Intrinsic evidence of similarities between two literary works must be of the most cogent force to establish copying when direct evidence from credible witnesses denies access to the original work. Expert witnesses may identify similarities but cannot conclude whether copying occurred.

Lord Atkin.-

This is an appeal from the judgment of the Second Appellate Division of the Supreme Court of Ontario, which affirmed the judgment of Raney, J., in the Supreme Court of Ontario which dismissed the plaintiff's action. The action is brought by the plaintiff. Miss Florence Deeks, for breach of copyright, but in substance the action is for breach of confidence in permitting the plaintiff's unpublished manuscript to be used without the plaintiff's consent. The action is brought against the Macmillan Company of Canada, which is the company to which the plaintiff entrusted her manuscript; it is brought against Mr. H. G. Wells, who is said to have used the manuscript of the plaintiff improperly as the foundation of his book, The Outline of History, and it is brought against the Macmillan Company, Incorporated, of New York, Messrs. George Newnes, Limited, and Messrs. Cassell and Company, Limited, for having published the work of Mr. Wells which had been so composed. Now whether or not the book was used, handed over to Mr. Wells, and whether it was improperly used by him are pure questions of fact. Upon those questions of fact both Courts have come to a conclusion against the plaintiff; and it would follow that, in accordance with the usual practice in dealing with appeals of this Board, there being two concurrent findings of fact, the Board would not hear an appeal which suggested that those findings were wrong. But Miss Deeks appears in person; she evidently thoroughly believes in her case, and it was important, their Lordships thought, in the interests of everybody that the case should be fully heard. They therefore made a special exception in her favour and have allowed her to open the case at length, and their Lordships proceed to decide it without any reference to the general rule as to concurrent findings.

The position is that Miss Deeks in August 1918 entrusted her manuscript entitled “The Web” to the Macmillan Company of Canada. The manuscript was of a work which involved the whole history of the world from its very beginning to the present day, with the special object of emphasizing the important part that women had played in the social development of the world. The book was entrusted to the Macmillan Company in Canada on 8th August 1918. It was left with them by Miss Deeks for two purposes. One purpose was to ascertain whether there would be any objection to the use by her of certain extracts from Green's “Short History of the English People,” the copyright of which was owned by Messrs. Macmillan in London. Together with a request that they should afford her information on that point, they were generally asked to advise her as to the prospects of the work as a publication. Apparently Messrs. Macmillan in London control the Macmillan Company of Canada and the Macmillan Incorporated Company of New York.

The manuscript was examined by Mr. Saul, who occupied the position of editor of their works and was the person before whom manuscripts would naturally come. The exact story of what he did with the manuscript is not quite clearly recorded; but it is quite plain, their Lordships think, that he took the manuscript, he read it once and then he read it a second time, and his recollection is that be took it with him to Winnipeg and the Pacific Provinces and returned with it to Ontario at some date in November. He left the employment of Macmillans in Canada in January 1919. The writ was not issued until 1925, and a long time had elapsed, no doubt, since he had occasion to deal with the question of the manuscript, though it appears that some reference had been made to him before the writ had been actually issued. There is an entry in the book that records the dealing with manuscripts to the effect that the book was received on 8th August 1918 and was returned in February 1919. In the opinion of their Lordships that record is incorrect. It seems that the manuscript was not returned in fact to Miss Deeks until April 1919. There i