On April 1st, 1913, the Governor of the State of Bahia, Brazil delivered a message to the State’s General Legislative Assembly dealing with its finances. The Governor’s message was subsequently published in a Bahian newspaper, which was brought to the attention of the manager of the advertisement department of the Financial Times. The advertisement manager contacted the Governor for permission publish the speech in the Financial Times. Negotiations ensued, and a price was agreed and paid.
The Governor’s message had originally appeared in Portuguese, and required translation before it could be published. The plaintiff, who was a permanent employee of the FT’s editorial staff, together with two other gentlemen unconnected with the paper, were approached for what their charge would be to undertake the translation. Terms were ultimately agreed with the plaintiff, and he proceeded with the task. The translation, which ran to about 18,000 words, appeared as an advertisement in the Financial Times issue of June 27th, 1913, as also did the note, “Translated from the Portuguese by F. D. Byrne”.
The business manager of the Statist , the defendants, saw the advertisement in the Financial Times and obtained permission from the Bahian Government to reproduce it in the Statist at a charge of 250l. The advertisement was subsequently published, verbatim, on July 5th, 1913. The plaintiff claimed damages and an injunction in respect of the infringement by the defendants of his copyright in the summarised translation of the speech. It was admitted by the defendants that, in every respect, the advertisement in the Statist was an exact copy of that in the Financial Times. Therefore, if there was any copyright in favour of the plaintiff, that copyright was, undoubtedly, infringed.
The matter came before Mr Justice Bailhache on January 21st and 23rd, 1913 in the High Court (King’s Bench Division).
Mr. McCardie, for the plaintiff, submitted that the work was an “original literary work” within s. 1(1) Copyright Act, 1911. He contended that it was “original” because it was not a mere copy of the work of another person. Citing Walter v Lane as authority, he submitted that originality of idea was not necessary. It was sufficient if the work was in substance a new thing involving fresh skill and labour. He continued by stating that the plaintiff was the “author” of the work, and therefore the owner of the copyright. He contended that the work was not made by the plaintiff “in the course of his employment” by the Financial Times, within s. 5(1)(b), so as to vest the copyright in the proprietor of the newspaper. It was made under a special and independent contract.
Mr. Duke K.C. and Mr. Hansell appeared for the defendants. They submitted that the translation was published as an advertisement by the Financial Times, and that the defendants republished it as an advertisement with the authority of the advertisers. The defendants adduced evidence which proved that it was the practice of newspaper managers, when they wished to publish an advertisement appearing in another paper, to ask the permission of the advertiser to do so and to act upon his instructions. The defendants’ witnesses, who attested to this practice, admitted, however, that the addition of such words as “translated by...” were unusual and unprecedented. Notwithstanding, the defence continued by arguing that, in such circumstances, no action for infringement of copyright can be brought by the composer of the advertisement, citing Lamb v Evans as authority. In that case, Lindley L. J. said:
“I do see a difficulty in his having a copyright in one advertisement, because that might prevent the advertiser from republishing his advertisement in another paper, which is absurd.”
Further, the defendants questioned whether it could reasonably be said that the expression “original literary work” in s.1(1) included an advertisement. They further contented that copyright may subsist in a translation, but under s. 5 (1)(b) the copyright vests in the person for whom the translation is made under a contract of employment, and not in the translator.
Finally, the defendants’ counsel submitted that if the copyright is vested in the plaintiff and the defendants have infringed his copyright, then they are “innocent infringers” within the provisions of s. 8 of the Copyright Act, 1911. The defence sought to rely on the evidence adduced as to the general practice in respect of advertisements, and, that the very nature of an advertisement demonstrated that the defendants were not aware and had no reasonable ground for suspecting that copyright subsisted in the copyright. The defendants only exercised the advertiser’s right of republishing the advertisement. In such circumstance, the only remedy which the plaintiff can have is an injunction, and in this case an injunction cannot be granted as there is no probability of the defendants again publishing this translation.
The plaintiff’s counsel made two further submissions in reply. Firstly, Mr McCardie submitted that there can be copyright in an advertisement if it is an “original literary work”. He contended that the decision in Lamb v Evans was based upon the assumption that the advertiser was the owner of the copyright in the advertisement. Following the enactment of the Copyright Act 1911, the only way in which the copyright, in such a case as this, can be vested in a person other than the actual author is under s. 5(1)(b), or by assignment under s.5(2). Secondly, Mr. McCardie submitted that s. 8 did not apply to this case. He argued that it only applies where the infringer is not aware that any copyright subsists at all, and the defendants simply made a mistake of law in supposing that the copyright was vested in the advertiser. He said:
“It was obvious that copyright must subsist, and it was immaterial in whom it was vested. After seeing the statement that the plaintiff was the translator, the defendants could not say they had no reasonable grounds for suspecting that copyright subsisted”.
Bailhache J. gave judgment on the matter on January 23rd, 1913. He firstly considered s. 1 of the copyright Act, 1911 which states:
“Subject to the provisions of this Act, copyright shall subsist throughout the parts of His Majesty’s dominions to which this Act extends for the term hereinafter mentioned in every original literary, dramatic, musical, and artistic work, if – (a) in the case of a published work, the work was first published within such parts of His Majesty’s dominions as aforesaid...”
Bailhache J concluded that no questions arose about publication. The plaintiff’s translation being first published in England. Ballihache J went on to consider whether the plaintiff’s translation was an original literary work. He said:
“ A translator of a literary work has for many years been held to be the author of his translation, and the House of Lords, in Walter v Lane went so far as to hold that a shorthand writer who reported a speech verbatim was the author of his report.”
Mr Justice Bailhache also drew attention to the fact that the plaintiff’s translation was not merely mechanical. He cut down the speech by about one third. He edited it by omitting the less material parts. He divided it into suitable paragraphs, and supplied head-lines appropriate to those paragraphs. Bailhache J. also accepted the plaintiff’s statements that the Financial Times sets a high standard of literary style and that the plaintiff’s translation conformed to that high standard. Bailhache J. next considered the defendants’ submission that the work made by the plaintiff was in the course of his employment, and that by virtue of s. 5(1) (b) Copyright Act 1911, if any, was in the Financial Times. Section 5(1) states that:
“ Subject to the provisions of this Act, the author of a work shall be the first owner of the copyright therein: Provided that-... (b) where the author was in the employment of some other person under a contract or service or apprenticeship and the work was made in the course of his employment by that person, the person by whom the author employed shall, in the absence of any agreement to the contrary, be the first owner of the copyright..”
Balilhache rejected the defendants’ argument. The plaintiff did not make the translation in pursuance of any duty owed by him to the Financial Times as one of their staff, or in the course of his employment. The paper had approached two other gentlemen, who were unconnected to the paper, about contracting for their services. The eventual agreement with the plaintiff to make the translation was an “independent engagement quite outside his ordinary duties, and was done entirely in his own time”.
Finally, Bailhache J. considered the defendants’ last point founded on section 8. That section provides that no damages shall be recoverable for infringement of copyright if the defendant alleges that he was not aware of the existence of the copyright in the work and proves that, at the date of the infringement, he was not aware and had no reasonable ground for suspecting that copyright subsisted in the work. Bailhache J. rejected the defendants’ contention that they had no reasonable ground to suspect that there was any copyright in the advertisement at all. He thought that the position of the defendants was not so much that they did not suspect the translation was copyright as that they supposed that the copyright was in the Governor of Bahia, whose instructions for its reproduction they had obtained. He said:
“This merely amounts to saying that they supposed themselves to have the authority of the owner of the copyright, a very different thing from alleging and proving that they did not suspect that any copyright existed. It is this latter state of mind that s. 8 requires to be proved, and s.8 is no protection to a person who, knowing or suspecting that copyright exists, makes a mistake as to the owner of the copyright and under that mistake obtains authority to publish from a person who is not in fact the owner”.
Mr. Justice Bailhache found in favour for the plaintiff. He concluded by stating that this was not a case for injunction, as the translation had served its purpose and would not be republished by the defendants. Instead, he awarded the plaintiff 150l in damages and costs of the action.