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THE COURTS—TO-DAY., Issue 8027, 2 October 1889
SUPREME COURT—IN BANCO,
(Before His Honor Mr Justice Williams.)
STONE AND SON V. WHITE. Sir Robert Stout for the plaintiffs—John Stone and John Stone the younger; Mr W. Stewart for the defendant—Charles William White. Motion for an order to restrain the defendant from further printing, publishing, selling, distributing, or otherwise disposing of any copy or copies of the book entitled ‘The Stranger’s Vade Mecnm,’ containing parts copied or taken from Stones’ ‘Otago and Southland ABC Monthly Guide and Diary,’ and also for an order as to the costs of this application, upon the grounds (1) that the plaintiffs are the owners of a subsisting copyright in the, parts so copied and taketi as aforesaid ; (2) that the plain tiffii ate entitled to have such order as ilforesaid made, and upon the further grounds disclosed in the affidavits sworn and filed herein.
Sir Robert Stout said that this was a motion for an injunction. There had been no defence filed as yet. An interim injunction had been granted until to-day, and counsel now moved that the injunction should be continued. There had been two affidavits filed in answer to the affidavit upon which the interim injunction was granted. One of these was by Mr John Maokay, and the other by defendant. Mr Mackay’s affidavit was to the effect that other publications shown to him contained certain information and were known by certain names, and that he was informed and believed that the ‘ Vade Mecnm ’ was intended for gratuitous circulation. The affidavit by defendant was a most extraordinary one. It was in effect as follows: Defendantsaid (1) that * The Stranger’s Vade Mecnm ’ was printed nnder the auspices of Mr Jules Joubert (of the New Zealand and South Seas Exhibition) and himself at the Evening Star printing works, but was not printed for sale, but to be presented to all visitors to the Otago district at such Exhibition; (2) that defendant did not supply the printer with the information contained in pages 73 to 77 or in page 81, but was informed, and believed that the said information was supplied by Mr D. Harris Hastings, the secretary of the Exhibition; (3) that there was and had been published in the colony and elsewhere various books other than the plaintiffs’ containing information similar to that complained of. Plaintiff bad replied to Mr Maokay’s affidavit to the following effect:— “No part of the information contained in Stones’ ‘ Otago and Southland ABC Monthly Guide ’ was obtained from any of the publications referred to in the said affidavit. The sources from which Stones’ ‘ ABC Guide ’ was compiled were Stones’ ‘ Directory,’ the working time-table of the New Zealand railways, the ordinary time-tables issued for public information, the supplement to the ‘ New Zealand Gazette,’ the time-tables of the several tramway companies and bus proprietors, and Stones’ Map of Otago, and in addition to these sources part of the information was obtained by personal communication with coach proprietors and others and by inquiries on the spot.” Sir R. Stout said that His Honor would see that White’s affidavit practically admitted plaintiffs’ charge, for if defendant had not copied Stones’ tables then the person who supplied the information to the ‘ Vade Mecum ’ should have disclosed his sources of information. If the information bad been copied, he (Sir R. Stout) would show by authorities that, whether there was a new arrangement or otherwise, the very fact that there had been theft would be sufficient, and that an injunction would then issue. His first point was this ; It was not denied that the information was copied. White’s affidavit tacitly admitted that, and said that the information was supplied by Mr D. Harris Hastings—a plea that he (Sir R. Stout) could only characterise as ridiculous and making a fool of the Court. Learned counsel proceeded to compare the two books to show that the ‘Vade Mecum’ was similar to Stones’ ‘ Guide.’ In respect to Oamaru, the steerage fare had been omitted in ‘ Stones’ ’ by a blunder, and that blunder bad been copied. There was no “Woodend” in the ‘Vade Mecum,’ though it appeared in ‘Stone’; the copier had not copied it correctly. Plaintiff said that the information about Fortrose, for example, was got by personal inquiry on the spot; bat that information was copied word for word. In ‘ Stone ’ as well as in the ‘ Vade Mecnm ’ the distances were given. Stone, however, by mistake omitted to pnt in the Wyndham distance, and the‘Vade Mecum ’ (also omitted it. The point was this; the affidavits on bebalt of plaintiffs were not denied—it was not denied that the information was copied from ‘Stone.’ In other cases that he wonld cite it was denied that there had been copying, but because the Court saw that words were similar and mistakes were similar the Cosrt held that all was copied. Learned counsel went on to cite cases to show that if there had been copying that was sufficient to entitle plaintiff to an injunction, and that the mere putting in of little words would not get defendant clear of the charge of piracy. The leading cases relied on by Sir Robert Stout were Wise, Caffin, and Co. v. Wright, decided in the New Zealand Conrt of Appeal; and the English cases of Hogg v, Kirby, Jarrow v. Houlston, Lewis v. Fallarton, and Mawmanv, Tegg. His Honor, after referring to several of the publications handed to him, said that the strongest of those that would tell in favor of defendant was the ‘ABCGuide’ published in Auckland. It seemed to be exceedingly well got up, and was arranged in the same way as Stones’; but looking at the two publications one wonld say that the arrangement of each was the result of independent work. Sir R. Stout: What copy do you hold, your Honor? His Honor; Cleave and Co., of September, 1889. Sir E. Stout: Theirs was published in September and ours in July. Possibly they may have copied from us. His Honor; It is not so much a question of copying. What you have to show is that there is sufficient work in your compilation to give you a copyright. Sir R. Stout called His Honor’s attention to a number of points in which the two works corresponded, and went on to quote Justice Slater to the effect that judgment would be against the contention that a person might appropriate the work of another for the purpose of improving it or adding to it or annotating. In this case there was neither improvement, addition, nor annotation ; but the question might arise, and he (Sir R. Stout) therefore cited an authority on the point. There was not one of these guides that had the same information as Stones’—not one, for instance, that gave the direction, north - east, south - west, and so on. As the case stood there had been a copy, and the strong point of it was that it had not been denied that the information was so copied. Mr White said that he published but did not supply the information. That had nothing to do witli the question. He might as well say that he did not bind the book. Mr Stewart: What law are you proceeding on ? Sirß, Stout: On the Copyright Ordinance of 1842. Mr Stewart; What about registration ? Sir R. Stout: I do not say there has been registration. Mr Stewart; Will your Honor take a note of that ? Ho says there is no registration. His Honor: Does the Copyright Ordinance of 1842 say anything about registration ? Sir Robert Stout: No, your Honor. His Honor: Is it not the case that a fresh Copyright Act was passed this session ? I am quite in the dark as to what Acts were passed. I have not a copy of the statutes, and we may be breaking the law now for all I know. Mr Stewart said that there had been no Copyright Act this session. There was a Trades Marks Act. Did his learned friend admit that there had not been registration in England? Sir R. Stout: Yes, but I say it is impossible for us to have copyright in New Zealand if registration in England is necessary, I admit there has been no registration in England. His Honor : There can be none. There is no provision. Sir R. Stout: No, The simple question
la this : if there is such a thins as copy* right in New Zealand we are entitled to this injunction on the authority of the cases I have shown. Mr Stewart said that his learned friend had evidently been misled as to the state of the law in force in the colony. He (Mr Stewart) thought he could satisfy tho_ Court that if there was any copyright law in this colony it was in a very chaotic state and did hot apply to this case. The Imperial Act was a complete answer to the action. He referred to the International and Colonial Copyright Act of 1886. The law appeared to be very clear. If His Honor would look at that Act he would see that this was the state of the law: that unless a local Legislature provided for registration of copyright of books they were neither copyrighted nor protected, unless registered in England at Stationers’ Hall.
His Honor remarked that section 3 certainly looked as if the intention of the Act was to override local legislation. Mr Stewart said that that conclusion was irresistible. The Imperial Parliament evidently meant to have uniformity throughout the British dominions as to the law of copyright. A local Legislature might provide a mode for registration, but if it did not then 5 and 6 Victoria applied throughout the dominions. As there was no such provision here, 5 and 6 Victoria applied, and it required registration at Stationers’ Hall. His Honor: How does it say you are to apply ? How are you to register ? Mr Stewart replied that provision was made by section 13, which said that the name could be registered upon payment of a fee of 5s and giving particulars. His Honor: Is it necessary to have registration before you have a copyright ? Mr Stewart replied in the affirmative. The sections he relied on to establish his case were 13, 15, and 24 of 5 and 6 Victoria ; but there were a number of oases to which he would also refer His Honor. It was a condition precedent to any proceedings whatever that the copyright should be registered, and on that ground alone he was entitled to the judgment of the Court. As to the merits of the case, no doubt plaintiffs had more than one method of advertising their book, and this might be one of their means of doing so. It was, at any rate, open to that objection, because, instead of defendant pirating plaintiffs’ book, plaintiffs had pirated others, for it was admittedly a compilation. There were two points on this question of copyright that were quite clear: First, that the matter alleged to be pirated should be original; and, second, assuming it to be original, the piracy must be a slavish copy. That was not so in this case. As to the publication of a Corporation by-law, or an Act of Parliament, there could be no copyright in these things any more than in the Lord’s Prayer, or anything else well known. He would defy his learned friend to point to any case in America or England dealing with the question of a by-law or railway time-table. There could be no originality in these. Anything in them that might be original would be misleading. Sir R. Stout; It is the arrangement of the matter that we allege, Mr Stewart contended that the mere question of arrangement was purely subsidiary. As to the time-table, Mr Hastings very likely got his information from this book, and added to it information of his own. [Learned counsel proceeded to show the differences in the two books.] In the first place plaintiffs’ book did not give the railway fares. Sir E. Stout: They are given in another part of the book. Mr Stewart said that in the second place plaintiffs arranged their matter in tabular form. Defendant did not do that. He arranged his matter after the style of the Auckland book His Honor had referred to. In the third place, the time of arrivals was given by plaintiffs, and not by defendant; fourthly, there were a number of places in plaintiffs' book that were omitted in defendant’s ; fifthly, there were a number of places in defendant’s book that were not in plaintiffs’; sixthly, the two books did not give the same time of starting. His Honor: Then one is wrong, I suppose. Mr Stewart: Both are wrong, very likely. Sir R. Stout: No. The fact is they copied the wrong month for us. We have the matter all right. Mr Stewart said that in the seventh place the defendant’s book gave information as to the Palace cars, and so forth, which was not given in plaintiffs’ book ; and eighthly, defendant’s book was on the model of Cameron and Haynes’s book and the Auckland one. Further, he would point out that these time-tables were only of a temporary character, and would be altered probably at the end of the month, and neither plaintiffs nor defendant had any special claim to the information. Mr Stewart proceeded to cite cases showing that where a man availed himself of common information open to everyone there was no occasion for an injunction, and that in order to obtain an injunction it was necessary to show that the matterpirated was of an essential and not of an ephemeral character, as in the case of an almanac. The cases chiefly relied on by Mr Stewart in the course of his argument were Spiers v. Brown (6 W.R. 352), Cary v. Kearsley (4 Ep. 168), Disks v, Yates (50 L, J.), Cox v. ‘ Land and Water Journal ’ (18 W.R.). and Chatterton v. Cave (L.R. 3 App. Cas. 483). Sir R. Stout, in reply, said he would show that the Copyright Act, 1886, did not affect the case. The first seven sections dealt entirely with international copyright; they did not touch or deal with the colonies at all, Tho Bth section was the only section that dealt practically with tho colonies. The 9th section dealt with foreign countries, and the 10th to Orders-in-Council dealing with terms, the 11th was merely an interpretation clause, and the 12th was a repealing clause, so that the only section with any reference whatever to the colonies was section 8. First he would submit that implied repeals were not favored ; second, that if two Acts could be read together, they would both stand ; «nd third, that the Copyright Act 5 and 6 Victoria, and the New Zealand Ordinance could be so read together, as they differed in a most important respect as to the term of the copyright; that in New Zealand being for twenty-eight years, and should the author then bo alive, till his death ; while in England it was for life and seven years beyond, or for forty-two years at any rate. His next point was that section 8, which was the enacting part of the Act, began like this: “ Shall subject to the provisions of this Act apply ” ; and subsections 3 and 4 brought in a limitation, and showed that it was not intended that 5 and 6 Victoria should override the local Act. Next subsection 4 of section 8 was declaratory, and being declaratory it meant that even if 5 and 6 Victoria was in force in any colony that was not to repeal any local Act. If his learned friend’s contention was right, then our New Zealand Ordinance was repealed by the passing of this Act: and if that contention was correct tubsection 3 was utterly unmeaning, because it implied and stated that the local Acta were still to remain in force, and it gave power to the Queen not to modify the local Acts, but to modify the Imperial Act if she thought proper to bring it into consonance with the local Act. Subsection 3 was unmeaning and absurd if the local Acts that were in existence when the Act came into force were to be wiped out by 5 and 6 Victoria. The first proviso, A, was also strongly in his favor, and to sustain the contentions on the other aide his learned friend must say that the local ordinance was repealed by the passing of 49 and 50 Victoria After further argument of the points raised.
His Honor said : You say this: that the New Zealand Legislature have passed an Act which limits copyright to twenty-eight years, and therefore that shows that the intention of the local Legislature was that that should be sufficient protection for authors, so that it would be open under subsection 3 for the Queen in Council to say that as the New Zealand Legislature have considered that in respect of books published in New Zealand protection for twenty-eight years is enough, the Act of 5 and 6 Victoria should bo brought into consonance with that, so as to adopt the view which the local Legislature had previously expressed. Sir R. Stout: Yes, and that shows that the local Act remains in force.
hi is Honor: Of course it docs, ft Its 1 ' is the reading of the section,
Sir R. Stout submitted that that was the i only way in which the Act could be read. The meaning was this: that there being no registration of copyright in the colony an author must register his work at Stationers’ Hall, London, if he wished, to get the advantages of international and intercolonial copyright, but it was never intended by the Imperial L°gislature to interfere with local Acts at all, end they stood unrepealed and Unchanged. Au author took his choice; if he was content with copyright in New Zealand he followed New Zealand law, which did not require registration, and if he wanted copyright in the British dominions, and in foreign countries where there were conventions, he must .register to take advantage of the Imperial Act. As to the arguments apart from this point, Sir Robert submitted that the cases cited by the learned counsel on the other side were in favor of the plaintiffs. In giving judgment His Honor reviewed the argument at length, and concluded thus: I think, therefore, the plaintiff has a right to come and sue under the New Zealand Ordinance, though he has not registered his work, as he would be bound to do if he relied on any right which the Imperial Act gave him. With respect to the merits of the case, I am quite satisfied of this : that the plaintiff has expended labor and pains in compiling from original sources the information which he has published. That, I think, looking at the principle of the case, is sufficient to give him a right to have his labor protected. I am equally satisfied of this: that the defendant or some person identified with the defendant has taken as the basis cf his railway time-table the compilation of plaintiff, that he has copied it in substance, has cut out parts of it, and has added some trifling additions of his own. That there has been a substantial copying, mistakes included, I think there can be no doubt. The only point on which I have any serious doubt is whether, looking at the terms of our Now Zealand Ordinance, defendant has brought himself within it—whether, in short, the defendant has wrongfully published “a book” which the plaintiff has previously published. The protection given by the New Zealand Ordinance is of a very limited description, and not the same as that given by the Imperial Act. L'pon the whole, however, looking at the decision of Mr Justice Richmond, who gave judgment in Wise v. Wright, whore parts of a book only were taken, and, locking also at the fact that the really substantial part of plaintiffs publication is his ‘ABC Guide,’ I am inclined to think that that substantial part is a book within the meaning of the Ordinance. It has been suggested that an injunction ought not to go, because this is an ephemeral publication. It is, however, stated in Slater (page 195) that where a defendant pirates a work and offers it for sale at a greatly reduced price he will be restrained, even though the work is of an ephemeral nature. ... In this case the production is given away, so there is no reason why defendant should not be restrained. Mr Stewart supposed the injunction would not be general. It was only in regard to the parts copied. His Honor said that this was so. Sir R. Stout said that that was all that was asked for. His Honor said that the injunction would be granted in terms of the motion. Costs reserved. CITY POLICE COURT. (Before Messrs J. Elmer, A. Bartleman, and Colin Allan, Justices.) Drunkenness. —One first offender was convicted and discharged. Richard Fitzgerald was fined ss, in default twenty-four Hours’ imprisonment; Susan Stark, 10s, or forty-eight hours’. N egligent Driving. — Christopher Metcalf, for whom Mr Fraser appeared, was charged with having, on the 2Sth nit, in Princes street, negligently,driven a hansom cab. From the evidence of Constable Ramsay and a Mr Haines it appeared that the defendant negligently drove his hansom to the wrong side of the road, and it was only owing to the skilful riding of a lady on horseback that an accident was averted.—A fine of 40s, in default 14 days’ imprisonment. Stray Horses.— John Stevens pleaded guilty to a charge of having, on the 26th ult,, at Musselburgh, allowed two horses to wander.—Sergeant Macdonnell stated that last week he had received a communication from the St, Kilda Council complaining of cattle straying, and wanting him to take active steps to abate the nuisance. This was the first offence against the defendant.—The Bench inflicted a fine of ss, without costs.
Smashing Windows.— Ellen Keegan was charged on the information of William Shaw with breaking three windows in his shop of the value of 12s each.—The complainant stated that defendant, who was a neighbor of his, had deliberately broken his windows. The Benevolent Institution had sent her to him, and she had been drinking ever since.—The defendant, who admitted breaking the windows, was fined 5s and ordered to pay tho damage done (LI 16s), in default one month’s imprisonment. A week’s time was allowed her in which to pay the fine.
THE COURTS—TO-DAY., Issue 8027, 2 October 1889
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