and had not only authorised, but actually paid for the insertion of their names in the second with capital letters and added lines, prevent the publication being a piracy of the first directory.(a) How far the compiler of a directory may make use of a previous directory of the same kind without being guilty of piracy, was considered by Lord Justice Giffard in the recent case of Morris v. Wright, (b) where the two last cited cases were considered and explained, and the rule derivable from them was thus stated by the Lord Justice: "The compiler may not cut out slips from the former work and go and see whether they are accurate, and if accurate, copy them bodily into his own work, as was done in both the cases referred to; but he is quite justified in referring to the former book in order to guide himself to the persons on whom it would be worth his while to call."" After referring to the passage from the judgment in Kelly v. Morris, (c) above cited, where it was said that the defendant could not take a single line of the plaintiff's directory for the purpose of saving himself trouble in getting his information, the Lord Justice said, "If this passage goes further than what I take it to mean, I cannot doubt that it goes beyond what the law authorises, and beyond the decision of the Lord Chancellor and myself, in the late case of Pike v. Nicholas. (d) It does not mean that he 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. I understand that judgment to rest entirely upon the facts, and I am quite satisfied, from what the Lord Chancellor said in Pike v. Nicholas, that it was never his intention to say a person may not look at the directory for the purpose of directing him where to call; but what he meant was, that he must not take the passage of the directory and go and see whether it happens to be accurate, and if it is accurate, bodily copy the passage into his directory." In Morris v. Wright the plaintiff, who was the proprietor of a publication called "The Business Directory of London," filed a bill against the defendant who was preparing for publication a new mercantile directory bearing the name of "The Handbook; or, Manufacturers' and Exporters' Directory of Great Britain," charging him with pirating the (a) Morris v. Ashbee (L. Rep. 7 Eq. 34; 19 L. T. N. S. 550). supra. N PART L CHAPTER XVI. PART I. former work, and an interlocutory injunction to restrain the CHAPTER XVI. publication was moved for. The defendant admitted having at first provided his canvassers with cuttings from the plaintiff's directory, but stated that he had discontinued its use after the decision in Morris v. Ashbee, (a) and denied that he had copied, or intended to copy, any part of the plaintiff's directory. James, V.C., dissolved the injunction which had been granted, and his decision was upheld on appeal by Gifford, L.J., who said, "If the fact be that Mr. Wright (the defendant) used the plaintiff's work in order to guide himself to the persons on whom it would be worth his while to call, and for no other purpose, he made a perfectly legitimate use of the plaintiff's book. I do not wish to say anything whatever to prejudice the ultimate decision of this case, supposing the plaintiff makes out such a case as he alleges by his bill; but I think that in the present state of circumstances, the Vice-Chancellor did that which was right between the parties." Lists of hounds published in newspapers. Dictionaries, calendars, &c. may In Pike v. Nicholas (b) it was laid down by the Lords Justices of Appeal in Chancery, that an author may, without committing piracy, use the same passages in older writers which have been used by a previous author, although he has been led to refer to those writers by that author. He must not, however, simply copy the passages from the previous author, but, being put on the track by him, he must have recourse for himself to the original writer, and then make use of every passage used by the other author. In the case of "lists of hounds" published in newspapers, the information must, according to Vice-Chancellor Malins, be got at the expense of each proprietor, and as the result of his own labour: he is not entitled to the results of the labours undergone by others; (c) but it is doubtful whether a Court of Chancery would interfere in such a case. The Vice-Chancellor refused an interlocutory injunction to restrain such a piracy, on the ground that the list was liable to frequent changes, and a correct list was so easily obtained. The same rule applies to tables of figures, dictionaries, calendars, court guides, and other works of that description, as to directories. The difficulty as to this class of cases is that they not only relate to a subject common to all mankind, (a) L. Rep. 7 Eq. 34; 19 L. T. N. S. 550. (b) L. Rep. 5 Ch. App. 251; 38 L. J. 529, Ch. (e) Cox v. Land and Water Journal Company (L. Rep. 9 Eq. 324). See, as to the soundness of this decision, the remarks on the case coned in the chapter on "Newspapers," post. but the mode of expression and language is necessarily so PART I. common that two persons must, to a very great extent, CHAPTER XVI. express themselves in identical terms in conveying the instruction or information to society which they are anxious to communicate. (a) As to dictionaries, Vice-Chancellor Wood, after remark- Dictionaries. ing that in this country, labour having been employed upon any subjects, however humble, gave a copyright which no one had a right to interfere with, observed that, "as to dictionaries, the matter stood in a somewhat different position. There might be a certain degree of skill exhibited as to order and arrangement, and there might be a good deal of ingenuity exhibited in the selection of phrases and illustrations which were the best exponents of the sense in which the word was to be used; there might also be great labour in the logical deduction and arrangement of the word in its different senses, when the sense of the word departed from its primary signification; on the other hand, there was always this to be said, that as to a large mass of the words, they admitted of only one acceptation, and could be translated in one way only, and the large mass of dictionaries were composed of words of this description: numerous dictionaries had necessarily been published from time to time, and the new dictionary maker must, of necessity, use much of the information and of the results of his predecessors. . . . . Of course there could be no copyright in much of the information contained in the numerous dictionaries published, each necessarily having a large number of words identically similar." In the case before him the Vice-Chancellor applied the test "whether there was a legitimate use of the plaintiff's publication in the fair exercise of a mental operation deserving the character of an original work," and the result, after an elaborate comparison of the two dictionaries, was an opinion that though the defendant had taken a good deal from the plaintiff's work, yet a good deal of labour had been bestowed upon what had been taken, and, on the whole, it could not be said that the defendant had gone beyond what the court would allow; having produced that which, in the result, was in fact a different work from that of the plaintiff. The bill praying for an junction was dismissed, but, on account of the doubtfulLess of the case, without costs.(b) Where the works are of such a nature that the information contained in them must of necessity, if it be correct, (a) Per Wood, V.C., in Spiers v. Brown (6 W. R. 352). (b) Ib. PART L. CHAPTER XVI. Translations. see be exactly the same in both, the test frequently applied by the courts, to determine whether the second is a mere unlaborious reproduction of the first, or has been compiled by original effort from common sources, is this-to examine the inaccuracies which appear in both works, and whether they are identical. If so, the inference of piracy is almost invariably drawn. This test satisfied the mind of Lord Eldon in Longman v. Winchester, (a) a case of pirating a "Court Calendar." "The question before me," he said, "is whether it is not perfectly clear that in a vast proportion of the work of these defendants no other labour has been applied than copying the plaintiff's work. From the identity of the inaccuracies it is impossible to deny that the one was copied from the other verbatim et literatim. To the extent, therefore, that the defendants' publication has been supplied from the other work, the injunction must go." And ViceChancellor Wood says of the whole class of works, embracing tables of figures, directories, calendars, Court guides, and other such, that "the only mode of arriving at the amount of labour bestowed was by the common test resorted to of discovering the copy of errors and misprints indicating a servile copying." (b) Translations into English of works published in other languages stand on a somewhat similar footing to the preceding. If the foreign work is not protected by international copyright it is open to anyone to translate it; but a translation already existing is the product of the translator's mental labour, and his property in it must not be infringed. Independent recourse must be had by subsequent translators to the common original source. A "man," says Justice Story, (c) has a right to a copyright in a translation upon which he has bestowed his time and labour. To be sure, another man has an equal right to translate the original work, and to publish his translation; but then it must be his own translation, by his own skill and labour; and not the mere use and publication of the translation already made by another." In Wyatt v. Barnard (d) Lord Eldon restrained the defendant from publishing in his magazine translations from the French and German languages which had already appeared in a periodical belonging to the plaintiff. His lordship said, "With respect to the translations, if original, whether (a) 16 Ves. 271, 272. (b) Spiers v. Brown (6 W. R. 352). Cf. Cox v. Land and Water Journal Company (L. Rep. 9 Eq. 324). (c) Emerson v. Davies (3 St. Rep. 780). (d) 3 Ves. & B. 77, PART L made by the plaintiff or given to him, they could not be distinguished from other works: the injunction therefore CHAPTER XVI. must go." Even though the book in a foreign or dead language be published here, and an English copyright subsist in it, an original translation will, it seems, be no infringement of the English copyright; but, it is presumed, will itself be entitled to copyright protection. In Burnett v. Chetwood, (a) where it was sought to make the defendant liable for an infringement of the copyright in Burnett's Archeologia Sacra, on account of his having published a translation of it, the Lord Chancellor was of opinion that a translation was not the same as reprinting the original, and so not within the prohibition of the Act "on account that the translator has bestowed his care and pains upon it," though he granted an injunction to restrain the publication on other grounds which the Court of Chancery would not now act upon. (b) If a foreigner translates an English copyright work, and Re-translation. then an Englishman re-translates that foreign work into English, that would be an infringment of the original copyright. And it would be no defence that the re-translator was not aware that the work he translated was itself a translation from an English work. (c) See now, on the subject of translations, the provisions of the International Copyright Act (15 & 16 Vict. c. 12).(d) Lord Ellenborough has been considered to have laid down Animus furandı. the rule, in Cary v. Kearsley, (e) that the existence of an animus furandi is essential to piracy. What Lord Ellenborough did in that case was to point out that from the nature of the two books before him (Road Books) the one must, if correct, be to some extent a transcript of the other; and, laying it down that the defendant might fairly own that he had taken a great part of his book from the plaintiff's, he left this question to the jury-whether what was taken or supposed to be derived from the plaintiff's book was fairly done with a view of compiling a useful book for the benefit of the public, or taken colourably, merely with at view to steal the copyright of the plaintiff. That does not mean that in every case where invasion of copyright is charged, it is necessary to prove an animus jurandi.(f) (a). See note to Southey v Sherwood (2 Meriv. 441). (b) See also the opinions of Aston, J., in Millar v. Taylor (4 Burr. 2348), and of Knight Bruce, V.C., in Prince Albert v. Strange (2 De G. & Sm. 693). (c) Murray v. Boque (1 Drew. 353; (d) Vide ante, p. 74. (J) See per Wood, V.C., in Reale v. 22 L. J. 457, Ch. (e) 4 Esp. 169. |