THE LAW OF COPYRIGHT. 



423 



THE LORD CHANCELLOR'S JUDGMENT. 



Pike v. Nicholas. — Dec. 1869. 



{Verbatim Extracts. J 



"In many cases we have to regret the absence of counsel, but in the present 

 case we certainly have no occasion to express any regret in that respect. This is 

 peculiarly a case reqniring such minute investigation and comparison as would 

 render it difficult for counsel to find time to enter upon. 



" In no respect will it be found that we shall lay down general principles in any 

 way contrary to those which are laid down by the learned Vice-Chancellor. If 

 we have the misfortune to differ from him, it is entirely in the application of 

 these principles to the particular works before us. It is confessedly one of the 

 most difficult problems brought forward for the court to solve with reference to 

 cases of piracy, when there is a common subject with whicli parties start, when 

 there are common authors which are open to both of them, and when portions of 

 the one work which are said to resemble portions of the other work may be 

 deduced from those common authors to which each is at liberty to resort. 



" I shall first advert to the circumstances under which these works were com- 

 posed, and then to the common sources to which it is open to either party to apply 

 himself. I think that the Vice-Chancellor has not given sufficient weight to either 

 of those two circumstances. 



" First, there was a common origin of subject, which it is very important 

 should be borne in mind throughout in the consideration of this case. The 

 subject was originated in the minds of both these gentlemen by the prize which 

 was offered for the best essay on the origin of the English Nation, &c. Therefore 

 I find in the outset (as is to be expected) the writers of both these treatises 

 taking exactly the same view in this respect, viz., that the ancient Britona 

 largely preponderate as an element of the English nation. That being so, each 

 of them would naturally begin to look about for the authors bearing on this 

 question. . . . There are a variety of authors on the subject, especially Dr, 

 Prichard, to whom, in the first instance, both of them would have recourse. . . . 

 the existing evidence of language, physical characteristics, customs and habits 

 of life, &c. . . . Therefore, before approaching the question, whether or not one 

 author has taken from the other, it must be borne in mind that a great deal of 

 similarity will naturally be expected to be found in the works of authors writing 

 on such subjects as these. • 



"Then, as to common sources. "When once it is established that there are 

 common sources, it will naturally be expected that there will be great similarity 

 in the statement of the facts which are narrated in those common sources. 

 Accordingly there may be traced throughout the work of the defendant a great 

 eimilarity to the outline and plan of that of the plaintiff. With regard to that 

 part of the case, I think the Yice-Chancellor has laid a great deal too much stress 

 upon the fact of the division of the subject in the defendant's work being similar 

 to the division of the subject in the plaintiff's work. I am allowing at present 

 that the defendant's evidence — I mean what he has stated on his oath, — is not to- 

 enter into the matter at all, but that we must look only to those documents 



