On Monday, August 13, 1894, the plaintiff published in his paper the following announcement:

On Tuesday, August 14, the defendants had in their sheets this

On the following day, Wednesday, they gave a notice in a similar form containing, among other names, the words "Chilton . Priestholm."

The plaintiff complained of this practice as an infringement of his copyright, and brought the present action against the defendants to restrain them publishing or selling any copies of Sporting Snips containing any article or passage copied from, or only colourably altered from, Chilton's Special Guide.

The defendants contended that the words complained of were not in law the subject of copyright, and that the publication of them was not an infringement of the plaintiff's copyright in Chilton's Special Guide, and that the plaintiff had sustained no damage.

The plaintiff moved for an injunction, and the hearing of the motion. was treated by consent as the trial of the action.

Kekewich, J., before whom the motion was heard, held that there was nothing in the words complained of in the nature of copyright, and gave judgment for the defendants.

The plaintiff appealed from this judgment.

Warmington, Q. C., and Waggett, for the plaintiff. There are two questions here: first, whether this particular portion of the plaintiff's publication is copyright; and, secondly, if so, whether the defendant's publication is an infringement of that copyright. Upon the first question, that which the plaintiff has published is an expression of his opinion, for which he is entitled to charge. That opinion cannot be appropriated for publication by other persons, otherwise its value to the plaintiff is destroyed. Accordingly, he can have a copyright in that opinion, just as a man may have a copyright in a recipe for a dish or a medicine. [Lord HALSBURY. What you want to protect is, not your newspaper, but your opinion.] The question is, Do the defendants, by their publication, appropriate the result of that for which the plaintiff has protection by statute? A person may say, orally, "I have seen Chilton, and he says so-and-so"; but, if he puts that upon paper and publishes

1

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it, then it becomes a matter of copyright. The form of expression in which news is conveyed is subject of copyright, and the appropriation by one paper of even a very small part of another will be restrained. Walter v. Steinkopff; Trade Auxiliary Co. v. Middlesborough and District Tradesmen's Protection Association.2 Miller v. Wane3 is a somewhat similar case to the present; but there the interim injunction was refused because the Court was not satisfied from the evidence that the decline in the sale of the plaintiff's publication had arisen from the sale of the defendant's: the question of copyright was not decided. In Sweet v. Benning it was held that the head-notes of law reports in the Jurist were copyright, and that an action would lie for pirating them. So in Butterworth v. Robinson an injunction was granted against pirating cases from the Term Reports, the difference being merely colourable. [Lord HALSBURY. The question is whether there is a literary composition within the meaning of the copyright Act, 1842 (5 & 6 Vict. c. 45). The object of the Act as stated in the preamble is "to afford greater encouragement to the production of literary works of lasting benefit to the world."] That preamble has never been held to control the words in the 18th section protecting articles in periodical publications. The author of a book or the publisher of a periodical is entitled to protection against the piracy of his work, not only on the ground of its being a literary composition, but because it is an unauthorized use of the published results of labours.

Marten, Q. C., and Gatey, for the defendants, were not called on. Lord HALSBURY, L. C. I have not been able to entertain a doubt that there is no copyright in this thing, notwithstanding the ingenious argument pressed upon us. It is really difficult to know by what name to describe it. What is really sought to be restrained is the publication of the fact that this gentleman, who is supposed to have good judgment as to winning horses, has expressed an opinion that this horse or that horse will win. It is idle to speak of this as something in the nature of literary composition such as is intended to be protected by the Copyright Act. It is not the form of printed words into which this gentleman has cast the result of his investigation which is sought to be protected. What is really sought to be protected is his opinion; and he has published his opinion, which is susceptible of being handed down from one person to another in any way, as it is admitted, except in writing. But it is contended by the applicant that if any person chooses to print it and thereby make a copy of it that is an infringement. We must ask, first, whether the thing intended to be protected by the Act is such a subject-matter as this is. I am of opinion it is not. This is nothing in the nature of literary composition. Although I quite agree that the preamble of the Act cannot control the enacting part of the

1 1892, 3 Ch. 489, 496.

11 Times L. R. 136. 5 5 Ves. 709.

240 Ch. D. 425.

16 C. B. 459.

section in the Act itself, yet the preamble may well point out what is the subject-matter with respect to which the Act is intended to operate for the protection of a book. I can find no word in the Act which properly points out that such a matter as we are now dealing with is to be a subject-matter of protection. I therefore think there is nothing here which ought to be protected, and that there is no subject-matter of copyright.

202. WALTER v. LANE

COURT OF APPEAL OF ENGLAND, FROM CHANCERY DIVISION. 1899

L. R. [1899] 2 Ch. 749

THIS was a motion by the proprietors of The Times newspaper for an interim injunction to restrain the defendant from infringing their copyright by publishing or selling a book called "Appreciations and Addresses delivered by Lord Rosebery," containing copies of some articles or reports which had been published in The Times, or any substantial portions thereof, or extracts therefrom. During the years 1896 and 1898 reporters on the staff of The Times attended and composed descriptions of meetings on various occasions, including verbatim reports of speeches delivered by Lord Rosebery. These were published in The Times under the titles "Lord Rosebery on Free Libraries," a speech which had been made at the opening of the Passmore Edwards Library on June 25, 1896; "Lord Rosebery and Sir Walter Besant on London," at a meeting held on December 7, 1896; "Lord Rosebery on Great Britain and America," at a lecture delivered on July 7; 1898; "Lord Rosebery on Burke," at the unveiling of a memorial on July 9, 1898; and "Etonian Dinner-Lord Rosebery and Lord Curzon," at a dinner which took place on October 28, 1898.

The defendant published a book called "Appreciations and Addresses delivered by Lord Rosebery," which contained practically verbatim copies of the reports in The Times of these five speeches. He admitted that he had used cuttings from The Times, but he alleged that the proofs of the book were corrected, with Lord Rosebery's consent, by a comparison with a book of his speeches revised by himself. This book was a collection of newspaper cuttings, and in four of the articles in question The Times reports had not been altered in any way. The proprietors of The Times brought this action, claiming a declaration that they were entitled to the copyright of the articles or reports in question, and an injunction to restrain the defendant from further publishing any book containing copies of them. The reporters had assigned such copyright as they had to the plaintiffs. One of them (a barrister) made an affidavit, in which he stated that he had composed or assisted in composing four of the reports the subject of the action. and he added:

"In the course of our duty the reporters of The Times have to exercise their judgment and skill so as to represent in a form fit for publication the features of the meetings, and the material parts of and the sense of, the speeches made at them. This involves considerable skill and labour. Notes of the proceedings and speeches are taken in shorthand, which are afterwards carefully corrected and revised and written out, and punctuated fit for publication. This was the course of procedure in the cases of the reports" in question.

Lord Rosebery made no claim to copyright in any of the speeches, and had not taken the necessary steps to secure the copyright to himself. The motion came on for hearing before NORTH, J., on July 14, 1899. H. Terrell, Q. C., and MacSwinney, for the motion. There is no authority on the precise point, but it is settled that there is copyright in law reports: Butterworth v. Robinson; Sweet v. Maugham;" Sweet v. Benning; 3 Hodges & Smith v. Welsh. . . . No distinction can be drawn between a report of a speech at a meeting, and a report of a case in court. Reports are literary works giving a right of copyright; they are not mechanical copies. Reporters have to exercise a great deal of literary skill in taking down and editing what is said by a speaker, and making a report of a meeting. Such work requires much more skill than making a list of names and addresses for a directory, yet that was held in Kelley v. Morris to enable the compiler to assert a copyright. Printed list of Stock Exchange prices and quotations have been held to be literature and the subject of copyright: Exchange Telegraph Co. v. Gregory & Co. So also have lists of registered bills of sale: Trade Auxiliary Co. v. Middlesborough and District Tradesmen's Protection Association." Translations into English of books in foreign languages are protected: Wyatt v. Barnard; Scrutton on Copyright, 3rd ed. p. 116. The work of a reporter is very similar to that of a translator; he has to take down the speech in shorthand, and then transcribe his hieroglyphics into ordinary English characters; but the principle would apply if a fast writer took down in longhand a speech delivered by a slow speaker.

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T. E. Scrutton, for the defendant. No questions are raised of ownership or registration; but the defendant submits that there is no copyright in verbatim reports of public speeches, and that he is entitled to copy those reports. Copyright can only be acquired by the author or publisher of the original matter. Reporters are not authors: they simply copy from dictation. There is no difference between that and copying a document. It is clear that if Lord Rosebery had written out his speeches the reporter could not by copying the manuscripts, either before or after the speeches were delivered, obtain the copyright.

Literary merit has nothing to do with copyright, but the form and the words must be original. Walter v. Steinkopff.1

Aug. 1. NORTH, J., stated the facts, and continued: I see from the evidence, where reports from other persons are referred to, that other reporters were present; and, therefore, I take it that these meetings were held under circumstances in which reporters were invited to attend for the purpose of publishing the speeches that they heard. If that is so, they were intended to be made public, and the case is quite different from those of Abernethy v. Hutchinson, Nicols v. Pitman,3 and Caird v. Sime, which were cited during the argument. The speaker himself makes no claim at all. No doubt he might possibly have had some property before publication, and it is suggested that he might have had some property after making speeches under 5 & 6 Will. 4, c. 65; but he is not making any claim here, and the question, therefore, is not one between him and the person who makes the report. The speaker, of course, has no copyright in the matter; copyright is the right to multiply copies of some original, and there is no original here in respect of which he could have held any copyright. Then, if he has not, the question is whether the reporter has any. It is admitted before me that if the reporter has any copyright, The Times has it in this case. All the necessary evidence on that point was given, and the only question left to me to decide was whether the reporter had a copyright in the public reports in The Times.

Now, we must just recollect what the position of matters is. A speech is made an oral speech not read from writing, but made off-hand. That speech can only be heard by the persons who are the audience on the particular occasion; and the address will only linger in the minds of those persons for a longer or shorter time, and will reach no one else. It is not heard by anybody outside the room, and the only way in which it can reach anybody outside the room is by a reporter taking a note of it and the report being published. The result is that what the reporter does is to put it into a form in which it can be kept and perpetuated, and also to afford to readers who are not present on the occasion when the speech is given an opportunity of seeing what they could not see in any other way. . .

It was said that a reporter cannot have any copyright because he is not an author of any original published matter; and it is said that a publisher of a work which had been previously published is not himself the author of that which has been previously published. That seems to me to be rather a confusion of terms. No doubt the reporter is not the author of the speech; but the reporter is the author of the public report of the speech, and of the writing containing the speech, and that is the only thing with respect to which copyright can exist.

1 (1892) 3 Ch. 489, 495.

23 L. J. (O. S.) (Ch.) 209; 1 H. & T. 28.
326 Ch. D. 374.

4 12 App. Cas. 326.