it not follow, therefore, that there must be a difference in their treatment, and that, because the subjects of patent and copyright will generally be found treated of together-bound together in the same treatise; or because both are alike a property created by the state; or even because authors and inventors have common and analogous rights, and seek the identical remedies. or protection-there is any analogy (except, possibly, an analogy of treatment) between them?

The theory of copyright recognizes the possibility of a new work, arising from a re-arrangement or republication of old matter, without an interference with, or infringement upon, the former, which is a case unknown to the theory of patents.

For instance the patentee of a sewing-machine, in 1874, which employs the needle of a sewing-machine patented in 1862, must pay to the owner of the patent on the needle a royalty for every one of his needles used. But the writer of a legal work in 1874, who treats a branch of the subject-matter in identically the same method; making, perhaps, identically the same remarks, in the same order and even in almost the precise words as a treatise-writer on that same subject, who published ten years before him-since, as we have seen, he could not copyright the subject-matter—so long as his work is not a mere conveyance of the preceding one, is not bound to pay a royalty for the method.

The explanation is, that a work is copyrighted simply because it cannot be patented. If the law of patents was capable of protecting every possible product of intellectual labor, there would be no necessity for a law of copyrights; and, so far from their being similar, it is only because they are dissimilar that they exist separately, or that copyright exists at all.

178. The question of proprietory copyright (which, perhaps, is only a variation of the doctrine of literary accession, and reduceable to that head), arises principally in considering as to how far the proprietor of a periodical containing translations made from foreign works, by persons employed and paid by him, or from works imported by him at considerable expense, seems to be settled in favor of the proprietor.1 So, any assistant, employed to compile matter for catalogues or other works of reference, will be held to have no claim to authorship in the labor thus performed at their principal's instance. As, for example, persons employed by publishers of a shipping list to compile from books of a custom-house, to which the publishers had the sole right of access, for purposes of publication, will not be held to be authors.?

But, on the other hand, a person employed as a performer and stage manager of a theatre, who agrees to write a play to be performed in the employer's theatre, so long as it continues to draw good audiences, and who thereupon does write such play, will not be held by the agreement as to its performance to have parted with his ownership therein.3

One who merely procures a drawing or design to be made,+ or who procures alterations to be made in

1

Wyatt v. Barnard, 3 Ves. & B. 77.

' McLean v. Moody, 20 Scotch Sess. Cas. 2nd ser. 1164. * Roberts v. Myers, 13 Month. L. Rep. 400; post, chapter on. Dramatic Copyright.

The plaintiff has not made a case for relief within the statute (8 Geo. 2 C. 13) which was made for the encouragement of genius. If he is any author, then any per

son who employs an engraver or printer, is an author. Hardwicke in Jeffreys v. Baldwin, Amb. 164; vid. also Pierpont v. Fowle, 2 Wood & Min. 46, and Binns v. Woodruff, 4 Wash. 53.

a musical composition not original with himself, will not be, in either case, an author. And the employment of an author to write a play, even where the employer suggests the subject, does not constitute the employer the author of the play?

To constitute a joint authorship the work must have been the result of a preconcerted joint design between two co-workers, and the mere introduction of alterations, additions, or improvements by another person, whether with or without the real author's sanction, will not entitle the other person to be considered a "joint anthor" of the work in ques

tion.3

179. The important inquiry as to what will constitute a new edition of a work, is one of constant importance. This question was ably discussed in the late Scotch case of Black v. Murray, which held that a person may, by publishing a reprint of a work of which the copyright has expired, with notes and illustrations from other works, create a new copyright, which will be protected from piracy; and that it is a piratical use of such copyright work to borrow from it any considerable number of those illustrations.

It was contended on behalf of the defenders in this case (which was an action for infringing the pursuers' copyright in the works of Sir Walter Scott, by publishing what purported to be a reprint of the original edition of the "Minstrelsy of the Scottish Border"), that the copyright claimed by the pursuers was a copyright of an edition of a work, not of the original text, the copyright in which had admittedly Lover v. Davidson, 1 C. B. N. S. 182; Leader v. Purday, 7 C. B. 4.

* Levi v. Rutley, L. R. 6 C. P. 523.

• Id.

9 Scotch Sess. Cas. 341, 3d series.

long since expired; that the pursuers' claim to copyright was chiefly based on notes contributed to their alleged copyright edition; that to make notes the subject of copyright, they must, in a reasonable sense, form a "book," and must constitute the value of the new edition; that that was not the case with the pursuers' edition, the notes added by their edition being 200 in all, many of them unimportant, and not extending to 25 small pages; that only 40 were taken by the defenders, 10 of them being found in editions. not copyright; and, finally, that it was open to the defenders to quote, even from copyright books, for the purpose of illustration; but the court of session affirming the interlocutor of the lord ordinary, held the defenders liable for piracy.

"Questions of great nicety and difficulty," said the Lord President," may arise as to how far a new edition of a work is a proper subject of copyright at all; but that must always depend upon circumstances. A new edition of a book may be a mere reprint of an old edition, and, plainly, that would not entitle the author to a new term of copyright running from the date of the new edition. On the other hand, a new edition of a book may be so enlarged and improved as to constitute in reality a new work, and that, just as clearly, will entitle the author to a copyright running. from the date of the new edition. Take for example, in illustration of this, a new edition of a scientific work which is published twenty or thirty years after the date of the first edition. The progress of science in the interval necessarily leads to the new edition being a very different book from the old. That old edition will, probably, in the course of these twenty or thirty years, have become comparatively worthless, while the new edition, particularly if it is the production of the

original author himself, will be as valuable, at the later period, as the original edition of the book was at the time when it was published. But there are many cases between these two extremes; and the difficulty will be to lay down any general rule as to what amount of addition, or alteration, or new matter will entitle a second or a new edition of a book to the privilege of copyright, or whether the copyright extends to the book as amended or improved, or is confined only to the additions or improvements themselves, as distinguished from the rest of the book. I think, in the present case, that we shall not find that we are in reality much troubled with such difficulties." "It is not necessary," observed Lord Ardmillan, that a work shall be entirely a new work in order to be the subject of copyright. A new edition is not necessarily a subject of copyright, but it may be so. There must be some originality in it; it may be in new thought, or in new illustration, or in new explanatory and illustrative annotation, or even, in some peculiar instances, in simply new arrangement. If, in any of these respects, there is independent mental effort, then in the result of that mental effort, there may be copyright."

Lord Kinloch said: "I think it clear that it will not create copyright in a new edition of a work, of which the copyright has expired, merely to make a few emendations of the text, or to add a few unimportant notes. To create a copyright, by alterations of the text, these must be extensive and substantial, practically making a new book. With regard to notes, in like manner, they must exhibit an addition to the work which is not superficial or colorable, but imparts to the book a true and real value, over and above that belonging to the text. This value may, perhaps, be