expense and labour of working out and arriving at these results by some independent road.”

In reference to the case before him the Vice-Chancellor said:

"It is plain that it could not be lawful for the defendants simply to cut the slips which they have cut from the plaintiff's directory and insert them in theirs. Can it be lawful to do so because in addition to doing this they sent persons with the slips to ascertain their correctness? I say, clearly not. Then, again, would their acts be rendered lawful because they got payment and authority 1 for the insertion of the names from each individual whose name appeared in the slips? And to this again I answer, clearly not. They had no right to make the results arrived at by the plaintiff the foundation of their work or any material part of it, and this they have done." 2

In Morris v. Wright, another case of alleged infringement of the same business directory, Giffard, L.J., distinguished it from Kelly v. Morris and Morris v. Ashbee, inasmuch as the plaintiff's work had only been used by the defendant as a guide to original sources. He held that there was no infringement. Referring to the passage quoted above from the judgment of Page Wood, V.C., in Kelly v. Morris," he said :

"This passage does not mean that a subsequent compiler may not look into the book for the purpose of ascertaining whether it was worth his while to call upon that person or not, but it means that he may not take that particular slip and show that to the person and get his authority as to putting that particular slip in."7

So also quotations from and references to previous authors must not be taken bodily from a rival work. They may be used as a guide and as a guide only. Lord Hatherley, L.C., in Pike v. Nicholas, a case of rival historical works on the same subject, said:

66

Although the defendant might have been led to look more minutely into Prichard than he otherwise would have done by referring to the plaintiff's work, still the plaintiff could not say, 'I, having found these passages in Prichard, will prohibit all the world who may find the same

1 See Garland v. Gemmill (1887), 14 S. C. R. (Canada), 321.

2 Morris v. Ashbee (1868), L. R., 7 Eq., 34, per Giffard, V.C., at pp. 40, 41.

3 (1870), L. R., 5 Ch., 279.

5 (1868), L. R., 7 Eq., 34.

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

6 (1866), L. R., 1 Eq., 697.

7 Per Giffard, L.J., L. R., 5 Ch., at p. 285.

8 (1869), L. R., 5 Ch., 251.

passages from making use of them.' The moment he had given that degree of light to the defendant which led him to refer to that common source, if the defendant did really and bonâ fide look at that common source, he did all that this Court required him to do. He must not simply copy the passage from the plaintiff's book, but, having been put on to the track, and having looked at that particular part of the book which the plaintiff led him to, he was entitled to make use of every passage from that author which the plaintiff had made use of." 1

In this case the quotation was proved to have been taken directly from the plaintiff's work, but this was considered to be so small a taking that the bill was dismissed, though without costs, the Court being satisfied "that the book of the defendant was his own composition in this sense, that wherever he got the materials from they were worked up by him into his own language." 2

It is no excuse for piracy to say that with a little labour the copyist could have produced identically the same result. The fact that the result may be identical is a reason for not making a new book, but it is no reason for copying another's book.

Work with a Different Object.-An author is much less restricted in the use which he may make of a previously published copyright book if such book is of an entirely different nature or has a different scope or object from his own work. Considerable portions may then be taken for the purpose of comment, criticism, or illustration. Lord Eldon suggested in one case that a copyright map might be taken bodily for the purpose of insertion in a book giving an historical account of all the different maps of a particular district. In Bradbury v. Hotten,5 Kelly, C.B., suggested that a picture might be reproduced amongst a large collection published for an entirely different object from that which the first publisher had in view.

"We must consider in each case the intent of the copyist and the nature of the work. A traveller publishes a book of travels about some distant country like China. Amongst other things he describes some

1 Hatherley, L. C., L. R., 5 Ch., at p. 263; and see Longman v. Winchester (1809), 16 Ves., at p. 271; Moffat & Paige v. Gill (1902), C. A., April 25.

2 Per Giffard, L.J., L. R., 5 Ch., at p. 268.

3 Matthewson v. Stockdale (1806), 1 J. and H., 312; Walter v. Lane [1900], A. C., 539; Kelly v. Morris (1866), L. R., 1 Eq., 697; Morris v. Wright (1870), L. R., 5 Ch., 279; Baily v. Taylor (1829), 1 Russ. and Mylne, 73.

4 Wilkins v. Aikin (1810), 17 Ves., 422.

5 (1872), L. R., 8 Ex., 1.

mode of preparing food in use there. Then the compiler of a cookery book republishes the description. No one would say that was a piracy. So, again, an author publishes a history illustrated with woodcuts of the heads of kings, and another person writing another history of some other country finds occasion to copy one of these woodcuts. That again

would not be a piracy."1

These obiter dicta illustrate sufficiently well the distinction between taking for a rival work and taking for an entirely different object; it is probable, however, that some of them go too far and tend to follow the mistake of the older view of infringement in looking more to the value of the work done by the plagiarist than to the value of the material taken. As authoritative dicta they must, therefore, be accepted with caution. The best test of infringement or no infringement in a taking of this kind is to inquire whether the subsequent work by reason of the taking provides a substitute for the whole or any substantial part of the prior publication. In Bradbury v. Hotten,2 nine cartoons, illustrative of the career of Napoleon III., were published in Punch in nine several weekly numbers. The defendants published a volume entitled "Story of the Life of Napoleon, as told by popular Caricaturists of the last thirty years," which contained among numerous other illustrations taken from French and English comic journals the nine cartoons first produced in Punch. This was held to be an infringement of the copyright in Punch. In Nicols v. Pitman3 the defendant published in an educational work for the purpose of instruction in shorthand writing a lecture delivered by the plaintiff on "The Dog as the Friend of Man." The Court held there was an infringement, because although the lecture was reproduced in shorthand characters, it might by those who could read shorthand be reasonably used as a substitute for the lecture printed in ordinary characters. A compiler of an encyclopædia or similar work would probably be allowed to quote to a certain extent from copyright monographs, but this must not be carried to such an extent as to supersede the original work. Several cases have been before the Courts on the verbatim copying of law reports 1 Per Kelly, C. B., L. R. 8 Ex., 1, at p. 5.

2 (1872), L. R., 8 Ex., 1.

3 (1884), 26 Ch. D., 374.

4 Roworth v. Wilkes (1807), 1 Camp., 94; Murray v. M'Farquhar (1785), M.,

8309.

1

in whole or in part into legal treatises of various kinds. The collection of all the reports on a particular branch of law such as "Poor Law" or "Registration of Voters," is an infringement of copyright if they are copied verbatim from previously published copyright reports. This will be so even although they are collected from the reports of many different reporters.3 In Sweet v. Benning, a digest compiled by taking verbatim the head notes from copyright law reports and arranging them under appropriate titles was held to be an illegal publication, the Court being of opinion that the defendant had been guilty of an abuse of the fair right of extract, which the law allows for the purpose of comment, criticism, or illustration. No doubt in text-books large portions of the head notes, arguments of counsel, and judgments may be taken verbatim. In an ordinary legal text-book it would require a very free use of verbatim quotation to found the necessary argument that the text-book provided even to the smallest extent a substitute for the original reports. A more difficult question arises where volumes of leading cases are published, the cases being reproduced verbatim from the original reports but with extensive notes and comment. In Saunders v. Smith 5 the Court refused to decide whether "Smith's Leading Cases" constituted an infringement of the original reports, judgment going for the defendants on the ground of acquiescence. In the Irish case of Hodges v. Welsh a similar problem was suggested but not decided. The better view probably is that such a wholesale taking is an infringement of the copyright of the original reporters.

Extract for Purpose of Criticism.-Lord Eldon, in Mawman v. Tegg,' says:

"Quotation is necessary for the purpose of reviewing, and quotation for such a purpose is not to have the appellation of piracy affixed to it; but quotation may be carried to the extent of manifesting piratical intention."

1 Sweet v. Shaw (1839), 3 Jur., 217.

2 Hodges v. Welsh (1840), 2 Ir. Eq. Rep., 266.

3 Sweet v. Shaw (1839), 3 Jur., 217.

5 (1838), 3 Myl. and Cr., 711.

4 (1855), 16 C. B., 459.

6 (1840), 2 Ir. Eq. R., 266.

7 (1826), 2 Russ., 385, at p. 393; see Lord Kinloch in Black v. Murray (1870), 9 M., at p. 356.

Considerable quotation may be made for the bonâ fide purpose of criticising a copyright book;1 in one case 2 nearly a quarter of a controversial article in a magazine was quoted in a reply thereto published in another magazine, and the Court held that this constituted no infringement, as the extracts were clearly inserted for the purpose of criticism and argument. The question is whether so much of the original work is extracted that the review substantially communicates the same knowledge as the book reviewed. Thus in Campbell v. Scott, the defendant published "The Book of Poets" containing, inter alia, an essay and biographical notice of the poet Campbell, and, as the defendant said, by way of illustrating the poet's works, a large number of his poems and extracts therefrom were appended to the biographical notice without any particular observations in the way of notes to individual pieces or extracts. This was clearly an infringement of the poet's copyright. In a similar case, Smith v. Chatto, the defendants published a book entitled "Thackerayana." It purported to be a critical essay on the life and works of Thackeray, and contained extensive quotations from his writings, prefaced and interspersed with comments by the writer of the book. Hall, V.C., held in fact that the defendants had inserted the extracts for the purpose of increasing and enhancing the value of their book, and that they had therefore infringed the copyright in Thackeray's works.

Improvement or Addition of New Matter no Excuse. In the earlier cases of taking material from a rival publication if it was shown to have been greatly improved and added to, this was accepted as an excuse for the piracy, on the ground that a new and more useful work had been given to the public. Thus in Sayre v. Moore Lord Mansfield said :

"If an erroneous chart be made, God forbid it should not be corrected even in a small degree if it thereby become more serviceable and useful for the purposes to which it is applied."

422.

1 Whittingham v. Wooler (1817), 2 Swanst., 428; Wilkins v. Aikin (1810), 17 Ves.,

2 Bell v. Whitehead (1839), 8 L. J. Ch., 141.

3 Per Lord Ellenborough in Roworth v. Wilkes (1807), 1 Camp., 94, at p. 97.

4 (1842), 11 Sim., 31.

5 (1874), 31 L. T. (N.S.), 775.

6 (1785), I East., 361, n.