(Ante, July 20, 1893, vol. xxx. p. 910, 20 R. 1077.)
Subject_Copyright — Infringement — Railway Monthly Time-Table — Interdict.
The proprietor of a monthly local railway time-table complained that the proprietors of a rival time-table published (1) the same tables of trains between the same selected stations, in the same order, and in some instances the same statements of mileage; (2) four pages of information regarding excursions, which, with slight alterations on one page, he had copied literally from the complainer's time-table.
Held (1) ( aff. the decision of the First Division) that the respondents' train tables were not in all respects a copy of the complainer's work, but represented a certain amount of original labour, and therefore, in view of the nature of the complainer's compilation, there was not such appropriation of his work as to warrant interdict; (2) ( rev. the decision of the First Division) that the complainer's guide to excursions was a compilation resulting from a considerable amount of original trouble in collecting and abridging information useful to the locality, and being independent work was protected by the copyright law; and interdict granted against the four pages complained of.
This case is reported ante, July 20, 1893, vol. xxx. p. 910, and 20 R. 1077.
The complainer appealed.
At delivering judgment—
The time-tables which are to be found on the earlier pages which I have mentioned, namely, 40 to 52 and part of 53, consist of tables in the usual form which are found in all railway time-tables, taking Perth in the main as the starting point, this being a periodical published at Perth for the information of persons coming to or going from (more particularly going from) that place. The information in these time-tables was of course derived by the pursuer from a source which was as open to the defenders as to himself, and he does not and cannot claim any right to the information as such; he can only claim copyright in them if they are the result in some respect or other of independent work on his part, and if there has been an advantage substantially taken by the defenders of that independent labour. The mere publication in any particular order of the time-tables which are to be found in the railway guides and the publications of the different railway companies could not be claimed as a subject-matter of copyright. Proceedings could not be taken against a person who merely published that information which it was open to all the world to publish and to obtain from the same source.
My Lords, as regards some of these tables there is really nothing more to be said against what the defenders have done than that they have published the same table between the same stations in the same order as the pursuer; but then those tables with all those stations and all those times of the trains are to be found in the companies' books, and neither party would have anything more to do than to copy them in order to arrive at the information which is to be found in both books. It is true that in some cases the mileage has been taken, and is admitted by the defenders to have been taken from the pursuer's book. As regards other of these tables, it is said that they were not mere copies of tables to be found in the railway guides, but that there was a certain selection of stations, the smaller stations being omitted and a selection of trains, some of the trains also being omitted. That applies no doubt to some of the tables. But, my Lords, looking at these tables as a whole, and having regard to the fact that it is admitted that the defenders' work is, as regards these tables, not in all respects by
But, my Lords, there is another part of the case which strikes me as of a very different character. It is not separately dealt with by the Inner House, although it was specifically mentioned by the Lord Ordinary. It strikes me as the only part of the work which can be said to indicate any considerable amount of independent labour, and to be entitled to be regarded as an original work, and that is the part on pages 63, 65, 67, and 69, containing the information with regard to excursions. It seems to me that this was a compilation containing an abridgement of information of a very useful character, and such as was likely to be taken advantage of by those who were travelling in the neighbourhood of Perth. Now, those pages have been, the first, with some slight variation, and the others absolutely literally, copied by the defenders from the pursuer's book. My Lords, it is said that they form only a small portion of the whole book—four pages, it was said, out of forty—and that the first part consisted of an ABC time-table, which was wanting in the work of the appellant. But I do not think that that is a just way of regarding the matter in point of law, because a compilation of this kind contains several independent features of different merit, of different advantage to the public, and likely to operate to a different extent in promoting the sale of the work. It may be that one part of a work of this kind, though containing only a few pages, may be of such value that the presence or absence of it would most largely promote or retard the sale of the work. Therefore, although these pages are but few, it seems to me that, nevertheless, they may be properly treated as an independent work and protected by the copyright law. If that be the proper conclusion, it seems to me impossible for your Lordships to resist the further conclusion that there has been in this case a piracy, and a substantial appropriation of the pursuer's work by the defenders, and that therefore there is a right to an interdict on the part of the pursuer.
My Lords, for these reasons I think that the interlocutor appealed from ought to be recalled, and that in place thereof the interlocutor of the Lord Ordinary ought to be varied by restricting and confining the interdict to the matter printed on pages 63, 65, 67, and 69, and that the interdict should be against printing, publishing, selling or exposing for sale, circulating or distributing the time-tables, or any other work containing the matter printed on pages 63, 65, 67, and 69 of the defenders' Perth time-tables.
My Lords, there remains the question of how the costs ought to be dealt with. The appellant was in the right in coming to this House, because the respondents had obtained an interlocutor which your Lordships think cannot be supported, and therefore I see no reason why the ordinary rule should not be followed in accordance with which the respondents would pay the cost of this appeal. But then we come to the question of the costs below. There the present respondents were of course partly in the right in their appeal from the interlocutor of the Lord Ordinary. On the other hand, the appellant was partly in the wrong in putting forward too large a case, and it was that very large case which involved very great expense in the proof. A great part of the proof was occupied with this question upon these time-tables, some of which, as I have said, really were not an abridgment at all, but were matters regarding which, as it seems to me, it was impossible that the pursuer could reasonably complain of an invasion of copyright. It is therefore clear that a large part of the expense of taking the proof before the Lord Ordinary has resulted from the pursuer insisting upon a contention which I believe all your Lordships think, and which the Inner House also thought, it impossible to support. For these reasons I believe all your Lordships think that justice as to costs will best be obtained by ordering the respondents to pay the costs of this appeal, and ordering that the pursuer shall have one-third of his taxed costs of the proceedings at the trial, and in the Inner House. I move your Lordships accordingly.
Now, my Lords, I think it would be impossible in these circumstances for the respondents effectively to dispute that they have pirated the work to that extent, except by showing that that part of the work had no protection. The argument suggested that such was the case; but, my Lords, I do not think there can be upon that point the slightest doubt that a work of this kind, showing that a considerable amount of original trouble was taken in bringing all the information together in the form of an abstract for the use of a particular locality, is entitled to protection; and those parts of the work which have been appropriated here are especially of that character.
Their Lordships granted interdict against publishing the time-tables containing the guide to local excursions.
Counsel for the Appellant—The Solicitor-General for Scotland ( T. Shaw, Q.C.)— Wilson— Trotter. Agents— Keeping & Gloag, for Clark & M'Donald, Edinburgh, and St Clair, Swanson, & Company, Glasgow.
Counsel for the Respondents— Campbell— Graham Stewart. Agents— Alex. Morison, S.S.C.— Cochrane Young, Solicitor, Perth.