here." 1 "Examined as a question of strict law, apart from exceptional cases," said Mr. Justice Clifford, "the privilege of Brewer's Guide to Science, had evidently been used to a considerable extent in the preparation of the later one, although copying was denied. Vice-Chancellor Wood said: "In publishing a work, in the form of question and answer, on a variety of scientific subjects, he [the later author] had a right to look to all those books which were unprotected by copyright, and to make such use of them as he thought fit, by turning them into questions and answers. He had also a further right, if he found a work like Dr. Brewer's, and, perusing it, was struck by seeing as I think has been the case in the present instance - that the author had been led up to particular questions and answers by the perusal of some other work, to have recourse himself to the same work, although possibly he would not have thought of doing so but for the perusal of the plaintiff's book. But these, I apprehend, would be perfectly fair and legitimate modes of using the plaintiff's book; and neither would be inconsistent with Mr. Philp's affidavit, that he has not copied or taken any idea or language from Dr. Brewer's book. "There is another sort of legitimate use which might fairly be made by Mr. Philp, although it is scarcely so consistent with what he has deposed to in his affidavit. It would be a legitimate use of a work of this description, if the author of a subsequent work, after getting his own work with great pains and labor into a shape approximating to what he considered a perfect shape, should look through the earlier work to see whether it contained any heads which he had forgotten. For instance, it was said- whether accurately or not I have not thought it material to inquire that, in reference to the several modes by which heat diffuses itself, the books to which the defendant refers as common sources mention only 'radiation, conduction, and absorption,' and make no mention of 'convection,' -a term found only in the plaintiff's book until taken thence by Mr. Philp. He might say he had forgotten 'convection,' and therefore add it to his book. But surely no one would say, with regard to a subject of so general a description, that this would be an unfair use of the plaintiff's book; provided, upon adding the word to his own book, he used his own mind to explain what 'convection' is, and explained it in his own language. So far there could be no difficulty, if the case rested there. "The question I really have to try is, whether the use that in this case has been made of the plaintiffs' book, has gone beyond a fair use. Now, for trying that question, several tests have been laid down. One which was originally expressed, I think, by a common law judge, and was adopted by Lord Langdale in Lewis v. Fullarton, 2 Beav. 6, is whether you find on the part of the defendant an animus furandi, — an intention to take for the purpose of saving himself labor. 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 labor, 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 labor of your predecessor, adopt his arrangements, adopt moreover the very questions he has asked, or adopt them with but a slight degree of colorable variation, and thus save yourself pains and labor by availing yourself of the pains 1 Hotten v. Arthur, 1 Hem. & M. 609. fair use accorded to a subsequent writer must be such, and such only, as will not cause substantial injury to the proprietor of the first publication." 1 Directories. In the recent English directory cases, the law was forcibly and clearly expounded to the effect that the compiler of a directory may use a copyrighted rival work as a means of learning the names and places of residence of the persons to be canvassed, of avoiding omissions and errors in his own publication, and generally as a guide in the preparation of his own. But in no case may he save himself the labor and expense of canvassing, by copying or otherwise appropriating the results of his predecessor's labor. He cannot cut slips from a protected directory, and use them in printing his own, although he verifies the accuracy of the information, or corrects it if erroneous, by personal application to the persons whose names are given. In all cases, he must obtain the information at his own expense and by his own labor, independently of the copyrighted work, which may be used only as a guide.2 Descriptive Catalogue. And so, in the case of a descriptive catalogue of fruit and trees, the court was of opinion that the later compiler might use the work of his predecessor as a guide or instructor; but might not copy the descriptions from it, although he should verify and correct them from specimens of fruit before him. Though he cannot be prevented from getting much aid in the way of information, suggestions, &c., from the copyrighted work open before him, he must write his own descriptions from actual specimens or common sources of information.8 Work on Ethnology. · The same rule was followed in Pike v. Nicholas, where two rival works on the same subject were in controversy. The same arguments, illustrations, quotations, citations, &c., were found in both; and it was evident that, for much contained in his own publication, the defendant was and labor which he has employed, that I take to be an illegitimate use. That Mr. Philp has made this use of the plaintiffs' book to a certain extent, I find to be clear." 3 Kay & J. 715. See also Jarrold v. Heywood, 18 W. R. 279. 1 Lawrence v. Dana, 2 Am. L. T. R. N. s. 428. 2 Kelly v. Morris, Law Rep. 1 Eq. 697; Morris v. Ashbee, 7 Id. 34; Morris v. Wright, Law Rep. 5 Ch. 279. 444. Hogg v. Scott, Law Rep. 18 Eq. indebted to that of the plaintiff. The Court of Appeal found that, while the defendant had been led by perusing the earlier work to cite authorities, make quotations, &c., which otherwise would have escaped his notice, he had not, with two unimportant exceptions, copied directly from the plaintiff's production; but, using it as a guide, had obtained the materials from the original sources, and worked them up by his own labor. This was held to be a fair use.1 Dictionary. In Spiers v. Brown, Vice-Chancellor Wood had great difficulty in determining whether, in the preparation of a dictionary, M. Contanseau had made an unlawful use of the French-English Dictionary of Dr. Spiers. The extent of the use in this case cannot be satisfactorily determined from the report. It was admitted that Dr. Spiers's work had been 1 Law Rep. 5 Ch. 251. Lord Chan- to which I have had resort, of investicellor Hatherley said: "The result, gating the population of London, and therefore, of the whole case was this: the number of persons brought up The defendant was led to look into the from the country, and I beg also to particular portions of Prichard by express my obligations to him for some of the quotations of the plaintiff. pointing out that passage in Retzius Being directed to that part of Prich- which escaped my attention,' nobody ard, he did go to Prichard's book; for could have blamed him as being a there is in his book a passage omitted pirate, or have said that what he had by the plaintiff. He was directed by done amounted to piracy. That course, a passage in the plaintiff's book, which unfortunately, was not taken." Ibid. referred to Gildas, to inquire into 265. Gildas, which possibly he never might have done if the plaintiff had not led the way by pointing to that author and to the work of Sir T. D. Hardy. Upon perusing Sir T. D. Hardy's work, the defendant found an account of Gildas, and a reference to Nennius, and certain remarks of Gibbon; and then he followed out those remarks by such remarks as he himself made upon the whole subject. . . . If the defendant had been disposed to do what common fairness and justice required him to do, to say nothing of the oath which he took when he put in his answer, and had fairly said, 'I acknowledge my obligation to this gentleman in putting me on a course of thorough critical investigation of Gildas, to begin with; I beg to express my obligations to him in giving me the idea, through the medium of the tables In Morris v. Wright, Giffard, L. J., said: "In the late case of Pike v. Nicholas, we had this: Two rival works were published with reference to the same subject-matter, and we thought certainly that the defendant had been guided by the plaintiff's book, more or less, to the authorities which the plaintiff had cited; but it was a perfectly legitimate course for the defendant to refer to the plaintiff's book, and if, taking that book as his guide, he went to the original authorities and compiled his book from them, he made no unfair or improper use of the plaintiff's book; and so here, if the fact be that Mr. Wright used the plaintiff's book in order to guide himself to the persons on whom it would be worth his while to call, and for no other purpose, he made a perfectly legitimate use of the plaintiff's book." Law Rep. 5 Ch. 287. 66 used in common with other dictionaries, but to a greater extent; but there was no evidence of servile copying, "no colorable alteration proved, nor any thing tending to show a fraudulent design to make an unfair use of the work of another." Though a good deal has been here taken from the plaintiff," said the court, "yet a good deal of labor has been bestowed upon what has been taken;" and "the result is, in fact, a different work from that of the plaintiff." Applying the test laid down by Lord Eldon, whether there had been made " a legitimate use of the plaintiff's publication in the fair exercise of a mental operation deserving the character of an original work," the court was of opinion that M. Contanseau had not gone beyond the use allowed by law; but considering the extent to which he had availed himself of the results of Dr. Spiers's labors, the bill was dismissed without costs.2 91 Statistics. Where the question related to statistical tables, which the defendant had taken from the plaintiff's publication, Vice-Chancellor Wood remarked that "the defendant, after collecting the information for himself, might have checked his results by the plaintiff's tables." This, doubtless, means that the defendant was free to compare his own tables with those of the plaintiff to ascertain whether there were errors in his own, and to correct them, if any were found, by independent means. The authorities are clear to the effect that he would have no right to make corrections in his own by servilely copying the plaintiff's figures. General Test of Fair Use. The general test for determining whether a fair or a piratical use has been made of one work in the preparation of another will be, whether the later one or the part in question is the result of independent labor, or is substantially copied from the earlier one. The aim of the law is to encourage learning by allowing a fair use to be made of a copyrighted work, but at the same time to prevent the subsequent author from saving himself labor by appropriating without consideration the fruits of another's skill and industry. It is true that a subsequent author, keeping within the letter of the law defining a fair use, will often avail himself to no small 1 Wilkins v. Aikin, 17 Ves. 426. 3 Scott v. Stanford, Law Rep. 3 Eq. 724. extent of the learning and industry of another, and give to his own book a value which properly belongs elsewhere. In other words, a fair use in law may in ethics amount to plagiarism. But this cannot well be avoided. GENERAL PRINCIPLES RELATING TO PIRACY. Without Copying from Protected Work Essential to Piracy. regard to its size, its character, or the form in which it is published, every production which is a subject of copyright is an object of piracy. Copying or borrowing from a protected work is an essential element of piracy. It is a fundamental principle of the law of copyright that two or more works may be similar or identical, and each will be entitled to protection; provided it is the result of independent labor, and not of unlawful copying. Hence, even when the publication complained of is identical with that for which protection is claimed, the charge of piracy may be met by showing that one has not been copied or borrowed from the other.1 But it is no defence of piracy that a piratical copy of a protected work has been copied. Thus, in an English case, where it appeared that the defendant had taken from a foreign publication matter which had been copied without authority from the plaintiff's book, the court rightly held that such copying, 1 See the consideration of this point and the authorities cited under the head of Originality, ante, pp. 205–208. "It is obvious," said the Vice-Chancellor, in Nichols v. Loder, "if two persons of equal skill set to work to prepare such a map as this, the scale being the same, that the maps will be almost fac similes. The affidavits must satisfactorily show that the defendant's map is not produced by his own labor employed upon materials, and aided by information, common to him as well as to the plaintiff; but that it has been actually copied from the plaintiff's map, with perhaps some colorable or evasive alterations. Now, in order to make this out, something more is requisite than the fact of there being in appearance no difference between the two maps. The maps may in all re spects resemble each other, and yet there may have been no piracy." 2 Coop. (temp. Cottenham) 217. 'But he is not liable, unless the musical composition caused to be engraved or printed for sale by him is the same with that of Russell in the main design and in its material and important parts, altered as above mentioned to evade the law; nor is he liable to this action, although it is the same in these respects, provided it was not taken from Russell's, but was the effort of his own mind, or taken from an air composed by another person, who was not a plagiarist from that of Russell." Taney, C. J., Reed v. Carusi, Tan. Dec. 74. See also remarks of Vice-Chancellor Leach, in Barfield v. Nicholson, 2 L. J. (Ch.) 98. |