PART L CHAPTER XVI. an extraction from it as comes up to an extraction of the Lord Ellenborough expressed the criterion thus: "Was the matter so taken [by the writer of one book from a preceding book for the promotion of science, and the benefit of the public] used fairly with that view, and without what I may term the animus furandi." (b) Wood, V.C., refers to this rule thus: "Whether you find on the part of the defendant an animus furandi-an intention to take for the purpose of saving himself labour."(c) Lord Jeffrey, in the Scotch case of Alexander v. Mackenzie, (d) in somewhat figurative language, states the test to be, in cases where the subject is in medio, or open to everybody to write upon it: "Is there reasonable evidence that the two works are identical, and that the last author did not mount upon the back, and walk on the crutches of, his predecessor, but actually used his own muscular exertions in traversing the field in which he made his observations? Did he, on the whole, do so fairly and honestly for himself, although he may occasionally have followed in the vestigia left by his precursor? Or is there evidence that the second writer's not going over the ground for himself is not the very cause why he has arrived at almost identical conclusions with his predecessors ?" Wood, V.C. (now Lord Hatherley, C.), in dealing with a work in the form of question and answer on a variety of scientific subjects, thus lays down the rule : (e) “I take the illegitimate use, as opposed to the legitimate use of another man's work on subject matters of this description to be this: If, knowing that a person whose work is protected by copyright has, with considerable labour, compiled from various sources a work in itself not original, but which he has digested and arranged, you being minded to compile a work of a like description, instead of taking the pains of searching into all the common sources and obtaining your subject matter from them, avail yourself of the labour of your predecessor, adopt his arrangements, adopt moreover the very questions he has asked, or adopt them with but a slight degree of colourable variation, and thus save yourself pains and labour by availing yourself of the pains and labour which he has employed, that I take to be an illegitimate use." (a) Murray v. Bogue (1 Drew. 369). As to the necessity of an animus furandi, see post, pp. 181-183. (c) Jarrold v. Houlston (3 K. & J. 716). (d) 9 Scotch Ses. Cas. 2nd Ser. 758. (e) Jarrold v. Houlston (ubi supra). An American judge (Story, J.) says:(a) "I think it The quantity of one work introduced into another is a In Pike v. Nicholas, (d) a case of piracy of a book on the gin of the English nation, James, V.C., said: "There no monopoly in the main theory of the plaintiff, nor in the ories and speculations by which he has supported it, nor n in the use of the published results of his own observaBut the plaintiff has a right to say this, that no one to be permitted, whether with or without acknowledg nt, to take a material and substantial portion of his work, argument, his illustrations, his authorities, for the purse of making or improving a rival publication." (e) ns. PART L CHAPTER XVI. common. In all cases where the sources from which materials for com- Where sition are to be derived are of a common or general nature, materials are as it is otherwise expressed, where the materials are in dio, it is open to anyone to gain a copyright in any arrange a) Emerson v. Davies (3 St. Rep. 793). b) The book of which the copyright was alleged to be infringed in case was a treatise on arithmetic. c) Bramwell v. Halcomb (3 My. & Cr. 738). Similarly Story, J. St. Rep. 20), "In many cases the question may naturally turn upon point not so much of the quantity as of the value of the selected terials. As was significantly said on another occasion,- Non merantur, ponderantur.' d) 20 L. T. N. S. 909; 38 L. J. 529, Ch. (e) The decision of the Vice-Chancellor in this case was reversed on peal, but only as to the question of degree in which the defendant had fact made use of the plaintiff's work: (L. Rep. 5 Ch. App. 251.) e also Stowe v. Thomas (2 Amer. Law Reg. 229). PART I. ment of them which he chooses to make. "In all cases,” CHAPTER XVI. Says Lord Jeffrey, (a) "although the materials are expressly in medio, and open to everybody, when a particular degree of judgment in the selection of those materials has been used, and where the subject in medio, so open to the world at large, has been, to a certain extent, snatched at and appropriated, such selection is in itself recognised as a certain degree of mental effort, which is entitled to the benefit of copyright." Compilation of directory. But though any person may thus acquire a copyright in his own arrangement of common materials, the materials themselves are equally open to everyone else who chooses to have recourse to them, and different copyrights may be acquired in different arrangements of the same common materials. The different arrangements of common materials must, however, be independent. A later arrangement must not be a servile imitation or reproduction of an earlier one; otherwise it subjects its author to the charge of piracy. The case of Kelly v. Morris, (b) is a forcible illustration of this doctrine. In that case an application was made for an injunction to restrain the publication of "The Imperial Directory of London, 1866," on the ground that it was a mere piracy of a work belonging to the plaintiff, entitled "Post-office London Directory." The defendant's affidavit set up, as grounds of defence, that from 1862 to 1864 he had published a work called "The Business Directory," in which appeared the names of about 100,000 persons in trade or business, which had been obtained by a large number of canvassers, whom he had employed for the purpose; that, wishing to extend his operations, and bring out "The Imperial Directory," which should comprise street, conveyance, postal, and other sections, he acted on a similar principle to that which had guided him in taking the names of persons in business whom his canvassers were unable to see, viz., he took such information from any source “where the persons had made it public at their own expense for their own benefit;" he considered that the name of a private resident belonged to the public when that resident had "gratuitously given it to the public through some recognised medium of publicity," and that the publisher merely "held it in trust for a purpose, receiving for his trouble any benefit he could make of the information, but that the right of using that information belonged to the public as soon as the informa (a) Alexander v. Mackenzie (9 Scotch Sess. Cas. 2nd Ser. 758); see also Blunt v. Patten (2 Paine, 395); Emerson v. Davies (3 Story, 781). (b) L. Rep. 1 Eq. 697; 35 L. J. 423, Ch. ; 14 L. T. N. S. 222. PART L. tion was made public," and that any person might go round with a list of names already published and ask permission to CHAPTER XVI render the work of publication more complete by reproducing it, and if any error had been made in the first publication, it rested with the original owners of the names to point out the error, when submitted to them for permission to reproduce, which opportunity was afforded the residents by means of circulars sent round to them through the defendant's canvassers, asking the residents to fill up a form with their name and address for publication in "The Imperial Directory." It was admitted that one of defendant's canvassers, afterwards discharged by him, had not taken the trouble to make the necessary inquiries, from house to house, so that most of the errors in the defendant's directory identical with those in the plaintiff's would be thus accounted for. On the other hand, several instances were adduced of corrections and large supplementary additions to the plaintiff's work contained in the defendant's, and the manuscript of the latter work was produced. The present Lord Chancellor (then Sir W. Page Wood, V. C.) granted the injunction prayed for, and laid down the law on the subject in very stringent terms. His Lordship said: "The defendant has been most completely mistaken in what he assumes to be his right to deal with the labour and property of others. In the case of a dictionary, map, guide-book, or directory, where there are certain common objects of information, which must, if described correctly, be described in the same words, a subsequent compiler is bound to set about doing for himself that which the first compiler has done. In case of a road book he must count the milestones for himself. In the case put of a newlydiscovered island, he must go through the whole process of triangulation, just as if he had never seen any former map, and generally, he is not entitled to take one word of the information previously published without independently working out the matter for himself, so as to arrive at the same result from the same common sources of information, and the only use that he can legitimately make of a previous publication is to verify his own calculations and results when obtained. So, in the present case, the defendant could not take a single line of the plaintiff's directory for the purpose of saving himself labour and trouble in getting his information. The defendant, from the description of the way in which he had in the first instance compiled his 'Business Directory,' seems to have known exactly what he might do. . . . . The defendant goes on in his affidavit to propound a most extraordinary doctrine as to the right of PART L. publicity in the names of private residents, who had, as he CHAPTER XVI. expressed it, 'given their names for public use.' What he has done has been just to copy the plaintiff's book, and then to send out canvassers to see if the information so copied was correct. If the canvassers did not find the occupier of the house at home, or could get no answer from him, then the information copied from the plaintiff's book was reprinted bodily, as if it was a question for the occupier of the house merely, and not for the compiler of the previous directory. Further than this, the defendant tells us that he had a number of new agents, and that one of them had performed his part of the work carelessly, thus at once showing how easy it would be, on the system adopted by the defendant, for any negligent agent to send back his list all ticked as if correct, without having taken the trouble to make a single inquiry. . . . . The work of the defendant has clearly not been compiled by the legitimate application of independent personal labour, and there must be an injunction to restrain the publication of any copy of the defendant's work containing the portions called the 'Street' and 'Court' Directories, with liberty for the defendant to apply, when he shall have expunged from such portions all matter copied from the plaintiff's work.”(a) Lord Eldon had previously said, with reference to a "Road Book," "It is certainly competent to any other man to publish a book of roads, and if the same skill, intelligence, and diligence are applied in the second instance, the public would receive nearly the same information from both works; but there is no doubt that this court would interpose to prevent a mere republication of a work which the labour and skill of another person had supplied to the world."(b) The fact that the publisher of a business directory receives payment from some of the persons whose names are contained in it, for printing their names in larger letters, or with lines of additional description, does not make those names, when so inserted, common property, so as to justify the compiler of a rival directory in reprinting them from slips cut from the former. (c) Neither does the fact that the persons whose names were so printed had been applied to by the compiler of the second directory to verify the information contained in the first, (a) See also Matthewson v. Stockdale (12 Ves. 275); Cornish v. Upton (4 L. T. N. S. 862); and Morris v. Ashbee (L. Rep. 7 Eq. 34; 19 L. T. N. S. 550). (b) Judgment in Longman v. Winchester (16 Ves. 271). (c) Morris v. Ashbee (L. Rep. 7 Eq. 34; 19 L. T. N. S. 550). |