might also, before the copyright was obtained, have published them together, paged them continuously, and bound them in a volume. Indeed, the learned counsel for the plaintiff admits that the defendant had the right to make copies of these several parts, and to sell them separately or collectively, but insists that he had no right to combine them in a single volume. The distinction between publishing these parts collectively and publishing them in a single volume appears to be somewhat shadowy; but, assuming that he had no such right, it must be because the copyright protected the author, not against the republishing of his intellectual productions or "the order of his words," but against the assembling of such productions in a single volume. The argument leads to the conclusion that the whole is greater than the sum of all the parts,- a principle inadmissible in logic as well as in mathematics. If the several parts had been once dedicated to the public, and the monopoly of the author thus abandoned, we do not see how it could be reclaimed by collecting such parts together in the form of a book, unless we are to assume that the copyright Act covers the process of aggregation as well as that of intellectual production. The contrary is the fact. It is the intellectual production of the author which the copyright protects, and not the particular form which such production ultimately takes; and the word "book," as used in the statute, is not to be understood in its technical sense of a bound volume, but any species of publication which the author selects to embody his literary product. We are quite unable to appreciate the distinction between the publication of a book and the publication of the contents of such book, whether such contents be published piecemeal or en bloc. If, as contended by the plaintiff, the publication of a book be a wholly different affair from the publication of the several chapters serially, then such publication of the parts might be permitted to go on indefinitely before a copyright for the book is applied for, and such copyright used to enjoin a sale of books which was perfectly lawful when the books were published. There is no fixed time within which an author must apply for a copyright, so that it be "before publication"; and, if the publication of the parts serially be not a publication of the book, a copyright might be obtained after the several parts, whether published separately or collectively, had been in general circulation for years. Surely, this cannot be within the spirit of the Act. Under the English copyright Act of 1845, provision is made for the publication of works in a series of books or parts, but it has always been held that each part of a periodical is a book within the meaning of the Act. Henderson v. Maxwell, 4 Ch. Div. 163; Bradbury v. Sharp, [1891] Wkly. Notes, 143. We have not overlooked the inconvenience which our conclusions will cause, if in order to protect their articles from piracy, authors are compelled to copyright each chapter or instalment as it may appear in a periodical; nor the danger and annoyance it may occasion to the librarian of Congress, with whom copyrighted articles are deposited, if he is compelled to receive such articles as they are published in newspapers and magazines; but these are evils which can be easily remedied by an amendment of the law. The infringement in this case consisted in selling copies of the several parts of "The Autocrat of the Breakfast Table” as they were published in the Atlantic Monthly, and each copy so sold was continuously paged so as to form a single volume. Upon its title-page appeared a notice that it was taken from the Atlantic Monthly. There can be no doubt that the defendant had the right to publish the numbers separately as they originally appeared in the Atlantic Monthly (since those numbers were never copyrighted), even if they were paged continuously. When reduced to its last analysis, then, the infringement consists in binding them together in a single volume. For the reasons above stated, this act is not the legitimate subject of a copyright. The decree of the Court below must therefore be affirmed.1 SUB-TOPIC C. RIGHT TO PROTECTION OF IDEAS OR INFORMATION COMMUNICATED WITHOUT PRINTING 208. NATIONAL TELEGRAPH NEWS COMPANY v. WESTERN UNION TELEGRAPH COMPANY. UNITED STATES CIRCUIT COURT OF APPEALS, SEVENTH CIRCUIT. 1902 119 Fed. 294 APPEAL from the Circuit Court of the United States for the Northern Division of the Northern District of Illinois. The bill in the Circuit Court was by appellee, a corporation of New York, against the appellants, The National Telegraph News Company, a corporation of Illinois, and F. E. Crawford and A. K. Brown, citizens of Illinois; and the appeal is from an interlocutory order restraining the appellants, and each of them, their servants, agents and employees, from copying from the appel.ee's electrical instruments and 1 [NOTES: "Periodical: Copyright of, protects contributions." (C. L. R., IX, 451.) "Infringement: Statutory rights where no notice on original." (H. L. R., XIX, 380.) "Effect of assignee's failure to mark as copyrighted the original picture." (H. L. R., XXI, 286.) In Mifflin v. R. H. White Co., 190 U. S. 260, 23 Sup. 769, the copyright on "The Autocrat of the Breakfast Table was again denied protection, through failure to print a formal notice of copyright in the serial magazine. These purely technical defects in copyright protection were justly denounced by Mr. Elder in the article above cited. In the revised Act of 1909, above set out, these defects were at last corrected in part by express enactment.] printing machines, known as tickers, for the purpose of publishing, selling or transmitting through their own tickers, or otherwise disposing of, or using, any of the news or information such as base-ball, football, racing, athletics, stock, grain and produce quotations, financial and other reports - which may thereafter be collected, formulated and transmitted by the appellee through its tickers; and from publishing, selling or using the matter so copied until the lapse of fully sixty minutes from the time such news items are printed by appellee's tickers. The further facts appear in the opinion of the Court. Thomas S. Chadbourne and Charles S. Holt, for appellants. H. D. Estabrook, for appellee. Before JENKINS and GROSSCUP, Circuit Judges, and BUNN, District Judge. GROSSCUP, Circuit Judge, delivered the opinion of the Court. The appellee, the Western Union Telegraph Company, does a general telegraphing business, having offices in every State, village, hamlet, and railroad station in the country, and wires connecting the same with central offices through the country. About 1881 there was invented an instrument which, by means of a type wheel, actuated by electrical impulse, automatically prints in plain, ordinary type, upon a strip of paper, messages transmitted electrically from a distance. The instrument is now generally known as the "ticker," and is commonly found in the offices of brokers, bankers, and other persons interested in the current price of securities, and in hotels, saloons, and other places where people, who are interested in the happenings of the race tracks, athletic clubs, base-ball associations, and in pending events generally, are in the habit of gathering. Upon the perfecting of this instrument appellee entered, in addition to its general telegraphic business, upon a business heretofore new to it. It collected at various points, where it had offices, news relating to events there transpiring, and, after accumulating in its central offices such product by means of its wires, redistributed to its tickers, in the offices and places of its patrons, by means of local wires, what was deemed of sufficient interest. The news thus gathered and printed upon strips of paper is open to the inspection of all persons who may come within these places. The appellants, The National Telegraph News Company, and F. E. Crawford and A. K. Brown, its officers, own and control within the city of Chicago a system of wires, connecting their operating office with tickers of their own, in the offices and places of patrons of their own. The evidence in the record before us shows that they have been appropriating vi et armis the news appearing upon the appellee's tape; and thereupon, with the loss of a few moments only, redistributing such news over their own wires and tickers to their own patrons. Such appropriation is not denied; but is defended as appellants' lawful right, upon the ground, chiefly, that upon the appearance of the printed tape upon the appellee's tickers, in the places of appellee's patrons, there is such a publication as, within the meaning of the law, dedicates the contents of the tape to the public, and deprives appellee of any further monopoly therein.. The general question raised by appellants' contention, then, is this: Is the printed tape, coming out of appellee's tickers, a book or article within the meaning of the copyright laws of the United States, and especially of section 4956 [U. S. Comp. St. 1901, p. 3407], and if not a book or article within the meaning of the copyright law, is there any remedy that will protect this feature of appellee's business against the kind of piracy shown? 1. We are of the opinion that the printed tape would not be copyrightable, even if the practical difficulties were out of the way. When the Federal Constitution was adopted the right of property in literary production had been already securely established in English law. Its source, whether in natural right, or in the statute of Anne, was still in doubt; but that an author had ownership of some species over the production of his brain an ownership as .distinctive as that of the creator of corporeal property was conceded by all. Indeed, it could not be otherwise in a civil polity that recognizes the individual, and his right to enjoy what he creates, as the unit of organized society. But when the Federal Constitution was adopted, the application of this right to productions other than those strictly literary had not yet been mooted. The great case of Donaldson v. Becket, 2 Brown, Parl. Cas. 129, had been decided only thirteen years previously. The business world, that in this day permits nothing to escape as a means for its exploitation, had not yet pressed into her service art and books. Business catalogues, circulars containing market quotations, sheets, such as Dun's and Bradstreet's directories the whole staff of aidesde-camp to commerce, now familiar to all were then practically unknown. In the public mind, the publication of a book meant that literature, as Literature, had received an accession. Unquestionably, the framers of the Constitution, in vesting Congress with "power to promote the progress of science and the useful arts, by securing for limited times to authors and inventors exclusive right to their respective writings and discoveries," had this kind of authorship in mind: and were the intention of the framers of the Constitution to give boundary to the constitutional grant, many writings, to which copyright has since been extended, would have been excluded. But, here as elsewhere, the Constitution, under judicial construction, has expanded to new conditions as they arose. Little by little copyright has been extended to the literature of commerce, so that it now includes books that the old guild of authors would have disdained; catalogues, mathematical tables, statistics, designs, guide-books, directories, and other works of similar character. Nothing, it would seem, evincing, in its makeup, that there has been underneath it, in some substantial way, the mind of a creator or originator, is now excluded. A belief that in no other way can the labor of the brain, in these useful departments of life, be adequately protected, is doubtless responsible for this wide departure from what was unquestionably the original purpose of the Constitution. must cease. But, obviously, there is a point at which this process of expansion It would be both inequitable and impracticable to give copyright to every printed article. Much of current publicationin fact the greater portion - is nothing beyond the mere notation of events transpiring, which, if transpiring at all, are accessible by all. It is inconceivable that the copyright grant of the Constitution, and the statutes in pursuance thereof, were meant to give a monopoly of narrative to him, who, putting the bare recital of events in print, went through the routine formulæ of the copyright statutes. It would be difficult to define, comprehensively, what character of writing is copyrightable, and what is not. But, for the purposes of this case, we may fix the confines at the point where authorship proper ends, and mere annals begin. Nor is this line easily drawn. Generally speaking, authorship implies that there has been put into the production something meritorious from the author's own mind; that the product embodies the thought of the author, as well as the thought of others; and would not have found existence in the form presented, but for the distinctive individuality of mind from which it sprang. A mere annal, on the contrary, is the reduction to copy of an event that others, in a like situation, would have observed; and its statement in the substantial form that people generally would have adopted. A catalogue, or a table of statistics, or business publications generally, may thus belong to either one or the other of these classes. If, in their makeup, there is evinced some peculiar mental endowment - the grasp of mind, say in a table of statistics, that can gather in all that is needful, the discrimination that adjusts their proportions there may be authorship within the meaning of the copyright grant as interpreted by the courts. But if, on the contrary, such writings are a mere notation of the figures at which stocks or cereals have sold, or of the result of a horse race, or base-ball game, they cannot be said to bear the impress of individuality, and fail, therefore, to rise to the plane of authorship. In authorship, the product has some likeness to the mind underneath it; in a work of mere notation, the mind is guide only to the fingers that make the notation. One is the product of originality; the other the product of opportunity. Judged by a test like this, the printed matter on the tape in question is in no sense copyrightable. It is, at most, the mere annal of events transpiring. True, the happenings of a race track, or the incidents of a college boat race, may be put in narrative, involving creative imagination; or the doings of a board of trade become the basis |