Scottish Court of Session Decisions

Duncan Leslie, wholesale stationer, bookseller, and printer, Perth, the proprietor and publisher of a monthly publication called “Leslie's Time-Tables and Diary,” entered at Stationers’ Hall, brought an action of suspension and interdict in July 1891 against J. Young & Sons, printers, Perth, praying the Court “to interdict, prohibit, and discharge the respondents from selling or exposing to sale, circulating or distributing a publication printed by the respondents, entitled ‘J. Young & Sons,’ Perth, “A B C” Time-Tables,’ and containing, inter alia, time-tables for the month of July 1891, and further to interdict, prohibit, and discharge the respondents from printing, publishing, selling or exposing to sale, circulating or distributing any time-tables or other publication copied or only colourably different from the publication known as ‘Leslie's Time-Tables and Diary.’” Of consent, and upon the respondents undertaking to keep a correct statement and account of the sales of the book complained of, and the profits derived therefrom, the note was passed, but interim interdict was refused.

A record was made up in which the complainer averred that the information in his time-table “was gathered and arranged in systematised form at great expense, and as the result of great labour, skill, and experience. Many of the details are not to be found in the ordinary railway and steamboat guides. These were obtained by the complainer from other sources, and were the result of much labour and expense. Great accuracy has been secured by continual revision from month to month. After many years of care and skill the complainer has obtained for his time-tables a very wide circulation and a high reputation. In consequence of said reputation respondents have deliberately adopted his

Page: 911↓

system and selection, and, without exerting themselves to obtain their information from legitimate sources, have copied their details from complainer's publication…. The time-tables contained in the respondents' publication have, except in a few cases, been simply copied from the complainer's time-tables. They include numerous details borrowed from the complainer's publication which were compiled and arranged by the complainer, and which are not to be found in the ordinary official railway, steamboat, or coach time-tables, or in any other publication of the kind. The respondents have deliberately appropriated from the complainer's time-tables compilations, arrangements, and details which were embodied in the complainer's timetables by means of special skill and labour. In the complainer's time-tables selections have been made from the official timetables of certain trains and certain stations, and these selections have repeatedly been embodied, word for word and column for column, in the time-tables issued by the respondents.”

The respondents denied the statements of the complainer, and explained that their time-tables “contain much more information, and are compiled upon a totally different principle from those of the complainer, the first 39 pages being upon what is called and known as the ‘A B C’ principle of compilation, while the whole remaining portion of the time-tables is compiled from the advance-sheets and time-tables and advertisements issued by the railway and other companies, and available to the public. The respondents’ publication is superior to that of the complainer, and quite a new work.”

The complainer pleaded—“(1) The complainer is entitled to interdict as prayed for, in respect that the respondents have unwarrantably infringed his copyright in the time-tables referred to.”

The respondents pleaded—“(1) The complainer's statements being irrelevant in fact and in law, the suspension should at once be refused. (2) The respondents not having infringed any right which the complainer can instruct, the complainer is not entitled to obtain interdict as craved. (3) The complainer's averments being unfounded in fact, the respondents are entitled to have the note refused, and the complainer found liable in expenses. (4) In any event, the prayer of the note is too vague and indefinite.”

The Lord Ordinary ( Low) allowed a proof, the import of which sufficiently appears from his Lordship's note and the opinion of the Lord President, and thereafter, upon 31st January 1893, pronounced the following interlocutor:—“Finds (1) that the complainer has a copyright in ‘Leslie's Time-Tables and Diary,’ published by him; (2) that it is proved that the tables, information, and other printed matter contained upon pages 40 to 52, both inclusive, upon page 53, with the exception of the timetable for the West Coast Route, and upon pages 55, 57, 59, 61, 63, 65, 67, 69, 93, 95, and 98 of the respondents’ publication complained of, viz., ‘J. Young & Sons, Perth, A B C Time-Tables,’ for the month of July 1891, were copied either literally or only with colourable differences and variations from the said publication of the complainer, and amount to a piracy thereof: Therefore, to the extent of the second of the above findings, sustains the reasons of suspension, and interdicts, prohibits, and discharges the respondents from selling or exposing to sale, circulating, or distributing the foresaid time-tables, information, and other matter printed upon the foresaid pages of their said publication; and quoad ultra, Repels the reasons of suspension, and refuses the prayer of the note, and decerns: Finds the complainer entitled to expenses.

“ Opinion.—It was not, I think, disputed that a railway time-table applicable to a particular district may be the subject of copyright, but it was contended that a time-table, although it is issued month by month, with the necessary alterations, is not a ‘periodical work’ within the meaning of the Act, which is protected if the first number or volume is duly registered. I think that a railway time-table of the kind in question in this case is plainly a ‘periodical work,’ and if so, and if it is a work of a kind which is capable of being made the subject of copyright, I do no not see why it should not have the benefit of the 19th section of the Copyright Act.

The question therefore seems to me to be mainly one of fact, viz., whether the respondents, instead of compiling a timetable for themselves from common and public sources of information, took advantage of the complainer's labour, and substantially copied their time-table.

The complainers say that there is such absolute identity between their book and that of the respondents, not only in the selection of routes, trains, and stations, but in minor details, that the inference is unavoidable that one book was copied from the other.

The respondents, on the other hand (and especially Mr J. M. Young, the member of the respondents' firm who was chiefly responsible for the preparation of their timetable), swear that it was compiled entirely from the books of the various railway companies and other public sources of information, and that the complainer's book was not made use of at all except in the case of the circular tours and one column, I think, of mileages.

Now, it was inevitable that the two books, both being a selection of the routes, stations, and trains likely to be most useful to people residing in Perth, should bear a very close resemblance to each other, and probably the better the work was done by both parties the greater would be the similarity. Discounting, however, in the most liberal manner all similarity which may be accounted for by the fact that both compilers were working in the same somewhat narrow sphere from the same materials, and with the same object in view, there remains a number of points of identity between the two books which, in my opinion, it is impossible to account for except on the

Page: 912↓

supposition that the respondents' book was made up in the first instance to a great extent from that of the complainer.

The complainer's evidence was based upon a comparison between his table for June 1891 and the first issue of the respondents' table, namely, that for July 1891. It appeared, however, when the respondents' evidence came to be led that their table had been set up in March and April 1891, and they produced an early copy of their table, No. 75 of process, which seems to have been the first proof which was thrown off. The comparison accordingly came to be chiefly between No. 75 of process and the complainer's table for March 1891, No. 95 of process. The similarity between No. 75 and No. 95 of process is more marked than that between the June issue of the complainer and the July issue of the respondents, because before the latter table was published various corrections and alterations had been made. To compare No. 75 with No. 95 therefore seems to me to be the most reliable test of the use which had been made of the complainer's publication.

Now, although I am very unwilling to disbelieve the respondents' witnesses when they say that they did not use the complainer's table, I am unable to come to any other conclusion than that a number of the tables in No. 75 of process were copied from the complainer's book.

I come to that conclusion because there are instances of identity of details so numerous as to exclude the idea of accidental coincidence, and of a kind which cannot be explained upon the supposition that both works were compiled from the same sources of information, the details to which I refer differing from the official time-tables from which the respondents say that their tables were made up. I shall give one or two examples….

These examples are, I think, sufficient to show the character of the evidence upon which I have come to the conclusion that there was copying on the part of the respondents, and I need not go further into details. I may, however, say that throughout the part of the book complained of there are numerous cases of the same mistakes being made, of the same variations being made upon the phraseology of the official books, of the same combinations of trains, and of the same foot and side notes.

The respondents relied greatly upon the evidence which they produced of independent work, and which they say they never would have undertaken if they had intended to copy the complainer's book. … I do not think that these documents furnish evidence of independent work inconsistent with the idea that a great deal was taken directly from the complainer's book.

The respondents also founded upon differences which appear between their tables and those of the complainer….

1. There are, in the first place, a good many cases in which the complainers give a correct hour and the respondents an incorrect one.

2. There are cases in which mistakes in the complainer's tables are corrected in No. 75 of process….

3. There are, finally, a few cases in which it is admitted that the respondents' tables have been the result of independent work. That is particularly the case in regard to the West Coast route from England to Scotland.

The first and third of these three classes of differences may, I think, be dismissed at once. The cases in which the respondents give an incorrect hour prove nothing, because from whatever source they took their information the error in the hour must have been caused by the mistake of the compositor who set up the type. Then, as regards the tables which bear evidence of being the result of independent work, it was quite legitimately contended for the respondents that the fact that some of the tables were admittedly the result of independent work went a long way to corroborate their evidence that the whole of the tables were in the same position. The argument is no doubt entitled to weight, but it does not appear to me to be an improbable thing that the respondents, while taking a number of tables from the complainer's book, might have rejected others in cases which they thought they could make a more useful table for themselves.

The second class of differences to which I have referred was most strongly founded on by the respondents, as showing that even in those tables in which the points of identity are most strongly marked there is evidence of independent investigation. That is no doubt true to a certain extent, but it seems to me that although these differences show that the respondents checked the complainer's work to some extent by the official books, it does not necessarily show more.

The conclusion at which I have arrived, as being the only one consistent with all the real evidence in the case, is that the respondents, having compiled the A B C part of their book, took the complainer's tables as the groundwork of the remainder. I think that it appears that they checked the complainer's tables, and also took some trouble to improve upon them, sometimes by varying the order in which the different lines were given, sometimes by leaving out or adding to stations and trains, and sometimes by altering the notes. But, except in the case of the West Coast route, and perhaps one or two other tables, I can come to no other conclusion than that the respondents' tables are not the result of independent work, but are the complainer's tables with some alterations and variations.

Now, of course the respondents were entitled to make a time-table of the same kind as that of the complainer's, and to adopt the same principle and form of arrangement, but they were bound to do the work for themselves, and I apprehend that the only use which they were entitled to make of the complainer's work was to check and verify their own results when obtained— Kelly v. Morris, 1 Eq. 697.

Page: 913↓

If, therefore, I am right in the view which I have taken of the evidence, the respondents have made an illegitimate use of the complainer's publication.”

The respondents reclaimed, and argued—(1) Copyright in a time-table was of a very limited nature, confined to selection and arrangement and to protection from slavish copying. There was no copyright in the times, which were given by the railway companies in official time-tables open to the public, and the sources of both the complainer's and their time-tables. But even use to some extent of previously published compilations, such as dictionaries, guidebooks, and time-tables, was recognised as legitimate, which would not be allowed in the case of strictly original works—See Copinger on Copyright (3rd ed.), pp. 196, 198, 204, and case of Spiers v. Brown, 1858, 6 Weekly Rep. 352, there referred to; also Scrutton on Copyright (2nd ed.), p. 110, and principles there laid down on the authority of Jarrold v. Houlston, 1857, 3 Kay & Johnston, 708. (2) Theirs was substantially a new work, as original as it could be in the circumstances. The selection and arrangement were their own, and the information had been taken from official sources, and not from the complainer's publication. That publication did not contain ABC tables, which were the feature of their work. The Lord Ordinary had laid too great stress upon the similarities which were necessarily there, and had overlooked the differences which showed the independence of the work. The Lord Ordinary had largely proceeded upon probabilities. The evidence supported their asertion of having committed no breach of copyright. Any use that had been made of the complainer's book was slight and justifiable.

Argued for complainer—(1) The law had been correctly set forth by the Lord Ordinary—See also Maclean v. Moody, June 23, 1858, 20 D. 1154; Kelly v. Morris, 1866, 1 Eq. 697, approved in Morris v. Wright, 1870, 5 Ch. App. 279; and the recent case of Harpers, Limited v. Barry, Henry, & Company, Limited, November 29, 1892, 20 R. 133. (2) The Lord Ordinary had reached a sound conclusion upon the evidence, which pointed to illegitimate use on the appellants' part of the complainer's publication.

At advising—