XIV INFRINGEMENT OF COPYRIGHT: PIRACY, "FAIR USE" THE word "piracy," since that gentle craft has disap- Piracy peared from the high seas, has come commonly into use to mean free-booting with reference to literary property. In this sense it is used as early as 1771 by Luckombe in his history of printing, in which he says: "They . . would suffer by this act of piracy, since it was likely to prove a very bad edition." It was especially applied in America more or less jocularly in the days when there was no legal protection for works by English authors, to the reprinting chiefly of English novels without authority from or payment to their authors, when publishers whose imprints were chiefly on such reprints were commonly known as pirates. This secondary meaning has been accepted by the dictionary makers, and the use by English law authorities, and now in the new American code, of the phrases "pirated works" and "piratical copies," gives the word specific legal status. It is the comprehensive term now in common and legal use to mean the stealing of an author's work by reprinting it in full or in substantial part without the authority of the copyright proprietor, and is in fact an infringement at wholesale or otherwise of the author's exclusive right. This is of course prohibited by the law to the full extent of its jurisdiction and is punishable as prescribed in the law. "The true test of piracy," said Judge Shipman in Test of the U. S. Circuit Court in 1875, in Banks v. McDivitt, piracy is "whether the defendant has in fact used the plan, Infringement in specific meaning arrangements and illustrations as the model of his own book, with colorable alterations and variations, or whether his work is the result of his own labor, skill and use of common materials and common sources." Judge Story said in 1841, in Folsom v. Marsh: "If so much is taken that the value of the original is sensibly diminished, or the labours of the original author are substantially, to an injurious extent, appropriated by another, that is sufficient in point of law to constitute a piracy pro tanto. The entirety of the copyright is the property of the author and it is no defence that another person has appropri ated a part and not the whole of any property. Infringement is commonly taken to mean specific invasion of the author's rights rather than wholesale piracy; and the question of what is infringement or "literary larceny" is more often a question of the interpretation of the facts than the construction of the statute. The legal cases arising under infringement constitute a very large proportion of copyright litigation, demanding as they do judicial determination as to the acts complained of in each particular case. It is therefore impossible in this volume to give citations or references for the hundreds of cases recorded in the law reports or in the various works on copyright, but it may be noted that the foot-note citations in MacGillivray's "Law of copyright" cover a very large number of American as well as English cases. No treatise on copyright can apply, however, in advance, the general principles of copyright to the infinite variety of possible cases; and only generalizations and a few illustrative cases can here be given. Infringement is a question of fact rather than of intent. It is not a valid defense that the infringer is ignorant; nor, on the other hand, can any one be held for intention to infringe, where the act of infringe intent ment has not been accomplished. The new American Questions code, nevertheless, recognizes knowledge and intent of fact and in certain cases of punishment or damages by the use of the words "willfully" and "knowingly." The letter of the law is in general that the infringer must be held responsible and must make good any damages suffered by the copyright proprietor, but proof that he had no guilty knowledge or intent may effect mitigation of punitive damages. The trend of court decisions and of judicial opinion does not seem to be evident and consistent in this development; but it may perhaps be said that while copyright law is more closely applied from the letter of the statutes, in the legal aspect, the principles of equity have been given freer play where the statute is not specific and definite. In 1899, in Green v. Irish Independent, the English Court of Appeal held that the proprietors of a newspaper who had printed an advertisement containing an illustration which the advertiser had license to use only for specified purposes, were liable for penalties, though they did not know that the illustration was copyrighted; and in 1902, in American Press Assoc. v. Daily Story Pub. Co., the U. S. Circuit Court of Appeals held the defendants liable, though they had innocently copied from a newspaper reprint which had inadvertently omitted the copyright notice. But in 1898 Justice Mathew, in Bolton v. London Exhibitions, declined to hold the defendants punishable, because they did not know that the lithographer from whom they had ordered a poster had infringed the copyright of a photograph. "Fair use" means quotation from or other use of an "Fair use" author's work within the evident meaning or judicial construction of the copyright statute, and is the usual answer of the defendant to a complaint that he has taken without authority some portion of the author's Principle of work or utilized in some way the result of the author's labors. The borderland between infringement and "fair use" is peculiarly and necessarily one of uncertainty, not so much because of ambiguity in the statute as of difficulty in determining the extent of use within which it is said non curat lex. No statute can be so clear or so complete as to obviate questions of this kind. In general there must be copying of a material or substantial part. What is a material or substantial part, constituting infringement, is a difficult question of fact. "Copying is not confined to literal repetition," infringement said Judge Clifford, in Lawrence v. Dana, in the U. S. Circuit Court in 1869, "but includes also the various modes in which the matter of any publication may be adopted, imitated, or transferred, with more or less colorable alterations to disguise the source from which the material was derived; nor is it necessary that the whole, or even the larger portion of the work, should be taken in order to constitute an invasion of copyright." The Chancery Division, through Lord Chief Justice Alverstone, took the extreme course in Trengrouse v. "Sol" Syndicate, in 1901, of holding a work an infringement, though less than a page was taken from the plaintiff's football guide. Infringement by indirect copying Infringement may be by indirect as well as by direct copying. In the case of Cate v. Devon in 1889, in the Chancery Court, the defense that the copying was not from the original copyright work but from a newspaper reprint, was rejected. Infringement may be through quite a different medium from the original; thus a shorthand reproduction of a lecture on "The dog as the friend of man," published in a text-book of shorthand, was held in the Chancery case of Nichols v. Pitman, in 1884, to be an infringement of the lecture as much as if in ordinary type. The doctrine of infringement cannot be invoked to Exceptions obtain monopoly of any particular subject, and the from inauthorized biographer of President Garfield was de- fringement nied relief in 1889, in Gilmore v. Anderson, when he sought to prevent the publication of a life of Garfield by another writer. Nor will mere similarity of treatment of the same subject constitute infringement. A copyright owner cannot prevent another person from publishing the matter contained in his book, if invented or collected independently, or from making "fair use" of its contents. Two map-makers, collecting at first hand the same data, would naturally make the same map, and each would equally be entitled to copyright. In this respect, copyright law differs from patent law, where a first use bars others from the same field. It has even been held that the collected material might be used by a second compiler as a guide in a second compilation, if subjected to original verification, as in the case of a street directory. But in the case of rival Boston directories in 1905, the U. S. Circuit Court of Appeals held, in Sampson & Murdock Co. v. Seaver Radford Co., that a verification by actual canvass from a list of discrepancies made up from the earlier work was beyond fair use. ment and Abridgments were construed by early English de- Infringement cisions not to be infringements, and this precedent by abridgwas followed, reluctantly and often with protest, in compilation later cases by English and American judges, as set forth in the chapter on subject-matter. Later copyright provisions, -as by use of the word "retranchements" in the Berne-Berlin conventions, and the specific authorization in the American code "to make any other version thereof," and for copyright of an abridgment of a work in the public domain, directly or by implication, make abridgment an infringement and free the courts to take this view. |