benefits of this Act in respect of such book, and shall cause a minute of such consent in the form in that behalf given in the schedule to this Act annexed to be entered in the book of registry hereinafter directed to be kept, in which case such copyright shall endure for the full term by this Act provided in cases of books to be published after the passing of this Act, and shall be the property of such person or persons as in such minute shall be expressed.” The copyright, then, in every book published during the author's lifetime is to last, at least, for forty-two years from the time of its first publication, and may last for any longer period that may be covered by the duration of the author's life, with seven more years added. If the book is published after his death, the copyright lasts for forty-two years from first publication. Copyrights subsisting at the time of the passing of the Act are extended to the same limits, but not in the case of assignees of the copyright for other consideration than that of natural love and affection, unless with the concurrence of the proprietor and author or his personal representative. Though the Act gives a meaning to the word "book," which includes dramatic and musical compositions, besides reviews, serials, &c., we shall treat in this chapter only of books commonly so called, and reserve for a separate treatment the most important of the other productions which the word is used in the Act to include. PART I CHAPTER VII. author. With respect to the question whether there must be a whether there known author by whose life and from whose death the must be a known statutory period of copyright is to be determined, the observations of Lord Deas in the Scotch case of Maclean v. Moody, (a) in the year 1858, are deserving of attention. In that case an argument was addressed to the court against the title of the claimants to copyright in a shipping list called "The Clyde Bill of Entry," to the following effect; that the object of the statute 5 & 6 Vict. c. 45, was to encourage literary merit; that intellectual labour constituting authorship is alone thereby protected; that there can be no authorship without an author; that the claimants were not the authors in the present case, nor did they name the authors; that the life of the author affords the only criterion the statute gives for measuring the endurance of the privilege; and that without the statutory means of measuring the privilege, the privilege itself cannot exist. Lord Deas said, "I am humbly of opinion that this argument, although ingenious, is unsound. The (a) Cases in Court of Sessions, vol. 20, p. 1163. PART I Act does not confine the privilege to works of literary CHAPTER VII. merit. . . . . Neither does the Act confine the privilege to cases in which there is a known author, whose life shall afford a measure for the endurance of the privilege. A person may find a manuscript in his ancestor's repositories, or get a gift of it and publish it, and he may be entitled to copyright, although he cannot tell who was the author, or whether the author is living or dead. The Crown might, I presume, get up a publication and be entitled to copyright, and yet the Crown never dies. . . . . That the first publisher may have copyright in the work, although he cannot point out the author, appears to me implied in sect. 16 of the statute, which requires the defendant if the nature of his defence be that the plaintiff in such action was not the author or first publisher of the book' to give notice of the name of the person whom he alleges to have been the author or first publisher.' I think it is here assumed that there may be cases in which, if the plaintiff be the first publisher' he may be entitled to copyright, although no author has been or can be named upon either side. In all such cases it is obvious that the endurance of the privilege can have no reference to the author's life, but must be for forty-two years after the first publication." Author. An author may be described as one who, by his own intellectual labour applied to the materials of his composition, produces an arrangement or compilation new in itself. (a) Where the incidents of a person's life were furnished by him to another who prepared them for publication, and the copyright was taken out in the name of the person furnishing the facts, it was held in America that he was not the author, and that a person claiming as his assignee could not maintain an action for infringement. (b) Assistants employed by the publishers of a shipping list compiled from statistics contained in custom house books to which the publisher had sole right of access for the purpose of publication, were said by Lord Deas (c) not to be authors in the sense of sect. 18 of 5 & 6 Vict. c. 45, nor in any reasonable sense whatever. The person who arranges a pianoforte score of an opera is the author or composer of such arrangement, and must be registered as such. (d) (a) Atwill v. Ferrett (2 Blatch. 46). (b) De Witt v. Brooks (cited Law's American Digest of Patent and Copyright Cases, p. 174). (c) Maclean v. Moody (20 Scotch Sess. Cas. 2nd Ser. 1164.) PART I. A person who merely procured a drawing or design to be made was held not entitled to relief under 8 Geo. 2, c. 13. (a) CHAPTER VIL But the proprietor of a periodical containing translations made from foreign works by persons employed and paid by him and from works imported by him at considerable expense, obtained an injunction to prevent the unauthorised publication of these translations.(b) Where a person, employed as a performer and stage manager of a theatre, agreed to write a play which was to be performed in the employer's theatre so long as it should continue to draw good audiences, it was held in America that the person who wrote the play was the proper person to take out the copyright, and that the employer had no right or interest in it, except the privilege of having it performed at his theatre. (c) A Scotch publisher brought out an edition of the works of Dr. Channing, the American author, which had already been published in America. Various slight alterations and corrections were made with the assistance of Dr. Channing for this edition, and the publisher sent him by way of acknowledgment a sum of money, but not as the result of any contract entered into. Another publisher having published a new edition reprinted from the former, it was held by the Court of Session that the former publisher had no copyright in his edition, and could not prevent the publication of a reprint of it. (d) must be original. How far a book must be original in order to entitle its How far book author to copyright in it is a question to which only a general answer can be given. It may be expressed thus: the law will secure to a man the property in every genuine product of his own mental labour, whether that product take the form of compilation, abridgment, new arrangement, or wholly original work-if, indeed, there can be any such thing as a wholly original work. On this subject an eminent American Judge (Story) says, with great propriety, (e) "In truth, in literature, in science, and in art, (a) Jeffreys v. Baldwin (Amb. 163); see Pierpoint v. Fowle (2 Wood. & Min. 46) and Binns v. Woodruff (4 Wash. 53), and as to alterations in a musical composition made for another person, Atwill v. Ferrett (2 Blatch. 46). See further as to the authorship of musical compositions, Reed v. Carusi (8 Amer. L. Rep. O. S. 411). (b) Wyatt v. Barnard (3 Ves. & B. 77). (c) Roberts v. Myers (13 Mo. L. Rep. 400, cited Law's Digest of Patent, Copyright, and Trades Mark Cases, p. 211). (d) Hedderwick v. Griffin (3 Scotch Sess. Cas. 2nd Ser. 383). (e) Emerson v. Davies (3 St. 779); see also in Gray v. Russell (1 St. 16). PART I. there are and can be few, if any, things which, in an CHAPTER VII. abstract sense, are strictly new and original throughout. Every book in literature, science, and art borrows, and must necessarily borrow and use, much which was well known and used before. No man creates a new language for himself, at least if he be a wise man, in writing a book. He contents himself with the use of language already known, and used and understood by others. The thoughts of every man are more or less a combination of what other men have thought and expressed, although they may be modified, exalted, or improved by his own genius or reflection. If no book could be the subject of copyright which was not new and original in the elements of which it is composed, there could be no ground for any copyright in modern times; and we should be obliged to ascend very high even in antiquity to find a work entitled to such eminence." Test of originality. The law requires no such impracticable standard of originality as that alluded to in the extract just made. It requires only that the work should contain something distinctively the property of the author, which gives a character to it. "Something he must show to have been produced by himself; whether it be a purely original thought or principle, unpublished before, or a new combination of old thoughts, and ideas, and sentiments, or a new application or use of known and common materials, or a collection, the result of his industry and skill. In whatever way he claims the exclusive privilege accorded by these laws, he must show something which the law can fix upon as the product of his own and not another's labours. But in order that the law should do this ample justice to the great variety of claimants it is necessary that its rules should be capable of adaptation to the objects of their labour. They must include in their range everything that can be justly claimed as the peculiar product of individual efforts; otherwise they would exclude from the benefits of literary property objects which are as clearly the products of individual labour as the most original thoughts ever written, namely, new and important combinations and arrangements, or collections of materials known and common to all mankind.”(@) any The test "whether the claimant's book contain substantive product of his own labour?" has been recognised and applied in several cases. In 1797, one Cary was employed to make a survey of the different roads in Great Britain. Having completed his survey he published (a) Curtis on Copyright, 171, 172. a book called "Cary's New Itinerary," which followed the plan and contained much of the materials of an older work called "Patterson's Road Book," but contained also many corrections of and additions to it. A person named Faden having published a book bearing the same relation to Cary's that Cary's did to Patterson's, Čary filed a bill in Chancery to restrain Faden from publishing his book, on the ground that it was not original, but either in whole or part a copy of Cary's. The Lord Chancellor (Loughborough) refused to grant an injunction, thinking the two books very different. He said, "What right had the plaintiff to the original work? If I were to do strict justice I should order the defendants to take out of their book all that they have taken from the plaintiff, and reciprocally the plaintiff to take out of his all he has taken from Patterson. I think the plaintiff may be contented that a bill is not filed against him?"(a) An action was brought in 1801 by the same plaintiff against Messrs. Longman and Rees for publishing a pirated edition of the same or a similar work, the book published by the defendants being professedly a twelfth edition of the original work by Patterson, but containing nine-tenths of Cary's alterations and improvements. The plaintiff was held entitled to recover. Lord Kenyon, C.J., said, "certainly the plaintiff had no title on which he could found an action to that part of his book which he had taken from Mr. Patterson's; but it is as clear that he had a right to his own additions and alterations, many of which were very material and valuable : and the defendants are answerable at least for copying those parts in their book. . . . . The courts of justice have been long labouring under an error, if an author have no copyright in any part of a work unless he have an exclusive right to the whole work."(b) According to Lord Eldon, (c) if a person collects an account of natural curiosities and such articles, and employs the labour of his mind by giving a description of them, that is as much a literary work as many others that are protected by injunction and by action. It is equally competent to any other person perceiving the success of such a work to set about a similar work, bonâ fide his own; but it must be in substance a new and original work, and must be handed out to the world as such. PART I CHAPTER VII. The fact that the subject of the work is common does not where subject is deprive an author of copyright in the product of the labour common. which he has bonâ fide spent on it, or render it less neces (a) Cary v. Faden (5 Ves. 23). (b) 1 East. 358. See judgment in Hogg v. Kirby (8 Ves. 221). G |