Chapter 3—Rights Secured By Copyright

Justice Story is recognized as the most influential judge in the area of copyright law in the era in question, and concluded that the copyrightable merit of a book is that subject matter which is “new and original, in the sense in which those words are to be understood in cases of copyright. The question is not, whether the materials which are used are entirely new, and have never been used before; or even that they have never been used before for the same purpose. The true question is, whether the same plan, arrangement and combination of materials have been used before for the same purpose or for any other purpose. If they have not, then the plaintiff is entitled to a copyright, although he may have gathered hints for his plan and arrangement, or parts of his plan and arrangement, from existing and known sources. He may have borrowed much of his materials from others, but if they are combined in a different manner from what was in use before, and a fortiori, if his plan and arrangement are real improvements upon the existing modes, he is entitled to a copyright in the book embodying such improvement.” ^{1Emerson v. Davies et al., 8F.Cas. 615 (No. 4436), 13-16 C.O. Bull. 850, 855, 856 (1845).}RRPCI 3.8

The United States Supreme Court in Holmes v. Hurst, 174 U.S. 82, 19 S. Ct. 606. 43 L. Education, 904, 13-16 C.O. Bull. 1267, 1270 (1899) defined with perhaps like exactitude the nature of the right secured by copyright as follows:RRPCI 3.9

“The right thus secured by the copyright act is not a right to the use of certain words, because they are the common property of the human race, and are as little susceptible of private appropriation as air or sunlight; nor is it the right to ideas alone, since in the absence of means of communicating them they are of value to no one but the author. But the right is to that arrangement of words which the author has selected to express his ideas. Or, as Lord Mansfield describes it, ‘an incorporeal right to print a set of intellectual ideas, or modes of thinking, communicated in a set of words or sentences, and modes of expression. It is equally detached from the manuscript, or any other physical existence whatsoever.’ 4 Burr. 2396. The nature of this property is best defined by Mr. Justice Erle in Jefferys v. Boosey, 4 H.L.C. 815, 867 (1855): ‘The subject of property is the order of words in the author’s composition; not the words themselves, they being analogous to the elements of matter, which are not appropriated unless combined, nor the ideas expressed by those words, they existing in the mind alone, which is not capable of appropriation.’”