John Murray, and Others, v. Colin M'Farquhar, and Others
Date: 25 June 1785 Case No. No 5.
It was found an infringement of literary property, to print in the Encyclopedia Britannica, in the way of abridgement, a great part of Stewart's History of the Reformation.
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M'Farquhar, and other editors of a dictionary, entitled, “Encyclopedia Britannica,” having, under the article relative to Scotland, inserted a history of that kingdom, at the æra of the Reformation, which they had extracted, in a great measure, verbatim, from two treatises published by Dr Gilbert Stuart, though it was so far abridged as not to exceed in extent a half of the original works; Murray, and others, who had purchased the copy-right of those publications, sued the above mentioned editors in an action founded on the act 8th of Queen Anne, for having the printing and sale of the article stopped, for the statutory penalties, and for damages.
Pleaded for the defenders; By the terms of the statute in question, which, from its penal tendency, demands a strict interpretation, the exclusive property thereby created is confined to complete or entire compositions, and does by no means extend to partial extracts or passages taken from authors. Otherwise, not a single sentence, it is evident, nor a line of a book, could be quoted without as real an infringement of the statutory property, as if ever so large a portion of the work had been extracted. This consequence shews how unreasonable such a construction would be, and how much exploded by daily usage in the publication of magazines, reviews, annual registers, and other periodical miscellanies, which could not exist without the unrestrained freedom of borrowing select passages from all such treatises as excite curiosity. If, indeed, in this matter, fraud were to be committed, and even partial extracts made, in order to interfere with the profits of the literary proprietor, the sanction of the statute might be rightly applied. To that case alone, except when entire performances have been extracted, all the actions on this statute which have been sustained in this Court, or by the English Judges, will be found to refer. But in a case similar to the present, action was denied in the equity Court of Exchequer in England, 25th July 1783, Longman and Broderick versus Fielding. In this instance, neither have the entire works in question been published by the defenders, nor have they, in following out the plan of their undertaking, used any means to deprive the pursuers of the benefit of their property.
Answered; If the simple device of publishing a treatise in separate parts were sufficient for eluding the protection afforded by the enactment under consideration, the argument no doubt of the defenders would be good, and the statute nugatory. But that is a supposition which, though evidently inseparable from their plea, is in itself highly unreasonable, and is contradicted by every authority on the subject. In many cases similar to the present, action under this statute has been sustained; such as, Skinner and Taylor contra The Editors of the Town and Country Almanack, No. 4. p. 8308.; and in England, Macklin versus Richardson and Urquhart; and Mason versus Murray. But in none of those instances was there a greater infringement of literary property than that which occurs in the present case.
The cause was reported by the Lord Ordinary, when
The Court ‘repelled the defences.’
And to this judgment they adhered, on advising a reclaiming petition and answers.
Reporter, Lord Eskgrove.Act. Lord Advocate, Blair.Alt. Solicitor General, Wight.Clerk, Home.
Fol. Dic. v. 3. p. 389. Fac. Col. No 216. p. 340.