"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."[83]

The next case in which this question came before the Courts was Grace v. Newman.[84] 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. Woodward[85] and following Hotten v. Arthur.[86] In 1882 Cobbett v. Woodward[87] was expressly overruled in the Court of Appeal in the case of Maple & Co. v. Junior Army and Navy Stores.[88] The plaintiffs published an illustrated catalogue consisting almost entirely of engravings of furniture with short descriptions and prices. The catalogue 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.[89]... 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. Woodward[90] will not bear legal examination."[91]

In Collis v. Cater[92] North, J., protected a catalogue of medicinal articles which the plaintiff kept for sale. The articles were arranged by their common names in alphabetical order under various headings and sub-headings. The learned judge strongly negatived the contention that a tradesman's catalogue would [20] only be protected when, as in Hotten v. Arthur,[93] some amount of skill or literary merit was shown. He said:

"A distinction is made between copyright in a large catalogue by a clever author which gives a great deal of information, and is interesting to persons who read it, and a catalogue like the plaintiffs, which is nothing whatever but a simple list of certain articles described by their common names, which every one is entitled to use with respect to them with the addition of the prices at which they are sold.... In one way or another a man engaged in preparing a catalogue of this sort has incurred labour in its preparation, or it may be expense and trouble in its preparation, and has done it for the advantage of having his own catalogue.... I cannot see any distinction between this and the publication of a directory. It seems to me to be exactly in pari materia."

A list of telegraphic code words carefully selected so that, in their transmission by the Morse system of dots and dashes, they would not be liable to be mistaken or misspelt was admitted to be a copyright work in Ager v. P. & O. Steam Navigation Co.[94] The same book, "The Standard Telegram Code," was again protected in Ager v. Collingridge.[95]

Lists of statistics compiled from various sources of information are well recognised as original books. "The Clyde Bill of Entry and Shipping List," containing a compilation of statistics collected from the official records and documents in the Custom houses, was protected in Scotland in 1846[96] and again in 1858.[97] The "Mineral Statistics of the United Kingdom of Great Britain and Ireland" was protected in England in 1867.[98] It consisted of an annual statement of returns in the City of London coal market, showing the quantity of coal imported into London from the various collieries, and was compiled by the clerk and registrar of the coal market from the day-books in the office. Page Wood, V. C., said:

"A great deal of time and labour must have been spent in this compilation, more, indeed, than in the case of a directory or guide, and there can be no doubt that he is entitled to be protected in the fruits of his labour."[99]

[21]

Compilations made from public documents and records are protected in so far as there is selection or arrangement. A mere verbatim copy of a public document would not be protected.[100] In Trade Auxiliary Co. v. Middlesborough,[101] "Stubbs' Weekly Gazette" was protected from infringement. The gazette contained a list of bills of sale registered under the Bills of Sale Act and of deeds of arrangement registered under the Deeds of Arrangement Act. The particulars of each bill of sale had been taken from the official records, not merely from the indexes on the official register but from the instruments themselves, for the inspection of each of which a charge of 1s. or 2s. 6d. is made. The same and other similar lists were also protected in Cate v. Devon.[102]

In Wyatt v. Barnard[103] Lord Chancellor Eldon refused protection to a copy of specifications of patents taken from the patent office. If this decision meant that a selection, arrangement, or abridgment of the specifications in the patent office would not be protected, it cannot be considered sound law.

In Cox v. Land and Water[104] Malins, V. C., although he refused to grant an injunction on the grounds of its probable inefficacy, expressed a strong opinion that a list of packs of foxhounds, with the hunting days of each pack and their respective masters and huntsmen, was the subject of property. The information contained in the list was obtained by issuing circulars requesting the masters of the hunt to fill up the required information. The Vice-Chancellor in his judgment said:

"It is clear that in this case the getting of the names of masters of hunts, the number of hounds, the huntsmen and whips, and so forth is information open to all those who seek to obtain it; but it is information they must get at their own expense, as the result of their own labour, and they are not to be entitled to the results of the labours undergone by others."

[22]

One of the leading cases in this branch of copyright law is Leslie v. Young,[105] a Scotch appeal case. The pursuer's book consisted of a monthly penny railway time table, published in Perth. It was compiled from the various railway companies' time tables. Some of these were taken verbatim and some were abridged by the smaller stations being omitted, and to the whole was added a list of convenient circular tours around Perth compiled by the pursuer. The defender in compiling a rival time table, copied many of these tables and all of the circular tours from the pursuer's book, either literally or with colourable differences only. As regards the time tables the House of Lords sustained the judgment of the Inner House in refusing an interdict. The mere publication, they said, in any particular order of the time tables which are to be found in railway guides and the publications of the different railway companies, could not be claimed as a subject-matter of copyright. In dealing with the abridged time tables Lord Herschell, L. C., said:

"Looking at these tables as a whole, and having regard to the fact that it is admitted that the defender's work is, as regards these tables, not by any means in all respects a copy of the pursuer's work, that it was not denied that there was a certain amount of original work done by them in compiling these tables, and that these are the differences which have been pointed out, I do not think that it can be said that as regards these tables there has been an appropriation by the defender of the pursuer's work such as to entitle the pursuer to complain and to obtain the interdict which he claims. The real truth is that although it is not to be disputed that there may be copyright in a compilation or abstract involving independent labour, yet when you come to such a subject-matter as that with which we are dealing, it ought to be clearly established that, looking at these tables as a whole, there has been a substantial appropriation by the one party of the independent labour of the other before any proceeding on the ground of copyright can be justified."

As regards the circular tours the House of Lords reversed the judgment of the Court of Session and granted an interdict. The Lord Chancellor said:

"It appears to me the only part of the work which can be said to indicate any considerable amount of independent labour and be entitled [23] to be regarded as an original work.... It seems to me that this was a compilation containing an abridgment of information of a very useful character, and such as was likely to be taken advantage of by those who were travelling in the neighbourhood of Perth."

Mathematical calculations are undoubtedly subjects of copyright. In Baily v. Taylor[106] Sir John Leach, M. R., evidently assumed that they were, although in that case he refused an injunction on the grounds that a very small part had been copied, that what was copied could have been calculated again in a few hours, and that there was unreasonable delay in bringing the action. In M'Neill v. Williams[107] protection was sought for "Comprehensive Tables for the Calculation of Earthwork as connected with Railways," &c. Knight Bruce, V. C., refused an interim injunction, but he did not suggest that the calculations were not the subject of copyright.

Forms and Precedents and similar works are made and published for the very purpose that they should be bought and used in business or other transactions. To this extent copying is of course no infringement, but they will be protected from any copying other than that which is impliedly permitted by their publication. In Webb v. Rose[108] precedents of conveyancing were stolen from a barrister's chambers and printed against his will. The Court had not the least hesitation in restraining the defendant from printing and publishing them. In the Scotch case of Alexander v. Mackenzie[109] the claim of "Styles and Precedents of Conveyancing" to protection under the Copyright Acts was recognised by the Inner House. The forms in question were drawn up from general directions contained in the "Heritable Securities and Infeftments Acts," and it was contended that, as all who followed these directions must arrive at almost identically the same result, there could be no copyright in a precedent so produced. The Court was unanimously of opinion that although such work did not require the exercise of original or creative genius, yet it implied industry and knowledge, and was undoubtedly the subject of copyright.[24]

In Southern v. Bailes[110] a form of application by intending students to a "Lessons by Correspondence Department" was protected by Chitty, J. The learned judge granted an injunction against copying the plaintiff's form, but thought it would be dangerous to extend the injunction in such a matter to colourable imitations, as there was a great deal in the form any one could have put together for himself.

It was very early recognised that the skill and labour of selecting and arranging extracts from previously published books was sufficient to entitle the compiler to copyright in the new work thereby produced.[111] Copyright can thus be obtained without the composition of a single sentence. There is composition, but the composition is of new arrangement and not of new matter. In Rundell v. Murray[112] Lord Chancellor Eldon expressed his opinion that a collection of cookery recipes would have entitled the plaintiff who collected them to copyright, even if she had merely embodied and arranged them in a book. If, however, she had only collected them and handed them over to the publishers, he did not think that would give her copyright. In Lewis v. Fullarton[113] "The Topographical Dictionary of England," which consisted partly of compilations and selections from former works, was recognised as being the subject of copyright. In Lennie v. Pillans[114] the Court of Session in Scotland were of opinion that "The Child's A B C," consisting in a great degree of extracts from and repetition of previous publications by other authors, was entitled to protection on account of the original arrangement, selection, abridgment, or amplification of such borrowed materials. In Jarrold v. Houlston[115] Page Wood, V. C., granted an injunction against the piracy of Dr. Brewer's "Guide to Science." The book was intended for the instruction of tiros in science, and was composed largely from previous works, aided by notes taken from time to time of popular ideas concerning various scientific phenomena. The Vice-Chancellor said: [25]

"That an author has a copyright in a work of this description is beyond all doubt. If any one by pains and labour collects and reduces into the form of a systematic course of instruction those questions which he may find ordinary persons asking in reference to the common phenomena of life, with answers to these questions and explanations of these phenomena, whether such explanations and answers are furnished by his own recollection of his former general reading or out of works consulted by him for the express purpose, the reduction of questions so collected, with such answers under certain heads and in a scientific form, is amply sufficient to constitute an original work of which the copyright will be protected."

The same judge, in Spiers v. Brown,[116] in considering an alleged infringement of "Spiers' School Dictionary," said:

"In a large part of his work Dr. Spiers could have no copyright as to words and expressions, though he might have it as to new words introduced or new acceptations, or as to the order and arrangement by which he improved the particular work he had in hand."

In an Indian case Palgrave's "Golden Treasury of Songs and Lyrics" was protected. It consisted in a selection and arrangement of poems and fragments of poems from the non-copyright works of many poets. The defendant took the selected portions, rearranged them, and made a few additions. His book was condemned as an infringement.[117]

Lawfully made abridgments are protected on account of the judgment which the abridger must exercise in order to do his work well.[118]

Lawfully made translations are also protected as if they were original works.[119] The protection will only extend to the work of the translator. A translator by translating a non-copyright work acquires no exclusive right to translate. Others may do the same from the original non-copyright source.

An author is entitled to copyright by reason of lawful adaptation of a book from one form to another; thus, if he dramatizes a novel, or by material alteration and rearrangement [26] produces a new version of an old play.[120] The adaptation of music, for instance an opera score for the pianoforte,[121] or the rearrangement of an old tune,[122] is the subject of copyright.

New editions either of copyright or non-copyright works are protected as original books, but only to the extent to which they consist of original material in the way of notes to, or substantial revision and alteration of the old text. Lord Chancellor Hardwicke[123] granted an injunction against the piracy of a new edition of Milton's "Paradise Lost" containing original notes by Dr. Newton. In Cary v. Longman[124] new material added to an old road-book was protected. In Murray v. Bogue[125] in the case of a subsequent edition of a guide-book, Kindersley, V. C., said:

"If a man prints a second edition, not being a mere reprint of the first edition, but containing considerable and material alterations and additions, quoad those, it is a new work."[126]

In Cadell v. Anderson[127] the Court of Session in Scotland held that the pursuers had the sole right of printing and reprinting "Blackstone's Commentaries;" and as regards those editions in which there were corrections and continuations, their term of copyright began to run afresh with respect to such new material. In Black v. Murray & Son[128] the notes in Lockhart's edition of Scott's "Border Minstrelsy" were protected, the copyright in the original edition of the "Border Minstrelsy" having expired. Lord President Inglis, in the course of a long and elaborate judgment, said:

"Questions of great nicety and difficulty 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 [27] 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, the 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.... That there may be copyright in the notes, even when the book is not under the protection of copyright, is quite a fixed principle in the law, and most desirably so. There is no doubt that the compilation of good notes to a standard work is a task worthy of the highest literary talents and reputation.... Of the 200 notes the defender's counsel tells us that 15 only consist of original matter, while the remaining 185 are quotations from other books and authors. Now this seemed to be considered to be a sort of disparagement of the value of the notes, in which I cannot at all agree.... The quotations are, in many places, most apposite, and highly illustrative of the text, and exceedingly interesting to the reader, and certainly the selection and application of such quotations from other books may exercise as high literary faculties as the composition of original matter."

If a new edition is a mere reprint of what has been published in "book" form before, it is obvious that no new or independent copyright can be claimed in it.[129] So also if there are only slight corrections, verbal alterations, and the like. Lord Mackenzie, in the Scotch case of Hedderwick v. Griffin,[130] said:

"I doubt very much if there can be right of literary property in the exclusion from an edition of the works of any author of articles not truly written or published by that author, or in the correction of accidental errors, or in the mere order and titles of articles which seem to be all, or nearly all, that can be claimed by the pursuers in this case."[131]

The publication of an old work with an index not previously published would undoubtedly be copyright as to the index.[132]

In Black v. Murray[133] Lord Deas was of opinion that the alteration of a single word in a poem was sufficient to give a new edition an independent copyright, inasmuch as the alteration was very important and entirely altered the meaning of the line in which it was used. The other judges, however, [28] did not altogether concur in Lord Deas' opinion; and it would seem that his lordship stretched the law as to new editions too far.

The question whether a verbatim report of oral proceedings is a "book" within the meaning of the Copyright Acts was long a moot question. That there might be copyright in law reports and similar matter, in so far as they consisted of a summary of the proceedings in the author's own language, was early recognised. In Butterworth v. Robinson[134] the "Term Reports"; in Sweet v. Shaw,[135] Meeson and Welsby's reports, and others; and in Sweet v. Maughan[136] the reports in the "Jurist" were protected; but it does not appear in the reports of these cases whether any copyright was claimed in the verbatim reports of the judgment of the Court. In Saunders v. Smith[137] Lord Cottenham, L. C., refused an injunction against "Smith's Leading Cases" on equitable grounds, but said he would not decide the legal question as to whether that publication infringed the copyright in the "Term Reports" and others. In Sweet v. Benning[138] the defendants published a "Monthly Digest" into which were copied numerous head notes of cases taken bodily from the "Jurist." The Court held that these head notes were copyright, and that the defendant's work was an infringement.

"The head note or the side or marginal note of a report is a thing upon which much skill and exercise of thought are required to express in clear and concise language the principle of law to be deduced from the decision to which it is prefixed, or the facts and circumstances which bring the case in hand within some principle or rule of law or of practice."[139]

So far, therefore, as appears from the reports of these cases our Courts had only recognised copyright in the matter of reports to the extent to which that matter was the composition of the author, only, in short, when it was a description in his own language of what had taken place. The American Courts had held[140] that there was no copyright in the verbatim report [29] of a judgment of the Court, but their decisions were based to a large extent on the ground of public policy. The judgments of the Court, they said, were published to the whole of the people of the United States, and no individual could acquire a monopoly with respect to them. Walter v. Lane[141] has to a large extent cleared up the doubtful state of our law as regards reports, but it cannot be said that it has done so entirely. Walter v. Lane[142] decides that a reporter can have copyright in a verbatim report of the oral utterances of another from whom he derives no title. In that case certain reporters of the Times were present at various meetings at which Lord Rosebery made speeches. These speeches were taken down in shorthand and appeared in the Times the following morning, reproducing as nearly as possible verbatim the words which Lord Rosebery had spoken. Lane, a publisher, subsequently published a book entitled "Appreciations and Addresses: Lord Rosebery," and purporting to be a collection of some of Lord Rosebery's speeches. Five of the speeches in this book were taken from the reports in the Times, as was admitted by the defendant, substantially verbatim. The House of Lords reversing the judgment of the Court of Appeal and restoring the judgment of North, J., held that the reports in the Times were copyright, and that the reporters' assignees, the proprietors of the Times, were the owners of the copyright. Lord Chancellor Halsbury in his judgment said:

"My Lords, I should very much regret it if I were compelled to come to the conclusion that the state of the law permitted one man to make profit and to appropriate to himself the labour, skill, and capital of another. And it is not denied that in this case the defendant seeks to appropriate to himself what has been produced by the skill, labour, and capital of others. In the view I take of this case I think the law is strong enough to restrain what to my mind would be a grievous injustice.... The speeches and the sheets of letterpress in which they were contained were books first published in this country; and I confess, upon looking at the definition and the right conferred, I am wholly unable to discern why they are not protected by the statute from being pirated by unauthorised persons. The sole ground, as I understand the judgment of the Court of Appeal, is that in their judgment the producer of a written speech, [30] unless he is the original speaker, cannot be an 'author' within the meaning of the Act. My Lords, it seems to me that this argument is based upon too narrow and misleading a use of the word 'author.'... The producer of this written composition is, to my mind, the person who is the author of the book within the meaning of the statute.... I do not find the word 'original' in the statute, or any word which imparts it as a condition precedent, or makes originality of thought or idea necessary to the right."[143]

We must be careful not to carry the doctrine of Walter v. Lane[144] further than the actual decision warrants. It should be noticed, for instance, that the essence of the case is that the reporter was entitled to copyright, because it was he who first reduced to "book" form the literary composition contained in Lord Rosebery's speeches. If, therefore, Lord Rosebery had, before delivering his speeches, done as some statesmen and many clergymen do, i. e., reduced them to writing, the reporter would probably not have had copyright, since his report would then have been a mere copy of the speaker's original manuscript, a very different thing from being the first manuscript.[145] Again, it must be noticed that Lord Rosebery claimed no proprietary right in his speeches. It was admitted by counsel that he had freely abandoned his words to the world so that any one might make of them what use he pleased. Lord Rosebery might have secured a right in his own speeches if he had cared to do so. He might have delivered them to a limited audience[146] under an implied contract that those who heard his speeches should make no other use of them except by listening to them and benefiting by the entertainment and general information conveyed. Possibly he might also have secured a statutory copyright in them as lectures by giving notice in writing two days before delivering the same to two justices living within four miles of the place of delivery.[147] If in either of these ways Lord Rosebery had secured a proprietary right for himself it is doubtful whether a reporter unauthorised by him could have acquired copyright in his report. The report would have been an infringement of Lord Rosebery's rights, but the reporter might [31] nevertheless be held to have a copyright against the rest of the world. It should also be noticed in connexion with this case that it was expressly stated by the judges in the House of Lords that any number of reporters could make a report of the same speech, and each would have a separate copyright. In Walter v. Lane[148] the defendant admitted that he took his book from the Times' report. It is obvious, however, that if a speech were reported in, say, six newspapers, any one could reprint it, and by careful correction of the parts in which the reports varied baffle any one of the newspaper proprietors in an attempt to prove that the speech was taken from his newspaper. Another question with regard to verbatim reports, which is not necessarily covered by Walter v. Lane,[149] is in reference to verbatim reports of judgments in the Courts. Will the American doctrine be adopted that it is against public policy that there should be any monopoly in them?[150]

The law of copyright does not protect anything in the nature of a mechanical device, except in so far as apart from any mechanical application it conveys ideas or information to the person reading it. In Page v. Wisden[151] it was claimed by the plaintiff that he had literary copyright in a cricket-scoring card, the only novelty in which was a line along which could be indicated "Runs at the fall of each wicket." Malins, V. C., held that such a thing was not a book within the Act, and characterised it as absurd to contend that a particular mode of ruling a book constituted an object for a copyright.[152]

In Cable v. Mark,[153] Bacon, V. C., refused to protect under the Literary Act "The Christograph—the Christian's Puzzle: suitable for all sects and denominations." This consisted of an envelope on which the above title was inscribed. Inside the envelope was a card perforated in such a way that when held up in a strong light it threw upon the wall a shadow which was supposed to represent the picture "Ecce Homo." The Vice-Chancellor in his judgment described it as a mere child's trick [32] and nothing else. The face of a barometer was held by Chitty, J., in Davis v. Comitti[154] not to be a book. It consisted of a circular card on which were printed various words such as "set fair," "high winds," &c., and on which the hands of the barometer moved. The learned judge said:

"Separated from the instrument it was not intended to have and has no use or meaning whatever. Regarded as a card apart from the instrument it not only foretells nothing, but tells nothing. By reading the printed matter on the card alone, no intelligible proposition is arrived at."

Protection was claimed in Hollinrake v. Truswell[155] for a cardboard pattern sleeve called the "Cosmopolitan Sleeve Chart." It consisted of a piece of cardboard cut to suitable shape and size and marked with figures and directions, such as "measure round the thick part of the arm," and it was intended to be used for the purpose of measuring and cutting out sleeves. The Court of Appeal reversed the judgment of Wright, J., and dismissed the action. Lord Herschell said:

"The object of the Copyright Act was to prevent any one publishing a copy of the particular form of expression in which an author conveyed ideas or information to the world. These may be retained by any one, although the book, map, or chart which embodied them has passed out of his possession. If he were to commit to memory the contents of the book or the information disclosed by the map or chart, he would be as much in possession of the author's ideas or information as if the book, map, or chart were physically in his hands. But this is not the case with the words or figures upon the sleeve chart. They are intended to be used, and can only be used in connection with that upon which they are inscribed.... I think it clear, therefore, that what the plaintiff has sought to protect under the Act for the protection of literary productions is not a literary production, but an apparatus for the use of which certain words and figures must necessarily be inscribed upon it."[156]

In a Canadian case a railway ticket containing the names of stations on the line and dates so arranged that when punched it indicated where the holder was entitled to travel, was refused [33] protection. It was said that without the application of the conductor's punch, the ticket was senseless and meaningless.[157]

In Boosey v. Whight[158] it was held that a sheet of music was not infringed by a perforated scroll for use in a mechanical instrument; and further, that the directions in the printed music, e. g. pp., crescendo, were not the subject of copyright apart from the printed sheet, and therefore might be taken and used in conjunction with the perforated scroll. It seems to follow that neither the perforated scroll nor the directions thereon would constitute a "book" within the meaning of the Act.

Chilton's Special Guide published weekly sporting information. Among other matter it contained their sporting prophet's "tips" for the big races in the ensuing week. This was contained in a list, thus:

The Progress Printing and Publishing Company published daily at the various race meetings racing sheets with the day's "tips" from various sporting papers, thus:

The Court of Appeal held[159] that there could be no copyright in the individual selections for each day, but suggested that there might be copyright in the list of selections for the week, and that it would be an infringement to take it bodily. Lindley, L. J., in giving judgment, said:

"Unless you find the one horse selection and that block which is headed by the title 'One Horse Selections' in the shape in which the plaintiff [34] has published it, I doubt whether you can bring it within literary composition at all. Perhaps the whole of that might be called literary composition; but there is no literary composition in the word 'Priestholm.'"[160]