Page:The copyright act, 1911, annotated.djvu/40

28 whether the act complained of goes beyond the limits of fair dealing for that purpose. The test will be whether there is a probability of substantial commercial injury, being done to the copyright work.

User for the purpose of research must carry with it the right to publish the fruits of such research. The liberty of fair dealing by way of research is probably intended to express the whole of the existing case law on the meaning of fair use.

Fair dealing for the purposes of criticism or review always been deemed to be permissible. The decisions upon the existing law will be equally applicable upon any question under the new law as to what may or may not be reproduced under the cloak of criticism.

The right of newspaper summary is a new right. It apparently permits an epitome, with reasonable verbatim extracts, from the work summarised. The whole object of the summary may be the reproduction of the kernel or pith of the matter summarised. It need not be accompanied by any comment or criticism. It must, however, be fair dealing. Probably the best test of fair dealing is to ascertain whether the summary is such that, having regard to the character and circulation of the work summarised and the newspaper respectively, there is any probability of substantial commercial injury being done to the copyright work.

It will be observed that the liberty given by paragraph (i) applies to all works published or unpublished. It is essential that the right should not be confined to published works, for otherwise a criticism or newspaper summary of a play publicly performed, but not published, might be held to be an infringement. As regards unpublished documents and papers, although the sub-section would appear to apply to all such matters so as to prevent the publication of an unauthorised review or newspaper summary being an infringement of copyright, yet such review or summary could usually be stopped on the ground that the publication was procured by a breach of trust or confidence. There is no doubt, however, that the right of stopping or punishing such unauthorised publication of the contents of confidential documents is considerably weakened by the abrogation of the old common law right of property therein, and the substitution of the modified protection given by the new Act.