can be said to fall; so, also, he is protected subsequently to Statutory protection. such publication for a limited time, provided he complies with the provisions as to registration and otherwise contained in the statute applicable to his particular case. The following is a list of the English statutes regulating the subject of copyright in all its branches : 8 Geo. II. c. 13.—Engravings. 7 Geo. III. c. 38.-Engravings. 15 Geo. III. c. 53.-Universities and colleges. 54 Geo. III. c. 56.—Sculpture. 3 & 4 Will. IV. c. 15.-Playright. 5 & 6 Will. IV. c. 65.-Lectures. 6 & 7 Will. IV. c. 59.-Engravings. 5 & 6 Vict. c. 45.-Books. Dramatic and musical com- 5 & 6 Vict. c. 45.-Maps, charts, and plans. 15 & 16 Vict. c. 12.-International copyright. 15 & 16 Vict. c. 12, s. 14.-Engravings. 25 & 26 Vict. c. 68.—Paintings, drawings, and photo- 38 & 39 Vict. c. 12.-International copyright. 45 & 46 Vict. c. 40.-Musical compositions. 46 & 47 Vict. c. 57.-Designs. legislation. The American Legislation is confined to the Act of American July 8th, 1870, ss. 4948-4971, the Act of June 18th, 1874, and certain provisions contained in the revised statutes relating to jurisdiction (see ss. 629, 699, the Act of March 3, 1875, 18 U. S. Stat. at L. 470, and also s. 4970 Rev. Stat. supra), and as in cases of doubt and difficulty the American decisions are frequently referred to at the English bar generally with approval and always with advantage, it has been thought advisable to incorporate tion." the most important of them in the ensuing statement of the law relating to the infringement of copy"Publica- right and trade-marks. It is sufficiently obvious from what has been already said that the question whether or no an intellectual production has been "published" within the meaning of any particular Act of Parliament must in many instances be of vital importance; the question of "publication" will therefore be considered from time to time as it arises in the course of the treatise. It has been found more convenient to adopt this plan than to give a special chapter to the subject, for many of the arguments and authorities adduced must necessarily consist merely of recapitulations and repetitions, while no very great advantage would seem to be secured by massing them together in support of a series of propositions which are better distributed under the different headings to which they naturally belong. CHAPTER II. ON THE INCIDENTS OF THE PLAINTIFF'S TITLE. nality WHATEVER disputed points may arise from time Origi to time during a study of the law relating to copyright, essential. nothing is better understood or more universally recognized than the principle of "originality," an essential qualification, without which no one can be considered an author, or be fairly entitled to protection for his work. No man is, however, capable of writing directly from his own thoughts and experiences; he must necessarily consult authorities, and may inadvertently recapitulate their sentiments and ideas. It consequently becomes apparent that the word "original" may have in legal phraseology a slightly different meaning to that accorded to it in every-day conversation. of the word NAL." In the first instance the word is inherently capable of Meaning two significations; the first, as applicable to a workORIGIdifferent in its component parts taken separately from any other work; and secondly, as applicable to the arrangement and combination of common materials, that is to say, materials taken or collected from a source publici juris, or common to all; and in order to constitute an original work both these qualifications should subsist. and ideas Now it is clear that no one can monopolise the subject of even his own production; subjects like ideas are free, and as Subjects one author may treat of any subject he pleases, even although are free. the ground may have been repeatedly traversed, so also another author has an equal liberty, and both are entitled The to refer to the same common sources of information. principle is the same whether the author claims protection by virtue of the common law or under the provisions of some statute, for the element of originality is of the very essence of all productions, literary or otherwise intellectual. There are and can be but few, if any, things which in an abstract sense are strictly new and original throughout. Every book in literature, science, and art borrows, and must necessarily borrow and use much which was well known and used before. No man creates a new language for himself, he contents himself with the use of language already known and used and understood by others. No man writes exclusively from his own thoughts unaided and uninstructed by the thoughts of others. The thoughts of every man are more or less a combination of what other men have thought and expressed, although they may be modified, exalted, and improved by his own genius and reflection (see Emerson v. Davies, 3 Story, 779, 4 West, method of L. J. 261 (Amer.), per Story, J.). What the law requires, treating therefore, is not that the subject of a work shall be entirely be original. new and original, for this at the present day is hardly But the them must possible, but that the method of treating it shall have some degree of originality about it (Cary v. Longman, 1 East, 358, 3 Esp. 273; Tonson v. Walker, 3 Swanst. 672; Tonson v. Collins, 1 W. Bl. 301, 321; King v. Reed, 8 Ves. 223, n.; Hogg v. Kirby, 8 Ves. 215; Longman v. Winchester, 16 Ves. 269; Lewis v. Fullarton, 2 Beav. 6, 3 Jur. 669; Leader v. Purday, 7 C. B. 4, 6 Dowl. & L. 408; Barfield v. Nicholson, 2 Sim. & St. 1, 2 L. J. Ch. 90; Jarrold v. Houlston, 3 K. & J. 708, 3 Jur. (N. S.) 1051; Atwell v. Ferrett, 2 Blatchf. (Amer.) 39; Bartlett v. Crittenden, 5 McLean (Amer.) 32). And so a new and original work may consist entirely of information already perfectly well known, and this information may be collected from other works or from general observation; all that is necessary is author that the author shall search into the common sources of And information for himself, and not avail himself of the must search labours of his predecessor (Jarrold v. Houlston, 3 K. & J. for himself. 708, 3 Jur. (N. S.) 1051), the question at all points being whether there is any material product of authorship on the part of the person claiming copyright; that is to say, whether the publication is the result of independent labour or of mere copying (see Drone on Copy. 202); for a mere copy or reprint not differing materially from the original matter is not entitled to protection (see Boucicault v. Fox, 5 Blatchf. (Amer.), 87, 101). The question. in all these cases is not whether the materials which are used are entirely new, and have never been used before, or even whether they have never been used before for the same purpose; but whether the same plan, arrangement and combination of materials have been used before for the same purpose, or for any other purpose (Emerson v. Davies, 3 Story (Amer.) 778, per Story, J.). Under certain conditions it is possible for two works to be almost exactly alike, and yet there may be copyright in both of them, for the question is not as to any similarity which may or may not exist between them, but whether the production is original, that is to say, the result of independent labour (see Blunt v. Patten, 2 Paine (Amer.) 400, per Thompson, J.). The points of resemblance are useful only for the Resempurpose of determining whether there has or has not been necessarily copying (Roworth v. Wilkes, 1 Camp. 94; De Berenger v. proof of Wheble, 2 Stark. 548; Barfield v. Nicholson, 2 Sim. & St. 1, 2 L. J. Ch. 90; Nichols v. Loder, 2 Coop. 217; Benn v. Le Clercq, 30 Leg. Int. 185 (Amer.)). It is obvious that there may and probably will be but little difference between one map and another, or between one chart and another, or between two photographs of the same scene, and yet there may be a valid right of copy in each and every of them. In cases of this description the resem blance not copying. |