Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 LITERARY PROPERTY.
Subject_3 Construction of the statute 8th Ann. c. 19.

Andrew Strachan and Others
v.
William Anderson and John Robertson

Date: 18 July 1787

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[Dictionary, 8310.]

Hailes. I cannot reconcile myself to the notion that an author has a copyright to the corrections and additions which he may, from time to time, see occasion to make in his works. Such corrections and additions are not a book or treatise: they are rather an acknowledgment to the public that the former book or treatise was not so complete as it ought to have been. [When judgment went in this cause against my opinion, I gave a hint to Dr Robertson, who has already enjoyed the exclusive right of printing The History of Scotland for twenty-eight years, that, by entering at Stationers' Hall his improvements for a new edition, he may obtain a prorogation of his patent.]

Eskgrove. The Act of Queen Anne ought to be liberally interpreted. An author may have a property in his own additions and annotations. This was explained by the English court in the case of Dr Newton's Annotations on Milton. If the doctrine be good as to a voluntary annotator, much more as to the author himself. [I cannot follow this reasoning. Dr Newton wrote notes on Milton, which might have been published as a separate work, being by a different author. But let us take the case of authors who have written commentaries on their own works. Butler wrote notes on Hudibras, Pope on the Dunciad: Can we say that Butler and Pope, by writing illustrations on their own works, acquired a copyright different from that which they had in the works themselves, and subject to a different kind of limitation or prescription?] But I do not carry my conclusion any farther than to the sheets on which the additions are printed.

Justice-Clerk. I see no principle which can exclude an author from a property in the supplement of his work, as well as in the work itself. [This is not logical, for the terms are changed: a supplement is a separate and independent work.] The printer, by inserting the additions, has shown that he considered them to be of value.

Henderland. The difficulty is how we ought to distinguish as to the extent of the invasion of property, and as to the consequences thence arising. I incline to limit damages in the manner pointed out by Lord Eskgrove.

On the 18th July 1787, “The Lords, in substance, decerned against the defenders,” adhering to their interlocutor of the 6th March 1787; “but remitted to the Ordinary to hear as to the number of sheets to be damasked, and also as to penalties.”

Act. R. Blair, &c. Alt. Ch. Hope, &c. Reporter, President, for Justice-Clerk.