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Suppose, for instance, that he grouped the books of the year into 16 broad categories, such as biographies, novels, poetry, travel, etc. If a rival copied those broad categories, the bookseller could not complain. He would not be entitled to copyright in his categories. It would be far too commonplace to be the subject of copyright see Cramp: v. I ought to say, of course, that even in that case the bookseller would be entitled to copyright in his catalogue of detailed items see Collis v.
It would only be in point if Ladbrokes had gone so far as to copy the actual matches, which they have not. The one point here is the selection of the 16 lists. Is it a highly skilled selection like the 16 best books of the year? Or a commonplace selection like the grouping into 16 broad categories? I cannot regard the selection of these lists by Hills as a commonplace arrangement. It is a highly skilled selection of 16 varieties out of an infinity of choice: and it has involved a great expenditure of time, money and effort.
In my judgment it is a compilation which is entitled to the protection of copyright. If this be so, the next question is whether Ladbrokes have reproduced a substantial part of it. To my mind they clearly have. They have taken 15 out of the 16 lists. They have taken much of the headings and many of the explanatory notes. I agree that there are large parts of the coupon which they have not taken. Ladbrokes have not taken the matches or the tables of odds. But the test does not depend on how much of the whole work is taken.
It all depends on the worth of the part taken. If you take a short poem out of an entire volume, you may be infringing copyright: or if you take only 28 bars out of a piece of music, you may do so: Hawkes v. The part taken by Ladbrokes is, I think, clearly of sufficient value to make it a substantial part.
Before parting with the case, I must deal with a point specially made by Mr. This argument contains a fallacy. True it is that there is no copyright in an idea but that is only true so long as the idea remains in the mind and is not put down on paper.
But once it is written down, the writing is the subject of copyright. No one is entitled to copy it on the plea that it was only an idea. Here the ideas were written down in the coupon and, when so written down, became the subject of copyright. In support of his argument Mr. Bevan relied on Purefoy Engineering Co. In that case the Purefoy Company made metal parts for jigs. They had no monopoly in them.
It was quite open to anyone to copy those parts and the Sykes Company did so. The Purefoy Company made a catalogue of the parts they made. The Sykes Company in turn made a catalogue of the similar parts which they made: but they did not use Purefoy's catalogue. They simply listed their own parts. Inevitably the two catalogues were very alike because the parts listed in them were so much alike. They had only listed their own parts as they were entitled to do.
I do not think that case has any application here. Ladbrokes have not merely taken the ideas underlying these lists. They have taken the selection as expressed in writing in the headings and notes. They had Hills' coupon before them and took their selection from it.
By so doing they infringed the copyright in the coupon. In my opinion the judge should have given judgment for Hills, not only in respect of the rules, but also in respect of the coupon: and I would allow the appeal accordingly. Diplock L. The types of wager which are laid in what is known as fixed odds football betting must of practical necessity be made in writing.
They involve giving to the punter a choice of Association Football matches in which to forecast the occurrence of a selected event or combination of events such as the result at close of play or half-time, or both, or the number of goals which each side will score.
The odds offered vary with the type of wager, that is to say, with the nature of the event or combination of events required to be forecast; and with the number of matches in which the selected event for that particular type of wager is correctly forecast. Once the bookmaker has determined upon the particular type of wager which he is prepared to lay, this for practical purposes dictates the form of his written offer to make that type of wager.
It must consist of 1 a list of the forthcoming matches which he has selected as those in which a particular event or combination of events is to be forecast with appropriate spaces in which the punter can set out in writing his forecast or series of forecasts if he wishes to make a number of alternative bets of that type: 2 words defining the type of wager which the bookmaker is offering to lay in respect of the matches set out in the list: 3 the odds which the bookmaker is offering against a correct forecast of the particular event or combination of events in various numbers of the selected matches.
Where, as appears to be the general practice, a bookmaker offers to lay more than one type of wager, the various offers are made in a single document known as a fixed odds football betting coupon. It is with such a document containing offers to lay a number of different types of wagers that this appeal is concerned. Great stress has been laid by Mr. Gardiner upon the fact that the plaintiffs' coupon, with which this case is concerned, contains seventeen different types of wagers and within those types one hundred and seventeen different wagers at different odds.
The written offer to lay a particular type of wager in the form in which it is published contains a list of matches selected by its author, the bookmaker, from the total number of league matches to be played on the following Saturday. The evidence shows that considerable skill and labour is required in making this selection from material derived from other sources, viz. But the defendants have not copied any of the plaintiffs' lists of matches.
They have made their own independent selection which generally differs from that made by the plaintiffs from the same common source. So far as this part of the written offer is concerned, there has been no reproduction of the plaintiffs' literary work and no breach of copyright.
The learned judge has also found as a fact that there has been no copying by the defendants of that part of the plaintiffs' written offer which consists of a statement of the odds which they are prepared to lay against correct forecasts in various numbers of matches of the particular event or?
The determination of the odds which can be safely offered also requires great skill and labour; but the defendants have exercised their own skill and labour and have arrived independently at their own odds—although since these are worked out by a method common to all bookmakers who operate in this field, they have arrived at results which are generally, though not invariably, the same as those arrived at by the plaintiffs. So far as this part of the written offer is concerned also, there has been no breach of the plaintiffs' copyright therein.
There remain the words defining the type of wager which the plaintiffs are offering to lay. This is the only part of the plaintiffs' written offer which the defendants have copied at least to some extent. Lloyd-Jacob J. I am prepared to assume for the purposes of this appeal that the defendants used this part of the plaintiffs' written offer as a model to be copied for the purpose of formulating their own written offer. As regards, then, the plaintiffs' written offer to lay a particular type of wager, the plaintiffs, if they published it as a separate document, would, as is conceded, be entitled to copyright in that document as a whole.
The issue then would be whether, in copying the written matter in words and figures used by the plaintiffs to define the type of wager which they were offering to lay, the defendants were reproducing a substantial part of that copyright document.
The decision to lay one well known type of wager rather than another calls no doubt for the exercise of judgment and business acumen: to devise a new type of wager calls in addition for labour, in- genuity and skill.
They must be simple commonplace words couched in betting jargon and intelligible to semi-literate punters. Thus, to take an example of a simple type of wager originally devised by the plaintiffs in , namely, bets against a correct forecast by the punter of the result being a draw in one or two or three or four or five or six matches in a selected list. They merely selected what they thought was the most attractive of the six bets of this type being offered as a title for or indicative of the nature of this type of wager.
The former is irrelevant to the question of literary copyright. I take one more example, this time of a more complex type of wager recently devised by the plaintiffs, namely, bets against a correct forecast by the punter of the results of three, four, five or six matches in a selected list, being a forecast? The plaintiffs were the first to adapt this term to fixed odds football betting. I accept that considerable ingenuity, mathematical skill and painstaking statistical investigation was required to devise this type of wager and if there were copyright in ideas, the plaintiffs might well establish a right to prevent other bookmakers adopting their idea and offering to lay similar bets.
But there is no copyright in ideas: there can be copyright only in the literary form in which they are expressed. Like the learned judge, I cannot persuade myself that the commonplace words and figures which I have quoted, and which were copied verbatim and numeratim by the defendants in their heading to the same type of wager, are entitled to copyright protection save in conjunction with the uncopied material in the plaintiffs' copyright document of which they formed part.
These explanations were inserted by the plaintiffs and the defendants in letter-press at the foot of the lists of matches in respect of which wagers of these types were offered. Considering any one type of wager individually, therefore, as if it had been published in a separate document, I am of opinion that the complete written offer to lay that type of wager, with the list of selected matches and the table of odds, would have been entitled to copyright as a compilation, but that to copy, as the defendants have done, only the heading and the brief additional explanation if any indicating or explaining the nature of the wager would have been no breach of the plaintiffs' copyright in the document.
If what has been copied in relation to each type of wager is not entitled to copyright protection, either on the ground that it is too commonplace and insubstantial to form the subject-matter of copyright, except in conjunction with the uncopied material or because it is not a substantial part of the copyright work, this must be equally true in a case where a number of those types of wagers for incorporation in a single document, unless either the selection of those types of wagers for incorporation in a single document or their arrangement on the document gives rise to a claim for copyright different from that which can be made in respect of the written offer to lay a single type of wager when published separately.
A tradesman who prepares a mere list of goods which he offers to sell does not thereby create a? A rival tradesman is entitled to consult the list and if he decides to compete with the originator of the list by selling the identical kinds of goods, he is entitled to copy the list and publish it for the purpose of informing potential customers that he offers to sell identical wares: Purefoy Engineering Co.
It does not consist of material gathered together from various sources. It is a written record prepared for publication of the tradesman's business decision as to the goods which he will offer for sale. The skill and labour involved in reaching the business decision is irrelevant for the purposes of copyright.
All that is relevant is any additional skill and labour involved in the expression of the decision in writing: and where the form of expression is merely a list of the goods which it has been decided to sell, this is too commonplace and insubstantial to be the subject-matter of copyright.
The case of Collis v. Cater and Ors 78 L. I do not find that case as reported conclusive or, indeed, helpful. The plaintiff, a retail chemist, appears to have compiled from inquiries made of, or catalogues issued by, various wholesalers and manufacturers a list of drugs and chemicals arranged under appropriate headings. What additional material e. Smythson Frank Ltd. It has not been relevant in cases like these to distinguish between the skill and labour exercised for this purpose and the skill and labour exercised for some other purpose irrelevant to the existence of copyright.
In Football League Ltd. The skill and labour exercised by the compiler was for two purposes: first, to find convenient dates which would enable each team in each division to play every other team in the same division at home and away during the limited football season, and, secondly, to convey to the public information in convenient form as to the dates so selected. Upjohn L.
He would, however, have been prepared to hold that the skill and labour involved in producing a single chronological list of matches from the separate club lists was itself sufficient to entitle the chronological list so compiled to literary copyright. The facts of that case were very special. The separate club lists of matches did not simply record a decision of the compiler of the chronological list as to the dates of the matches to be played by the clubs, but were themselves drawn up from information obtained from the individual clubs with modifications proposed by the compiler after consultation with the clubs themselves.
I do not regard Upjohn L. The plaintiffs' coupon consists of written offers contained in a single document to lay seventeen different types of wagers. It is a selection only in the sense that there were no doubt other types of wagers which they could have offered to lay had they thought it good business to do so. This does not exclude the possibility that after the business decision to lay the particular types of wagers had been made, the actual arrangement upon the coupon of the written offers to lay those types of wagers may itself have involved sufficient skill and labour to entitle the coupon to literary copyright.
The learned judge considered this matter fully. Once the decision was made to offer those types of wagers, the arrangement in effect dictated itself. In these circumstances it does not seem to me that the fact that a number of different types of wagers have been incorporated in a commonplace arrangement in a single document, entitles the resulting document to any literary copyright different from that to which they would be entitled in respect of any offer to lay any one particular type of wager in a separate document.
If, therefore, the plaintiffs' copyright in none of the offers to lay a particular type of wager, considered in isolation, has been infringed by the defendants copying that insubstantial part which they have in fact copied, then the plaintiffs' copyright in the document, which incorporates the offers to lay all those types of wagers, has not been infringed either.
For these reasons I am unable to share the views of the majority of this court and I myself would hold, like Lloyd-Jacob J. Gardiner has not abandoned, but has not really argued, an alternative contention that the coupon is entitled to artistic copyright. This can only be as a work of artistic craftsmanship under section 3 1 c of the Copyright Act, I can at least agree with my brethren that it is not a work of artistic craftsmanship de gustibus.
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