COURT OF APPEAL.

New Zealand Times, Volume XXXIII, Issue 5509, 22 November 1878, Page 2

COURT OF APPEAL.

Thursday, November 21. (Before their Honors the Chief Justice, Mr. Justice Johnston, Mr. Justice Williams, and Mr. Justice Gillies.) HOLT AND M'CARTHT V. WEBB. Demurrer to plaintiff’s declaration. Mr. Stout in support of the demurrer, Mr. Travers, with him Mr. Edwards, in support of the bill. Plaintiff’s declaration set forth : 1. That they have been for soma time past and are still carryingon business in New Zealand in copartnership under the firm or style of “ The Press Telegraph Agency.” 2. That it has been, and still is, part of the business of the plaintiffs, as such firm as aforesaid, to procure through agents in London, Australia, and elsewhere respectively telegraphic abstracts of European, Australian, and other news, and the plaintiffs do from day to day obtain such telegraphic abstracts accordingly at great cost to themselves ; and the plaintiffs say that the telegraphic abstracts of news so obtained by them are of great interest to the public of New Zealand, and that the publication of the same in newspapers licensed as hereinafter mentioned makes such newspapers more saleable than those in which such abstracts do not appear. 3. That it has been, and still is, part of the business of the plaintiffs as such firm as aforesaid, to supply to the proprietors and publishers , of newspapers published and current in various parts of New Zealand copies of such tele-, graphic abstracts of news, and to license the publication of the same in such newspapers for, reward paid by the proprietors and publishers of such newspapers to the. plaintiffs, and such telegraphic abstracts of news are accordingly from day to day supplied for publication and are published in such newspapers as aforesaid, pursuant to such licenses as aforesaid, and such licenses are a source of profit to the plaintiffs in their said business. 4. That the defendant is the proprietor and publisher of a newspaper called the “ Poverty Bay Standard,” which is published on the. Tuesday, Thursday, and Saturday in each week, at Gisborne, in the Provincial District of Auckland, and in the Cook County, and has considerable circulation, 5. That at the time of the committing of the acts hereinafter mentioned by the defendant, he, the defendant, well knew that the plaintiffs carried on their business in manner aforesaid for profit to them, and well knew that the telegraphic abstracts of news obtained by the plaintiffs as aforesaid were obtained by them at great cost, and that the supply by them of such telegraphic abstracts of news, and the licenses granted by them to the proprietors and.publishers of newspapers in various parts of the colony for the publication of the same, were a source of profit to the plaintiffs ; and he also well knew that the publication of such abstracts in newspapers published and circulating in the colony made such newspapers more saleable than newspapers in which such abstracts were not published ; and he also well knew that the publication of such abstracts in newspapers not licensed as aforesaid would cause a loss to the plaintiffs, and would tend to diminish and injure them in their said business. 6. That notwithstanding such knowledge as aforesaid the defendant, without any license in that behalf from the plaintiffs, has for some time past from time to time published in his said newspaper, called the Poverty Bay Standard, all the telegraphic abstracts of news so obtained by tha plaintiffs as aforesaid, and supplied by them to the proprietors and publishers of newspapers licensed by them to make such publication as aforesaid, and for the purpose of the publication of such telegraphic abstracts of news in his (the defendant’s) said newspaper he (the defendant) has copied or extracted the substance of such telegraphic abstracts from one or other of such licensed newspapers as aforesaid ; and the plaintiffs say that the unauthorised publication by the defendant of such telegraphic abstracts of news as aforesaid, or of abstracts from the same, is injurious to the plaintiffs, and is calculated to depreciate the value of the licenses granted by them to other newspapers as aforesaid. 7. That although the plaintiffs have frequently requested the defendant to discontinue the unauthorised publication by him as aforesaid in his said newspaper of such telegraphic abstiaot of news as aforesaid, or of extracts therefrom, he (the defendant) jhas not only continued to publish the same by means of such copies or extracts as aforesaid, but has threatened to continue such unauthorised publication as aforesaid; and the plaintiffs verily believe that the defendant will continue such unauthorised publication as aforesaid to the damage of the plaintiffs, unless restrained from doing so by the injunction of this honorable Court. Wherefore tbe plaintiffs claim that the defendant may be restrained by the injunction of this honorable Court from printing and publishing as news in his said newspaper or otherwise any of the telegraphic abstracts of news from time to time supplied by the plaintiffs as such firm as aforesaid to other newspapers in the said colony of New Zealand, or any extracts from or colorable altei-ation or adoption of the same, without the license of the plaintiffs. And that the defendant may bo decreed to pay the costs of this action ; and such further or other relief as to this Court may seem meet.

Defendant demurred to the declaration on the following grounds : 1. That the declaration discloses no equity entitling the plaintiffs to an injunction, or to any other equitable relief. 2. That the reprinting from any newspaper of news published in such newspaper is not an actionable wrong, 3. That there is no copyright in news published in a newspaper. Mr. Stout contended that the right to restrict publication exists solely in England by statute; and that there is no common law right of property in articles once published. If telegrams were to be held to be copyright, so would all other matter in a newspaper. Webb had not taken anything at all from the Press Agency ; it was from a newspaper, and ‘the proprietor of that newspaper only had a grievance. In support of his argument Mr. Stout cited authorities at length. As to the Victorian cases, whigh the other side might rely on, —they were different. True, the Argus had obtained injunctions, but the Argus was registered under a clausa in the local Act which expressly extended the protection of copyright to newspapers. It was never for a moment contended that the copyright existed in common law. Mr. Travers: In this case there is a peculiarity iu that the relief sought is not a relief in view of what is ordinarily termed copyright. The copyright may be supposed to exist in the case of the newspapers which publish these telegrams, and if any newspaper publishing these telegrams had taken proceedings against another newspaper this question of copyright proper would have arisen, hut that is not the case here. Here the persona aggrieved undertake to compile and supply abstracts of important news to newspapers who subscribe, and they seek to restrain nonsubscribers from copying from the papers which do subscribe those abstracts of news. My friend says copyright is the creation of a statute, but no right is given by statute which did not have a prior existence at common law. These copyright statutes only limit the right existing at common law. It is the limitation of a right, not the creation of a right by statute. It must bo so iu New Zealand. Mr. Justice Johnston : If the copyright existed at common law. Mr. Travers : Yes, and I submit it does. Blackstone, vol. 2, p. 406, Hovenden’s ed. When a question has been exhaustively dealt with by statute, then the rights given by that statute supersede the common law right; but here we have no statute law as in England, and we ore entitled to all the privileges which existed anterior to the statute of Anne. Mr. Justice Johnston : You say that statute does not apply here. Mr. Travers : No, like the Statute of Mortmain, and others, it does not apply. We bring all the common law of England here, and also its modification, so long as the modifying statutes have force here. Mr. Justice Gillies ; We bring with us the English common law as it was modified by statute in 1840. Mr. Travers : As limited by statutes applying in New Zealand. Mr. Justice Gillies: As limited in England, Mr. Travers : I apprehend not. We bring the whole .of the common law, and if the statute of Anne does not apply here, then we have here the rights existing anterior to the passing Of that statute. In this case I submit that the property in these telegrams remains with the sender; the receiver has only a limited right. Everybody has a right to read the news, and to comment upon it, but other newspaper proprietors have no right to taka the news and publish it to the world for their own benefit and profit. Mr. Justice Williams ; You contend you have the same right iu regard to these telegrams as an author has against persons when bo authorises a newspaper to publish Ins book in chapters. ■ Mr. Travers : Yes. Mr. Justice Moleaworth’s remarks in the case cited by the other side bear ms out.

Mr. Edwards cited 8 Anne and 54 Geo. 111., chap. 156, and on the decisions as to the moaning of the word “book” in those Acts contended that a newspaper came within the definition of the word 44 book,” and that as books were protected in this colony so were newspapers. 2 East’s Rep. p. 24, 1 East 360. Although the plaintiff employs agents to collect news, still the news and the telegrams are his. 16 0.8. 459. Plaintiffs having expended money and labor in procuring these telegrams, clearly have a property in them. London Directory Case, L.R. 1 eq. 097. Mr. Justice Williams : If you contend that a newspaper is a book within the meaning of our Act. surely you must prove that your clients are the sole authors of the newspaper from which these telegrams are taken, —not merely authors of a part. Mr. Edwards: If it is a question of quantity I would submit that these telegrams really form a book—that if they were put in a separate form they would do so. The mere fac6 of their being mixed up with other matters would not prevent theii coming within the meaning of the Act. If there is a copyright the plaintiffs were the proper persons to bring this action. They are the owners of the telegrams, and simply authorise certain persons to publish them in a particular manner. But apart from the Copyright Ordinance the Court will protect the plaintiffs because of their common law rights.' It was not decided that there was no commonlaw copyright. 3 0 L. J. C. P. 209, 41 L.J. 903 and 875, 9 L.R. eq. 342. Jeffries y. Boosay. In a somewhat similar case the Supreme Court, Singapore, had actually issued an injunction. Mr. Stout, in reply : In asking the Court to declare there was a common law copyright counsel were inviting the Court to say that the decisions of Lord Brougham and Lord St. Leonards are bad law. The Declaratory Act passed by the New Zealand' Legislature can only have reference to the law in existence in England in 1840, and can have no relation back. I deny that that newspaper comes within the term of 44 book” in the Copyright Ordinance ; but aa-suming a newspaper is technically a hook, there can be no injunction. There must bo an action for damages after publication. The Court reserved its decision, and then adjourned till next (this) day.