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I. COPYRIGHT: CASES AND MATERIALS
Under the [Literary Copyright] Act of 1842, which protected “books,” many things which had
no pretensions to literary style acquired copyright; for example, a list of registered bills of sale,
a list of foxhounds and hunting days, and trade catalogues; and I see no ground for coming to
the conclusion that the present Act was intended to curtail the rights of authors. In my view, the
words “literary work” cover work which is expressed in print or writing, irrespective of the
question whether the quality or style is high. The word “literary” seems to be used in a sense
somewhat similar to the use of the word “literature” in political or electioneering literature and
refers to written or printed matter. Papers set by examiners are, in my opinion, “literary work”
within the meaning of the present Act.
NOTES:
- General scope of “literary work”.The scope of material falling under
“literary work” is extensive. The following, illustrating the breadth and limits of
the concept, appears in D. Vaver, Copyright Law (Irwin Law, Toronto: 2000):
Literary work covers everything expressed in print or writing: the form
in which this occurs (paper, diskette, and the like) is irrelevant. The
[Copyright] Act mentions tables, computer programs, books,
pamphlets, and other writings, lectures (including addresses,
speeches, and sermons), and translations as examples. Also
obviously included are novels, poems, biographies, histories,
academic theses, newspaper articles, instruction manuals, preliminary
drafts and working notes, and private diaries. Less obvious items have
also been protected: billets doux, routine business letters,
examination papers, medical records, legal contracts and forms,
instruction cards and product warranty forms, telegraph codes, even
a list of computer-generated winning lottery numbers! But short
combinations of words (e.g., trade-marks such as EXXON and
slogans lacking any literary composition) or simple product
instructions are not protected, since the effort to produce them is
often trivial and granting protection risks monopolizing the ideas
behind the expression.
- Letters.On the theory expressed in the University of Londoncase, an
ordinary private or business letter is protected as a literary work. The receiver
may own the paper on which the letter is written, but the writer owns the
copyright and can stop the receiver from making copies of it. So in British
Oxygen Company Ltd v. Liquid Air Ltd [1925] Ch. 383 (U.K.: High Court), a
firm which wanted to expose a competitor’s business practices was stopped
from sending to stockbrokers copies of a letter the competitor had written to
the firm’s customers. There would not, however, have been a breach of
copyright if the customer had merely given the firm the original letter, and the
customer had shown that original to the stockbrokers.
Similarly, the reclusive American novelist J.D. Salinger stopped a biographer
from including in an unauthorized biography expression copied from letters that
were written by Salinger to various people and that had been deposited by
them in a university library archive. The biographer had to rewrite the book,
using his own words to express Salinger’s thoughts and ideas: Salinger v.
Random House Inc. 811 F.2d 90 (U.S.: Court of Appeals, 2ndCir., 1987).
