The main thrust of Mr. Laddie's argument was that the
plaintiff intended his book to be read as a factual account of
historical events, that the defendant accepted it as fact and did
no more than repeat certain of those facts. The plaintiff
cannot claim a monopoly in historical facts. The law of
copyright does not preclude another author from writing
upon the same theme. It is perfectly legitimate for another
person to contrive a novel about the Hofburg spear, even
about its supposed ancestry and supernatural powers.
Otherwise one would be driven to the conclusion that the
plaintiff has a monopoly of the facts. Members of the public
are entitled to use The Spear of Destiny as a historical work
of reference. Mr. Laddie conceded that if the plaintiff had
research and selected which facts to use, and had expended
substantial labour in making that selection, and a substantial
amount of his labour had been taken by the defendant, then
there might be infringement. In the present case, he
submitted, the plaintiff's facts were selected by history or by
Dr. Stein and not by the plaintiff. In the result, there had been
no reproduction of the plaintiff's book in relation to a
substantial part thereof. In the course of his copying the
defendant confined himself to those matters which are
represented in the plaintiff's book as historical facts, whether
their origin is to be found in documented history or in the
meditations of Dr. Stein.
In developing his argument Mr. Laddie drew a distinction
between historical works and works of fiction. He said that if
any author writes a history book he obtains copyright, but
what amounts to an infringement of that copyright, i.e.
substantial reproduction, depends to a great extent upon
whether all the defendant has taken is historical facts or
amounts to more than that. The degree of user which would
amount to an infringement is different in the case of a
historical work than in the case of a work of fiction. There is
more freedom to copy in the case of the historical work.
I am inclined to accept that a historical work is not to be
judged by precisely the same standards as a work of fiction.
The purpose of a novel is usually to interest the reader and to
contribute to his enjoyment of his leisure. A historical work
may well have that purpose, but the author of a serious and
original historical work may properly be assumed by his
readers to have another purpose as well, namely to add to the
knowledge possessed by the reader and perhaps in the process
to increase the sum total of human experience and
understanding. The author of a historical work must, I think,
have attributed to him an intention that the information
thereby imparted may be used by the reader, because
knowledge would become sterile if it could not be applied.