PART L. the same necessity does not exist, and the same licence canCHAPTER XVI. not be exercised in abridging an elementary work. . . Nearly one half of the text, in the first hundred pages of Mr Holcombe's book, appears to have been extracted from Story. . . . . To class these extracts under the head of 'abridgments,' would seem to be a perversion of terms. Whatever else this part of Mr Holcombe's book may be called, it is not an abridgment. With greater propriety it may be called a compilation, as the extracts contained in it are taken from various authors. As a compilation, this part of the book must be considered an infringement of the right of the plaintiffs, by the copious extracts made from the Commentaries, and the classification of the subjects copied from them. . . . . Looking at the smallness of Mr Holcombe's book in comparison of that from which it was principally taken, one might suppose that the former was a short abridgment of the latter. But this comparison of size or number of pages affords no guide to a proper decision. The character of the work must depend upon its matter; and it would seem from the considerations stated, that the first third part of Mr Holcombe's book, including one hundred pages, cannot be justly and legally called an abridgment, as it does not possess the essential ingredients of such a work; and that, viewing it as a compilation, it is an infringement of the plaintiff's right, on the ground that the plan of the Commentaries is copied; and also for the reason that the extracts extend beyond the proper limit for such a work. The remaining two-thirds of the book may be comprehended under a liberal construction of an abridgment. The matter is greatly condensed by Mr Holcombe, in his own language, and in a manner highly creditable to him. The prayer of the bill as to the first hundred pages is granted." Abridgment of The publication of a "Life of Washington," in two volume, containing 866 pages, was restrained by Story, J., as an invasion of the copyright in "Sparks's Life and Writings of Washington," a work in twelve volumes; 353 pages of the former work being copied from the latter, 64 pages being official letters, and 255 being private letters of Washington, first published by Sparks under a contract with the owners of the original papers of Washington. (a) Where the defendant published in a number of Parley's works of fiction. Illuminated Library (a weekly publication) a portion of a story entitled "A Christmas Ghost Story, re-originated from the original by Charles Dickens, Esq., and analytically (a) Folsom v. Marsh (2 St. 100). lensed expressly for this work," which, with the excep- And I PART L. CHAPTER XVI. PART I. brings that which the defendant has done within a legitiCHAPTER XVI. mate use of the plaintiff's publication, within the terms fair exercise of a mental operation,' or within the expression of 'deserving the character of an original work.' I think it, therefore, entirely excluded from Lord Eldon's definition, if as a definition Lord Eldon meant it. It appears to me to be a mere borrowing with alterations and departures merely colourable, and when it is said that the difference of price and other circumstances of difference belonging to it are such as to render the invasion of no practicable mischief to the plaintiff, the person whose property has been taken is entitled to judge for himself how far he will consider that abstraction of his property to be prejudicial or not prejudicial. It is a valuable property, and he is entitled to be protected from the unauthorised use of it by another. I do not, however, as at present advised, at all accede to the argument that, whatever may be the relative merit of the two publications, whatever their relative prices, the publication and circulation of the cheaper may not in a pecuniary point of view, at least, if not so otherwise, materially prejudice the plaintiff. There are various points of view into which it is unnecessary for me to enter in which such a case may be put, in which material damage may arise from the subject, considered merely and solely as a question of property, which is the only point of view in which it is my duty or business to consider it." Digests of legal decisions. Somewhat in the nature of abridgments are those digests of legal decisions which are published from time to time. They give, under headings arranged alphabetically, a summary of the legal points decided in each case referred to, and there is no doubt that such an arrangement may be the product of skill and mental labour on the part of the compiler. If so, the general rule applies, and the compiler is guilty of no infringement of the copyright in the published reports of the cases digested, and is entitled to copyright in his own work. In But if the compiler's labour is purely mechanical, and he only arranges in alphabetical order the marginal or head notes of cases contained in published reports, the Court of Common Pleas has held that he is guilty of infringing the copyright in the published reports. Sweet v. Benning, (a) which was such a case, Jervis, C.J., said: "I think the defendants in this case have been guilty of an abuse of the fair right of extract which the law allows for the purpose of comment, criticism, or illustration; and that this is in reality an unauthorised publication of a por(a) 16 C. B. 184. The n of the plaintiff's work, without justifiable excuse. PART I. CHAPTER XVL PART L that the defendants' work is useful only for a different purCHAPTER XVI. pose from that of the plaintiffs, and is not, and never was intended as, a substitute for it. . By far the larger portion of the matter distributed is, as against the plaintiffs, the defendants' own property; and the method of arrangement is entirely their own. That being the state of things, the defendants have, as it seems to me, made and published a book altogether different from the plaintiffs' work, intending to answer, and really effecting, a totally different purpose. Therefore, I conceive that they have not, in a sense that is unlawful, copied any part of the plaintiffs' work, but that they have done nothing more than is done, and lawfully done, by one who, for the purpose of supporting and fortifying his own argument, avails himself of the work of another to the extent to which it is made publici juris for the purpose of being read and extracted from to a fair and bonâ fide and legitimate extent." Prints in a book. Piracy of name of work. Prints not published separately, but forming part of a book, were held by Sir James Parker, V.C., in Bogue v. Houlston () to be within the protection afforded to books by 5 & 6 Vict. c. 45, and he granted an injunction to restrain the publication of those prints by the defendant, on the plaintiff's undertaking to bring an action to try the right at law. "It appears to me," said the Vice-Chancellor, "that a book must include every part of the book; it must include every print, design, or engraving which forms part of the book as well as the letter-press therein, which is another part of it. Prints published separately do not appear to have been within the Act by that express definition [the definition of a 'book' given in 5 & 6 Vict. c. 45, s. 2]. But the case now before the court is not the case of separately published prints, but the case of designs forming part of a book." In this case the plaintiff's publication consisted of letter-press and woodcuts, printed on the same large sheets of paper, the woodcuts appearing as separate leaves when the sheets were folded into their quarto size. The name or title of a work may be considered as a kind of trade mark which no other person than the proprietor of the work can use so as to damage him in respect of his property in it. (b) Cases of this kind depend rather upon the question whether the defendant has a right to sell as his own that in which another has acquired a description of property, than on the question of copyright. (c) (a) Bogue v. Houlston (5 De G. & Sm. 267). (b) See Seely v. Fisher (11 Sm. 582); Spottiswoode v. Clark (2 Ph. 154). (c) Per Wood, V.C., in Chappell v. Davidson (2 K. & J. 126). |