PART I.

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),

condensed expressly for this work," which, with the excep-
tion of a few colourable alterations, was in all respects similar
to the "Christmas Carol" of Charles Dickens, this was held to
be a clear invasion of Mr. Dickens's copyright in that work. (a)
It was contended on behalf of the defendant, on a motion
to dissolve an injunction which had been granted, that his
work was neither a colourable imitation nor a piracy of the
other, but a fair abridgment, the result of the defendant's
mental labour, and falling within the principle of Dodsley v.
Kinnersley; (b) and it was urged that so far from any attempt
being made to induce the public to believe they were buying
for one penny what the eminent author of the "Christmas
Carol" had written and published for five shillings, the defen-
dant in his work had a dedication of his labours to Mr.
Dickens himself. Knight Bruce, V.C., said, "The plaintiff
appears to be the author and to own the copyright of a work
of fiction, a novel, the copyright of which has not been con-
tended to be not entitled to protection. The defendant has
printed and published a novel of which fable, persons, names
and characters of persons, the age, time, country, and scene
are exactly the same; the style of language in which the
story is told is in many instances identical, in all similar,
except when certain alterations by way of extension or
substitution have been made, as to which, whether they
improve or do not improve upon the original composition, it
is not necessary for me to express my opinion. Now this has
been said to be an abridgment, and as an abridgment to be
protected. I am not aware that one man has the right to
abridge the works of another. On the other hand I do not
mean to say that there may not be an abridgment which
may be lawful, which may be protected; but to say that one
man has the right to abridge and so publish in an abridged.
form the work of another, without more, is going much
beyond my notion of what the law of this country is. The
expressions of Lord Eldon, applied to a subject of copyright
very different from the present, but still applied to the
subject of copyright, are these: The question upon the
whole is whether this is a legitimate use of the plaintiff's
publication in the fair exercise of a mental operation
deserving the character of an original work.' (c) And I
agree that there may be such an use of another man's publi-
cation as, involving the exercise of a new mental operation,
may fairly and legitimately involve it.
It does not appear

to me that there is anything in the present case which
(a) Dickens v. Lee (8 Jur. 183). (b) 4 Esp. 169. Ante, p. 186.
(c) 17 Ves. 426.

PART I.

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. 484.

PART I.

tion of the plaintiff's work, without justifiable excuse. The plaintiff's publication, The Jurist, or that portion of it from CHAPTER XVL which these extracts are made, consists of double reports in each case a detailed report of the facts of the case, with the arguments and the judgment of the court, and an abstract in the shape of what is commonly called a side or marginal note, which professes to state the principle of law laid down in the case, if any such there be, or a summary statement of the facts and the decision of the court thereon. In truth, they are two reports, a short one and a long one. The gentleman who has compiled The Monthly Digest has taken the short reports verbatim. If the law allows him to do that, why should he not also be allowed to take the fuller report? And if he might take either the one or the other, why should he not take both? The question is whether a man can acquire a right to avail himself in this way of the labours of another, merely because he arranges the matter under heads and subdivisions, so as to form with other matter of the same sort, derived from other sources, what is called an analytical digest? I am of opinion that he cannot. A digest, undoubtedly, may be made from the published reports without necessarily subjecting the compiler to a charge of piracy: for instance, where the party applies the exertion and skill of his own brain in extracting the principle or the substance of the decisions before him, dressing it up in his own language so as to produce an original work. But here there is no thought or skill brought to bear upon the work that is complained of; it is a mere mechanical stringing together of marginal or side notes which the labour and intelligence of the authors have fashioned ready to the compiler's hand." (a) Cresswell and Crowder, JJ., took the same view as the Chief Justice, but the latter somewhat doubtingly. Maule, J., dissented from the judgment of the other members of the court, being of opinion that the defendant's work was different in its object. and result from the plaintiff's reports, and would be a very imperfect substitute for them. The object of a digest," he said, "is to afford facilities for finding out cases that are inserted in the reports without buying the reports themselves in extenso. The effect may be to induce many persons to abstain from purchasing the reports, relying upon the means of access to public libraries and other institutions for the fuller and more perfect information, when they have occasion for it. But that, I think, is no argument in favour of this being a piracy: rather the contrary, because it shows (a) See also Butterworth v. Robinson (5 Ves. 709).

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 bona 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 (a) 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).