that the Copyright Act gave the reporter of a speech the exclusive property in his own report, than his judgment was made the subject of prolonged and violent discussion in public and in private. Lay discussions of legal points seldom advance matters much, and this discussion was no exception to the rule. I followed it as intelligently as I could, and clearly the drift of lay opinion was against the judgment. Why it was so was not so clear. Whatever the reason was it must have been very conclusive, since practically all joined in declaring that the judgment was wrong and must be reversed, The defendant appealed, and the judgment was reversed. Now I think I may say that among the lawyers who have made a systematic study of the law of copyright-and these are not very numerous-the judgment in the Court of Appeal was received with far more surprise and dissatisfaction than the judgment of Mr. Justice North. They felt that it was inconsistent with a multitude of recent decisions which had been universally accepted as correct, and which had put, or tended to put, a simple and natural construction on the words of the Copyright Act, and at the same time to preserve to everyone who honestly put work into the production of any letterpress the exclusive property in the result of his own labour. They were, therefore, neither astonished nor dissatisfied when the House of Lords, almost unanimously, reversed the judgment of the Court of Appeal, and reinstated the judgment of Mr. Justice North. In order to show that the decision of the House of Lords was anticipated by lawyers who had considered the point, you will perhaps permit me to refer to a passage in a little work on the "Law of the Press," which is the joint production of your previous honorary counsel, Mr. Joseph R. Fisher, and myself. In the second edition of that work, published in 1898, at page 89, the passage I wish to refer to begins. It runs as follows: "It has been held that there is copyright in a list of bills of sale and deeds of arrangement (Trade Auxiliary Co. v. Middlesbrough, etc., Association, 40 Ch. D. 435); in a directory (Kelly v. Morris, L.R. 1 Eq. 697); in mathematical tables actually calculated by the plaintiff (Baily v. Taylor, 3 L. J. 66); and in a translation (Iyatt v. Barnard, 3 V. & B. 78). In each of these cases the material was common to everyone who chose to make use of it, and with regard to the first three of them, at any rate, it is evident that two or more persons working separately might produce an identical result. The copyright, therefore, is neither in the expression nor in the substance: it is in the compiler's labour. Anyone is at liberty, for instance, to compile a press directory, none the less because another has previously compiled one. The second compiler, however, is not entitled to appropriate the result of the previous compiler's labour. He can compile one for himself, which may be identical in all material points with one already published; but he must go to the original sources of information, and not merely abstract what the first writer has collected It has not as yet been decided that there is copyright in a report of a judgment or speech It is difficult to see, however, what distinction there can be between the skill and labour necessary to collect the names and residences of the inhabitants of a district or to compile a list of judgments, and the skill and labour of the reporter who takes down spoken words and reduces them into a permanent form, that the result in the one case should be protected and in the other should not. Probably, then, the Court would hold that there is copyright in the report of a speech." To show that the considerations here set out were those. on which the House of Lords proceeded in Walter v. Lane, it is necessary merely to cite a short passage or two from the judgments of the learned Lords. Thus Lord Davey says "Copyright has nothing to do with the originality or literary merits of the author or composer. It may exist in the information given by a street directory (Kelly v. Morris, L.R. 1 Eq. 697), or by a list of deeds of arrangements (Cate v. Devon and Exeter Constitutional Newspaper Company, 40 Ch. D. 500), or in a list of advertisements (Lamb v. Evans, 1893, 1 Ch. 218). I think those cases right, and the principle on which they proceed directly applicable to the present case. It was, of course, open to any other reporter to compose his own report of Lord Rosebery's speech, and to any other newspaper or book to publish that report, but it is a sound principle that a man shall not avail himself of another's skill, labour, and expense by copying the written product thereof." (L.J. 69 Ch. 699 at p. 706). The following excerpt from the judgment of the Lord Chancellor is perhaps even more apposite to the point I desire to make :-" The language of the Court of Appeal is: Each man who himself makes a directory and prints and publishes it is the author of what he publishes the reporter of a speech is not.' With great respect to the Court of Appeal, this is allegation, not argument. The judgment goes on to say that 'the distinction is all important,' but it does not explain what the distinction is. For my own part I am unable to discover it. A man goes along a street, collects the names, addresses, and occupations of each dweller therein. What is the original composition of which, according to the Court of Appeal, he is the author? The names of the streets? The numbers of the streets? The names of the dwellers in the several houses ? What is the distinction which the Court of Appeal makes in giving copyright to the result of this labour and reducing it into writing?" (L.J. 69 Ch. 699, at p. 703). While, therefore, the judgment of the House of Lords and of Mr. Justice North in Walter v. Lane is merely an application of a principle long acted upon by the Courts below, it must not, however, on that account be regarded as of small importance. It is, on the contrary, of the greatest importance, since it has swept away a multitude of obiter dicta which occur in some of the older decisions, and have proved very embarrassing to expounders of the law, and it has explained many words used but not defined in the Copyright Act, the meaning of which has long been uncertain, and it has been affirmed on the highest authority known to English Law the principle upon which the lower courts have long proceeded, but which hitherto has not been always clearly explained or thoroughly understood. That principle the House of Lords has not expressed in the form of a proposition of law. Judges hesitate so to express any principle, since a principle so expressed from the judgment seat acquires a binding effect, which, if the expression of it proves too wide or too narrow, may subsequently cause embarrassment to other judges. But it has explained the principle it has not formulated, so clearly, that one, who, like myself, is not as a Lord of Appeal is, one in authority, who can say to a legal doctrine, "Come, and it cometh; go, and it goeth," is thereby enabled to state it in its essentials at any rate, in one or two short and simple sentences. Substituting, then, for technical and ambiguous words used in the Copyright Act the meanings which the House of Lords has put upon them, the nature of copyright and the mode in which it is acquired may, for our present purpose, be summed up thus: Copyright is the exclusive liberty of printing or otherwise multiplying copies of a published document. Anyone who produces and publishes a document is entitled to the copyright therein, unless such document is merely copied from another document produced by someone else, or already published, or unless its publication was an illegal act. Perhaps you will permit me to say a word or two as to the application of these two propositions to the case of reporters and other journalists. I am Now, first as to the definition of copyright. inclined to think that if all the correspondents who impugned the judgment of Mr. Justice North had remembered what copyright meant, not a few of their letters would never have been written. The letters I refer to are those in which the writers gird at the absurdity of Lord Rosebery not being entitled-if anyone was entitled to the copyright in his own speeches. Copyright is the right to multiply copies of a document-"book" is the word used in the Act, but I use document as covering the various publications which are included under the definition given. by the Act of the word "book." Now what was the document which these writers thought Lord Rosebery should have the copyright of? Not any document produced by himself, but a document produced by the labour of another person, namely, the reporter who reported his speeches. What right in law or justice could he have to appropriate the result of another man's labour? But for the reporter that particular report would not have existed, and there would have been no document of which copies could have been made. What, then, these correspondents meant was this that though if no one had reported Lord Rosebery's speech, Lord Rosebery would have had no more copyright in his speech than you or I have in our conversation, owing to the fact that there would be nothing of which a copy could be made by printing or otherwise; yet because a reporter did, at his own trouble and expense, make something of which a copy could be made, it belonged either solely, or jointly with the reporter, to Lord Rosebery. In other words, they thought that the labour of the reporter should create for Lord Rosebery a property he would not otherwise possess. It is somewhat : |