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Copyright Laws in the last Century Exonerate Ellen
G. White.
We can not judge Ellen G. White who lived more than half her life in
the last century by this century standards.
Ellen G. White a Plagiarist?
Copyright, is the right secured by the law of every civilized nation
to authors of musical, artistic, or literary works, to prevent any reproduction
of their works without their consent. The growth of the law of copyright
protection has closely follow the development of mechanical means of reproduction.
Literary copyright was protected only after the invention of printing. Literary
copyright was protected in England by the Literary Copyright Act 1842.
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Infringement of Copyright.---Infringement of copyright
is defined in the act of 1911 as the doing of anything the sole right to
do which is conferred by the act on the owner of copyright. It is rather
surprising that the act does not directly state the proposition which has
always put forward as the proper ground for distinguishing copyright from
a monopoly, namely that it is not infringement of copyright to reproduce
the same result provided that resort is not had to the author's original.
The point is of considerable importance in the case of compilations,
of commercials designs and of photographs since it is quite possible
for works of this class to be practically identical although the author
of neither work has seen the other. It has however always been assumed
that the real basis of an action for infringement of copyright is culpable
wrong-doing on the part of the defendant--literary theft--and there is not
doubt that now, as under the old law, it is essential for the owner
of copyright to prove that a defendant has either copied his work or copied
something which was itself a copy. The inventor of a particular form
of words or the artist who composes a picture of a particular scene or arrangement
of figures has not monopoly of his inventions, and if by chance, another author or artist hits upon the same words or the
same scene he has committed no wrong either in fact or in law.
Resemblance, therefore, though it may often lead to the inevitable conclusion
that the defendant has in fact seen the plaintiff's work and so be excellent
evidence that copyright has occurred, it is not in itself sufficient
to substantiate a claim of infringement. Resemblance again
may not amount to infringement of copyright because the resemblance, though
due to the second author having seen the original, is so remote as not to
injure the first author. The act of 1911 is not clear in regard
to this matter either. In the early days of copyright protection, when this
was extended only to 'books' as such, attempts were made to evade the law
by expressing the contents of the books in other words. It was soon established
that any "colorable imitation" of a book could
be proceeded against and the doctrine was in due course extended to infringement
of other copyright works. The Act of 1911 however
does not state this in any definite form. The expression
"colorable imitation" is only employed in the definition of "infringing
copies" and this phrase is not used in that part of the act which defines
infringement. ....
IF
Ellen G. White copied from so many authors, our question is: Why nobody
in the last century sued her?
We
will continue with the 1929 Britannica. In fact however one of
the most difficult questions which the courts have to determine is whether
a defendant has so far copied the plaintiff's work that he can be said to
have created a "colourable imitation" of it, or whether he has
taken the idea only and clothed it in a new literary or artistic form....
Limits of Copyright Protection Copyright
Protection is limited to the safeguarding of the literary or artistic form
of a WORK. What is known in continental countries
as the "droit moral" --the right of an author in the reputation
of his work--is not directly recognized in English Law. There are, however,
certain forms of action available to authors from this point of view. There
is the "passing off" action . An author has the right to restrain
the passing off to the public of another WORK as his. This
form of action has been used to preserve an author's nom-de-plume and
is available in the case of similar titles. In the latter case, however,
it has to be shown that the public really so associated the title with the
author plaintiff that they believed that the WORK was also his. The converse
case, however, is more difficult. The assignee of copyright has the
right, as far as copyright goes, to make any use he pleases of the work
assigned though such a use may be displeasing or even injurious to the author.
Of course if alterations are made which suggest, for example, that the author
writes illegal or immoral WORKS the ordinary law of libel is available,
but short of this the only form of action open to the author is one in the
nature of slander of GOODS. As success in this action requires proof of
real malice on the part of the defendant and actual damage to the plaintiff,
it is not one which is often available. The literary reputation of authors
is therefore not fully protected in English law as it exists at present...
(Preston v. Raphael Tuck, 1926, I Ch.667)
Permitted Reproductions Section 2 ( I ) of the Copyright
Act expressly provides that certain acts shall not constitute an infringement
of copyright. There is in the first place a general provision that any fair
dealing with a WORK for the purpose of private study, research,
criticism, review or newspaper summary shall be allowed. Obviously
"fair dealing" is difficult to define but it would seem that the
question of whether the two WORKS compete is of importance in judging of
the fairness of the reproduction. LIBERTIES of a similar nature are:
The Publication of short passages from published literary WORKS in collections
for the use of schools; the publication in a newspaper of a report of a
lecture, unless such report is prohibited by a conspicuous notice maintained
during the lecture near the entrance of the building where the lecture is
given; and the publication of reports of political speeches in a newspaper.
Authors of artistic WORKS in respect
of which they do not own the copyright are entitled to use again sketches
and moulds prepared by them in connection with the WORK, provided that they
do not thereby repeat the main design of the WORK... Encyclopedia
BRITANNICA 1929 page 413-418 |
