COPYRIGHT 361 does certainly subsist, and is invaded, before publication, not only by copying but by description or catalogue. The question what is a piracy against copyright has been ites the subject of much discussion in the courts. It was decided under the statute of Anne that a repetition from memory was not a publication so as to be an infringement of copyright. In the recent case of Reade v. Comquest the same view was taken. The defendant had " dramatized " the plaintiff s novel, and the piece was performed at his theatre. This was held to be no breach of copyright ; but the circulation of copies of a drama, so taken from a copy right novel, whether gratuitously or for sale, is not allowed. Then again it is often a difficult question to decide whether the alleged piratical copyright does more than make that fair use of the original author s materials which the law permits. It is not every act of borrowing literary matter from another which is piracy, and the difficulty is to draw the line between what is fair and what is unfair. Lord ELdori put the question thus, whether the second publica tion is a legitimate use of the other in the fair exercise of a mental operation deserving the character of an original work. Another test proposed is " whether you find on the part of the defendant an animus far andi an intention to take for the purpose of saving himself labour," No one, it has been said, has a right to take, whether with or without acknowledgment, a material and substantial portion of another s work, his arguments, his illustrations, hi j authorities, for the purpose of making or improving a rival publication. When the materials are open to all, an author may acquire copyright in his selection or arrange ment of them. Several cases have arisen on this point between the publishers of rival directories. Here it has been held that the subsequent compiler is bound to do for himself what the original compiler had done. When the materials are thus in medio, as the phrase is, it is con sidered a fair test of piracy to examine whether the mistakes of both works are the same. If they are, piracy will be inferred. Translations stand to each other in the same relation as books constructed of materials in common. The a/iimus fttraudi, mentioned above as a test of piracy, does not imply deliberate intention to steal ; it may be quite compatible with ignorance even of the copyright work. This is shown by the case of Reade v. Lacy. The plaintiff wrote a drama called Gold, and founded on it a novel called Never too Late to Mend. The defendant dramatized the novel, his play reproducing scenes and incidents which appeared in the original play. The vice-chancellor, presum ing that the defendant had a right to dramatize the novel, found that the second play was an infringement of the copyright in the first. Abridgments of original works appear to be favoured by the courts when the act of abridgment is itself an act of the understanding, " employed in carrying a large work into a smaller compass, aad rendering it less expensive." Lord Hatherly, however, in Tinsley v. Lacy, incidentally expressed his disapproval of this feeling, -holding that the courts had gone far enough in this direction, and that it was difficult to acquiesce in the reason sometimes given that the compiler of an abridg ment is a benefactor to mankind by assisting in the dif fusion of knowledge. A mere selection or compilation, so as to bring the materials into smaller space, will not be a bonajide abridgment; "there must be real substantial con densation, and intellectual labour, and judgment bestowed thereon" (Justice Story.) A publication professing to be A Christmas Ghost Story, Reoriginated from the Original l)i/ Charles Dickens, Esq , and Analytically Condensed ex pressly for this Work, was found to be an invasion of Mr Dickens s copyright in the original. In the case of a musical composition Lord Lyndhurst held that it is piracy when the appropriated music, though adapted to a different purpose, may still be recognized by the ear. The quasi- copyright in names of books, periodicals, <fec., is founded on the desirability of preventing one person from putting off on the public his own productions as those of another. The name of a journal is a species of trade-mark on which the law recognizes what it calls a " species of property." The Wonderful Magazine is invaded by a publication calling itself the Wonderful Magazine, New Series Improved. Bell s Life in London is pirated by a paper calling itself the Penny Bell s Life. So the proprietors of the London Journal got an injunction against the Daily London Journal, which was projected by the person from whom they had bought their own paper, and who had covenanted with them not to publish any weekly journal of a similar nature. A song published under the title of Minnie, sung by Madame Anna Thillon and Miss Dolby at Monsieur Jullien s concerts, was invaded by a song to the same air published as Minnie Dale, Sung at Jullien s Concerts by Madame Anna Thillon. Dramatic and musical compositions, it should be observed, Relation of stand on this peculiar footing, that they may be the subject copyright of two entirely distinct rights. As writings they come a . 11(1 sta 8 e " within the general Copyright Act, and the unauthorized u multiplication of copies is a piracy of the usual sort. This was decided to be so even in the case of musical composi tions under the Act of Anne. The Copyright Act now includes a " sheet of music" in its definition of a book. Separate from the copyright thus existing in dramatic or musical compositions is the right of representing them on the stage ; this was the right created by 3 and 4 Will. IV. c. 15, above mentioned in the case of dramatic pieces. The Copyright Act, 5 and 6 Viet. c. 45, extended this right to musical compositions, and made the period in both cases the same as that fixed for copyright. And the Act ex pressly provides (meeting a contrary decision in the courts), that the assignment of copyright of dramatic and musical pieces shall not include the right of representation unless that is expressly mentioned. The 3 and 4 Will. IV. c. 15, prohibited representation "at any place of public entertain ment," a phrase which has been omitted in the later Act, and it may perhaps be inferred that the restriction is now more general and would extend to any unauthorized representation anywhere. A question has also been raised whether, to obtain the benefit of the Act, a musical piece must be of a dramatic character. The dramatization of a novel, i.e., the acting of a drama constructed out of materials derived from a novel, is not an infringement of the copy right in the novel, but to publish a drama so constructed has been held to be a breach of copyright (Tinsley v. Lacy, where defendant had published two plays founded on two of Miss Braddon s novels, and reproducing the incidents and in many cases the language of the original). Where two persons dramatize the same novel, what, it may be asked, are their respective rights ] In Toole v. Young (9 Q. B., 523) this point actually arose. A, the author of a published novel, dramatized it and assigned the drama to the plaintiff, but it was never printed, published, or repre sented upon the stage. B, ignorant of A s drama, also dramatized the novel and assigned his drama to the defendant, who represented it on the stage. It was held that any one might dramatize A s published novel, and that the representation of B s drama was not a representation of A s drama. This case may be compared with Reade v. Lacy mentioned above. For preventing the importation of pirated copies of books, importa- the commissioners of customs are required to make out a tion of list of books on which copyright subsists, and of which they P rated i r i -, 11 works have received notice from the owner or his agent, and sucn lists are to be exposed at the ports of the United Kingdom. If notice is not sent the importation of books will not be
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