(f) Millet v. Snowden, 1 West. L. J.

240; Gambart v. Sumner, 5 H. & N. 5; West v. Francis, 5 B. & Ald. 737.

(g) In Stowe v. Thomas, 2 Am. Law Reg. 210, it was first expressly decided that a translation of a copyrighted work is not an infringement. It was there held to be well settled that the author's property in a published book consists only in the "right of copy;" that "a book, in the language of the copyright law, necessarily conveys the idea of thoughts or conceptions, clothed in language or in musical characters, written, printed, or published. Its identity does not consist merely in the ideas, knowledge, or information communicated, but in the same conceptions clothed in the same words, which make it the same composition. A copy of a book must, therefore, be a transcript of the language in which the conceptions of the author are clothed; of something printed and embodied in a tangible shape. The same conceptions clothed in another language cannot constitute the same composition; nor can it be called a transcript or copy of the same book." See also Wyatt v. Barnard, 3 V. & B. 77; Burnett v. Chetwood, 2 Mer. 441; Millar v. Taylor, 4 Burr. 2310,2348 ; Prince Albert v. Strange, 2 Dr. G. & Sm. 693. Under section 86 of the Act of 1870, authors "may reserve the right to dramatise or translate their own works."

(h) Murray v. Bogue, 1 Drew. 358, 368.

•267 ar human thought, or entertain if he does not instruct. The law of copyright is founded upon the stimulus it gives to the production of useful books. Then, one who makes use of them to be himself an author, and a better author than he could be without them, makes a legitimate use of the books. But he must stop short of the line which separates such use from the naked adoption as his own, or the mere copying, of another man's appropriated work. We know no principle which may better serve to designate this line of distinction, than that which says, a compilation is not an infringement, when it is made with so much of original thought and of new result on the part of the compiler as to make his book a new book. (i) This question has arisen particularly as to books of statistics.

(i) Beade v. Lacy, 1 J. & H. 524; 8pien c. Brown, 6 W. R. 352. In the latter case, which related to the copyright of a dictionary, Vice-Chancellor Wood refers with approval to the words of Lord Eldon, in Wilkins v. Aikin, 17 Ves. 422, where he says: "The question upon the whole is, whether this is a legitimate use of the plaintiffs publication, in the fair exercise of a mental operation, deserving the character of an original work." He said further, that the real issue which the court was called on to decide was one of the most difficult ever presented to him; namely, as to how far a very considerable use of the work of another might be taken to be legitimate. There was no concealment of some use having been made, no colorable alteration proved, nor anything tending to show a fraudulent design to make an unfair use of the work of another. Though a good deal had been taken from the plaintiff, yet a good deal of labor had been bestowed upon what had been taken. Upon the whole, he could not think the defendant had gone beyond what the court would allow, hav-ing produced that which was in fact an original work. So in Jarrold v. Houlston, 3 K. & J. 708, 3 Jur. (n. s.) 1051. The plaintiffs were the publishers of Dr. Brewer's "Guide to Science," - a work in the form of questions and answers, giving simple explanations of common natural phenomena. The defendant had published a similar work, under the title of "The Reason Why." In considering the question whether an unfair use had been made of the former work, Vice-chancellor Wood said: "As regards all common sources, he is entitled to make what use of them be can; but as Lord Langdale said, in Lewis v. Fullarton, 2 Beav. 6,' he is not entitled to make any use of a work, protected by copyright, which is not what can be called a fair use.'" In the same opinion, the learned judge specifies two uses of the prior publication, which he considered legitimate, - viz., first, as a guide to common authorities which, when known, any person is entitled to use; and, second, as a means of detecting errors or omissions in the subsequent work, to be afterwards rectified by information to be obtained from common sources. On the other hand, he says: "I take the illegitimate use as opposed to the legitimate use of another man's work on subject-matter of this description to be this: If, knowing that a person, whose work is protected by copyright, has with considerable labor compiled from various sources a work in itself not original, but which he has digested and arranged, you, being minded to compile a work of a like description, instead of taking the pains of searching into all the common sources, and obtaining your subject-matter from them, avail yourself of the labor of your predecessor, adopt his arrangements, adopt, moreover, the very questions he has asked, or adopt them with but a slight degree of colorable variation, and thus save yourself pains and labor, by availing yourself of the pains and labor which he has employed, that I take to be an illegitimate use." So in Emerson v. Davies, 3 Story, 768, Judge Story, speaking of a similar class of cases, says: "In cases of this nature, I think it may be laid down as the clear result of the authorities, that the true test of piracy or not is to ascertain whether the defendant has in fact used the plan, arrangements, and illustrations of the plaintiff as the model of his own book, with colorable alterations and variations only, to disguise a* * A similar question arises, to be answered, we think, in a similar way, as to an abridgment of a copyright at book. The * cases on this question are numerous. And perhaps they agree in nothing else but in making manifest the extreme difficulty of the question.

In Mr. Curtis's work on copyright, he seems to favor the conclusion that any abridgment whatever must needs be an infringement. (j) We think the weight of authority and the use thereof; or whether his work is the result of his own labor, skill, and use of common materials and common sources of knowledge open to all men, and the resemblances are either accidental or arising from the nature of the subject; in other words, whether the defendant's book is quoad hoc a servile or evasive imitation of the plaintiff's work, or a bona fide original compilation from other common or independent sources." See also Gray v. Russell, 1 Story, 11; Greene v. Bishop, 1 Clif. 186; Webb v. Powers, 2 Wood, & M. 497; Story v. Holcombe, 4 McLean, 306; Lawrence v. Dana, C. C. U. S. Mass. Disk 1869; Folsom v. Marsh, 2 Storv, 100; Mawman v. Tegg, 2 Russ. 385; Sweet v. Benning, 16 C. B. 469. On the other hand, in Sayre v. Moore, 1 East, 360 n., which was an action for the piracy of sea charts, Lord Mansfield held, that if the defendants had corrected errors existing in the original work, it was not a servile copying, and therefore no violation of the plaintiff's rights, although it appeared that the body of the defendant's work had been taken from that of the plaintiff. So in Cary v. Kearsley, 4 Esp. 168, Lord Ellenborough is reported to have said, that one may lawfully copy the work of another if he accompany it with notes and comments of his own, and does this in good faith, and not as a mere pretext for pirating the work. Similar observations are made in Matthewson v. Stockdale, 12 Ves. 275; Martin v. Wright, 6 Sim. 298. But it seems clear, according to later authorities at least, that such use of a prior publication would be deemed a piracy, if damage resulted to its owner, without regard to the purpose for which the matter was taken. "In the case of a dictionary, map, guidebook, or directory," says Vice-Chancellor Wood, "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 mile-stones for himself. In the case of a map of a newly-discovered island (an illustration put in the case), 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 that he can legitimately make of a previous publication is to verify his own calculations and results when obtained." Kelly v. Morris, L. R. 1 Eq. 697. See also, Morris v. Ashbee, L. R. 7 Eq. 38; Scott v, Stanford, L. R. 3 Eq. 718; Cary v. Longman, 1 East, 358; Truster v. Murray, 1 East, 362; Matthewson v. Stockdale, 12 Ves. 270; Bailey v. Taylor, 1 Rus. & M. 73; Cornish v. Upton, 4 L. T. (N. S.) 863; Blount v. Patten, 2 Paine, 397. Where so much is directly taken from the original that its value is sensibly diminished, or the labors of the original author are substantially, to an injurious extent, appropriated by another, that is sufficient, in point of law, to constitute a piracy pro tanto. But it is clear that the quantity taken will not always be a true criterion of the extent of the piracy. Said Lord Cottenham, in Bramwell v. Halcombe, 3 My. & Cr. 737: "When it comes to a question of quantity, it must be very vague. One writer might take all the vital part of another's book, though it might be but a small proportion of the work in quantity. It is not only quantity, but value, that is always looked to. It is useless to refer to any particular cases as to quantity." The true rule on this point seems to be that laid down by Story, J., in Folsom v. Marsh, 2 Story, 100: "In short, we must, in deciding questions of this sort, look to the nature and objects of the selections made, the quantity and value of the material used, and the degree in which the use may prejudice the sale, or diminish the profits, or supersede the objects of the original work."