Compilations also constitute infringement if they extract substantial parts of a copyright work, beyond the limits of "fair use," or even if they adopt the plan or arrangement or bodily transfer the material of a copyright compilation of non-copyright matter.

Abridged A curious complaint of infringement by abridgcompilations ment was made in Gabriel v. McCabe, in 1896, before Judge Grosscup in the U. S. Circuit Court in Illinois, where the plaintiff had licensed the use of a copyright song, "When the roll is called up yonder," in a collection of religious poetry, "The finest of the wheat, no. 2," published by the defendant, who included the song also in an abridged edition of this collection and in a combined edition of this and another collection. Judge Grosscup held that: "Future editions of a book may contain a composition published in an earlier edition by license, even though parts of the earlier edition are omitted. . . . To hold otherwise would practically forbid any new editions of books of compilations, for the consent of all the authors contributing could not, in many instances, be obtained." But if the collection had been so abridged as to result in the publication of the song alone as sheet music, it would have been an unfair use under the license. The general principles as to quotation beyond "fair " were well laid down by Lord Chancellor Eldon, in the early English case of Mawman v. Tegg, in 1826: "If the parts which have been copied cannot be separated from those which are original, without destroying the use and value of the original matter, he who has made an improper use of that which did not belong to him must suffer the consequences of so doing. If a man mixes what belongs to him with what belongs to me, and the mixture be forbidden by law, he must again separate them, and he must bear all the mischief and loss which the separation may occasion.

Separation of infringing

parts

If an individual chooses in any work to mix my literary matter with his own, he must be restrained from publishing the literary matter which belongs to me; and if the parts of the work cannot be separated, and if by that means the injunction, which restrained the publication of my literary matter, prevents also the publication of his own literary matter, he has only himself to blame."

The difficult question of the extent to which a com- Law digests piler may utilize the materials of another has come especially to the front in the American courts with reference to law digests and reports, within recent years. In 1896, in Mead v. West Pub. Co., concerning rival annotated editions of "Stephen on pleading,' then out of copyright, where the defendant's editor admitted having clipped the text from the complainant's edition and having obtained some ideas or suggestions from it, Judge Lochren, in the U. S. Circuit Court in Minnesota, held that there was no infringement because non-copyright matter could not be protected in a copyright work from such clipping, because the defendant's notes were original even though suggested from the other, and because the few errors and citations in common were immaterial since there were many new citations and the work was on the whole the result of original research. That bodily transfer of citations is beyond "fair use" was emphasized by Judge Ray in White v. Bender, in 1911. As to proof from common errors, it had been held Proof from in 1895, in the case of Chicago Dollar Directory common Co. v. Chicago Directory Co., that the later work, containing sixty-seven errors found in the other, was evidently an infringement of the earlier compilation. In Bisel v. Welsh, Re Brightly Pennsylvania reports, in 1904, the U. S. Circuit Court held that repetitions of errors in citations were evidence of infringement

errors

Infringement in part

by the author of his own reports published under an earlier contract by the plaintiffs; and in 1911, in Shepard v. Taylor, Judge Hazel held that common errors were prima facie proof of infringement.

In the important case of West Pub. Co. v. Lawyers' Pub. Co., where a collection of selected cases and a general digest were alleged to be infringements of the plaintiff's reports and monthly digests, Judge Coxe in the U. S. Circuit Court enjoined 303 proved "instances of piracy" but not the remaining portions of the digest, but in 1897 the U. S. Circuit Court of Appeals, through Judge Lacombe, held that under such circumstances the burden of proof must be on the unfair user and broadened the decision by issuing an injunction against the work as a whole, excepting those parts which were public property. In 1910, in Park & Pollard v. Kellerstrass, Judge Philips enjoined the whole work because the infringing parts were not separable. In 1903, in Thompson Co. v. American Law Book Co., where the editor of the defendant's law encyclopædia had made a list of cases cited in complainant's work, which included material “pirated" by the complainant from copyright works, the Circuit Court of Appeals, reversing the lower court, held through Judge Coxe that there was no infringement, because the only use made of the list was to guide the defendant to the reports and because the complainant No infringe had no standing in equity. "If the defendant was guilty of piracy, so was the complainant; and equity will not protect a pirate from infringements of his piratical work." To like effect in Slinsgby v. Bradford Co., in 1905, Justice Warrington, in the Chancery Division, held that the plaintiff could not recover against an evident copying because his own catalogue was fraudulent in advertising as patented articles not so protected, and a fraud will not be protected. In

ment of piracies or frauds

the later case of West Pub. Co. v. Thompson Co., where the publishers of the original reports and digests sought to restrain the Thompson encyclopædias, the Circuit Court of Appeals held that while a compiler may use a copyright digest by making lists from which to run down cases, which is "fair use," extensive copying or paraphrasing of the language of the digest, whether to save literary work or mechanical labor, constitutes an infringement. The case was sent back to the lower court for rehearing and assessment of damages and was settled in 1911 by an agreement involving transfer of the encyclopædia to the plaintiff. Reference to a copyright work giving pagination is not an infringement, as was decided in 1909, in Banks Law Pub. Co. v. Lawyers Co-operative Pub. Co., in the U. S. Circuit Court of Appeals.

Whether simple quotation constitutes an infringe- Quotation ment or is "fair use," depends upon extent and in some respects upon purpose. In 1892 Justice North, in the English Court of Chancery, in Walter v. Steinkopff, held that the use by the St. James Gazette of two fifths of an article by Kipling, copyrighted by the Times, was beyond "fair use" of quotations, notwithstanding the newspaper custom of copying from one another. On the other hand, quotations in a review of a book made to reasonable extent for the purposes of criticism, have usually been considered "fair use,' provided they do not go to the extent of a description or abridgment which would be measurably a substitute for the book.

The multiplication of copies by handwriting or Private use other process for private use, as among the members of an orchestra or in a business office, has been held an infringement in English decisions, though prohibition of the making of a single copy for personal use would be an extreme application of this doctrine,

The doctrine

of "unfair competition"

The doctrine

intent

and such use is specifically permitted in the new English code.

Beyond the purview of copyright law, there is a means of legal remedy for the copyright proprietor which can be enforced by state as well as by federal courts, resting either upon statutes outside the copyright law, or on the general principles of equity. This is the application of the doctrine of “unfair competition" especially in cases involving "fraud” or fraudulent representation, direct or implied, leading the purchaser to buy something other than what he supposes he is buying. Thus if a publisher prints and binds a book with a title and in a style that leads a purchaser to suppose that it is another book which he is buying, the publisher of the other book has the right to obtain equitable relief by an injunction from the transgressor on the ground of unfair competition without any reference to copyright law, although this doctrine is more applied in the case of patents, trademarks and copyrights than perhaps any other field.

There is also evident a growing tendency on the of deceptive part of the courts to protect the public from possible deception especially if done with fraudulent intent, where some distinctive name or symbol or form associated with some line of product is used for another line of product of different origin and character, though there may be here no direct competition; but this comparatively new doctrine is more likely to be used in regard to trade-mark articles than in respect to literary and like property. It might, however, apply in a case where a well-known publishing house had published, for instance, a popular series of schoolbooks as Smith's Arithmetical Readers and another firm containing the same name had started to publish a Smith's Algebraic Readers - but the application would be extremely doubtful.