Then another case was cited-Leslie v. Young & Sons1and it is instructive. There the parties had taken and published certain time-tables and information in connection with Perth. The timetables and the times for the trains to start were, of course, taken both by the plaintiff and the respondents from the tables issued to the public by the railway companies. As to this, it was held that, as far as the plaintiff had only taken the contents of the time-tables from the public time-tables, he could not by printing them over again have any copyright in them. But he had done more. He had also collected information, and given various excursions which were recommended to travellers, and, in the report of that case in the House of Lords, it is pointed out why the distinction is drawn. Lord Herschell, L. C:, says: 2

"The information in these time-tables was of course derived by the pursuer from sources which were as open to the defenders as to himself, and he does not and cannot claim any right to the information as such; he can only claim copyright in them, if they are the result in some respect or other of independent work on his part, and if advantage has been substantially taken by the defenders of that independent labour."

Then a little further on he says:

"The real truth is, that although it is not to be disputed that there may be copyright in a compilation or abstract involving independent labour, yet when you come to such a subject-matter as that with which we are dealing, it ought to be clearly established that, looking at these tables as a whole, there has been a substantial appropriation by the one party of the independent labour of the other, before any proceeding on the ground of copyright can be justified." Then he went on to deal with the second part of the case, and said: "It appears to me the only part of the work which can be said to indicate any considerable amount of independent labour, and be entitled to be regarded as an original work."

Then he referred to certain points contained in the information as to excursions and so on, and then he says:

"It seems to me that this was a compilation containing an abridgment of information of a very useful character, and such as was likely to be taken advantage of by those who were travelling in the neighbourhood of Perth."

Therefore, that was a case where the common material did not itself give a right of copyright, but when it was made the basis of giving to the public something that was not found in the tables themselves, it was held that it might do so. In the case before me there is, as I say, no copy at all; reporting is the taking down what is spoken, and that seems to me for this purpose to be an original work and not a copy.

Then it is said that there might be a dozen reporters who would all do the same thing, and I was asked whether they could all have a copyright. On this it is rather singular that here it appears incidentally

1

1 (1894) A. C. 335.

2

(1894) A. C. 340-2.

that the reports differ a good deal, and I do not see why each person should not have copyright, not in the speech, but in the version of the speech which he has made. Take the case of a translation. Mr. Terrell suggested that in this case converting the words of the speaker into a shorthand note, and then extending the shorthand into longhand, was itself a translation. I do not follow that, and I do not use the word "translation" in that sense. You may have several translations of one work; it often happens that you have, and one might ask how many different translations there are of Dante's "Inferno," for instance. In every translation each person uses his own head and brains and time, and he produces a result which may be more or less like the result produced by others. In cases of merely prose translations they often come pretty close to one another. In cases of the turning of a poem in a foreign language into English poetry, of course there is far more room for divergence; but as regards the position of a translation, Story, J., in Emerson v. Davies,1 says this:

"A man has a right to a copyright in a translation, upon which he has bestowed his time and labour. To be sure, another man has an equal right to translate the original work, and to publish his translation; but then it must be his own translation by his own skill and labour; and not the mere use and publication of the translation already made by another."

I do not look upon newspaper reports as translations, but they are in pari materia with translations. Different persons may go to the common source and make their own translations or take their own notes, and there is no reason why there should not be a copyright in them when the requirements of law as to obtaining copyright have been duly performed.

a case

Then there was another case which I think is analogous of a directory. There the materials were within a very narrow limit. There was a good deal of trouble in getting them, and a good deal of labour and expense; but what might be got was common to all, and it was so narrow in form that it would be very difficult for one person to get it in a shape different from the shape in which it was got by another. It is quite clear that one man may publish a directory, and another man may publish another, but he must not take it from the first. He must have recourse to the means which the first man adopted, and he may then make a second of his own. The point as to the directory is put very clearly by Lord Hatherley, when Vice-Chancellor, in Kelly v. Morris.2

He says:

"The defendant has been most completely mistaken in what he assumes to be his right to deal with the labour 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 map; and, generally, he is not entitled to take one work 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 that he can legitimately make of a previous publication is to verify his own calculations and results when obtained."

So applying the principle of those cases here, it seems to me that a reporter may make a report of a speech, delivered in public and intended to be reported, and then may have a copyright in his own publication if he procures the material himself, but he must not set to work by taking the report that another man has made and insert it in his own work, simply copying that report. . . . It seems to me, all the legal requirements having been duly satisfied, and The Times having established the right to whatever copyright the reporters have, that the reporters have a copyright, and that it is now vested in The Times. That being so, I think the plaintiffs are entitled to the injunction as asked omitting the words "or extracts therefrom."

The defendant appealed. The appeal came on for hearing on October 30, 1899. . .

Nov. 9. LINDLEY, M. R., read the judgment of the Court (LINDLEY, M. R., Sir F. H. JEUNE, and ROMER, L. J.), in which (after stating facts) he continued: The case turns on the true construction of the copyright Act of 1842. That Act defines "copyright" and "book" (by s. 2), and confers copyright on every "author" of a book and his assigns by s. 3). Periodical publications are dealt with in s. 18. The Act contains no definition of "author," but it confers copyright on the authors of books first published in this country. There can be no copyright in what is not published in a book; but it does not follow that the first person who publishes a book acquires a copyright in it. The meaning of the word "author" as used in the Act must be gathered from its own language and the decisions upon it. The word occurs constantly throughout the Act, but nowhere is it used in the sense of a mere reporter or publisher of another man's verbal utterances. It is plain that a person who is not the author of a work may nevertheless be the proprietor of the copyright in it; for example, in the ordinary case of an assignment of copyright. The author is one person, the proprietor of the copyright is another. . . . The more closely the Act is studied the more clearly it appears that, in order that the first publisher of any composition may acquire the copyright in it, he must be the "author" of what he publishes, or he must derive his right to publish from the author by being the owner of his manuscript, or in some other way. It was contended, and NORTH, J., took the view, that, although the reporter had no copyright in the speech, he was entitled to copyright in his report of it. But we cannot follow this. The report and the

speech reported are, no doubt, different things; but the printer or publisher of the report is not the "author" of the speech reported, which is the only thing which gives any value or interest to the report. The printer or reporter of a speech is not the "author" of the reported speech in any intelligible sense of the word "author." To hold that every reporter of a speech has copyright in his own report would be to stretch the Copyright Act to an extent which its language will not bear, and which the Legislature obviously never contemplated. The Act was passed to protect authors, not reporters. Moreover, although it may be that reporters and their employers ought to be protected from the unauthorized appropriation of their labours by others, it by no means follows that Parliament would place reporters and their employers on the same footing as authors. It is only by treating reporters as authors of what they report - which they clearly are not that they can be brought within the existing Copyright Act. Although we have no sympathy with the defendant, we are quite unable to decide in favour of the plaintiffs. Plausible as are the arguments addressed to the Court on their behalf, those arguments are all based on the untenable doctrine that, for the purposes of copyright, reporters are authors.

The analogy of directories, road-books, maps, &c., is, in our opinion, wholly misleading. There, each man who himself makes a directory, &c., and publishes it, is the author of what he publishes. The reporter of a speech is not. The distinction is all-important, but it is only by wholly ignoring it that the decisions on directories, &c., can be invoked by the plaintiffs. If the reporter of a speech gives the substance of it in his own language; if, although the ideas are not his, his expression of them is his own and not the speaker's, with immaterial differences, the reported speech would be an original composition, of which the reporter would be the author, and he would be entitled to copyright in his own production. This is the ground on which copyright in law reports is based. They are by no means mere transcripts of judgments delivered in court. But we have not to deal with speeches recast by the reporter. He has reproduced to the best of his ability not only the ideas expressed by the speaker, but the language in which the speaker expressed those ideas. In other words, we are dealing with the most accurate report of the speaker's words which the reporter could make. No doubt it requires considerable education and ability to make a good report of any speech. But an accurate report is not an original composition, nor is the reporter of a speech the author of what he reports.

The appeal must be allowed, and the action dismissed with costs here and below.1

1 [NOTES:

"Copyright without ownership of original." (C. L. R., VI, 204.) "Photograph: As subject of copyright." (C. L. R., IX, 549.)

"Shorthand newspaper reports of public speeches." (H. L. R., XIII, 517.) “Encyclopedia articles: Who entitled to copyright." (H. L. R., XV, 747.)]

(2) Infringement

203. STORY v. HOLCOMBE

UNITED STATES CIRCUIT COURT, DISTRICT OF OHIO. 1847

5 West. L. J. 145, 4 McLean, 306, Fed. Cas. No. 13,497

COMPLAINANTS are executors of Joseph Story, deceased, who was the author and proprietor of the copyright of "Commentaries on Equity Jurisprudence." Defendants are the authors and publishers of “An Introduction to Equity Jurisprudence, on the Basis of Story's Commentaries." The bill alleges that the latter is an infringement upon the former in three respects: (1) That the work is derived from the Commentaries; (2) that its plan, combination, and arrangement of materials are copied therefrom; (3) that the one is pirated from the other. The prayer is for an injunction, account, surrender of copies, and general relief. Defendants answer, admitting title in plaintiffs, but denying the charge of infringement. They allege that their work is a fair and bona fide abridgment of the Commentaries, such as they have a right to make. General replication. At the July term, 1846, after argument, on motion for a preliminary injunction, the case was referred to E. D. Mansfield, a special master commissioner, to report upon the usual matters required in such cases, in order to enable the Court to determine how much, if any, of defendants' work, is a piracy from the plaintiffs' work. The master reported, and the complainants filed exceptions, denying that the facts were correctly found, and alleging that the report was indefinite and argumentative. But these exceptions were waived at the hearing.

The two principal questions presented by the argument were: (1) Whether, in this country, even a fair abridgment of a scientific work is the subject of copyright. (2) If so, whether the work of defendants is a fair abridgment of the work of complainants.

T. Walker and J. C. Wright, for complainants.

J. P. Holcombe and W. Y. Gholson, for defendants.

MCLEAN, Circuit Justice. The plaintiffs in this case complain that the defendants, in printing and publishing "An Introduction to Equity Jurisprudence, on the Basis of Story's Commentaries, etc., by James P. Holcombe," have infringed the copyright in Judge Story's "Commentaries on Equity Jurisprudence," and they pray that the defendants may be enjoined, etc. The defence set up is, that the work complained of is a bona fide abridgment of the Commentaries. The special master, to whom both works were referred, reports, that "the chapters and the subjects are the same in both." He states that the "Equity Jurisprudence" of Judge Story contains one thousand eight hundred and fifty-six octavo pages, including notes; and that the "Introduction to Equity,"