Case: Kelly v Morris (1866) LR 1 Eq 697
Outcome: cited
In Desktop , Lindgren J examined in detail a number of cases and secondary materials from which the following principles or observations are presently relevant: &#8226; A work is original if the work was not copied, but originated from the putative author (at [47]). &#8226; A person is not prevented from undertaking the original labour of recording a subject "open to all the world", for example a map of a geographical area ( Longman v Winchester (1809) 16 Ves Jun 269 at 272; 33 ER 987 at 988 cited in Desktop at [29]). &#8226; The mere publication of information that was open to all the world to publish is not an infringement of another's right ( Leslie v J Young &amp; Sons [1894] AC 335 at 340-1, cited in Desktop at [54]). &#8226; ' The owner of copyright has, in short, no monopoly in the subject-matter. Others are at liberty to produce the same result, provided they do so independently and, though they are not the first in the field, their work is none the less "original" in the sense in which that word is used in the Copyright Act 1911 ' ( Halsbury's Laws of England (2 nd ed, 1932, vol 7) at 521, cited in Desktop at [107]). &#8226; The fact that some facts would or might be described by independent authors in the same or similar words may necessarily follow from the subject matter and is not restrained by copyright ( Spiers v Brown (1858) 6 WR 352, cited in Desktop at [31] [32]). &#8226; Copying is not an "all or nothing" test. The degree of copying can be taken into account, that is, the degree to which the copyright work was not copied but originated with the putative author and the amount of that author's contribution to bringing a new work into being ( Desktop at [96]). &#8226; If a person is to carry out original labour, no part of another compilation can be taken ( Kelly v Morris (1866) LR 1 Eq 697, cited in Desktop at [35]). There is no right to make the results of another's skill and labour the foundation of a subsequent compilation or any material part of it ( Morris v Ashbee (1868) LR 7 Eq 34, cited in Desktop at [39]). 178 Infringement is not necessarily avoided where material is simply checked with the data subject for verification or where the arrangement is different ( Waterlow Publishers Ltd v Rose (1989) 17 IPR 493 cited in Desktop at [346] per Sackville J). However, the concept that the taking of a single line of a directory for the purpose of saving labour and trouble amounts to an infringement was a ' famous but excessive admonition ' ( Desktop at [405] per Sackville J referring to Kelly at 701 2 per Sir W Page Wood VC). The fact that copyright may exist in a compilation does not mean that it exists in the individual facts referred to therein ( Victoria Park at 498 per Latham CJ and at 511 per Dixon J). The taking of line of a directory will not be sufficient for infringement if it does not constitute a substantial part (s 14(1) of the Act; Waterlow Directories Ltd v Reed Information Services Ltd (1990) 20 IPR 69 per Aldous J at 73, cited in Desktop at [347] per Sackville J). However, copyright in a compilation may be infringed by appropriating ' an undue amount of the material, although the language employed be different or the order of the material be altered ' (Laddie H, Prescott P, Vitoria M, Speck A and Lane L, The Modern Law of Copyright and Designs (3 rd ed, 2000) at paras 3.88 and 3.90, cited in Desktop at [375] per Sackville J).