of the book in quantity. It is not only quantity, but value, that is looked to. It is useless to refer to any particular cases as to quantity." 1

And so, in the language of Mr. Justice Story: "In many cases, the question may naturally turn upon the point, not so much of the quantity as of the value of the selected materials. As was significantly said on another occasion, Non numerantur, ponderantur. The quintessence of a work may be piratically extracted, so as to leave a mere caput mortuum, by a selection of all the important passages in a comparatively moderate space.'

2

1 Bramwell v. Halcomb, 3 My. & Cr. 738.

2 Gray v. Russell, 1 Story, 20. See also Bell v. Whitehead, 3 Jur. 68; Kelly v. Hooper, 4 Id. 21; Campbell v. Scott, 11 Sim. 31; Bradbury v. Hotten, Law Rep. 8 Exch. 1; Farmer v. Calvert Lithographing, Engraving, & Map-Publishing Co., 5 Am. L. T. R. 168, 174.

"The infringement of a copyright does not depend so much upon the length of the extracts as upon their value. If they embody the spirit and the force of the work in a few pages, they take from it that in which its chief value consists. This may be done to a reasonable extent by a reviewer, whose object is to show the merit or demerit of the work. But this privilege cannot be so exercised as to supersede the original book." McLean, J., Story's Executors v. combe, 4 McLean, 309.

Hol

"The question of the extent of appropriation which is necessary to establish an infringement of copyright is often one of extreme difficulty; but in cases of this description the quality of the piracy is more important than the proportion which the borrowed passages may bear to the whole work. Here it is enough to say that the defendant admits that one-fourth of the dramas is composed of matter taken from the novels." Wood, V. C., Tinsley v. Lacy, 1 Hem. & M. 752.

"I shall not trouble your lordships by discussing, in detail, the many authorities which have been cited as to the interpretation to be put upon the acts which regulate copyright in books. They seem one and all to assume, or to affirm expressly, that to render a writer liable for literary piracy, he must be shown to have taken a material portion of the publication of another: the question as to its materiality being left to be decided by the consideration of its quantity and value, which must vary indefinitely in various circumstances. As Lord Chancellor Cottenham said in Bramwell v. Halcomb, 3 My. & C. 738: 'It is useless to refer to any particular cases as to quantity.' The quantity taken may be great or small; but, if it comprise a material portion of the book, it is taken illegally. The question is as to the substance of the thing; and, if there be no abstraction of that which may be substantially appreciated, no penalty is incurred. In all the cases, the matter is dealt with as one of degree. In all, quantity and value are both the subjects of consideration; and in none of them has an infringement been established without satisfactory evidence of an appropriation, possibly involving a substantial loss to one person and a substantial gain to another." Lord O'Hagan, Chatterton v. Cave, 3 App. Cas. 497.

PIRACY IN THE CASE OF COMPILATIONS.-I. COMPILATIONS OF COMMON FACTS.

It is necessary to consider more particularly the question of piracy in the case of that class of productions which do not consist of original matter in the ordinary meaning of that word, but are simply compilations of materials, plain facts, information, &c., gathered from common sources. Works of this kind may be divided into two general classes: 1, Statements or collections of common facts, which admit of little variation in their description; 2, compilations of materials gathered from other publications.

Of the former class are directories, road-books, maps, charts, mathematical tables, and analogous works. Between two rival publications of this kind, there will necessarily be a striking resemblance, amounting in many instances to substantial identity. In different directories of the same city, the names and addresses of persons, order of arrangement, &c., will be substantially alike. In rival road-books, the location and direction of highways will be similarly described. In maps and charts of the same region, the boundaries of geographical divisions, location of natural objects, distances, latitude, longitude, &c., when accurately described, will be represented by different persons without substantial variation. In mathematical tables, the same figures will result from the same calculations. In all such cases, the materials are equally open to all; and the results prepared by two laborers in the same field will present little variation. May a subsequent compiler take advantage of this circumstance, and say: "These facts are common property; they can be truthfully given in but one form; the results worked out by my own independent labor must be in substance the same as those published by my predecessor. Therefore I do not injure him or invade his rights by copying from his publication"?

Test of Piracy. Here the general test of piracy is the same as in the case of compositions wholly original. The principle is well established, that the later compiler can escape the penalty of piracy only by going to the common sources for mate

rials and information, and producing a work by his own labor. He cannot lawfully save himself labor and expense by taking the results of another's industry and skill, except as far as he may be able to do so under the privilege of fair use. He must himself examine the highways and places to be described in an original road-book; must himself make the surveys and other calculations necessary for constructing a map or chart; must himself perform the operations essential to produce mathematical tables; must himself canvass for the names to make a directory. Of course, he is entitled to use any information or materials which may be obtained from common sources, either published or unpublished. But copying to a material extent from a protected work, or appropriating the materials or results there found, is piracy.1

1 Br. Cary v. Longman, 1 East, 358; Matthewson v. Stockdale, 12 Ves. 270; Longman v. Winchester, 16 Id. 269; Baily v. Taylor, 3 L. J. (Ch.) 66, 1 Russ. & My. 73; Kelly v. Hooper, 4 Jur. 21; M'Neill v. Williams, 11 Id. 344; Murray v. Bogue, 1 Drew. 353; Jarrold v. Houlston, 3 Kay & J. 708; Kelly v. Morris, Law Rep. 1 Eq. 697; Scott v. Stanford, 3 Id. 718; Morris v. Ashbee, 7 Id. 34; Cox v. Land & Water Journal Co., 9 Id. 324; Pike v. Nicholas, Law Rep. 5 Ch. 251; Morris v. Wright, Ibid. 279; Jarrold v. Heywood, 18 W. R. 279; Hogg v. Scott, Law Rep. 18 Eq. 444; Grace v. Newman, 19 Id. 623. Am. Blunt v. Patten, 2 Paine, 393, 397; Farmer v. Calvert Lithographing, Engraving, & MapPublishing Co., 5 Am. L. T. R. 168.

"Take the instance of a map describing a particular county, and a map of the same county afterwards published by another person; if the description is accurate in both, they must be pretty much the same. But it is clear the latter publisher cannot on that account be justified in sparing himself the labor and expense of actual survey, and copying the map previously published by another. So, as to Patterson's 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 labor and skill of another person had supplied to the world. So, in the instance mentioned by Sir Samuel Romilly, a work consisting of a selection from various authors, two men, perhaps, might make the same selection; but that must be by resorting to the original authors, not by taking advantage of the selection already made by another. In the case of Hogg v. Kirby, 8 Ves. 215, there was no doubt that any person might publish a work of the description which was the subject of that injunction. Each party might publish his own collection, and the articles might happen to be the same; but one could not excite the public curiosity by copying into his work from that of the other." Lord Eldon, Longman v. Winchester, 16 Ves. 271.

"There is no foundation in law for the argument, that, because the same sources of information are open to all persons, and by the exercise of their own industry and talents and skill, they could, from all these sources, have produced a similar work, one

Law Construed in Case of Directories. This doctrine was forcibly expressed in the first of the recent English directory cases, by Vice-Chancellor Wood, afterward Lord Chancellor Hatherley: "The defendant has been most completely mistaken in what he assumes to be his right to deal with the labor and property of others. In the case of a dictionary, map, guide-book, or directory, when 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 of a map of a newly-discovered island,― the illustration put by Mr. Daniel, he must go through the whole process of triangulation, just as if he had never seen any former maps; 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 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 labor and trouble in getting his information. . . . The work of the defendant has clearly not been compiled by the legitimate application of independent personal labor." i

party may at second hand, without any exercise of industry, talents, or skill, borrow from another all the materials which have been accumulated and combined together by him. Take the case of a map of a county, or of a State, or an empire; it is plain, that in proportion to the accuracy of every such map must be its similarity to, or even its identity with, every other. Now, suppose a person has bestowed his time and skill and attention, and made a large series of topographical surveys, in order to perfect such a map, and has thereby produced one far excelling every existing map of the same sort. It is clear that, notwithstanding this production, he cannot

supersede the right of any other person to use the same means by similar surveys and labors to accomplish the same end. But it is just as clear that he has no right, without any such surveys and labors, to sit down and copy the whole of the map already produced by the skill and labors of the first party, and thus to rob him of all the fruit of his industry, skill, and expenditures. It would be a downright piracy." Story, J., Gray v. Russell, 1 Story, 18.

1 Kelly v. Morris, Law Rep. 1 Eq. 701, 703. "This language," said Lord Justice Giffard, "does not mean that he may not look into the book for the purpose of ascertaining where a par

The soundness of these views was expressly recognized in the following directory cases of Morris v. Ashbee1 and Morris v. Wright, as well as in other decisions. In the two cases named, the law was construed with marked unanimity against the right of a subsequent compiler to make of a copyrighted directory any other use than that of a guide in the preparation of a rival publication. Copying in any manner from the earlier directory, or in any wise appropriating the results there found, is strictly prohibited. The later directory must be the result of independent labor. All names, addresses, &c., in it must be got by actual application to the persons. If such persons cannot be found, their names may not be copied from a protected work. The location and description of streets, buildings, parks, squares, and other objects of interest, must be obtained from personal observation, or common sources of information. It was expressly held to be piracy for the subse

ticular person lived, and for the purpose of ascertaining whether it was worth his while to call upon that person or not; but it means that he may not take that particular slip and show that to the person, and get his authority as to putting that particular slip in." Morris v. Wright, Law Rep. 5 Ch. 285. "No doubt," continued Vice-Chancellor Wood, in Kelly v. Morris, "the expense of procuring information in a legitimate way is very great. The defendant himself has told us so, and also that it was not for some years that he was able to make it pay. But the defendant goes on in his affidavit to propound a most extraordinary doctrine as to the right of publicity in the names of private residents, who had, as he 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." Law Rep. 1 Eq. 702.

1 Law Rep. 7 Eq. 34. Vice-Chan cellor Giffard, citing Kelly v. Morris, said: In a case such as this, no one has a right to take the results of the labor and expense incurred by another for the purposes of a rival publication, and thereby save himself the expense and labor of working out and arriving at these results by some independent road. If this was not so, there would be practically no copyright in such a work as a directory." Ibid. 40.

2 Law Rep. 5 Ch. 279.

Scott v. Stanford, Law Rep. 3 Eq. 718; Cox v. Land & Water Journal Co., 9 Id. 324; Pike v. Nicholas, Law Rep. 5 Ch. 251; Hogg v. Scott, Law Rep. 18 Eq. 444.