the argument that every publication of a portion of a work in which there is subsisting copyright will afford a ground of action: it is a question of degree which must depend upon the circumstances of each particular case."

In Chatterton v. Cave,1 Brett, J., said :—

"Unless there is a taking of a material and substantial part there is no infringement of copyright. It is true that the question under the second section is not only whether the whole production has been copied, but also whether a part has been copied; but by a part this section must mean a material and substantial part." 2

In Chatterton v. Cave,3 two small points or incidents were taken from one drama by the author of another, and it was held that the taking was not of a substantial part. In Pike v. Nicholas, in the case of two rival essays on the same subject, one quotation from a classical author was taken by the defendant directly from the plaintiff's book; Lord Hatherley, L.C., and Giffard, L.J., were of opinion that it would not do to show merely one or two passages; some material part of the book

must be shown to have been taken.

The question is not altogether one of quantity, it is perhaps mainly one of quality, and depends on the character of the work and the relative value of the material taken.6

"The question of the extent of appropriation which is necessary to establish an infringement of copyright is often one of extreme difficulty: but in cases of this description the quality of the piracy is more important than the proportion which the borrowed passages bear to the whole work." 7

"It ought to be clearly established that, looking at the works 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." 8

When it comes to a question of quantity it must be very vague.

1 (1875), L. R., 10 C. P., at p. 575.

2 See also Bohn v. Bogue (1846), 10 Jur., 420; Jarrold v. Heywood (1870), 18 W. R.,

279;

6 Cary v. Kearsley (1802), 4 Esp., 168; Lennie v. Pillans (1843), 5 D., 416; Cooper v. Stephens [1895], I Ch., 567.

7 Per Page Wood, V.C., in Tinsley v. Lacey (1863), 1 H. and M., at p. 752.

8 Per L.C. Herschell in Leslie v. Young [1894], A. C., at p. 341.

One writer might take all the vital1 part of another's book, though it might be but a small proportion of the book in quantity. It is not only quantity, but value that is always looked to." 2

"The principle of the cases is that, when one man for his own profit puts into his work an essential part of another man's work from which that other may still derive profit, or from which but for the act of the first he might have derived profit, there is evidence of piracy." 3

Although it is no excuse for infringement to say that the matter taken has been improved upon or added to, yet there may be so much new matter that the part borrowed becomes so insignificant that the Courts will not interfere. In Mawman v. Tegg, Lord Chancellor Eldon says:

"After the quantity of matter which has been copied has been ascertained, the quantity of matter not piratical with which the piratical matter has been intermixed is still a circumstance of great importance."

The materiality of the part taken may sometimes be judged more by the proportion which it bears to the defendant's work than to the work from which it is taken. Thus in Neale v. Harmer the plaintiff had prepared and published an elaborate work intituled "The Abbey Church of St. Alban," containing about 200 architectural drawings. The defendant took and published three of these in a magazine article on St. Alban's Abbey, and they were the only strictly architectural drawings illustrating the article. It was held to be an infringement. Kekewich, J., said in his judgment:

"It is said that these drawings did not form a material part of the plaintiff's work. In one sense that is true. The plaintiff's work is a large one, and it is a very learned work. The test is not so much what proportion of the plaintiff's work had been taken, but rather what portion of the defendant's work is the plaintiff's."

In questions of amount it is material to inquire whether the matter was taken so as to compete with the plaintiff's work, but

1 See Murray v. Bogue (1852), 1 Drew, at p. 369.

2 Per Cottenham, L.C., in Bramwell v. Halcomb (1836), 3 My. and Cr., at p. 738; see Scott v. Stanford (1867), L. R., 3 Eq., 718.

3 Bradbury v. Hotten (1872), L. R., 8 Ex., 1; see also Cooper v. Stephens [1895],

I Ch., 567.

4 (1826), 2 Russ., at p. 394.

5 (1897), 13 T. L. R., 209; and see Kelly v. Hooper (1841), 1 Y. and C. Ch. C., 197; Cooper v. Stephens [1895], 1 Ch., 567.

6 Trade Auxiliary v. Middlesborough (1889), 40 Ch. D., 425; Cate v. Devon (1889), 40 Ch. D., 500.

an infringement need not necessarily be shown to be in competition with the work infringed, since it is sufficient if the defendant has made such a use of part of the plaintiff's work as the plaintiff might himself have done.

If matter is taken regularly and systematically by one periodical from another, and particularly if it is taken and claimed to be taken as of right, a very small amount will suffice.1 As to a claim of right, North, J., said in Cate v. Devon:—

"That of itself is sufficient to put the plaintiff in the wrong in the action and get over any question as to the amount of matter actually taken." 2

Although the Court will not grant a remedy for a trifling infringement, it will not refuse an injunction merely on account of the minute inquiries into detail which, in some cases, may be necessary to establish even an extensive piracy.3

No Animus Furandi need be Proved.-In Cary v. Kearsley 4 Lord Ellenborough's judgment contained a reference to the animus furandi in cases of infringement, from which a mistaken idea seems to have arisen that in all cases of infringement the animus furandi must be proved. Lord Ellenborough said :—

"That part of the work of one author is found in another is not in itself piracy or sufficient to support an action; a man may fairly adopt part of the work of another; he may so make use of another's labours for the promotion of science and the benefit of the public, but having done so the question will be, was the matter so taken used fairly with that view and without what I may term the animus furandi.” 6

This did not mean that in every case of infringement alleged it was necessary to prove an animus furandi or guilty intention. Lord Ellenborough in a subsequent case said :—

"The intention to pirate is not necessary in an action of this sort; it is enough that the publication complained of is in substance a copy

1 Trade Auxiliary v. Middlesborough (1889), 40 Ch. D., 425; Cate v. Devon (1889), 40 Ch. D., 500.

2 40 Ch. D., at p. 507.

3 Jarrold v. Houlston (1857), 3 K. and J., 708.

4 (1802), 4 Esp., 168.

Jarrold v. Houlston (1857), 3 K. and J., 708.

6 Per Lord Ellenborough in Cary v. Kearsley (1802), 4 Esp., at p. 170.

7 Roworth v. Wilkes (1807), 1 Camp., 97.

whereby a work vested in another is prejudiced. If A takes the property of B the animus furandi is inferred from the act.”1

In Scott v. Stanford, Page Wood, V.C., after quoting the above passage from Lord Ellenborough's judgment in Cary v. Kearsley, said :—

"It is urged that this is a case in which no animus furandi can be found on the part of Mr. Hunt, who has taken these statistics in perfect good faith and with the fullest acknowledgment in his book of the source from which they are derived. But if in effect the great bulk of the plaintiff's publication—a large and vital portion of his work and labour-has been appropriated and published in a form which will materially injure his copyright, mere honest intention on the part of the appropriator will not suffice, as the Court can only look at the result and not at the intention in the man's mind at the time of doing the act complained of, and he must be presumed to intend all that the publication of his work effects." 5

Although the animus furandi does not require to be proved, it is a useful aid to proof, and where it appears piracy is more readily presumed."

Taking not necessarily for Profit. The prohibition in section 15 of the Copyright Act, 1842, is against printing or causing to be printed "either for sale or exportation," but as this has been held not to confine piracy to copying by means of printing, neither does it confine it to copying for sale or exportation, and the purpose for which the copy when made is to be used is immaterial. In Alexander v. Mackenzie' the Society of Writers to the Signet in Edinburgh prepared for the use of their own members a book of forms taken largely from a similar copyright work. The Court of Session held that this was an infringement of copyright. A catalogue of books, although not intended for sale, may be an infringement of another catalogue;8

1 Per Shadwell, V.C., in Campbell v. Scott (1842), 11 Sim., 31; Clement v. Maddick (1859), 1 Giff., 98; Reade v. Lacy (1861), 1 J. and H., 524; Scott v. Stanford (1867), L. R., 3 Eq., 718.

2 (1867), L. R., 3 Eq., 718.

4 See also Bohn v. Bogue (1846), 10 Jur., 420.

3 (1802), 4 Esp., 168.

5 Per Sir W. Page Wood, V.C., in Scott v. Stanford (1867), L. R., 3 Eq., 718, at p. 723 ; and see Kelly v. Morris (1866), L. R., 1 Eq., 697.

6 Jarrold v. Houlston (1857), 3 K. and J., 708; Reade v. Lacey (1861), 1 J. and H., I

Spiers v. Brown (1858), 31 L. T. (O.S.), 18; 6 W. R., 352.

7 (1847), 9 D., 748.

8 Hotten v. Arthur (1863), 1 H. and M., 603.

524;

AMOJA BOOKS: INFRINGEMENT

manuscript copies of a copyright song distributed exclusively among the members of a philharmonic society, and a telegraphic code distributed only among the agents of a shipping firm have also been prohibited.2 In Ager v. The P. & O., Kay, J., said :

"It has long been settled that multiplying copies for private distribution among a limited class of persons is just as illegal as if it were done for the purpose of sale."

It is submitted that making a single copy for private use is an infringement.

Copying may be Indirect and Unintentional.-If matter in which copyright exists is taken it is immaterial that the appropriation was made not directly from the original work but indirectly through some other work, copyright or non-copyright, authorised or unauthorised. Thus a book may be infringed by retranslating or copying a translation of it,3 and a drama may be infringed by dramatizing a novel founded on the drama. In Cate v. Devon and Exeter Constitutional Newspaper Company,5 it was argued that an indirect copying could not be considered an infringement, because since the copyist is ignorant of what works he is indirectly copying, he cannot know whether or not he is infringing any copyright books, but this argument was rejected. Ignorance on the part of the copyist does not excuse him from the consequences of his act.6

Custom of Trade has been pleaded in defence of what was otherwise clearly a piracy. A custom was alleged whereby provincial newspapers were entitled to make large extracts, without criticism, from articles in magazines which were sent to them; and in another case "a usual practice" among publishers of magazines to take articles from each other was 1 Novello v. Sudlow (1852), 12 C. B., 177.

8

2 Ager v. The P. & O. (1884), 26 Ch. D., 637; and see Oxford and Cambridge v. Gill (1899), 43 S. J., 570.

479.

3 Murray v. Bogue (1852), 1 Drew, 353.

Reade v. Lacey (1861), 1 J. and H., 524; Reade v. Conquest (1862), 11 C. B. (N.S.),

5 (1889), 40 Ch. D., 500; Cooper v. Whittingham (1880), 15 Ch. D., 501.

6 See Lord Blackburn in Chatterton v. Cave, 3 A. C., at p. 501; Novello v. Sudlow (1852),

12 C. B., 177; Rock v. Lazarus (1872), L. R. 15 Eq., 104; Lee v. Simpson (1847), 3 C. B., 871. 7 Maxwell v. Somerton (1874), 22 W. R., 313.

8 Wyatt v. Barnard (1814), 3 V. and B., 77.