pleaded. It is clear that no such customs can be admitted. In Walter v. Steinkopff the St. James' Gazette alleged that there was a universal understanding among journalists and newspaper proprietors that paragraphs of news may be quoted verbatim by one daily paper from another without express consent, provided (1) the source was acknowledged, (2) the papers were not direct rivals, (3) there is give and take between the papers, and (4) no expressed objection. The St. James' Gazette took articles from the Times on this alleged footing. North, J., held that they had not complied with these conditions, and that even if they had it would have been no defence.

"The plea of the existence of such a habit or practice of copying, as is set up, can no more be supported when challenged than the highwayman's plea of the custom of Hounslow Heath." 2

Fair Use. When an author writes on a subject in which there are common sources of information he must do the work of research and compilation for himself, and the only use he can lawfully make of a prior copyright work on the same subject is

i. Using the information or the ideas contained in it without copying its words or imitating them so as to produce what is substantially a copy.

ii. Making extracts (even if they are not acknowledged as such) appearing under all the circumstances of the case reasonable in quality, number, and length, regard being had to the objects for which the extracts are made and to the subjects to which they relate.

iii. Using one book on a given subject as a guide to authorities afterwards independently consulted by the author of another book on the same subject.

iv. Using one book on a given subject for the purpose of checking the results independently arrived at by the author of another book on the same subject.3

No one can monopolize a Field of Labour.—Although an author has been the first to deal with a particular subject, his priority 2 [1892], 3 Ch., 489, per North, J., at p. 499.

1 [1892], 3 Ch., 489.

3 This summary of "fair use" is taken from Stephen's Digest "Report of Copyright Commission," 1878, p. lxx.

gives him no exclusive right therein.1 Any one else can do exactly the same as he has done. If a man draws a map of a newly-discovered island, or writes a book on the habits of its natives, he acquires no right to prevent any one from competing with him in the publication of maps and books dealing Iwith that island.2 His only right is to prevent any one else from taking matter from his book. In one of the older cases it was suggested that there was a usage among booksellers - a sort of comity among them- by which if one preoccupied a certain subject he was considered a sort of proprietor. In that case Lord Eldon repudiated the idea that such could be the law, and now no monopoly of the kind could be suggested.

"All human events are equally open to all who wish to add to or improve the materials already collected by others making an original work." 4

No Infringement to take Facts.-It is no infringement to state a fact or an opinion which another man has stated for the first time but you must not take his mode of expression or his selection or arrangement of facts which he has thought proper to state. Thus there is no copyright in a mere piece of news, for instance, "The Emperor of China is dead." If one newspaper proprietor received a telegram from abroad to that effect, another could take the information as published and print it in his newspaper. But although there is no copyright in news as such, the smallest taking of a selection or arrangement of news will be prohibited. In a case in Victoria 5 the defendants had taken the plaintiff's telegrams, re-arranged them, and altered the expression, and yet they were held to have been guilty of an infringement.

No Infringement to take the General Scheme or Idea of another

1 Sayre v. Moore (1785), 1 East., 361, n.; Hogg v. Kirby (1803), 8 Ves., 215; Matthewson v. Stockdale (1806), 12 Ves., 270; Mawman v. Tegg (1826), 2 Russ., 385; Pike v. Nicholas (1869), L. R., 5 Ch., 251; Alexander v. Mackenzie (1847), 9 D., 748 at p. 761; Longman v. Winchester (1809), 16 Ves., 269; Wilkins v. Aikin (1810), 17 Ves., 422; Weekes v. Williamson (1886), 12 Vict., L. R., 483.

2 Lindley, L.J., Lamb v. Evans [1893], 1 Ch., at p. 224.

3 Hogg v. Kirby (1803), 8 Ves., 215.

4 Per Lord Chancellor Erskine in Matthewson v. Stockdale (1806), 12 Ves., at p. 273.

5 Wilson v. Lake (1875), 1 Vict. L. R., Eq., 127.

Book or the Theories therein.-Copyright does not extend to ideas or schemes or systems or methods: it is confined to their expression; and if their expression is not copied the copyright is not infringed.1 Thus in Jarrold v. Houlston,2 Page Wood, V.C., said that even although Dr. Brewer's "Guide to Science," which purported to give popular scientific information under various headings in the form of question and answer, had been the first book of the kind, there was nothing to prevent another person from originating another book in the same general form, provided he did so from his own resources.3 In Pike v. Nicholas, the case of two rival historical essays on "The Origin of the English Nation," James, V.C., said :—

"There is no monopoly in the main theory of the plaintiff, or in the theories and speculations by which he has supported it, nor even in the use of the published results of his own observations." 4

A careful distinction must be drawn between the taking of a scheme and the taking of it as applied to certain material, i.e. the taking of the expression. For instance, in Kelly v. Morris,5 the plaintiff had adopted a "very ingenious form of arrangement" in his "Street Directory." The defendant was held to have infringed the plaintiff's copyright by taking his list of streets from the plaintiff's work. The only thing he was entitled to do was to adopt the "ingenious form of arrangement" and apply it for himself.

Every Author must do his own Work.-In Longman v. Winchester, the action being for the infringement of copyright in a court calendar, Lord Eldon drew an analogy to the case of a map describing a particular county and a map of the same county afterwards published by another person, which, if the description be accurate in both, must be very much the same, yet he said :

"It is clear the latter publisher cannot on that account be justified in sparing himself the labour and expense of actual survey."

1 Lindley. L.J., in Hollinrake v. Truswell [1894], 3 Ch., at p. 427.

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

3 Morris v. Ashbee (1868), L. R., 7 Eq., 34; Lennie v. Pillans (1843), 5 D., 416; Mawman v. Tegg (1826), 2 Russ., 385; Lindley, L.J., in Lamb v. Evans [1893], 1 Ch., at p. 224. 4 Pike v. Nicholas (1869), L. R., 5 Ch., 251, at p. 260. 5 (1866), L. R., 1 Eq., 697.

6 (1809), 16 Ves., 269; and see Matthewson v. Stockdale (1806), 1 J. and H., 312; Baily v. Taylor (1829), 1 Russ. and Mylne, 73; Wilkins v. Aikin (1810), 17 Ves., at p. 424.

In Lewis v. Fullarton,1 Lord Langdale, M.R., said :

"Any man is entitled to write and publish a topographical dictionary and to avail himself of the labours of all former writers whose works are not subject to copyright, and of all public sources of information: but whilst all are entitled to resort to common sources of information, none are entitled to save themselves trouble and expense by availing themselves for their own profit of other men's works still subject to copyright and entitled to protection." 2

In the case of Dr. Brewer's "Guide to Science," Page Wood, V.C., said :

"In publishing a work in the form of question and answer on a variety of scientific subjects the defendant had a right to look to all those books which were unprotected by copyright, and to make such use of them as he thought fit by turning them into questions and answers. He had also a further right if he found a work like Dr. Brewer's, and perusing it was struck by seeing as I think has been the case in the present instance that the author had been led up to particular questions and answers by the perusal of some other work to have recourse himself to the same work, although possibly he would not have thought of doing so but for the perusal of the plaintiff's book. . . . It would also be a legitimate use of a work of this description if the author of a subsequent work, after getting his own work with great pains and labour into a shape approximating to what he considered a perfect shape, should look through the earlier work to see whether it contained any heads which he had forgotten.”4

In Hotten v. Arthur 5 the same judge held that the defendant had infringed the plaintiff's descriptive catalogue of books for sale:

"The only fair use you can make of the work of another of this kind is where you take a number of such works, catalogues, dictionaries, digests, &c., and look over them all, and then compile an original work of your own founded on the information you have extracted from each and all of them but it is of vital importance that such new work shall have no mere copying, no merely colourable alterations, no blind repetition of obvious errors.'

In Kelly v. Morris, a directory case, there is another clear dictum from the same judge :

"In the case of a dictionary, map, guide-book, or directory, when there are certain common objects of information which must, if described

correctly, be described in the same words, a subsequent compiler is bound to set about doing for himself that which the first compiler has done. In case of a road-book he must count the milestones for himself. In the case of a map of a newly-discovered island he must go through the whole process of triangulation just as if he had never seen any former map; and generally he is not entitled to take one word of the information previously published without independently working out the matter for himself so as to arrive at the same result from the same common sources of information, and the only use he can legitimately make of a previous publication is to verify his own calculations and results when obtained. So in the present case the defendant could not take a single line of the plaintiff's directory for the purpose of saving himself labour and trouble in getting his information. . . . What he has done has been just to copy the plaintiff's book and then send out canvassers to see if the information so copied was correct. . . . The work of the defendant has clearly not been compiled by the legitimate application of independent personal labour.”1

In Scott v. Stanford, Page Wood, V.C., held that certain tables of statistical returns in the coal market had been pirated. In his judgment he said :—

"The defendant, after collecting the information for himself, might have checked his results by the plaintiff's tables, but that is a widely different thing from this wholesale extraction of the vital part of his work. No man is entitled to avail himself of the previous labours of another for the purpose of conveying to the public the same information, although he may append additional information to that already published."

In Morris v. Ashbee, Giffard, V.C., held that the copyright in a business directory had been infringed in so far as the compilation and arrangement of the advertisements and names of traders were taken from the plaintiff's directory. In giving judgment he commented on Kelly v. Morris, pointing out that the decision in that case was not based solely on the fact that the information was reprinted bodily by the defendants and then verified when possible :—

"The decree is general in its terms, following Lewis v. Fullarton,5 and the substance of the judgment is that in a case such as this no one has a right to take the results of the labour and expense incurred by another for the purposes of a rival publication, and thereby save himself the

1 See Hogg v. Scott (1874), L. R., 18 Eq., 444.

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

4 (1866), L. R., 1 Eq., 697.

3 (1868), L. R., 7 Eq., 34.

5

(1839), 2 Beav., 6.