment and then engraved. The Court of Appeal sustaining the opinion of Hall, V.C., in the Court below, held that the catalogue was the subject of copyright as a book. Jessel, M.R., said : "The case which has done all the mischief is Cobbett v. Woodward." ... I think that is not law. I am not aware that the use to which a proprietor puts his book makes any difference in his rights. His copyright gives him the exclusive right of multiplying copies, and he may use them as he pleases. I think, therefore, that Cobbett v. Woodwards will not bear legal examination." 9 Advertise ments. cal Cata Trades In Collis v. Cater 10 North, J., protected a catalogue of medicinal Alphabetiarticles which the plaintiff kept for sale. The articles were logue of arranged by their common names in alphabetical order under mens various headings and sub-headings. The learned judge strongly negatived the contention that a tradesman's catalogue would 1 L. R., 14 Eq., at p. 414. 3 (1872), L. R., 14 Eq., 407. 5 (1872), L. R., 14 Eq., 407. 7 (1872), L. R., 14 Eq., 407. 2 (1875), L. R., 19 Eq., 623. 6 (1882), 21 Ch. D., 369. 921 Ch. D., at p. 379; and see Church v. Linton (1894), 25 Ont. Rep., 131. 10 (1898), 78 L. T. (N.S.), 613. Goods. |