difficult to see where the justice of such a contention comes in.

What no doubt induced them to take this view was what some of them felt to be the absurdity of refusing to a speaker the right to reproduce his speech. This, however,

account.

is precisely what the judgment did not do. All it refused to the speaker-who, by the way, had not asked for it—was the right to reproduce a report of his speech which was made by the labour of another person than the speaker. All it said was that a person who writes out an account of what he hears at a public meeting is as much entitled to prevent anyone else appropriating the result of his labour as is a person who writes out an account of what he sees there. If the speakers at the meeting choose to write out an account of what they say, either before or after they say it, they in the same way will be entitled to the copyright in their In the words of North, J., "A question was put as rather bringing the argument to a reductio ad absurdum. Could The Times restrain Lord Rosebery from publishing his own speeches, taken from the report in The Times? With great deference to the learned counsel, I do not quite see where the absurdity comes in. In the particular case put, if the speaker recollects what took place, of course he can publish it again either orally or in writing, and what is more he may for that purpose, if he likes, refresh his memory as to what took place by looking at the report in the newspapers, and if he has forgotten what took place, and if he cannot recollect sufficiently to publish the speech there is another thing open to him-he may then go to other persons who have been present and try to get some help as to what actually took place himself, and if he cannot get his memory refreshed by materials furnished by other persons to him, I do not see where the hardship is, if the speech has been thrown to the winds, without being recorded in any way by him or his friends, if, to republish

that, he has to get a copy of it from the person who has made a report, to the copyright of which he is entitled." (Walter v. Lane, 1899, 2 Ch. 749, at p. 768.)*

I will refer later to an additional point-namely, that a speaker is always able to prevent a reporter obtaining any copyright in his speech if he chooses to do so. I am now only speaking of a public meeting where reporters are permitted or invited to come for the express purpose of making their own reports of the speeches delivered.

The second point about the definition of copyright is another which, if the correspondents in question had remembered, some of their letters would not have been written. Copyright is the exclusive liberty to multiply copies, not merely of a document but of a published document. Until a document is published, no question of copyright arises. Till then the document is the absolute property of its owner. He is entitled to restrain any person from publishing it, just as he is entitled to restrain anyone from burning or abstracting it, but he has no copyright under the Copyright Act in it. That arises only when the document is published. If this had been

* In some remarks made by him when this Paper was read, Sir Edward Clarke, Q.C., while not expressing any dissent from the law as laid down by North, J., stated that: "If Lord Rosebery were to propose to publish his speeches upon public affairs; and were for that purpose, even without permission, to use a report which had appeared in a newspaper, he did not think any Court would grant an injunction against him for reproducing those speeches. It would be against public policy if any Court granted such an injunction. It would probably leave him liable to damages in any suit which might be brought by the newspaper." If I may be permitted to say so, I too doubt if a newspaper could obtain an injunction against the speaker himself for reproducing reports of his speeches published by it. But I would not incline to put this on the ground of public policy; that ground, if good, would be equally a defence to an action for damages. I would rather put it on the ground of "fair use." I think it would be very difficult to show that any use made by a speaker of reports of his own speeches was so unfair as to entitle the owner of the copyright to restrain him from so using them. If, for instance, the speaker pleaded that he republished the speeches in order to show the world that his political, conduct had been throughout consistent-which would be perhaps rather a startling defence for a politician to set up nowadays— I think that would be a sufficient answer to an action either for an injunction or for damages.

remembered, parties to the controversy over the judgment in Walter v. Lane would not have written about the consequence of that judgment being that the copyright in a dictated article or poem would be in the secretary, shorthand writer or typist who put it into writing. Where an author dictates to an amanuensis, the relation between them is that of master and servant, and the result of the servant's work belongs to the master who pays him for it. He owns the document produced just as the merchant owns the ledger kept by his book-keeper, and the builder owns the house built by his workmen. No question of copyright arises: the question is simply one of property as between master and servant, and as we shall see, this being the case, if the servant published the document without his master's consent he would be guilty of an illegal act, which could confer no rights upon him.

Coming now to the second proposition, and dealing only with the writer of a document, and not with his assigns or representatives: in order that a person may have the copyright of a document he must be the producer of it. The word in the Copyright Act is No doubt in connection with literature the word "author" is often used in a specific sense, as meaning the person who originally evolves out of his own mind the ideas and concatenation of words that go to form the contents of a literary work. But that is not the true or generic meaning of the word. As the proverb says, "Nothing exists without an author"; and in this sense the word is merely equivalent to maker or producer, and has no suggestion as to whether the thing made or produced was made or produced out of the author's own materials or out of materials provided by someone else. Now, the report of a speech, like everything else, must have an author, and if the reporter who produced the report is not its author, who is? But for him the report certainly would never

have come into existence. It may be said that but for the speaker of the speech also, the report of it would never have come into existence. This is quite true. In the

same way, but for the City of London, Kelly's Directory would never have come into existence; but it would hardly be contended that the City of London was the author of Kelly's Directory. The existence of the thing describedin one case the speech and in the other the City of London -was a necessary condition to the making of the report or directory; but existence did not make it. Both are records of facts, and the person who records the facts (and not the facts themselves) is the author of the record.

These considerations are important in another connection. It is often said there is no copyright in ideas, there is no copyright in news, there is only copyright in literary form. I confess I never quite understood what was meant by these expressions. The phrase, literary form, does not occur from one end of the Copyright Act to the other. What that Act gives, as I have said, is the copyright in a document to the person who produces and publishes it. It does not give the copyright in the ideas contained in the document, or in the news, or, in other words, facts in the document-for news should be facts, although, judging by the news supplied lately from South Africa and China, it is rapidly becoming a new form of highly imaginative fiction—and neither does it give the copyright in the literary form of the document. It gives the copyright in the document itself. The producer of a document is entitled to the exclusive liberty of multiplying copies of the document, whatever its contents may be, and this liberty is infringed by anyone making what is literally or practically a copy of such document. Whether he takes the ideas, or the news, or the literary form is of no consequence the real question is whether he has reproduced literally or substantially the document in which copyright

subsists. If he has subject to the reservation that he has not done more than make a fair use of the document-he is guilty of piracy; if he has not, the author's exclusive liberty of multiplying copies has not been interfered with.

All these disputes as to whether or not copyright exists in this or that are due, in my opinion, in the first place, to confusion of thought between the existence of copyright and the proof that copyright has been infringed. If a subsequent writer takes facts or ideas from a published document, and disguises them by changing the language, it is usually very difficult to prove that he has done so ; if he takes passages verbatim et literatim, there is no such difficulty. But it does not follow that the literary form of the document is therefore the thing protected by the law and the substance of the document is not. The difficulty is not one of law but one of evidence. Once you can establish that the subsequent writer is appropriating the facts, or news, or ideas which you have collected or created, in such a way as to amount to the practical reproduction for his own benefit of your work, or of a substantial part of it, the Courts will grant an injunction just as certainly as if he had openly reproduced your words exactly as you wrote them. And they

are due, I think, in the second place, to a misunderstanding of the nature of a copyright. Many authors seem to think that copyright gives them the right to prevent the reproduction of a single line of the copyright work; but it does nothing of the kind. It does not prevent what the Courts call a "fair use" of the copyright document. And what amounts to a fair use depends less on the extent to which the copyright matter is reproduced, than the motive of the person who reproduces it. If the Court comes to the conclusion that his motive is merely to appropriate dishonestly for his own benefit, the result of the author's labour, a very slight reproduction either of the words or