Case Study: Macmillan And Company Ltd. v. K. And J. Cooper

“A publication that merely selects detached passages from an author’s work, arranges them in a narrative form, and presents them as a continuous narrative does not constitute an abridgement. Such a publication merely reproduces the author’s original words and does not involve the intellectual effort or creativity required to compile a true abridgement.”

Citation: (1924) 26 BOM LR 292

Date of Judgment: 14^th December, 1923    

Court: Bombay High Court

Bench: Atkinson (J)

Facts

• The appellant published an abridged edition of a book titled North’s Translation of Plutarch’s Life of Alexander, Edited for Schools by H.W.M. Parr, M.A. This work consisted of various selected passages from North’s translation, amounting to a total of 20,000 words. To present a continuous narrative, the appellant introduced additional words to connect these otherwise disjointed passages, as North’s original translation, consisting of 40,000 words, did not present a contiguous text.
• Subsequently, the University of Bombay prescribed the appellant’s book for the Matriculation Examination of 1919. Following this, the respondent published a book titled Plutarch’s Life of Alexander the Great, North’s Translation, Edited with Introduction, Marginalia, Notes, and Summary by A. Derby, M.A. This publication included the entire 20,000-word text from the appellant’s work. However, the respondent added 7,000 words of their own and excluded certain elements from the appellant’s book, such as marginal notes, an introduction discussing North’s translation and Alexander’s historical significance, a content analysis, a chronological table of key dates in Alexander’s life, and a few brief transition notes.
• The appellant then filed an infringement action against the respondent, alleging that the respondent’s publication unlawfully reproduced a substantial portion of the appellant’s work.

Decision of the trial court

The Trial Court ruled in favour of the plaintiff and held that the plaintiff’s abridgment of North’s Translation qualified as original work and, therefore, was entitled to copyright protection.

Decision of the Court of Appeal

The appellate judge disagreed with the Trial Court’s decision, stating that the plaintiff’s abridgment of North’s Translation did not qualify as original work and, therefore, was not entitled to copyright protection.

Decision of the Bombay High Court

The Bombay High Court set aside the judgment of the appellate court and upheld the Trial Court’s decision. It held that the respondent was not entitled to any copyright in the text merely because they had selected portions of it and expended labour in doing so. Furthermore, the court determined that the notes in the appellant’s abridged version constituted copyrightable material, and the respondent had infringed upon the appellant’s copyright.

Key legal issues discussed

1. Whether the Respondent’s publication infringed on the Appellant’s’ copyright?

Yes

The court held that the respondent had “servilely” copied many of the appellant’s notes, which constituted original work, making it a clear case of copyright infringement.

Regarding the work of the appellants, The Court held that concerning the notes, the position in law was altogether different. Those notes were not trifling in their nature.

The court noted in Para 36 and 37, “On the contrary they think that the notes make the book more attractive. the study of it is more interesting and informing, enhances its efficiency and consequently increases its value as an educational manual…

37. Their Lordships are quite of opinion  these notes were neatly condensed, were sufficiently copious, were accurate and must have required for the framing of them classical knowledge, literary skill and taste, labour and sound judgment as to what was fitting and useful to be brought to the notice of school boys and students about to enter the University.” 

2. Whether the abridgment of North’s Translation of Plutarch’s Life of Alexander can be considered original literary work?

No

The court concluded that neither the appellant’s nor the respondent’s work exhibited the originality necessary to qualify as original literary work deserving copyright protection. However, it distinguished that the notes added by the appellant did constitute original work and were therefore copyrightable.

Lord Atkinson, speaking for the Court, provided a detailed explanation of the term “abridgement.” He clarified that in Para 11 that “an abridgement of an author’s work is intended to be a complete and accurate presentation of the author’s thoughts, opinions, and ideas, but expressed in a more concise and compressed form by the abridger. In contrast, a publication that merely selects detached passages from an author’s work, arranges them in a narrative form, and presents them as a continuous narrative does not constitute an abridgement. Such a publication merely reproduces the author’s original words and does not involve the intellectual effort or creativity required to compile a true abridgement.”

The Privy Council further held that while neither the appellant’s nor the respondent’s work could be considered original in its entirety, the notes prepared by the appellant were an exception. These notes were deemed to be original work because they were not trifling in nature; instead, they added significant value to the book by making it more attractive, interesting, and informative. The notes enhanced the book’s efficiency as an educational manual and required substantial classical knowledge, literary skill, taste, labor, and sound judgment. The respondent had “servilely” copied many of these notes, leading the Privy Council to conclude that this was a clear case of copyright infringement.

The Privy Council referred to the U.S. court’s judgment in Frederick Emerson v. Davies,[1] where Justice Story held that any new and original plan, arrangement, or combination of material entitles the author to copyright, regardless of whether the materials themselves are old or new. The judgment emphasized that to constitute piracy of a copyright, it must be shown that the original work has been substantially copied or evasively imitated. The case of Frederick Emerson v. Davies was a significant precedent where the plaintiff’s book, “The North American Arithmetic,” was found to be new and original in its plan, arrangement, and combination of materials, entitling the plaintiff to copyright protection.

The Privy Council concurred with the principles established in the Frederick Emerson v. Davies case and made the following observations:

• The precise amount of knowledge, labour, judgment, or literary skill required to acquire copyright cannot be defined in precise terms and depends largely on the special facts of each case.
• Every individual has a proprietary right in their own literary composition, and copyright is the exclusive privilege of making copies of it, which are distinct concepts that should not be confused.
• The requirement is that the expression of thought must originate from the author and must not be copied from another work.
• The principle in copyright cases is that the defendant cannot use or take advantage of the labour expended by the plaintiff in producing their work, as it constitutes the plaintiff’s property.

Finally, the Privy Council held that none of the books involved were true abridgements but were merely copied works. The respondent had copied from the original work of the appellant, resulting in a clear case of copyright infringement. This decision underscores the importance of originality and intellectual effort in establishing copyright, particularly in the context of notes and educational materials.

3. Can copyright be created in a non-copyright work by making a few amendments or adding unimportant notes?

No

The copyright cannot be created merely by making a few amendments to the text or by adding unimportant notes. The Court held that substantial alterations and the application of significant learning and intellectual effort are required to create a new copyright. This ensures that the annotator positions themselves as an author in the most proper sense.

The Court held that copyright could not be created merely by making a few amendments to the text or by adding unimportant notes. Instead, it required extensive alterations and the application of learning, which would position the annotator as an author in the most proper sense. This view was further supported by the reference to the case of University of London Press v. University Tutorial Press[2] in Para 34, where it was established that the word “original” in the context of copyright does not require the expression of original or inventive thought but rather that the work should not be copied from another and should originate from the author.

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[1] Story’s United States Report Vol. 3 pg. 768, 778.

[2] (1916) 2 Ch 601 608.