"This definition does not extend to prin_A Treatise Upon the Law of Copyright in the United Kingdom and the Dominions of the Crown, and in the United States of America Containing a Full Appendix of All Acts of Parliament International Conventions, Orders in Council, Treasury Minute and Acts of Congress Now in Force.

published, but only to the prints and designs forming part of a

book, and the book is not less a book because it contains prints

or designs or other illustrations of the letterpress. This Act

vested in the proprietor of such book duly registered the right to

sue in respect of any invasion or infringement of the copyright of

his book. It appears to me that a book must include every part of

the book; it must include every print, design, or engraving which

forms part of the book as well as the letterpress therein which is

another part of it."[163]

[Sidenote: No Letterpress.]

[Sidenote: Christmas Card.]

[Sidenote: Plate issued separately.]

In _Maple & Co_. v. _Junior Army and Navy Stores_,[164] the engravings

in an illustrated catalogue, containing almost no letterpress, were

protected under 5 & 6 Vict. c. 45. "There may be such things,"

said Jessel, M. R., "as picture-books for those who cannot read

letterpress."[165] In _Hildesheimer & Faulkner_ v. _Dunn & Co._,[166]

protection was claimed for a Christmas card cut out and painted in

the form of a lady's hand. It opened out book-wise, and inside were

delineated the lines of life according to the rules of palmistry, and

on one side there was an original verse. This work was registered

both under 5 & 6 Vict. c. 45 as a book and 25 & 26 Vict. c. 68 as a

painting. Kekewich, J., in granting an injunction against a piracy,

said he would not decide whether the work was a picture or a book, but

as it was well registered under both Acts, an action lay. In _Comyns_

v. _Hyde_,[167] a coloured plate representing an Orpington cock was

issued with the weekly number of a serial publication called _The

Feathered World_. The plate was not in any way physically connected

with the rest of the publication, but it was illustrative of an

article in the journal, and a copy was given to every purchaser.

Stirling, J., held that it must be protected as part of the book. If

a plate or picture has been previously published in separate form,

without complying with the provisions of the Engravings Acts, it will

not subsequently receive protection by reason of its incorporation

into a volume.[168] In _Strong_ v. _Worskett_[169] a magazine was

before publication advertised by means of illustrated posters. The

same illustration as appeared on the posters was afterwards reproduced

in the magazine. It was held that it could not be protected as part

of the magazine. The result of these decisions appears to be that an

artistic work will be protected under the Literary Copyright Act,

1842, if it is bound up with other artistic works in the form of a

volume, or if it is published in connexion with letterpress. The

picture on a Christmas card on which there are also verses, would, it

is submitted, be protected as a book, and, it would seem, whether or

not the verses were copyright, and whether or not (but this is more

doubtful) the picture was in any way illustrative of the verses. It is

also submitted that an engraving published in a magazine without any

relation to the letterpress, except that of physical connexion, would

be protected as part of the book; but an engraving or print which had

neither any relation to the letterpress nor physical connexion would

probably not be protected even although issued gratis with every copy

of the magazine.

It need hardly be said that anonymous works are entitled to copyright.

The publication of a work without the author's name is not to be

construed as an abandonment of the literary property.[170]

[Sidenote: Maps.]

Maps, charts, and plans are expressly included in the definition of a

"book." If incorporated in a volume they will be protected with the

rest of the volume under its general title; if published separately

they will be protected as "books" by themselves. The meaning of

"maps," &c., will be literally construed; but it must be something

which in itself conveys information to the person studying it. Davey,

L. J., in speaking of maps, said:[171]

"I agree ... that a 'map' is not confined to what is popularly

known as a map--viz. a geographical map; and that a 'chart' is

not confined to what is popularly called a chart--viz. a map of a

portion of the seas showing the rocks, soundings, and such-like

information for the use of navigators.... There may, no doubt, be

an anatomical and physiological plan showing the structure and

distribution of the muscles and bones of the human arm, or any

other part of the human frame, which would be protected by the

[Sidenote: Music.]

The exclusive right of making copies of original music is expressly

protected by the Act of 5 & 6 Vict. c. 45 under the definition of a

book. Under the statute of Anne it was protected by case law, "book"

being held to include a volume or sheet of music.[172]

SECTION II.--PUBLICATION.

Publication divests the author or proprietor of an unpublished work

of his common law rights therein. After publication his right to

protection depends solely upon the statute. Publication must be looked

at from two points of view--divestitive, _i. e._ as taking away the

author's common law right; and investitive, _i. e._ as clothing him

with the statutory right.

=Divestitive Publication.=--If a literary work is communicated

to the public without restriction, the common law right of the

author terminates. This may be done orally or by written or printed

manuscript. Either kind of communication, however, may be so limited

as not to amount to a publication. A drama or musical work is not

published by being publicly performed in a theatre or concert

room,[173] since the communication is limited to those who have paid

their price for admission, and they are admitted under an implied

contract that they will not make any use of what they hear except

for their own entertainment and instruction. The same applies to

lectures delivered at a University[174] or by a private lecturer.[175]

The question as to when a public speaker or preacher publishes the

speech or sermon which he delivers is one of extreme difficulty, and

depends on the relation of the speaker to his audience.[176] If a

literary composition is orally communicated in a place to which all

have admission as of right, or to which all are admitted without

distinction, and where there are no circumstances from which a

contractual relationship between the speaker and his audience can

be inferred, the matter so communicated will be abandoned to the

public to make what use of it they please. Similarly communication

by means of manuscript or print may be limited or unlimited. Private

distribution of copies of a book is not publication, because the

essence of publication is that the matter must be available to all

comers and not only to a class;[177] but the issue of a book to

subscribers only would be publication if the subscription list was

open to the public at large, and even although the number of copies

available was very small. In one case[178] the words of a song were

held to be published by being printed on a music-hall programme and

distributed in the streets as an advertisement. Exhibition in a public

place without distribution of copies would undoubtedly be divestitive

publication. Divestitive publication must be with the consent of the

proprietor; an unlicensed publication would merely be an infringement

of his rights.

=Investitive Publication.=--Publication vests the statutory right of

not necessarily invest the statutory right. An investitive publication

is of necessity also a divestitive publication, but not _vice versâ_.

The principal distinction is that an investitive publication must

be a publication of a book, while a divestitive publication is a

publication of the literary composition which is or may be contained

in a book. Thus the delivery of a lecture does not vest copyright,

although under certain circumstances it may divest the common law

right. The book itself must be given to the public, and not merely the

contents, in order to secure copyright. It has been suggested that a

book will not be published within the meaning of the Copyright Act

unless it is also printed. There is certainly some colour for this

suggestion. The Act 5 & 6 Vict. c. 45 gives protection to all books

which are "published" without any express restriction to printed

books. It seems to be assumed, however, throughout the Act that a

book when published must necessarily be in print. For instance,

section 6 requires "That a printed copy ... shall be delivered at the

British Museum." In section 11 again, where provision is made for

registration, it is not contemplated that a book in which there is

provision for the registration of manuscript dramatic and musical

pieces, in respect of performing right. There is no authority on

this point. In _White_ v. _Geroch_[179] it was said that publication

of a musical piece in manuscript vested the statutory copyright;

but this was under the statute of Anne, which seems expressly to

contemplate publication in manuscript which 5 & 6 Vict. certainly does

not. In _Boucicault_ v. _Chatterton_[180] James, L. J., says: "a book

is published by being printed and issued to the public;" but this

was said only in illustration of the point he was then making, viz.

that publication does not necessarily mean the same thing in dealing

with copyright as it does in dealing with performing right. On the

whole, although the point is extremely doubtful, I am of opinion that

printing is not required. Suppose an illuminated hand-made book, fifty

copies put on the market, is that to be denied copyright? If it is,

the result seems to be that it is unprotected from piracy, since the

common law right terminates with unconditional publication. Another

point on publication has been raised but not decided, viz.: Must there

be a distribution of copies to the public, or will it be sufficient if

one or more copies are made accessible to the public; for instance, by

deposit of a copy at the British Museum or in other public libraries.

Sir James Stephen, in his Digest appended to the "Report of the

reference to books, publication for sale;" and James, L. J., as cited

above, suggests that there must be an "issuing to the public." On the

other hand, the disjunctive use of the terms "published" and "offered

for sale " in section 6 of 5 & 6 Vict. c. 45 is rather in favour of

the view that there can be investitive publication without "offering

for sale." Analogy from other branches of the law is unreliable; the

exhibition of a picture in a public gallery is publication of the

picture,[181] but that is the only way in which a picture can be

published. On the whole, I think that if the public have free and

unrestricted access to a book there will be publication, even although

they may not be able to procure copies for themselves. Something might

depend on the rules of a library where the book was deposited.

There is a common practice among publishers to accept as proof of

first publication a receipt given on the sale of a single copy of

the book. No doubt this is _primâ facie_ proof of publication, but

the sale of a single copy does not necessarily imply publication, and

it would be open to any one disputing the date of the publication to

say that the sale was collusive, and that the book was not at that

time, as it must be in order to constitute publication, offered to the

public. It would be sufficient publication for the publisher to place

copies, or even one copy of the book, in his window for sale. The

record in his books should be sufficient evidence of the date if it is

disputed.

In a case[182] under the statute of Anne it was held that publication

must be by or on behalf of the proprietor, or at least with the view

of conferring copyright upon him. The publication in that case was

made by an oral assignee to whom the author had purported to convey

the exclusive right of publication in the United Kingdom. It was

held that the assignee had no copyright because there was no written

assignment, and that the author did not acquire copyright because the

publication was not on his behalf. The result seems to be that the

doubtful, it might be applied to the case of first publication by a

licensee, unless it could be implied from the contract between the

licensor and licensee that the licensee was not acting entirely on his

own behalf, but also on behalf of his licensor to secure copyright.

=First Publication within the British Dominions.=--Under the Act of 5

& 6 Vict. c. 45, it was held essential that first publication should

be within the United Kingdom;[183] but since the International Act

of 1886[184] first publication anywhere within the British dominions

will equally secure copyright. If a book is published simultaneously

within and without the dominions it is sufficient.[185] Publication a

day later than publication abroad would probably lose the copyright;

but if on the same day, even although an hour or two later, it would

be deemed simultaneous. If a serial story in a periodical is being

published simultaneously, say here and in the United States, some

parts may have lost their copyright by too hasty publication in

America, but this would not deprive the whole serial of copyright

if the other parts were "first published" within the British

dominions.[186] The date on the title-page of an American book has

been held not to be conclusive evidence of the time of publication in

the United States.[187] It is quite immaterial where the manuscript

is written;[188] and probably equally immaterial where the book is

printed. It has been suggested, however, that under 5 & 6 Vict. c. 45,

printing within the United Kingdom was necessary, and that now since

the "International Copyright Act, 1886," printing within the British

dominions is a condition precedent to protection. I do not think the

suggestion is of any weight. It is founded on two _obiter dicta_--one

of Lord St. Leonards in _Jefferys_ v. _Boosey_,[189] and the other of

Bayley, J., in _Clementi_ v. _Walker_.[190]

If a book is first published outside the British dominions there

will be no copyright[191] in it except under the International

Statutes.[192] Section 19 of 7 & 8 Vict. has been held to apply to

publication in all foreign countries, and not only to those with which

an international convention is in existence;[193] and it has been

further held to apply to the works of a British subject as well as to

those of a foreigner.[194]

If a dramatic or musical work is first performed abroad before

publication as a book, although that may destroy the performing right

within the British dominions, it probably will not affect the author's

right to acquire copyright by first publication here in "book" form.

It may be said that "first published" in 7 & 8 Vict. c. 12, sec. 19,

has been held to include "first performed."[195] That decision,

however, dealt only with a question of performing right. In _Boosey_

v. _Davidson_[196] there was first performance abroad, and it was held

that copyright was obtained here by first publication; but there was

no argument on section 19.

SECTION III.--AUTHOR'S NATIONALITY.

It must still be considered doubtful whether or not the author of

a book must be a British subject, or at least resident within the

British dominions at the time of publication. This point is the

subject of a considerable body of case law under the statute of Anne;

but there has been no definite and authoritative decision under the

statute of Victoria. The question was first seriously argued in the

case of _D'Almaine_ v. _Boosey_,[197] when it was decided in the

Court of Exchequer that the work of a foreigner would be entitled

to protection if first published in England by an English assignee.

The next case was _Bentley_ v. _Foster_,[198] before Shadwell, V. C.,

who decided that the foreigner himself could acquire a copyright by

first publication in this country. After that there is a series of

confused and conflicting cases,[199] terminating with the decision

of _Jefferys_ v. _Boosey_[200] in the House of Lords. The plaintiff

in that case was the English assignee of the unpublished work of

a non-resident foreigner. The first publication was in England.

The judges were consulted, and of these six were in favour of the

plaintiff's right and four against it. The House of Lords, however,

were unanimous against the plaintiff's right. They decided that the

work of a non-resident foreigner could not acquire copyright in this

country.

Lord Cranworth, L. C., said:

"The statute (8 Anne) must be construed as referring to British

authors only. _Primâ facie_ the legislature of this country must

be taken to make laws for its own subjects exclusively, and

where, as in the statute now under consideration, an exclusive

privilege is given to a particular class at the expense of

the rest of her Majesty's subjects, the object of giving that

privilege must be taken to have been a national object and the

privileged class to be confined to a portion of that community

for the general advantage of which the enactment is made. When I

say that the legislature must _primâ facie_ be taken to legislate

only for its own subjects, I must be taken to include under the

word 'subjects' all persons who are within the Queen's dominions,

and who thus owe to her a temporary allegiance. I do not doubt

but that a foreigner resident here, and composing and publishing

a book here, is an author within the meaning of the statute: he

is within its words and spirit. I go further: I think that if a

foreigner having composed but not having published a work abroad

were to come to this country, and the week or day after his

arrival were to print and publish it here, he would be within the

protection of the statute."

_Jefferys_ v. _Boosey_[201] then definitely decided that under the

statute of Anne a foreigner, unless at the time of publication he

was resident within the jurisdiction of the crown, could not be an

author within the meaning of the Act, and therefore neither he nor his

assigns before or after publication could acquire copyright. It would

seem to follow that the construction of 5 & 6 Vict. c. 45 would lead

to a similar decision. This, however, has been doubted in the House of

Lords in the case of _Routledge_ v. _Low_.[202] The actual decision

in that case went no further than holding that a foreign author who

was resident for a few days in Canada expressly for the purpose of

acquiring copyright while her book was published in London was an

author within the Act, a proposition which had not been disputed in

_Jefferys_ v. _Boosey_.[203] Their Lordships, however, discussed the

wider issue whether even temporary residence was necessary. Lord

Cairns, L. C., and Lord Westbury were of opinion that it was not. Lord

Cairns, after pointing out that _Jefferys_ v. _Boosey_[204] was a

decision under the Act of Anne, said:

"It was impossible not to see that the _ratio decidendi_ in

that case proceeded mainly, if not exclusively, on the wording

of the preamble of the statute of Anne, and on a consideration

of the general character and scope of the legislation of Great

Britain at that period. The present statute had repealed that Act,

and professed to aim at affording greater encouragement to the

production of literary works of lasting benefit to the world. And

accepting this decision of the House as to the construction of the

statute of Anne, it is, I think, impossible not to see that the

present statute would be incompatible with a policy so narrow as

that expressed in the statute of Anne."[205]

Lords Cranworth and Chelmsford agreed that temporary residence within

the dominions was sufficient to give a foreigner the right to acquire

of the House. They, however, differed strongly from the view that

a non-resident foreigner could be an author within the Act. Lord

Cranworth said:

"I have no hesitation in concurring with my noble and learned

friend in thinking that the decree below was right. I find it

difficult to concur with him in the opinion that the present

statute extends its protection to all foreigners wherever they

may be resident without saying that the case of _Jefferys_ v.

_Boosey_[206] is not good law--a conclusion at which I should

be very unwilling to come as to any case decided in this House,

more especially as to one so elaborately considered as that of

_Jefferys_ v. _Boosey_.[207] That case, as my noble friend has

pointed out, was decided not on the construction of the Act of 5

& 6 Vict. c. 45, but on the statute of Queen Anne; but I own I

do not as at present advised see any difference between the two

statutes so far as relates to the subject of the residence of

foreign authors."

_Routledge_ v. _Low_[208] is followed as to its actual decision in

_Low_ v. _Ward_;[209] but as to the rights of a non-resident foreign

author the law remains, as left by _Routledge_ v. _Low_,[210] truly

in a most unsatisfactory state. It is difficult to escape from the

conclusion, however willingly one would, that there is really no

distinction between the application of the statute of Anne and that of

Victoria, and that, therefore, a case arising on this point under the

Act of Victoria is governed by _Jefferys_ v. _Boosey_,[211] a decision

which, if erroneous, was not so for want of deliberate research and

consideration. The general opinion, however, seems to be that Lords

Cairns and Westbury were right and Lords Cranworth and Chelmsford

wrong. This view is adopted by Stephen, J., in his digest.[212] Mr.

Scrutton is of the same opinion, and cites the Naturalisation Act and

the proviso that copyright is personal property.[213] Mr. Chamier does

the same.[214] It is respectfully submitted that the provisions of the

Naturalisation Act and the indisputable fact that a foreigner wherever

resident can acquire a British copyright are entirely beside the mark,

and do not in the least help one to decide whether the legislature is

to be presumed to have applied the Act of 5 & 6 Vict. to the works of

foreign authors. The decision that the work of a non-resident foreign

author will not be protected is in no way contrary to the provision

of the Naturalisation Act that an alien friend may acquire and hold

personal property in the same way in all respects as a British

subject. The logical conclusion from that provision is that an alien

friend as well as a British subject may acquire British copyright

wherever it exists; but it does not necessarily follow that British

alien friend or a British subject can acquire it. After the passing

of the Chace Act (1891) in the United States, the law officers of the

Crown in England were consulted by the American law officers, and

they advised that an American author could acquire copyright in his

work by simultaneous publication in this country and America, even

although he was not at any time resident within the British dominions.

Consequently on that advice the President of the United States

proclaimed Great Britain as one of the countries which gave by their

law reciprocal rights to American authors; and English authors are

thereby entitled to acquire copyright in the United States. It would

certainly be most unsatisfactory if the law of England were now to be

declared contrary to the advice then given by our law officers, but it

cannot be said that this should influence our Courts if their decision

on the point was called for.

SECTION IV.--IMMORAL WORKS.

Profane,[215] indecent,[216] seditious,[217] and libellous[218] books

will not be protected. Neither will those which are a fraud upon the

public.[219] For instance, a book published as translated from the

German of Sturm, which was entirely untrue and induced purchasers

to buy it, was refused protection.[220] _Quære_ whether a piratical

book would be protected in so far as it was original. Probably it

would.[221] If a book is not wholly mischievous, but only in part,

it will probably be protected except as to that part;[222] and if

a book is subsequently published purged of its immoral matter or

fraudulent nature it would be protected.[223] If an action is brought

in respect of a mischievous publication the practice of the Court is

to dismiss the action without costs.[224] In one case[225] Mathew,

J., would not take cognisance of immorality _mero motu_, and when it

was not pleaded by the defendant he gave the plaintiff his remedy.

Notwithstanding this, there can be no doubt that the Court may refuse

to interfere even when both parties are willing to waive the question

of immorality. The Court cannot be compelled to sit to take an account

between public malefactors.

SECTION V.--REGISTRATION.

=Before Action.=--Before an owner of copyright sues for infringement

his book must be registered at Stationers' Hall.[226] The omission

to register does not affect the copyright in a book, but it is a

condition precedent to the right to sue in respect of the infringement

thereof.[227] At one time it was thought that registration was only

a condition precedent to an action for the particular remedies given

by the statute, and that whether registration was effected or not the

common law right of action for damages lay.[228] This, however, is

not law. Registration is a condition precedent to any right of action

for infringement of copyright. If an action is brought without proper

registration, that action must fail; but a correct entry may then be

made and a fresh action commenced.[229]

No registration is necessary to maintain an action for the

infringement of performing rights in a book which is a dramatic or

musical work.[230]

Registration need not be made before infringement: it may be effected

at any time before the writ is issued.[231] In one case it was held

a good registration when entry was made on the same day, but a few

hours before the issue of the writ.[232] In _Hole_ v. _Bradbury_,[233]

Fry, J., held that registration after infringement did not entitle

the plaintiff to delivery up of copies for his own use under the 23rd

section of the Act of 1842, but that under its general jurisdiction

the Court had power to order delivery up for destruction. In _Isaacs_

v. _Fiddemann_,[234] Jessel, M. R., thought that even although

infringement was before registration the plaintiff was entitled to

have delivery up for his own benefit, and that the 23rd section

applied to such a case. Which is the correct view it is difficult to

say. The argument of Fry, J., in support of his view is elaborate and

appears sound, whereas Jessel, M. R., seems to have gone more on the

ground of convenience.

Registration must be effected after the publication of the book.[235]

In several cases an attempt has been made to secure a monopoly

in a title by registration before the book was published or even

written.[236] Such registration is entirely inoperative to secure a

monopoly in the title or the right to sue in respect of the copyright

in the book when published. Registration does not give the plaintiff

any right (except perhaps as to delivery of copies) which he would not

equally have had without registration.[237] All registration does is

to perfect the right and give a title to sue on it.

It must be remembered that it is the book which is to be registered

and not the copyright. It is common but erroneous to talk of

"registering copyright." The distinction was pointed out in _Trade

Auxiliary_ v. _Middlesborough_.[238] The three several proprietors of

three periodicals had employed and paid a contributor under section 18

on the terms that the matter contributed should belong to these three

proprietors. The matter appeared in each of the three newspapers and

each registered his own newspaper in his own name. It was argued that

the registration was bad, since they should have been registered as

joint proprietors, but the Court of Appeal held that the registration

was good, since each had registered his "book," and section 19 was

literally complied with.

A newspaper is a sheet of letterpress within the Act and must

be registered.[239] In one case[240] Malins, V. C., protected a

newspaper which was not registered, but that case has been expressly

overruled[241] and is clearly unsound. No registration is necessary

other than that required by the Act of 1842. In _Cate_ v. _Devon_[242]

it was contended that a newspaper would not be protected unless it had

been registered under the Newspaper Libel Act, 1881. This contention

was held erroneous, and registration under the Act of 1842 was alone

required. Similarly it is not a good defence to an action for

infringement that the publisher's name and address is not printed on

the first or last page of a book as required by 2 & 3 Vict. c. 12.[243]

=The Requisite Entry.=--Registration is made in the Book of Registry

which the Act enacts[244] shall be kept at the Hall of the Stationers'

Company. The fee for registration is five shillings. The Book of

Registry must at all convenient times be open to the inspection of

any person on payment of one shilling for every entry searched for or

inspected. This, however, does not entitle any one to make a copy of

an entry; but any one may demand a certified copy of an entry from the

keeper of the Registry on payment of five shillings.

The proprietor of the copyright must register in the Book of

Registry:[245]

i. The title.

ii. The time of first publication.

iii. The name and place of abode of the publisher.

iv. The name and place of abode of the proprietor.

In the case of an encyclopædia, review, magazine, periodical work, or

other work published in a series of books or parts, the publisher must

i. The title.

ii. The time of first publication of the first part.

iii. The name and place of abode of the proprietor.

iv. The name and place of abode of the publisher if

different from the proprietor.

_The Actual Title._--This must be registered: a description of the

book will not be sufficient, even although accurate. Thus in _Harris_

v. _Smart_[247] the plaintiffs' book was intituled "Illustrated

Catalogue and Price List," and they registered it as "Illustrated Book

of Shop-fittings." The Court of Appeal, reversing the decision of

Mathew and Grantham, JJ., held that the objection to the registration

was fatal. When there is a clear and distinct title, that title they

held must be registered. It might be different if a book had no title;

perhaps such a book could not be registered at all; but probably a

description of the book, stating that it had no title, would be

sufficient.[248] In _Collingridge_ v. _Emmott_[249] the plaintiff's

newspaper was intituled "Warehousemen and Drapers' Trade Journal and

Review of the Textile Fabric Manufacturers"; but it was registered as

"Warehousemen and Drapers' Trade Journal: Failures and Arrangements."

Kay, J., thought that the discrepancy was fatal to the registration.

It has been questioned whether in the case of a volume, a considerable

part of which, being old matter, is not entitled to copyright, and

which is published under one comprehensive title, there must not be

some indication on the book itself or on the register that the owner

does not claim copyright in the whole work. The point has never been

definitely decided. It has been held that one who adapts new words

and music to an old air and describes himself proprietor of the whole

composition is entitled to protection;[250] but the question raised in

these cases was whether the author was entitled to copyright at all

unless he could show that the whole was original. It should always be

remembered in questions of this kind that the purpose of registration

is not, as has frequently been suggested in argument, to notify to an

intending copyist what he may copy and what he may not. In _Cate_ v.

_Devon_[251] the plaintiffs had published a "Commercial Compendium,"

containing lists of bankruptcies and bills of sale. They reprinted

several copies of it under another title, viz. "The London Association

for the Protection of Trade," and it was issued "privately and

confidentially" to that association. The defendants copied matter from

the latter issue and pleaded that it was unregistered, and therefore

that they were entitled to copy it. North, J., held that the act of

the defendants was an infringement of copyright in the "Commercial

Compendium," which was registered under that title. In his judgment he

said:

"It is not intended that there should always be complete

registration of the publication in which there is copyright in

order that persons may know what they may legitimately copy

and what they cannot copy. The Act itself contains provisions

which make that clear. It is well known that registration is

only necessary as a condition precedent to suing, and the almost

universal practice on the part of large publishers notoriously

is that they do not register until just on the eve of taking

some proceeding. Then they take care to register their copyright

and sue upon it. I think, therefore, that the contention that

the defendants have not been warned by registration of the

title under which the document appears is one which cannot be

entertained."[252]

_The Time of First Publication._--This must be exactly entered to

the day of the month. In _Low_ v. _Routledge_[253] an entry of "23rd

May 1864" was held to be bad when the actual publication was on the

25th of May 1864.[254] Under the International Copyright Act, 1844,

an entry of the year only was held to be fatal,[255] and under the

of the month only is bad.[256] When a subsequent edition of a book

is published, in so far as it is a reprint of the first edition, it

will not be protected unless the first edition and the date of the

first publication thereof is entered on the register;[257] in so

far as it consists of new matter there must be an entry bearing the

date of the publication of the edition in which such new matter was

first published;[258] but the previous editions and the date of their

respective publications do not require to be entered in order to

protect the new matter,[259] and subsequent editions do not require

to be entered in order to protect old matter.[260] Where a book has

been revised and altered as each new edition has come out, every

edition should be entered separately in the register, with the date

of the publication of such edition. When a story, or article, or

serial story, or a series of articles is published in a magazine or

other periodical, the proprietor of the magazine need only register

the first number of the magazine and the date of the publication

thereof in order to entitle him to sue.[261] If, however, the action

is at the instance of the author of a contribution to a collective

work against third parties, the proper registration would be of the

story or article only with the date of the first publication in the

collective work of such story or article, or if serial, of the first

part thereof.[262] Against the proprietor, for publishing separately

without permission, the author does not require to be registered, as

the right sued on is not one of copyright but presumably of implied

contract.[263] If the owner of the periodical has acquired the entire

of the first number of the magazine or of the first part of the story

or article.[264]

_The Name and Place of Abode of the Publisher._--The publisher to

be entered is the first publisher of the book.[265] No subsequent

publisher, unless of a revised edition, need be entered on the

their firm name, such as _Newby & Co._; the individual names of the

members of the firm need not be entered.[267] A publisher's ordinary

place of business describes sufficiently his "place of abode": his

private residential address need not be entered.[268]

_The Name and Place of Abode of the Proprietor._--The proprietor to

be entered is the proprietor at the time of registration, and it is

unnecessary to trace his title from the first proprietor.[269] The

joinder of the unregistered proprietor as co-plaintiff with a person

who has been erroneously registered, or who, being rightly registered,

is no longer proprietor, will not render an action for infringement of

agent or nominee of the proprietor.[271] The registered proprietor,

however, if legal owner, may sue as trustee for the equitable owner

of the copyright.[272] If the plaintiff in an action is the assignee

of a former proprietor already registered, either the assignment

must have been by entry in the register, or the assignment, if made

otherwise, must be entered. In every case the plaintiff, either as

proprietor at the date of registration or as his assignee, must

appear on the face of the register.[273] It is probably not necessary

to register every mesne assignment from the proprietor originally

registered to the plaintiff.[274] When the original proprietor is

registered, and the assignee from him is subsequently registered, it

is necessary that both entries should be correct, in order to entitle

the assignee to sue.[275] If the proprietor has no fixed abode in the

United Kingdom, an address in the United Kingdom through which he

can be conveniently communicated with will probably be a sufficient

compliance with the statute.[276]

If there is an error in any of the particulars required to be entered

in the register it is fatal to the success of an action, even although

caused by neglect or carelessness on the part of one of the officials

at Stationers' Hall.[277] If the necessary particulars are entered it

is immaterial that superfluous matter is also entered.[278]

=Certificate of Registration.=--The officer appointed by the

Stationers' Company for the purposes of registration under the

entry in the Book of Registry, certified under his hand and impressed

with the stamp of the Stationers' Company, to any person on payment

of five shillings, and such copies are to be received in evidence

in all Courts, and are _primâ facie_ proof of the proprietorship or

assignment of copyright or licence, but subject to be rebutted by

other evidence.[279] Registration does not, however, give a title

against the whole world except the true owner.[280]

=False Entries.=--If any person wilfully makes or causes to be made

any false entry in the Registry Book of the Stationers' Company, or

wilfully produces in evidence any paper falsely purporting to be a

copy of any entry in such book, he will be guilty of an indictable

misdemeanour.[281]

=Rectification of Register.=--If any person "deems himself aggrieved"

by any entry in the Registry Book, he may apply by motion to the

King's Bench Division for an order that such entry may be expunged

or varied.[282] An order to expunge will not be made at the trial

of an action:[283] it must be applied for by motion in accordance

with section 14, unless, perhaps, it is specifically claimed in the

statement of claim in the action. There is probably no appeal from an

order to expunge.[284] If a wrong entry has been made in the Book of

Registry, the proprietor of the copyright in the book so erroneously

entered is, even although he has by mistake made the wrong entry

himself, a person aggrieved within the meaning of the statute, and

can apply to the Court for an order to vary such entry.[285] An order

to expunge or vary will not be made without definite proof that the

existing entry is erroneous, and that the proposed entry in lieu

thereof is correct.[286] By the words "deem himself aggrieved" the

legislature did not mean that any person who said he was aggrieved

could apply: the applicant must show to the Court that he has a right

to consider himself aggrieved.[287] When the copyright in a book is in

dispute either party claiming the right is a party aggrieved.[288] If

a non-copyright book is entered on the register, probably any one who

wished to copy it would be a party aggrieved;[289] but it is not open

to any one to make application to the Court on the ground of technical

flaws in a registration.[290] The applicant, unless he claims the

the registered proprietor's title.[291]

When once an entry on the register has been struck out, the Court has

probably no power to restore it.[292]

SECTION VI.--DELIVERY OF COPIES TO LIBRARIES.

Copies of all books first published in the United Kingdom after 1842

must be delivered to the undermentioned libraries by the publisher. In

default the respective librarians may recover from the publisher:[293]

i. The value of the copy which ought to have been delivered.

ii. A sum not exceeding £5.

iii. Solicitor and client costs.

The proceedings may either be summary by way of conviction before

two Justices of the Peace in the county or place where the publisher

making default resides, or by action in any Court of Record in the

United Kingdom.[294]

The following copies are to be delivered:

I. _To the British Museum_:[295]

One of the best copies published (complete with maps and prints) of

i. Every book first published.

ii. Every subsequent edition of a book, unless

(_a_) it contains no additions or alterations, and

(_b_) some preceding edition has been delivered:

Within one calendar month after publication or offering for sale in

London.

Within three calendar months after publication or offering for sale

elsewhere in the United Kingdom.

The copy must be delivered between 10 A. M. and 4 P. M. on any day

except Sunday, Ash Wednesday, Good Friday, and Christmas Day.[296]

The officer of the Museum appointed to receive these copies is

required to give a receipt in writing.[297]

II. _To each of the following Libraries_,[298] _or to Stationers' Hall

for their use_:

The Bodleian Library at Oxford.

The Public Library at Cambridge.

The Library of the Faculty of Advocates at Edinburgh.

The Library of Trinity College at Dublin.

One copy of those copies of which the largest number is printed for

sale, and in the like condition of

i. Every book first published.

ii. Every subsequent edition of a book, unless

(_a_) it contains no alterations or additions.

Within one month after demand.

Provided that within twelve months after publication demand has been

made to the publishers under the hand of the officer of the Company

of Stationers or other person authorised thereto by the respective

libraries.

The officer at Stationers' Hall and librarians of the several

libraries are required to give a receipt in writing when a copy of a

book is delivered to them.

The clauses as to delivery of copies are to be considered as being

strictly penal. In _The British Museum_ v. _Payne_,[299] under the

similar provisions in 54 Geo. III. c. 156, it was held that when a

book was published in parts, a single part was not demandable. The

Court refused to consider the question when, if ever, the complete

book would be demandable.

It will be noticed that neither the copyright nor the right to sue

is affected by non-delivery of these copies. The only consequence of

omission to do so is a penalty on the publisher.

The right of the various bodies to delivery of a copy applies to

all books published within the United Kingdom and not only to those

entered at Stationers' Hall.[300]

SECTION VII.--DURATION OF PROTECTION.

Protection dates from first publication.

_Generally._--The period of protection is for the natural life of the

author and for seven years after his death, or for forty-two years

from the date of publication, whichever period shall be longer.[301]

_Posthumous Works_ are protected for forty-two years from the date of

publication.[302]

_Encyclopædias_ are protected for the life of the proprietor and seven

years (by 5 & 6 Vict. c. 45, sec. 18, the proprietor of a collective

work enjoys the same rights as if he were the actual author thereof),

or for forty-two years from the date of publication, whichever period

shall be the longer.[303]

_Reviews_, _Magazines_, _and other periodical works of a like

nature_[304] have two separate copyrights, viz.:

i. The proprietor's copyright in the publication, as a whole,

for his life and seven years, or forty-two years from first

publication.

ii. The contributor's copyright in his separate contribution as a

separate work, beginning twenty-eight years after publication of

the collective work, or on separate publication, if such should by

agreement take place within the twenty-eight years, and lasting

for his life and seven years, or forty-two years from first

publication in the collective work.

_New Editions._[305]--As to each edition, the copyright runs from the

date of publication thereof, in so far as the matter therein is then

first published.

_Joint Works._--Although there is no statutory provision, they are

probably protected for the life of the surviving author and seven

years, or for forty-two years from first publication.[306]

SECTION VIII.--COPYRIGHT IN LECTURES.

There is no lecturing right, _i. e._ no exclusive statutory right to

deliver a lecture in public. The only Act applying to lectures is 5 &

6 Will. IV. c. 65, which, under pain of penalties, prohibits printing

or publishing, or knowingly selling lectures, which at the time of

delivery have not been published in book form, without leave of the

author thereof, or of the person to whom the author thereof has sold

or otherwise conveyed the same. The remedy is action in the High Court

for: (i) Forfeiture of copies. (ii) One penny per copy; half to the

Crown and half to informer. A condition precedent of protection under

this Act is the giving of notice in writing to two justices living

within five miles from the place where such lecture or lectures are

delivered, two days at least before delivering the same. The Act has

fallen into entire desuetude, partly, no doubt, on account of this

somewhat troublesome stipulation as to notice, but principally because

a lecturer has, in fact, full protection at common law, if, as is

usually the case, he can make out an implied contract between himself

and his audience that the delivery of the lecture is for purposes

of instruction only, and that those present are entitled to make no

other use of it whatsoever.[307] His remedy at common law will be for

damages and injunction. Of course he cannot sue for penalties, unless

he has brought himself within the Act.

The Lectures Act does not apply so as to protect any lecture or

lectures delivered in any university, or public school or college,

or on any public foundation, or by any individual in virtue of,

or according to, any gift, endowment, or foundation.[308] The law

relating to such lectures is declared to be the same as if the

Lectures Act had not been passed. The result of this proviso is that

these special kinds of lectures are nearly always protected at common

law by implied contract in the same way as other lectures.[309]

CHAPTER III

THE OWNER OF THE COPYRIGHT IN BOOKS

SECTION I.--THE CROWN.

When the Crown ceased to have the complete control which it originally

exercised over the printing-press, it still claimed to retain, as

its prerogative, the exclusive right of printing such works as

it considered its own peculiar property.[310] These included the

authorised translation of the Bible, the Common Prayer Book, Acts of

Parliament[311] and Proclamations,[312] Latin Grammars and Year Books.

Law books, such as "Rolle's Abridgment," and reports collected by the

judges were also claimed by the Crown on the ground that the laws

were the King's Laws. Classical books, almanacs and the like, were

claimed by the Crown as _bona nullius_ and things derelict. As regards

those books which the Crown claimed as its own property, it granted

licences and patents. The Stationers' Company, the King's printers,

the Universities, and from time to time various individuals received

grants of authority to print such works.

Many of the claims, for instance, to almanacs, law reports, Latin

grammars, have for long been abandoned. The patentees of the Crown,

however, still claim a prerogative copyright in--

1. The Authorised English Translation of the Bible.[313]

2. The Book of Common Prayer.[314]

The Universities of Oxford and Cambridge and the King's printers have

each the right to print the Bible and the Prayer Book.

No objection has ever been taken on behalf of the Crown or her

patentees to the printing of the Bible with notes, and this is in

practice constantly done without authority. The notes, however, must

be substantial and not merely illusory.[315]

In 1887 the Treasury published a Minute[316] in which the claims of

the Crown to the exclusive right of publishing Government publications

are set out. The Minute was published in the _London Gazette_.

The following publications are declared to be free from restriction of

any kind, and any person may therefore publish them with or without

notes:

1. Reports of Select Committees of the Two Houses of Parliament,

or of Royal Commissions.

2. Papers required by Statute to be laid before Parliament, _e. g._

Orders in Council, Rules made by Government Departments, Accounts,

Reports of Government Inspectors.

3. Papers laid before Parliament by Command, e. g. Treaties,

Diplomatic Correspondence, Reports from Consuls and Secretaries of

Legation, Reports of Inquiries into Explosions or Accidents, and

other Special Reports made to Government Departments.

4. Acts of Parliament.

5. Official books, _e. g._ King's Regulations for the Army or Navy.

In the following works the Government claims to retain the

1. Literary or quasi-literary works, _e. g._ the Reports of the

_Challenger_ Expedition, the Rolls Publications, the State Trials,

the "Board of Trade Journal."

2. Charts and Ordnance Maps.

The ancient prerogative claimed by the Crown was a perpetual

open to doubt whether it could enforce a perpetual copyright in works

compiled by its servants, or whether it could only claim the term of

SECTION II.--THE UNIVERSITIES.

By an Act of George III.[317] provision is made for the vesting of

copyrights in perpetuity in the Universities of Oxford and Cambridge,

the Scottish Universities and the Colleges of Eton, Westminster, and

Winchester. These privileges were obtained in consequence of the

decision in _Donaldson_ v. _Beckett_[318] in the House of Lords to the

effect that there was no perpetual copyright.

Perpetual Copyright under the Universities' Act attaches to those

books which are "bequeathed or otherwise given" to one of the

Universities or Colleges. A work such as The Revised Version of the

Bible, which was compiled under the direction and at the expense of

the two Universities, will probably not have perpetual copyright under

the Act since it is neither bequeathed nor given. The same would apply

to copyrights purchased by a university or college.

The book in which University privilege is claimed must be registered

within two months after the time when the bequest or gift of the

University or head of the college, as the case may be.

The remedy against unauthorised printing or importing or knowingly

selling, publishing, or exposing for sale any book in which there is

University copyright is an action in the High Court for--

(_a_) Forfeiture for destruction.

(_b_) One penny for every sheet found in the custody of the

infringer, half to go to the Crown and half to the informer.

The perpetual privilege granted by the Act only subsists so long

as the book is printed only within the respective Universities or

Colleges, and for their sole benefit and advantage. This does not

debar them from selling the copyright, but if sold it will only

subsist for the term granted to authors by the Copyright Act, 1842.

_Quære_ if some of Jowett's works, for instance, were printed in

the United States in order to acquire American copyright, whether

that would destroy the perpetual copyright by reason of copies being

printed outside the University.

SECTION III.--THE AUTHOR.

thereof "shall be the property of such author and his assigns."[319]

author. The word author is not defined in the Act, and from time

to time difficult questions have arisen as to who is the author of

a particular book within the meaning of the Act. Difficulties have

generally arisen from the fact that two or more people have been

engaged in the production of a book. The rule appears to be that, if

the literary matter is composed by those who make the manuscript,[320]

the author is the man from whom emanates the general conception and

design, and that although much of the detail may have been the work of

subordinate brains and hands, he is the author of the entirety, and

may sue for any infringement of it. Thus in _Scott_ v. _Stanford_,[321]

where the plaintiff compiled and published periodically statistical

returns of the London coal market, Page Wood, V. C., in giving

judgment, said that it appeared to him quite immaterial whether the

plaintiff had been assisted in the compilation by his own clerks or

by those of the Corporation. In _Barfield_ v. _Nicholson_[322] a case

under the statute of Anne, Leach, V. C., said that he was of opinion

that under the statute the one who formed the plan and embarked on

the speculation of a work, and employed various persons to compose

different parts of it adapted to their own peculiar acquirements, was

the author and proprietor of the work, if not within the literal

expression, at least within the equitable meaning of the statute of

Anne. In _Hatton_ v. _Kean_[323] the defendant had arranged certain

of Shakespeare's plays with adjuncts of scenery, music, dancing, &c.,

and employed artists and authors to aid him in carrying his design

into effect; amongst others, the plaintiff was employed to compose

and arrange the orchestral accompaniments. The Court of Common Pleas

held that the defendant was the author of the entire production. Erle,

C. J., said:

"I am of opinion that the music so composed by the direction

and under the superintendence of the defendant, and as part of

the general plan of the spectacle, must, as between him and

the plaintiff, become the property of the defendant, and that

consequently the defendant has violated no right of the plaintiff

in causing it to be represented in the manner alleged."[324]

In _Wallerstein_ v. _Herbert_,[325] where the facts were similar to

those in _Hatton_ v. _Kean_,[326] that case was approved by the Court

of Queen's Bench. Cockburn, C. J., said:

"Looking at the nature of this composition, it is clear that it

became a part and parcel of the drama, and was not an independent

composition."

These decisions seem equally applicable to books which are not

dramatic compositions, but _quære_ whether _Hatton_ v. _Kean_[327] did

not go too far. It seems a strange thing to say that the arranger of

a play becomes the author of, _inter alia_, the musical accompaniment

of which, perhaps, he could not have composed a single bar. Would, for

instance, the author of a book be also the author of illustrations

which he had procured another to draw for him? Kekewich, J., in

_Petty_ v. _Taylor_, thought not.[328]

The mere suggestion of a subject or idea which is then entirely

designed and executed by another does not constitute the originator

of the idea an author, even although the actual composer is his

employee.[329] In _Shepherd_ v. _Conquest_[330] the plaintiffs,

proprietors of a theatre, employed a "stock author" who, on payment

of a weekly salary and travelling expenses, composed plays for them.

Under this employment the author composed "Old Joe and Young Joe," a

dramatic piece, which he handed over to the plaintiffs, and which was

produced by them at their theatre. There was no contract or assignment

in writing, but there was an oral understanding that the plaintiffs

should have the sole right of representing the piece in London. It was

held in the Court of Common Pleas that the plaintiffs had acquired

no title under the Dramatic Copyright Act, 3 & 4 Will. IV. c. 15,

by reason of which they could sue an infringement of the performing

right.[331] Jervis, C. J., delivered the judgment of the Court:

"We do not think it necessary in the present case to express any

opinion whether, under any circumstances, the copyright in a

literary work or the right of representation can become vested

_ab initio_ in an employer other than the person who has actually

composed or adapted a literary work. It is enough to say in the

present case that no such effect can be produced when the employer

merely suggests the subject, and has no share in the design or

execution of the work. It appears to us an abuse of terms to say

that in such a case the employer is the author of a work to which

his mind has not contributed an idea."

There may be joint authorship of a book. To constitute joint

authorship the work must be produced by joint labour in prosecution

of a preconceived joint design. In _Levy_ v. _Rutley_[332] A wrote

a play, to which subsequently B added a scene, and made a few

alterations and additions in other parts of the piece. It was held

that there was not joint authorship. Byles, J., said:

"If the piece had been originally written by A and B jointly in

prosecution of a preconcerted joint design, the two might have

been said to be the co-authors of the whole play, notwithstanding

that different portions were respectively the sole productions of

either."

And Keating, J., said:

"I entirely agree with my brother Byles that though it may not be

necessary that each should contribute the same amount of labour,

there must be a joint labouring in furtherance of a common design."

_Quære_ whether co-authors are joint owners with the right of

survivorship. In _Marzials_ v. _Gibbons_[333] it was suggested

that they were, but see the decisions where co-assignees are

held to be owners in common, or part owners without the right of

survivorship.[334] _Quære_ also whether each co-author, as is the

case with each co-assignee,[335] is entitled to sue in respect of an

invasion without the concurrence of the other co-author or co-authors.

Until _Walter_ v. _Lane_[336] was decided in the House of Lords,

it was a prevalent opinion that the author must be he who actually

designs and by himself or through others composes the literary matter

contained in the book. That case, however, demonstrates that the

author is the first producer of literary matter in "book" form, _i. e._

in some permanent form from which it can be copied by the printer's

compositor, usually, but not necessarily, manuscript. As a rule

such person is also the composer of the literary matter contained

in the book, but this is not a necessary attribute of the character

of author. In _Walter_ v. _Lane_[337] Lord Rosebery had delivered

without reserve of any kind certain public speeches. They were

delivered orally, not having been previously committed to writing.

On the various occasions when they were delivered reporters from the

_Times_ were present, and they took down the speeches verbatim. From

these reports they were transcribed into long hand, and published

in the _Times_. Mr. Lane, a publisher, took these speeches from the

columns of the _Times_, and without any authority from the proprietors

thereof, published them in a volume entitled "Appreciations and

Addresses, by Lord Rosebery." In this action at the instance of the

proprietors of the _Times_ for the infringement of the copyright in

their reports, it was finally held in the House of Lords, firstly,

that as these reports contained literary matter published for the

first time in "book" form, they were the subject of copyright, and

secondly, that the reporters were the authors within the meaning of

the Act, since they first reduced the literary matter orally delivered

by Lord Rosebery to "book" form.

SECTION IV.--THE EMPLOYER.

=Under Section 18.=--An employer is _ab initio_ entitled to the

to the conditions imposed by section 18. Section 18[338] enacts that--

"When any publisher or other person shall before or at the time

of the passing of the Act have projected, conducted, and carried

on, or shall hereafter project, conduct, and carry on, or be the

proprietor of any encyclopædia, review, magazine, periodical work,

or work published in a series of books or parts, or any book

whatsoever, and shall have employed or shall employ any persons

to compose the same in any volumes, parts, essays, articles, or

portions thereof for publication in or as part of the same, and

such works, volumes, parts, essays, articles, or portions, shall

have been or shall hereafter be composed under such employment

on the terms that the copyright therein shall belong to such

proprietor, projector, publisher, or conductor, and paid for by

such proprietor, projector, publisher, or conductor, the copyright

in every such encyclopædia, review, magazine, periodical work, and

work published in a series of books or parts, and every volume,

part, essay, article, and portion so composed and paid for shall

be the property of such proprietor, projector, publisher, or

other conductor, who shall enjoy the same rights as if he were

the actual author thereof, and shall have such term of copyright

therein as is given to the authors of books by this Act; except

only that in the case of essays, articles, or portions forming

part of and first published in reviews, magazines, and other

periodical works of a like nature, after the term of twenty-eight

years from the first publication thereof respectively, the right

of publishing the same in a separate form shall revert to the

author for the remainder of the term given by this Act: provided

always that during the term of twenty-eight years the said

proprietor shall not publish any such essay, article, or portion

separately or singly without the consent previously obtained of

the author thereof or his assigns: provided also that nothing

herein contained shall alter or affect the right of any person

who shall have been or who shall be so employed as aforesaid to

publish any such his composition in a separate form, who by any

contract, express or implied, may have reserved or may hereafter

reserve to himself such right; but every author reserving,

retaining, or having such right, shall be entitled to the

according to this Act, without prejudice to the right of such

proprietor, projector, publisher, or conductor, as aforesaid."

The nature of a proprietor's rights in the articles contributed to

his periodical under section 18 is well summarised by Chitty, J., as

follows:

"This 18th section when fairly examined comes to this: the author

of a literary work is the proprietor of the copyright under

the general sections of the Act. If it is unpublished matter,

probably the better term is to say that his right is to prevent

any one else from publishing. If it is published matter, then

his right is a true copyright, and it is to prevent anybody else

from multiplying copies, and that right is vested in him.... Then

comes this 18th section, the short effect of which is to transfer

for a limited period a portion of the copyright to the proprietor

of the periodical for whom the article has been composed; it

being a condition that there shall not only be a composition of

the article on the terms that it shall belong to the proprietor

or publisher, but also that the sum agreed to be paid has been

paid."[339]

_Scope of Section._--In some of the earlier cases it seems to be

suggested that section 18 applies only to works of a periodical

nature.[340] But this gives no meaning to the words "or any book

whatsoever," which surely could not be construed as including only

books _ejusdem generis_ as periodicals. The first part of the section

appears to include all books if produced under the conditions as to

employment and payment there enacted.[341] The judgment in _Shepherd_

v. _Conquest_[342] suggests that in the opinion of the Court in that

case section 18 did not apply when the performing right in a play was

claimed by the proprietors of a theatre, the play having been produced

by a "stock author" in their employment. It is difficult to see why

section 18 should not be equally applicable to the performing right as

to the copyright. Section 20 of 5 & 6 Vict. c. 45 provides that--

"The provisions hereinbefore enacted in respect of the property

of such copyright and of registering the same shall apply to

the liberty of representing or performing any dramatic piece

or musical composition as if the same were herein expressly

re-enacted and applied thereto, save and except that the first

public representation or performance of any dramatic piece or

musical composition shall be deemed equivalent in the construction

of this Act to the first publication of any book."

_Under such Employment._--The author must be "employed" and the work

must be composed "under such employment." It appears therefore that a

work or part of a work would not come within this 18th section unless

actually executed in the course of the author's employment by the

proprietor. In other words, there must be antecedent employment.[343]

A contribution voluntarily sent to a magazine would not, even although

accepted and paid for on the terms that the copyright should belong

to the proprietors, come under the provisions of section 18. It is

submitted that it would become the sole property of the proprietor of

the magazine for all purposes without any reservation of the right of

separate publication to the author.[344]

If A employs B, who in his turn employs C, the copyright will vest in

A if B acted as a mere agent for A. Thus in _Stubbs_ v. _Howard_,[345]

Stubbs employed the Mercantile Press to obtain the necessary

information for their Gazette, and the Mercantile Press employed P. to

collect and compile. It was held that the copyright vested _ab initio_

in Stubbs under section 18. But if A employs and pays B to do certain

literary work, and B, of his own authority, employs and pays C, D, and

E to do certain portions of it, it is doubtful whether the copyright

in these portions will vest in A under section 18. The author has been

neither employed nor paid by the proprietor of the work since B acted

not as an agent for him, but as an independent contractor.[346] The

operation of section 18 seems to be exhausted in the first employment.

"_On the terms that the copyright therein shall belong to such

proprietor._"--The terms may be implied from the nature of the

employment and the circumstances under which the work is composed.

In _Sweet_ v. _Benning_[347] various members of the bar had furnished

reports of cases to the plaintiffs, the proprietors of the _Jurist_.

The reporters selected what cases they thought fit to report and were

paid for their work. The arrangements were entirely oral, and nothing

seems to have been said about copyright. The Court of Common Pleas

held that the proprietors of the _Jurist_ became the owners of the

said:

"When a man employs another to write an article or to do anything

else for him, unless there is something in the surrounding

circumstances or in the course of dealing between the parties to

require a different construction, in the absence of a special

agreement to the contrary, it is to be understood that the writing

or other thing is produced upon the terms that the copyright

therein shall belong to the employer."

In _Trade Auxiliary_ v. _Middlesborough_[348] the proprietors of

_Stubbs' Weekly Gazette_ and two other weekly papers jointly employed

on salary two men to examine the official records and extract the

particulars of bills of sale and deeds of arrangement registered in

accordance with the Acts. The information so obtained was published in

the weekly papers. It was held that the proprietors of the respective

papers became owners of the copyright under section 18. In _Lamb_

v. _Evans_[349] the plaintiff employed and paid several persons in

canvassing for advertisements and arranging them under appropriate

headings in a Trades Directory. Lindley, L. J., in giving judgment,

said he thought that--

"The burthen of proof was on the plaintiff to show that the

headings were composed upon the terms that the copyright therein

should belong to him; but the statute does not say anything about

the kind of evidence which is to be adduced for the purpose of

proving that an article has been composed on these terms....

If there is no express agreement the question is, what is the

inference to be drawn from the circumstances of the case. In

drawing the inference regard must be had to the nature of

the articles which are here merely the headings to groups of

advertisements with translations, and the view expressed by Mr.

Justice Maule in _Sweet_ v. _Benning_[350] may be very safely

acted upon, viz. that _primâ facie_ at all events you will

infer, in the absence of evidence to the contrary, from the fact

of employment and payment that one of the terms was that the

inference; but in a case of this sort, where any other inference

would be unbusinesslike, I should not hesitate myself to draw that

inference."

Bowen, L. J., in the same case, says:

"From where are you to collect the terms? You may collect them

from what passed between the parties, that is to say between the

plaintiff and the persons whom he employed, but you may also

collect them from the nature of the business itself, and it seems

to me to be impossible as a matter of business to suppose that

these headings were composed and furnished to the plaintiff upon

any other terms than that he was to have the copyright in them,

because otherwise those who composed them having furnished them to

the plaintiff might themselves have published them and defeated

his object."

On the other hand in _Walter_ v. _Howe_,[351] Jessel, M. R., held

that the _Times_ could not sue in respect of a biography of Lord

Beaconsfield which had appeared in their columns. There was evidence

that the author had been paid for his literary services, but there

was apparently no evidence as to whether he had been "employed" "on

the terms that the copyright should belong" to the plaintiff. Notice

that in this case no antecedent employment whatsoever is shown. In

_Johnson_ v. _Newnes_[352] a series of stories were contributed to

the _Weekly Dispatch_ under an arrangement between the proprietor and

the author. The author was not on the permanent staff of the _Weekly

Dispatch_. He was paid by the proprietors for his contributions, the

arrangement being that the author should have the right of separately

publishing the stories, provided such separate publication did not

take place until after all the stories had appeared in the _Weekly

Dispatch_. In an action by the author against an infringer, Romer,

J., in giving judgment for the plaintiff, said that he had come to

the conclusion that although the plaintiff was paid he was not paid

on the terms that the copyright in the stories should belong to the

proprietors of the journal. The author had therefore not parted with

the copyright and was the proper plaintiff.[353]

In _Aflalo_ v. _Lawrence_[354] the defendants published a work called

"The Encyclopædia of Sport." A, one of the plaintiffs, agreed with the

defendants that he would edit the work. He was to receive £500 for

his services, and to write without further remuneration 7000 words

of special articles. He was entitled to pursue his literary work in

so far as it did not interfere with the performance of his duties. A

contributed an article to the encyclopædia under this agreement. A,

by the request of the defendants, procured C, the other plaintiff,

to write certain articles for the encyclopædia at the rate of £2 per

thousand words. The articles of both plaintiffs were published in

the encyclopædia. Joyce, J., held that the contributions of neither

plaintiff came within section 18, since there was nothing to show that

they were contributed on the terms that the copyright therein should

belong to the defendants. The defendants were therefore not entitled

to publish the plaintiff's articles in any other form than as part

of the encyclopædia. In view of the earlier authorities I think this

decision is extremely doubtful.

_Joint Employers._--As has been seen above in the case of _Trade

Auxiliary_ v. _Middlesborough_,[355] two or more proprietors of

several periodicals may jointly employ an author so as to acquire the

respective paper, and, although the matter contributed to the several

papers is the same, may sue without joining the other proprietors.

Each is "a transferee by virtue of section 18 of a limited portion of

the copyright in that particular composition."[356]

_Payment._--Not only must there be employment for reward, but payment

is a condition precedent. If payment is not proved the section will

not operate to transfer the copyright from the author.[357] Payment

must be made before the commencement of an action.[358] It has been

suggested that it must be made before piracy, and this appears a sound

view since there is no copyright in the proprietor until payment, and

an infringement before copyright is assigned is no cause of action in

the assignee.[359] There is nothing to suggest that payment must be

made before publication.[360]

_Author's Separate Rights._--When an author has contributed to a

periodical and the conditions of the section have been fulfilled so as

to vest the copyright in the proprietor of the periodical, it would

seem that for twenty-eight years, _i. e._ until the right of publishing

in separate form reverts to the author, the author has no right to

sue third parties in respect of an infringement without joining the

proprietor of the periodical as co-plaintiff. If, however, the author,

while contributing on the terms that the proprietor should have the

separate form within the meaning of the proviso at the end of the

section, when he does publish in separate form he will be entitled to

have no right to sue alone until publication in separate form,[361] or

until the lapse of twenty-eight years.

During the twenty-eight years the proprietor of a periodical work

is not, apart from express agreement, entitled to publish the

contribution in separate form. If the proprietor does publish

separately in breach of the provision of the section, the author has a

right of action against him, and the author's right not being one of

he does not require to be registered.[362] "Separate" means in any

other form than the original collective publication, whether as a

single work by itself or in conjunction with other matter. When the

proprietor of a magazine reprinted certain stories which had appeared

in the magazine from time to time, and published them as a supplement

to the current number, this was held to be a publication in separate

form which the author could prevent.[363] So also the republication of

the Christmas number of a periodical under a different title, form,

and price, is a separate publication of an article contained in such

number.[364] A Christmas number of a serial publication, although

published in an entirely different form with separate pagination and

sold at a different price from the ordinary numbers, is part of the

periodical, and separate publication of the stories therein will be

prohibited under section 18.[365]

An article may be contributed to a periodical under express or implied

terms that the copyright shall belong to the proprietor for all

purposes, in which case there will be no reservation of a right of

separate publication.[366]

It should be clearly noted that the second part of section 18 applies

only to periodical works. Therefore in the case of an encyclopædia

or similar collective works the owner has, apart from special terms,

a right to publish the contributor's article separately from the

original publication.

=Employer's Rights where Section 18 does not Apply.=--A question of

some difficulty has been raised from time to time to which there is no

definite authoritative answer, viz. whether apart from the provisions

of section 18 the copyright ever vests _ab initio_ in the employer of

an author. We shall see in dealing with assignment that probably the

sole right before publication to acquire the copyright of a book on

first publication may pass from the author to his assignee without

writing, either by an implied gift on delivery of the manuscript or

by express oral assignment. The question now considered is whether by

the fact of employment alone the work of the employee may not _ipso

facto_ on production become the property of his employer. In _Sweet_

v. _Benning_[367] it was held that the employment of certain members

of the bar as reporters came within section 18, and that the copyright

vested in the employers themselves; but during the argument Maule, J.,

is reported to have said:

"One might almost infer without the aid of an Act of Parliament

that one who employs another to write an article or to make

anything else for him is the owner or proprietor."

I think that this suggestion is wrong if applied to the case of an

independent contractor, and that if such an employment does not

come within section 18 there will be no proprietary right in the

employer _ab initio_, although it may be transferred to him before

publication by mere delivery of the manuscript with the mutual

intention to convey all rights. But in the case of a servant or agent

who produces literary work in the course of his employment, I think it

is different. I think that his work will vest _ab initio_ irrespective

of section 18, and that section 18 only applies to an independent

contractor and not to a servant. In _Hildesheimer_ v. _Dunn_[368]

Kekewich, J., takes this view. He says:

"I entertain a strong opinion that when a person has composed

verses, we will say on behalf of another, that is to say as his

servant or agent, whether for pay or not, the person on whose

behalf such verses are composed is properly registered under the

Act as the proprietor, notwithstanding that there is no assignment

in writing or indeed any assignment at all."

SECTION V.--THE ASSIGNEE.

=Before Publication.=--Before a manuscript has been published the

right to publish and acquire the copyright may be assigned so that on

publication the copyright will be the property of the assignee. If

the publication takes place during the lifetime of the author, the

assignee takes the copyright under sections 2 and 3 of the Copyright

Act, 1842.[369] Section 3 provides "that the copyright in every

book which shall, after the passing of the Act, be published in the

lifetime of its author ... shall be the property of such author and

his assigns." Section 2 provides that the word "assigns" shall be

"construed to mean and include every person in whom the interest of an

author in copyright shall be vested, whether derived from such author

before or after the publication of any book, and whether acquired by

sale, gift, bequest, or by operation of law or otherwise." If the

publication takes place after the death of the author, the assignee

takes the copyright under section 3, which enacts that "the copyright

in every book which shall be published after the death of its author

... shall be the property of the proprietor of the author's manuscript

from which such book shall first be published and his assigns." The

possession and right of property in the manuscript is _primâ facie_

proof of the right to publish and acquire copyright, but such proof

may be rebutted by showing that the possession or ownership of the

manuscript has been separated from the right to publish and acquire

in the writer and his assigns, whereas the property in the physical

substance of the manuscript has passed to the receiver and his assigns.

If an assignment of manuscript, purporting to carry with it the

right to publish and acquire copyright, is made before publication,

it is submitted that no writing is required. The requirement that

an assignment of copyright after publication must be in writing

is founded not on an express enactment, but on implication from

section 15 of the Copyright Act, 1842.[370] This section prohibits

the reproduction of any book in which there is subsisting copyright

without the consent in writing of the proprietor thereof. From this it

is deduced by _a fortiori_ argument that an assignment of subsisting

that the common law right in manuscript may not be assigned by any

mode by which property of that description might be assigned at

common law. The Courts have not, however, sufficiently distinguished

between an assignment before and an assignment after publication, and

as a result the case law on the subject is in a most unsatisfactory

condition. There are several cases under the statute of Anne, which

statute, in very similar words to the statute of Victoria, provides

that copyright shall belong to the author and his assignee or assigns.

There is no definition of "assigns," as in the statute of Victoria,

but the rule that assignment of copyright must be in writing is

deduced in the same way from the proviso that consent to copy must be

in writing. The cases under the statute of Anne should therefore be

equally applicable as authorities under the statute of Victoria. In

_Clementi_ v. _Walker_[372] a French author had assigned orally to

an English subject the exclusive right of printing and publishing a

musical composition in this country. The work had not been published

in England, and apart altogether from the question of a prior

publication in France, the Court was of opinion that the publication

in England did not give copyright to the English publisher, "because

there was not any assignment or consent in writing given to the author

previously to that publication. The case of _Power_ v. _Walker_[373]

is an authority to show that a parole assignment is not sufficient

to give to the assignee the privileges conferred by the legislature

upon the author." In _Colburn_ v. _Duncombe_[374] there was a written

publishing agreement whereby the author agreed to write a book and

assign the whole copyright therein. On completion the manuscript was

delivered to the publisher, and the author gave a written receipt for

the consideration and agreed to deliver a regular assignment when

called upon. This was never done, and in an action by the publisher

against an infringer it was held that he could not sue without the

author in whom the copyright had vested and remained. In _Sweet_ v.

_Shaw_[375] the plaintiffs agreed with A and B that A and B should

report cases for them. A and B accordingly took notes of cases,

and these were printed and published by the plaintiffs. Shadwell,

V. C., said that he thought the plaintiffs had a copyright in equity

but not in law. "I cannot," he said, "see how the agreement that

persons shall prepare a work for the plaintiffs gives the plaintiffs

a copyright in law, for there can be no assignment in law except of

that which actually exists." In all these three cases last cited it

is submitted that the whole right of the author should have been

held to have passed to the publisher by the delivery to him of the

manuscript with the mutual intention that he should acquire all rights

therein. The first case in which it is recognised that the author's

right may before publication pass without writing is _Jefferys_ v.

_Boosey_.[376] Erle, J.,[377] and Coleridge, J.,[378] decided that

no writing was required. Speaking of an oral assignment abroad of a

manuscript subsequently published here, Coleridge, J., said: "The

assignee is clearly within the enabling clause of the statute (8

Anne, c. 19); he is the assignee of an author, and even if these words

may in some cases mean an assignee under an instrument in writing

attested by two witnesses, it has not been shown or decided that

they must or can mean this in all cases. I think the contrary has

been shown. Larger words and less restrained the legislature could

scarcely have used, and on what sound principle are we to import a

restraint by implication?" Lord St. Leonards, however, in the same

case, seemed to be of opinion that the assignment must be in writing

and attested by two witnesses (under 8 Anne, c. 19) even although

made before publication. In some of the cases the publisher with whom

the author has agreed that he shall have the whole copyright, but to

whom there has been no assignment in writing, has been said to be an

equitable owner of the copyright.[379] But it is submitted that if

the manuscript passes before publication with mutual intention to

convey to the publisher all right, title, and interest therein, the

publisher is the legal assignee, and on publication is the legal owner

of the copyright, and there is no necessity for a formal assignment

in writing.[380] The same principle may not apply to performing

rights in dramatic and musical works under 3 & 4 Will. IV. c. 15. It

is probable that statutory performing rights vest in the author on

production,[381] and if this is so there would probably be no common

law performing right, and therefore no common law assignment; the

statutory mode of assignment would attach from the beginning.[382]

=After Publication.=--After publication an assignment must be in

writing.[383] It need not be by deed nor attested by witnesses,[384]

nor, it would seem, need it be signed by the proprietor or any

one.[385] The assignment may be given by an agent. An assignment does

not require to be registered in order to make it valid as a transfer

of the property: but an assignee who sues must be registered.[386]

If the assignor is registered as proprietor complete assignment may

be made by entry on the Book of Registry at Stationers' Hall.[387]

Probably an author, even although not registered, may make a valid

assignment by registering the book in the name of his assignee as

proprietor.[388] It has been held that an unregistered author may so

joint proprietors, from which it seems to follow that he could have

registered the two others without himself.[389] An assignee may make

the entry on the register himself without the concurrence or consent

of his assignor.[390]

In the case of an assignment made otherwise than by entry on the

the copyright although no particular words of conveyance are required.

An executory contract to assign is not sufficient,[391] neither

will it invalidate a subsequent regular assignment to others.[392]

A written agreement "to let A have" a particular drama in discharge

of a debt of £10 was held a complete assignment of all rights in the

drama.[393] A receipt for money purporting to be paid in respect of an

assignment is not in itself an assignment.[394] The copyright will not

pass merely by the sale and transfer of possession of any instrument

whereby the book may be reproduced such as stereotype blocks.[395]

In the event of mesne assignments the burden of proof is in those

disputing the title to show that they were not _rite et solenniter

acta_;[396] and even in the case of an alleged assignment to a party

in the action, a valid assignment has been presumed from a long course

of dealing without actual evidence of an assignment in writing.[397]

An executory contract or a purported assignment not valid at law will

be recognised in equity, and the Court will order specific performance

or compel the assignor to allow the assignee to sue in the assignor's

name.[398]

The assignee cannot sue in his own name in respect of acts of

infringement committed before he became proprietor.[399] An assignee

cannot, apart from special agreement, prevent his assignor selling

against him copies of the book which such assignor has printed before

assignment.[400] Probably the assignment of copyright implies a

warranty of the right to convey, free from encumbrances, and quiet

enjoyment.[401]

Co-assignees take as tenants in common and not as joint tenants,[402]

and any one or more may maintain an action against a stranger for an

infringement of the entire copyright.[403] It follows that one of

several co-assignees cannot grant an effective licence without the

concurrence of the others.[404]

In _Jefferys_ v. _Boosey_[405] Chief Baron Pollock expressed an

opinion that if a foreigner resident abroad had a copyright in this

country, an assignment valid by the laws of a foreign country would be

sufficient, inasmuch as copyright is expressly enacted to be personal

property, and would therefore pass according to the laws of the

country where the transfer took place.

=Partial Assignment.=--It was laid down in _Jefferys_ v. _Boosey_[406]

by Lord St. Leonards that copyright was one and indivisible, and

could not be partially assigned. If this is correct, any attempt to

assign a partial right would operate if at all as a mere licence. This

opinion of Lord St. Leonards was in respect of the statute of Anne. It

seems to be more or less accepted that under the statute of Victoria

as to place,[407] _e. g._ provincial rights, right to publish in a

particular country, or limited as to the nature of the right,[408]

_e. g._ the right to dramatize, the right to translate. This view

appears to be based on section 13 of the Act of Victoria,[409] which

enacts that a registered proprietor may assign his interest or any

portion therein by making entry on the register. I do not think that

this provision in itself is conclusive or that it necessarily follows

that a copyright can be split up and partially assigned. Section 13

may merely mean that the owner can assign a certain undivided share

in his copyright to another. Cotton, L. J., in _Trade Auxiliary_ v.

_Middlesborough_,[410] refers to Lord St. Leonards' doctrine. He

does not disapprove of it, but he distinguishes the case of common

ownership in a copyright from the case of a partial assignment as to

place.

In a case decided in the Supreme Court of New South Wales,[411] it was

held that the assignee of a performing right limited to the Australian

colonies could sue in his own name for infringement. The Court

distinguished between the performing right and the copyright. They

said that even although the copyright, in accordance with Lord St.

Leonards' opinion, was not divisible the performing right was.[412]

In any view of partial assignment I do not think there can be partial

assignment as to time.[413] Such an assignment would create an estate

in possession and reversion in personal property, and there is no

reason for holding that copyright is any exception to the general

rule that such an interest cannot be created in personalty. Equitable

estates, limited as to time, can no doubt be created as in the case of

any other personal property.[414] What purports to be an assignment

limited as to time must as a rule be treated as a licence.

=Assignment distinguished from Licence.=--The distinction between an

assignment and a licence must be carefully observed; questions of the

utmost importance will often depend on whether a transaction was one

or the other. An assignment is a conveyance of the right denuding the

grantor and carrying to the grantee the whole interest including the

right to sue and the right to re-assign, whereas a licence is only a

personal permission to the grantee to infringe the grantor's right,

and carries with it no right of action except in the grantor's name.

In determining whether a particular transaction is an assignment or a

licence, the first question is whether, on a true construction of the

statute, the right purported to be given can be given by assignment

or only by licence. If the right is one so limited that it cannot

legally be the object of assignment, the transaction must necessarily

be a licence; but if it can legally be the object of assignment, the

further question arises as to what was the intention of the parties

as evidenced by what they have said and done. There may often be

clear words to show what was intended, but more often it may never

have occurred to the parties that there was any distinction between

an assignment and a licence, and the form used will consequently be

ambiguous. The principal test in such cases is to examine the contract

and the circumstances under which it was made, and see whether or not

it bears the impress of a reliance by the grantor on the personal

skill or reputation of the grantee. If it does a licence will be

presumed rather than an assignment; for instance, in a publishing

agreement a licence only will be presumed, since either the pocket or

the reputation of the author would suffer if the right of publication

were to pass into incompetent hands.[415]

SECTION VI.--THE LICENSEE.

Whether a bare licensee can bring an action for infringement without

joining the legal owner of the copyright is open to doubt. It is

submitted that he cannot. The essence of a licence proper is that it

is merely a personal relationship between a licensor and a licensee

whereby the latter is permitted to infringe the former's copyright.

The old cases are not satisfactory. The distinction between partial

assignment and licence is not clearly drawn, and the result is a

confusion of the respective rights of the assignee and the licensee.

In several cases it was said that licensees could sue[416] but _quære_

whether they were not really partial assignees. It has also been

said that an owner of copyright who has granted an exclusive licence

cannot sue in respect of an infringement which touches only the rights

included in such licence, unless such owner has the consent of his

licensee.[417] This again, it is submitted, is not a correct statement

of the law, and arises from a confusion between a partial assignee

and a licensee. In _Taylor_ v. _Neville_[418] the grant of provincial

performing rights although called a licence was really treated as an

assignment and distinguished from a "merely personal licence." It is

submitted that a licence proper is always "merely personal" and that

the grantor may sue without consent of his licensee. Where a licence

has been granted or when there is doubt as to whether a particular

grant is an assignment or a licence, it will always be safer to join

both grantor and grantee as co-plaintiffs. A licence will not be

presumed to be a sole licence, and unless it is expressly stated, or

must necessarily be implied from the circumstances that it is so, the

first licensee cannot restrain the licensor from granting, or a second

licensee from acting on, a second licence.[419]

SECTION VII.--THE EXECUTORS OR ADMINISTRATORS.

owner to his personal representatives.[420] "Assigns" is expressly

interpreted to include one taking by bequest or by operation of

law. The common law property in the manuscript passes on the death

of the owner in the same way as copyright. A bequest of "all my

books" has been held to include valuable manuscript notes left by a

physician.[421]

SECTION VIII.--THE TRUSTEE IN BANKRUPTCY.

and passes to the trustee of a bankrupt owner.[422] A bankrupt's

unpublished works, probably, cannot be published for the benefit of

his creditors without his consent.

CHAPTER IV

INFRINGEMENT OF COPYRIGHT IN BOOKS

SECTION I.--PROHIBITED ACTS, AND REMEDIES.

exclusive liberty of printing or otherwise multiplying copies." Any

invasion of this monopoly is an infringement of copyright. Besides

infringement of copyright, _i. e_. illegal copying, the Act makes it

an offence to deal in certain ways with unlawful copies. The offences

against copyright and the owner's remedies may be conveniently

summarised as follows:

For the following offences:[423]

i. Piratical copying.

ii. Importing for sale or hire unlawfully printed books.

iii. Selling or hiring, or having in possession for sale or

hire, unlawfully printed books, knowing the same

to be unlawfully printed.[424]

iv. Causing any of the above acts to be done.

The remedies[425] are an action in a Court of Record for:

1. Damages and account of profits.

2. Delivery up of copies.

3. Injunction.

For the following offences:[426]

v. Importing without the consent of the proprietor a

foreign copy or copies,[427] _i. e._ printed outside the

British dominion.

vi. Selling or hiring or having in possession for sale or

hire foreign copies knowing them to be unlawfully

imported.[428]

The remedies are:

1. Seizure and destruction by any officer of Customs,[429]

and on conviction before two justices of the peace.

2. £10 for every offence.[430]

3. Double the value of every copy dealt with,[431] and

An action in the High Court for

4. An injunction.[432]

=Causing to be Printed.=--The prohibition in section 15 is against

"printing, or causing to be printed." Thus the author, publisher,[433]

and printer of a piratical book are all equally liable, and it is no

defence for the publisher, who has employed the printer, or for the

printer to say he was acting merely as an innocent agent.[434] There

may sometimes be difficulty in determining whether a person who, to

a certain extent, is interested in the publication has yet caused it

to be printed within the meaning of the section. Thus, in the case

of _Kelly's Directories_ v. _Gavin and Lloyds_,[435] the plaintiff

had published a directory of merchants and shipping statistics. The

defendant Gavin prepared a similar directory, and agreed with the

defendants Lloyds for its publication. Lloyds were to print part of it

and allow the use of their name in the title and receive some share

in the profits. The book was accordingly published under the title of

"Lloyds' Diary for Merchants, &c.," and bore on the title-page the

statement "printed at Lloyds, Royal Exchange, London." Part of the

book was held to be an infringement of the plaintiff's copyright;

but it was proved on the trial that that part was not printed by

Lloyds, but by a printer employed by Gavin, and that Lloyds had no

knowledge of its piratical nature. Byrne, J., found that Lloyds were

not partners in the undertaking with Gavin, and that the printing of

the piratical portion was not done by the printer as their agent. He

therefore held that Lloyds had not "caused" that portion to be printed

within the meaning of the section, and dismissed the action as against

Lloyds, but without costs, as they had allowed their name to appear on

the title-page as printers.

=Damages.=--An action for damages lies, irrespectively of sections 15

or 23, for any infringement of copyright as defined by section 2.[436]

The damages are damages as for conversion or detinue,[437] and may be

matter for inquiry before a master or official referee, but frequently

are assessed by the judge on a rough estimate.

=Account of Profits.=--An order for an account of profits is an

equitable remedy. The defendant is held to have been in possession

of the plaintiff's property, and must account for the profits

thereof.[438] The account will be for an account of net profits.[439]

On an interlocutory application for an injunction the defendant may

undertake to keep an account of profits until trial; but, strictly,

the right to an account depends on the right to an injunction, and

will not be ordered when the case for an injunction fails.[440] If

the defendant's work is not wholly piratical, the profits must be

apportioned according to the relative value of the piratical with

the non-piratical matter. The defendant's profits may not entirely

recoup the plaintiff for the damage he has suffered, and in that

event he is entitled to an inquiry into damages to supplement his

compensation.[441]

=Injunction.=--This is also an equitable remedy. It is not specially

provided for in the Copyright Act, but being the ancillary remedy in

equity for the protection of legal rights, it will be granted or

withheld according to the discretion of the Courts in all cases of

infringement or other offences against the Act.[442]

An interim injunction is usually granted on motion before trial

where the plaintiff shows a _primâ facie_ case on affidavit. In

doubtful cases weight will be given to the consideration which side

is more likely to suffer from an erroneous judgment.[443] The Court

will consider the balance of convenience on the one side and the

other.[444] The reason for granting an interim injunction is that

a continuing infringement might cause damage for which it would be

difficult or impossible to assess an adequate money compensation.

If the taking is of an inconsiderable part, an interim injunction

might not be given, although an injunction might go at the hearing.

In urgent cases an interim injunction may be granted _ex parte_. In

all interim injunctions the plaintiff is, as a rule, required to

undertake to give compensation to the defendant if on trial he fails

to establish his case.[445] When such an undertaking is given the

defendant is, if he succeed in his defence, entitled to an inquiry as

to the damage sustained on account of the interim injunction against

him.[446] When there has been undue delay in bringing an action, or

where the conduct of the plaintiff has been such as to induce the

defendant to believe that his conduct would not be objected to, an

interim injunction will probably be refused.[447] A mere expression

of opinion by the plaintiff that it would be legal to make a certain

use of his work is not a sufficient ground for refusing an injunction

if in point of law the use made by the defendant is illegal.[448]

"Copyright is not to be lost by the mere expression of opinion."[449]

At the hearing of the action a perpetual injunction will be granted

on the plaintiff proving his title and infringement. Delay or

acquiescence not amounting to fraud will not prevent an injunction

going at the hearing when the plaintiff proves his right;[450] "for

at the hearing of the cause it is the duty of the Court to decide

upon the rights of the parties, and the dismissal of the bill upon

the ground of acquiescence amounts to a decision that a right which

has once existed is absolutely and for ever lost."[451] When an

infringement has been shown the Court will not wait until it can

ascertain distinctly what parts have been pirated. It will grant an

injunction in general terms restraining the defendant, his agents,

servants, or workmen from further printing, publishing, selling, or

otherwise disposing of any copy or copies of the defendant's book

containing any passage or passages copied, taken, or colourably

altered from the plaintiff's book.[452] If it appears that the

piratical parts of the defendant's book can be distinguished from that

which is innocent, this will be done in the injunction.[453] For a

form of injunction against a servant restraining him from using blocks

and materials obtained while in the plaintiff's employment, see _Lamb_

v. _Evans_.[454] An injunction will be granted without any inquiry as

to actual damages;[455] but there must be probability of damage. In

_Borthwick_ v. _Evening Post_,[456] Cotton, L. J., said:

"In my opinion, in order to justify the Court in granting an

injunction, we ought to be satisfied that there probably will be

injury to the pockets of the plaintiff ... an injunction is an

equitable remedy, and ought not to be granted unless the Court is

satisfied that there is damage to the plaintiff--probable damage,

not necessarily damage already suffered--as the result of the

defendant's conduct."[457]

_Quære_ whether an injunction will be granted to protect the future

numbers of a periodical. In _Cate_ v. _Devon and Exeter Constitutional

Newspaper Company_,[458] North, J., in granting an injunction to

restrain a systematic infringement of a periodical, said:

"It is clear that an injunction can only be granted in respect of

matters in regard to which the plaintiffs now have the copyright

and a present right to sue; they cannot have any protection by

injunction to restrain the defendants from publishing hereafter

any future entries with respect to which the plaintiffs may

possibly ... acquire a copyright, ... but as to which they clearly

cannot at this moment have any copyright."[459]

In another case, however, where a single illustration had been taken

from _Punch_, Kekewich, J., said he saw no objection to the injunction

extending to the protection of the contents of future numbers of

_Punch_, and granted a perpetual injunction accordingly against the

_Ludgate Monthly_.[460] An injunction will not be granted when it

is difficult or impossible to enforce it,[461] for instance, when

the defendant can readily reprint the same matter, compiling it from

original sources.[462] The piracy proved may be so inconsiderable, and

so little likely to injure the plaintiff, that the Court may decline

to interfere by injunction.[463]

=Delivery up of Copies.=--All copies of any books wherein there is

and which are unlawfully printed or imported, are deemed to be the

property of the registered proprietor of such copyright, and he is

entitled after demand in writing to sue for the same in detinue and

trover.[464]

This right to the delivery up of pirated copies for the benefit of

the proprietor of the copyright is purely statutory. Under the Acts

of Anne and George III. the proprietor on delivery up was enjoined

to damask and make waste paper of the copies.[465] Under the Act of

Victoria the proprietor for the first time is entitled to recover such

copies for his own use. It has been doubted whether there was any

right to delivery up at common law,[466] but the bulk of authority

is in favour of the view that there was,[467] although the delivery

up was for destruction only.[468] It is a doubtful point whether

section 23 applies to unlawful copies made before registration of the

plaintiff's title. Fry, L. J., held that it did not,[469] and therefore

in the case of such copies ordered delivery up for destruction as a

common law remedy, but refused the statutory remedy of delivery up

for the plaintiff's benefit. Jessel, M. R., however, differed from

this view,[470] and thought that the 23rd section applied to unlawful

copies made before the plaintiff's title was registered. It must

also be considered doubtful whether section 23 applies where the

defendant's book is not merely a reprint of the plaintiff's. In an

Irish case O'Brien, J., said:

"It would be difficult to maintain that under the 23rd section the

proprietor of the copyright in a book would acquire the property

of all copies of another book which contained printed therein a

few pages or passages of his book."[471]

But, whether or not in such a case the plaintiff would be entitled

under the section to extraction and delivery up for his benefit

of the pirated parts, he is under the general jurisdiction of the

Court entitled to delivery up for cancellation.[472] In _Warne_ v.

_Seebohm_[473] the order was that the defendant should first state

upon oath what copies of the work exist; secondly, extract from

those copies which are in his possession or power and deliver up

to the plaintiffs for cancellation all passages copied, taken, or

colourably imitated from the plaintiffs' book; thirdly, produce to the

plaintiffs, if required by them for examination, the copies after the

pirated passages have been extracted.[474] _Quære_ whether the Court

would order delivery up in an action to which the person who owned the

books and paper and at whose expense the printing was executed was not

a party.[475]

=Customs Act.=--The Customs Laws Consolidation Act, 1876,[476]

provides for the seizure of foreign books, and in this respect is

somewhat inconsistent with section 17 of the Copyright Act. Section 42

of the Customs Act prohibits the importation of books "first composed

or written or printed in the United Kingdom and printed or reprinted

in any other country, as to which the proprietor of such copyright or

his agent shall have given to the Commissioners of Customs a notice in

writing duly declared[477] that such copyright subsists, such notice

also stating when such copyright will expire." On reference to section

17 of the Copyright Act it will be noticed that the prohibition there

is as to books "reprinted in any country or place outside the British

dominions." _Quære_ does the provision in the Customs Act enlarge the

protection by the words "printed or reprinted in any other country"?

Does this include the colonies? Again it will be noticed that the

Customs. _Quære_ is the notice required by the Customs Act a condition

precedent to all protection from unlawful importation, and in this

respect does the Customs Act limit the provisions of the Copyright

Act, or is the Customs Act merely directory to the Custom-house

officials? To be on the safe side the notice should always be given.

Section 44 of the Customs Act provides for the keeping of a list of

books as to which notice has been given, and section 45 entitles any

person who shall have cause to complain of the insertion of any book

in such list to apply to a judge at chambers for the rectification

thereof.

=Every Offence.=--Each separate transaction of sale or importation

will constitute a separate offence, for which a separate penalty

of £10 will accrue.[478] It would seem that "every such offence"

does not, as in the Artistic Copyright Act, mean "or the sale or

importation of every copy."[479]

=Limitation of Action.=--Section 26 of the Copyright Act, 1842,

enacts, "that all actions, suits, bills, indictments or informations

for any offence that shall be committed against this Act shall be

brought, sued, and commenced within twelve calendar months next after

such offence committed, or else the same shall be void and of none

effect." It is clear that even although the remedy for one offence is

barred, that in no way extinguishes the owner's right, and the owner

may sue for subsequent offences;[480] thus although a piratical book

has been printed and published more than twelve months before action

brought, yet the owner will be entitled to sue in respect of sales,

&c., made within the twelve months. In a Scotch case, _Stewart_ v.

_Black_,[481] it seems to have been held by Lord President Boyle that

the limitation in the 26th section did not apply to an action of

damages for infringement, and Malins, V. C., says _obiter_ in _Weldon_

v. _Dicks_,[482] that in his opinion the limitation only applies to an

action for penalties. It is submitted that _Stewart_ v. _Black_, if

applied to books published after 1842, is wrong, and that the dictum

of Malins, V. C., in _Weldon_ v. _Dicks_, is also wrong. The section

seems sufficiently clear and applicable to all actions brought in

respect of an infringement of copyright. The argument contra seems

to be based on the use of the words "for any offence that shall be

committed," from which it is argued, that penalties only are pointed

at. Offence, however, is used in the 15th section as applicable to

infringement of copyright not involving penalties. In cases where the

Public Authorities Protection Act applies, the shorter limitation of

six months must be substituted.[483]

=Pleading.=--The defendant is required to give to the plaintiff a

notice in writing of any objections on which he means to rely on the

trial of the action. If the defendant intends to dispute that the

plaintiff is author or first publisher, or that he is proprietor, he

must state the name of the person whom he alleges to be the author or

proprietor, together with the title of the book and the time when, and

the place where, such book was first published.[484] It has been said

to be sufficient, in the case of an old publication, to state the year

of first publication without stating the day and month in the notice

of objections.[485]

The notice of objections must be specific, and give full notice of

the nature of the defence.[486] If the defence is that the book has

not been registered at all, that must be stated.[487] If a faulty

registration is relied on, it is not sufficient to deny that the book

has been duly registered; the notice must state what the particular

objection to the registration is.[488] If the plaintiff's title is

denied, it will not do merely to state that the proprietor "is some

person unknown, but not the plaintiff;"[489] the full particulars

as required by the section must be given.[490] In objecting to the

registration, however, it is not necessary for the defendant to state

what the correct entry should he. Thus if he says the time of first

publication is wrongly entered, he does not require to specify the

true date of first publication.[491] It is unnecessary to deliver

a separate "Notice of Objections," as was the practice at one

time,[492] it is sufficient if it is incorporated in the defence. A

suggestion of defective title contained in an affidavit would not be

sufficient.[493] If a defective title is apparent from the plaintiff's

own statement of claim or evidence, the action would probably be

dismissed by the Court, _proprio motu_, even although the defendant

had not given notice of objection.[494] Leave to amend the pleadings

and take further objection may be allowed on conditions under the

judicial discretion given by the Rules of the Supreme Court,[495] but

if the objection be merely technical, the Court will not give leave to

amend,[496] unless, perhaps, the plaintiff had otherwise fair notice

that the objection might be taken.[497] It has been held by a County

Court judge that section 16 of the Copyright Act does not apply to

proceedings in the County Court, as that Court was created after the

date of the Act.[498]

The plaintiff may be ordered to specify the particular passages which

he is prepared to prove have been pirated from his work.[499]

=Evidence.=--The great test of piracy is coincidence of blunders,

and when some passages are proved by the recurrence of blunders to

have been copied, other passages which are the same with passages in

the original book are presumed _primâ facie_ to be likewise copied,

although no blunders occur in them.[500]

It will greatly prejudice the defendant if his manuscript is not

produced or accounted for.[501]

A denial by the defendant that he has made any use whatsoever of the

plaintiff's work raises a presumption of piracy if it is shown that he

must have made some use of it, however fair.[502]

To prove that A on a certain date heard certain music performed from

printed sheets, is no evidence that the music was published as a book

at that date.[503]

=Discovery.=--The defendant is entitled to administer interrogatories

to ascertain the extent of the sale of plaintiff's book, and to enable

the defendant to ascertain the damages and pay into Court.[504]

The plaintiff is entitled to interrogate as to the original sources

from which the defendant alleges his work to have been compiled.[505]

=Mode of Trial.=--Formerly the question of piracy or no piracy and

the amount of damages was frequently tried by jury, but now the trial

of the action is almost invariably before a judge alone, either in

the Chancery or the King's Bench Division. Either party may ask for a

trial by jury, but not as a matter of right, it is a matter entirely

in the discretion of the Court and semble that the onus lies on the

party applying for a jury to show that the cause could be more

conveniently tried in that way.[506]

=Costs.=--In copyright as in other actions a successful party

may be refused his costs. The plaintiff will not get his costs if

he has unduly acquiesced in the defendant's conduct, and thereby

induced the defendant to incur expenses,[507] or if after acquiescence

and delay an action is brought without fair warning.[508] So, too,

if the plaintiff has suffered no real harm, but brings an action for

the purpose of making money out of it;[509] and in one case where

the Court was of opinion that although the plaintiff was entitled

to nominal damages, the action was one which should never

have been brought, the plaintiff was ordered to pay the defendant's

costs as well as his own.[510] If the plaintiff has increased the

expenses by raising other questions in which he has failed, the

costs will be apportioned.[511] A defendant, although successful,

may lose his costs or part of them if he has acted in such a way

as was not fair and right as between man and man;[512] for instance,

if he has made some use of the plaintiff's book, but does not

acknowledge it at the hearing.[513] A successful defendant may

lose his costs if in his defence he challenges the plaintiff's title

and fails in his attack, but wins on the question of piracy. If a

defendant by his conduct in lending his name to a publication

has led the plaintiff to assume that he "caused it to be printed,"

he will probably not be allowed his costs.[514] A defendant may

also be refused his costs if the Court is of opinion that he

brought the action on himself by sailing too near the wind.[515]

The Court will not encourage a plagiarist or one who has made

an illiberal use of another's work, even although he has not

actually committed a piracy. Costs have also been refused

where, although the defendant succeeded, his defence was a

merely technical one, such as a defect in registration.[516] If copyright

is claimed in part of a book only, the whole of which is

registered without distinction, the notice of motion or statement

of claim should specify the parts in which copyright is claimed,

or the plaintiff may be liable in costs unnecessarily incurred by

the defendant.[517]

SECTION II.--WHAT IS A PIRATICAL COPY.

Literary property may be invaded in three ways:

(i) Open Piracy;

(ii) Literary Larceny;

(iii) Commercial Fraud.[518]

With the first there is no difficulty once a title has been

established and the pirate caught. It consists in a bodily reprinting

and publishing of the whole or of large portions of a copyright book.

The third is not properly speaking an infringement of copyright. It is

the invasion of the common law rights of an author or publisher, and

will be dealt with later. The second, literary larceny, gives rise to

many difficult questions and is dealt with in this section.

The question put by the law is, in its simplest form: "Is the alleged

infringement an unauthorised copy of the whole or part of a copyright

work?" The statute does not attempt to define what a copy is, and

such rules as there are for determining whether one work is a copy of

another are entirely derived from the case law on the subject. It is

impossible to lay down any very definite rules as to infringement;

it is really a question of fact not of law; and although now almost

invariably tried by a judge sitting alone, it was at one time

constantly referred to the decision of a jury. The judges either in

giving their own decisions or in directing juries have from time to

time laid down general rules as an aid to determining these questions

of fact.

The Copyright Acts have always received a liberal interpretation in

favour of the author, and against the plagiarist. "If we can construe

the Act so as to promote fair and honest dealing, such a construction

is to be preferred."[519]

=What is a Copy.=--A copy is that which will provide a substitute

for the whole or for a substantial part of the original book.[520]

The owner of the copyright has the sole and exclusive liberty of

printing or otherwise multiplying copies. It has been held that

the right is not in any way limited by section 15 of the Copyright

Act, 1842, which section applies its remedy only to cases where the

subject-matter is multiplied by printing.[521] Thus copies produced by

writing,[522] lithography,[523] type writing,[524] photography,[525]

are copies within the meaning of the Act. The symbols used matter

little in themselves; the question in each case is whether the

defendants are multiplying copies.[526] It is not necessary that the

copy should be primarily intended to be used for the same purpose

as the original. Thus a copy in shorthand characters intended for

instruction in shorthand was held to be an infringement of a story in

a magazine.[527] But the copy must provide a reasonable substitute

for the whole or part of the original work. A perforated scroll used

for the mechanical reproduction of music from an instrument is not a

copy, since no reasonable being would use it as a substitute for the

original sheet of music.[528]

=A Substantial Part must be Taken.=--In other words, _De minimis non

curat lex_.

"Part is not necessarily the same as particle, and there may be a

taking so minute in its extent and so trifling in its nature as

not to incur the statutable liability."[529]

In _Sweet_ v. _Benning_,[530] Jervis, C. J., said:

"It is undoubtedly exceedingly difficult, perhaps absolutely

impossible, to lay down any general rule upon this subject. I do

not assent to the argument that every publication of a portion of

a work in which there is subsisting copyright will afford a ground

of action: it is a question of degree which must depend upon the

circumstances of each particular case."

In _Chatterton_ v. _Cave_,[531] Brett, J., said:

"Unless there is a taking of a material and substantial part there

is no infringement of copyright. It is true that the question

under the second section is not only whether the whole production

has been copied, but also whether a part has been copied; but by a

part this section must mean a material and substantial part."[532]

In _Chatterton_ v. _Cave_,[533] two small points or incidents

were taken from one drama by the author of another, and it was

held that the taking was not of a substantial part. In _Pike_ v.

_Nicholas_,[534] in the case of two rival essays on the same subject,

one quotation from a classical author was taken by the defendant

directly from the plaintiff's book; Lord Hatherley, L. C., and Giffard,

L. J., were of opinion that it would not do to show merely one or two

passages; some material part of the book must be shown to have been

taken.

The question is not altogether one of quantity, it is perhaps mainly

one of quality,[535] and depends on the character of the work and the

relative value of the material taken.[536]

"The question of the extent of appropriation which is necessary

to establish an infringement of copyright is often one of extreme

difficulty: but in cases of this description the quality of the

piracy is more important than the proportion which the borrowed

passages bear to the whole work."[537]

"It ought to be clearly established that, looking at the works as

a whole, there has been a substantial appropriation by the one

party of the independent labour of the other before any proceeding

on the ground of copyright can be justified."[538]

"When it comes to a question of quantity it must be very vague.

One writer might take all the vital[539] part of another's book,

though it might be but a small proportion of the book in quantity.

It is not only quantity, but value that is always looked to."[540]

"The principle of the cases is that, when one man for his own

profit puts into his work an essential part of another man's work

from which that other may still derive profit, or from which but

for the act of the first he might have derived profit, there is

evidence of piracy."[541]

Although it is no excuse for infringement to say that the matter taken

has been improved upon or added to, yet there may be so much new

matter that the part borrowed becomes so insignificant that the Courts

will not interfere. In _Mawman_ v. _Tegg_,[542] Lord Chancellor Eldon

says:

"After the quantity of matter which has been copied has been

ascertained, the quantity of matter not piratical with which the

piratical matter has been intermixed is still a circumstance of

great importance."

The materiality of the part taken may sometimes be judged more by the

proportion which it bears to the defendant's work than to the work

from which it is taken. Thus in _Neale_ v. _Harmer_[543] the plaintiff

had prepared and published an elaborate work intituled "The Abbey

Church of St. Alban," containing about 200 architectural drawings.

The defendant took and published three of these in a magazine article

on St. Alban's Abbey, and they were the only strictly architectural

drawings illustrating the article. It was held to be an infringement.

Kekewich, J., said in his judgment:

"It is said that these drawings did not form a material part of

the plaintiff's work. In one sense that is true. The plaintiff's

work is a large one, and it is a very learned work. The test is

not so much what proportion of the plaintiff's work had been

taken, but rather what portion of the defendant's work is the

plaintiff's."

In questions of amount it is material to inquire whether the matter

was taken so as to compete with the plaintiff's work,[544] but an

infringement need not necessarily be shown to be in competition with

the work infringed, since it is sufficient if the defendant has made

such a use of part of the plaintiff's work as the plaintiff might

himself have done.

If matter is taken regularly and systematically by one periodical from

another, and particularly if it is taken and claimed to be taken as of

right, a very small amount will suffice.[545] As to a claim of right,

North, J., said in _Cate_ v. _Devon_:

"That of itself is sufficient to put the plaintiff in the wrong in

the action and get over any question as to the amount of matter

actually taken."[546]

Although the Court will not grant a remedy for a trifling

infringement, it will not refuse an injunction merely on account

of the minute inquiries into detail which, in some cases, may be

necessary to establish even an extensive piracy.[547]

=No Animus Furandi need be Proved.=--In _Cary_ v. _Kearsley_[548] Lord

Ellenborough's judgment contained a reference to the _animus furandi_

in cases of infringement, from which a mistaken idea seems to have

arisen that in all cases of infringement the _animus furandi_ must be

proved.[549] Lord Ellenborough said:

"That part of the work of one author is found in another is not in

itself piracy or sufficient to support an action; a man may fairly

adopt part of the work of another; he may so make use of another's

labours for the promotion of science and the benefit of the

public, but having done so the question will be, was the matter so

taken used fairly with that view and without what I may term the

_animus furandi_."[550]

This did not mean that in every case of infringement alleged it was

necessary to prove an _animus furandi_ or guilty intention. Lord

Ellenborough in a subsequent case[551] said:

"The intention to pirate is not necessary in an action of this

sort; it is enough that the publication complained of is in

substance a copy whereby a work vested in another is prejudiced.

If A takes the property of B the _animus furandi_ is inferred from

the act."[552]

In _Scott_ v. _Stanford_,[553] Page Wood, V. C., after quoting

the above passage from Lord Ellenborough's judgment in _Cary_ v.

_Kearsley_,[554] said:

"It is urged that this is a case in which no _animus furandi_ can

be found on the part of Mr. Hunt, who has taken these statistics

in perfect good faith and with the fullest acknowledgment[555]

in his book of the source from which they are derived. But if in

effect the great bulk of the plaintiff's publication--a large and

vital portion of his work and labour--has been appropriated and

published in a form which will materially injure his copyright,

mere honest intention on the part of the appropriator will not

suffice, as the Court can only look at the result and not at

the intention in the man's mind at the time of doing the act

complained of, and he must be presumed to intend all that the

publication of his work effects."[556]

Although the _animus furandi_ does not require to be proved, it is

a useful aid to proof, and where it appears piracy is more readily

presumed.[557]

=Taking not necessarily for Profit.=--The prohibition in section 15

of the Copyright Act, 1842, is against printing or causing to be

printed "either for sale or exportation," but as this has been held

not to confine piracy to copying by means of printing, neither does

it confine it to copying for sale or exportation, and the purpose for

which the copy when made is to be used is immaterial. In _Alexander_

v. _Mackenzie_[558] the Society of Writers to the Signet in Edinburgh

prepared for the use of their own members a book of forms taken

largely from a similar copyright work. The Court of Session held

that this was an infringement of copyright. A catalogue of books,

although not intended for sale, may be an infringement of another

catalogue;[559] manuscript copies of a copyright song distributed

exclusively among the members of a philharmonic society,[560] and a

telegraphic code distributed only among the agents of a shipping firm

have also been prohibited.[561] In _Ager_ v. _The P. & O._, Kay, J.,

said:

"It has long been settled that multiplying copies for private

distribution among a limited class of persons is just as illegal

as if it were done for the purpose of sale."

It is submitted that making a single copy for private use is an

infringement.

=Copying may be Indirect and Unintentional.=--If matter in which

was made not directly from the original work but indirectly

through some other work, copyright or non-copyright, authorised or

unauthorised. Thus a book may be infringed by retranslating or copying

a translation of it,[562] and a drama may be infringed by dramatizing

a novel founded on the drama.[563] In _Cate_ v. _Devon and Exeter

Constitutional Newspaper Company_,[564] it was argued that an indirect

copying could not be considered an infringement, because since the

copyist is ignorant of what works he is indirectly copying, he cannot

know whether or not he is infringing any copyright books, but this

argument was rejected. Ignorance on the part of the copyist does not

excuse him from the consequences of his act.[565]

=Custom of Trade= has been pleaded in defence of what was otherwise

clearly a piracy. A custom was alleged whereby provincial newspapers

were entitled to make large extracts, without criticism, from articles

in magazines which were sent to them;[566] and in another case "a

usual practice" among publishers of magazines to take articles from

each other[567] was pleaded. It is clear that no such customs can be

admitted. In _Walter_ v. _Steinkopff_[568] the _St. James' Gazette_

alleged that there was a universal understanding among journalists and

newspaper proprietors that paragraphs of news may be quoted verbatim

by one daily paper from another without express consent, provided (1)

the source was acknowledged, (2) the papers were not direct rivals,

(3) there is give and take between the papers, and (4) no expressed

objection. The _St. James' Gazette_ took articles from the _Times_

on this alleged footing. North, J., held that they had not complied

with these conditions, and that even if they had it would have been no

defence.

"The plea of the existence of such a habit or practice of copying,

as is set up, can no more be supported when challenged than the

highwayman's plea of the custom of Hounslow Heath."[569]

=Fair Use.=--When an author writes on a subject in which there are

common sources of information he must do the work of research and

compilation for himself, and the only use he can lawfully make of a

prior copyright work on the same subject is--

i. Using the information or the ideas contained in it without

copying its words or imitating them so as to produce

what is substantially a copy.

ii. Making extracts (even if they are not acknowledged as

such) appearing under all the circumstances of the case

reasonable in quality, number, and length, regard being

had to the objects for which the extracts are made and

to the subjects to which they relate.

iii. Using one book on a given subject as a guide to authorities

afterwards independently consulted by the author

of another book on the same subject.

iv. Using one book on a given subject for the purpose of

checking the results independently arrived at by the

author of another book on the same subject.[570]

_No one can monopolize a Field of Labour._--Although an author has

been the first to deal with a particular subject, his priority gives

him no exclusive right therein.[571] Any one else can do exactly

the same as he has done. If a man draws a map of a newly-discovered

island, or writes a book on the habits of its natives, he acquires no

right to prevent any one from competing with him in the publication

of maps and books dealing with that island.[572] His only right is

to prevent any one else from taking matter from his book. In one

of the older cases it was suggested that there was a usage among

booksellers--a sort of comity among them--by which if one preoccupied

a certain subject he was considered a sort of proprietor.[573] In that

case Lord Eldon repudiated the idea that such could be the law, and

now no monopoly of the kind could be suggested.

"All human events are equally open to all who wish to add to

or improve the materials already collected by others making an

original work."[574]

_No Infringement to take Facts._--It is no infringement to state a

fact or an opinion which another man has stated for the first time:

but you must not take his mode of expression or his selection or

arrangement of facts which he has thought proper to state. Thus there

is no copyright in a mere piece of news, for instance, "The Emperor of

China is dead." If one newspaper proprietor received a telegram from

abroad to that effect, another could take the information as published

and print it in his newspaper. But although there is no copyright in

news as such, the smallest taking of a selection or arrangement of

news will be prohibited. In a case in Victoria[575] the defendants

had taken the plaintiff's telegrams, rearranged them, and altered

the expression, and yet they were held to have been guilty of an

infringement.

_No Infringement to take the General Scheme or Idea of another Book

or the Theories therein._--Copyright does not extend to ideas or

schemes or systems or methods: it is confined to their expression; and

if their expression is not copied the copyright is not infringed.[576]

Thus in _Jarrold_ v. _Houlston_,[577] Page Wood, V. C., said that even

although Dr. Brewer's "Guide to Science," which purported to give

popular scientific information under various headings in the form of

question and answer, had been the first book of the kind, there was

nothing to prevent another person from originating another book in the

same general form, provided he did so from his own resources.[578] In

_Pike_ v. _Nicholas_, the case of two rival historical essays on "The

Origin of the English Nation," James, V. C., said:

"There is no monopoly in the main theory of the plaintiff, or

in the theories and speculations by which he has supported

it, nor even in the use of the published results of his own

observations."[579]

A careful distinction must be drawn between the taking of a scheme

and the taking of it as applied to certain material, _i. e._ the

taking of the expression. For instance, in _Kelly_ v. _Morris_,[580]

the plaintiff had adopted a "very ingenious form of arrangement" in

his "Street Directory." The defendant was held to have infringed

the plaintiff's copyright by taking his list of streets from the

plaintiff's work. The only thing he was entitled to do was to adopt

the "ingenious form of arrangement" and apply it for himself.

_Every Author must do his own Work._--In _Longman_ v.

_Winchester_,[581] the action being for the infringement of copyright

in a court calendar, Lord Eldon drew an analogy to the case of a map

describing a particular county and a map of the same county afterwards

published by another person, which, if the description be accurate in

both, must be very much the same, yet he said:

"It is clear the latter publisher cannot on that account be

justified in sparing himself the labour and expense of actual

survey."

In _Lewis_ v. _Fullarton_,[582] Lord Langdale, M. R., said:

"Any man is entitled to write and publish a topographical

dictionary and to avail himself of the labours of all former

writers whose works are not subject to copyright, and of all

public sources of information: but whilst all are entitled to

resort to common sources of information, none are entitled to save

themselves trouble and expense by availing themselves for their

own profit of other men's works still subject to copyright and

entitled to protection."[583]

In the case of Dr. Brewer's "Guide to Science,"[584] Page Wood, V. C.,

said:

"In publishing a work in the form of question and answer on a

variety of scientific subjects the defendant had a right to look

to all those books which were unprotected by copyright, and to

make such use of them as he thought fit by turning them into

questions and answers. He had also a further right if he found a

work like Dr. Brewer's, and perusing it was struck by seeing--as

I think has been the case in the present instance--that the

author had been led up to particular questions and answers by the

perusal of some other work to have recourse himself to the same

work, although possibly he would not have thought of doing so but

for the perusal of the plaintiff's book.... It would also be a

legitimate use of a work of this description if the author of a

subsequent work, after getting his own work with great pains and

labour into a shape approximating to what he considered a perfect

shape, should look through the earlier work to see whether it

contained any heads which he had forgotten."[585]

In _Hotten_ v. _Arthur_[586] the same judge held that the defendant

had infringed the plaintiff's descriptive catalogue of books for

sale:

"The only fair use you can make of the work of another of this

kind is where you take a number of such works, catalogues,

dictionaries, digests, &c., and look over them all, and then

compile an original work of your own founded on the information

you have extracted from each and all of them: but it is of vital

importance that such new work shall have no mere copying, no

merely colourable alterations, no blind repetition of obvious

errors."

In _Kelly_ v. _Morris_,[587] a directory case, there is another clear

dictum from the same judge:

"In the case of a dictionary, map, guide-book, or directory, when

there are certain common objects of information which must, if

described correctly, be described in the same words, a subsequent

compiler is bound to set about doing for himself that which the

first compiler has done. In case of a road-book he must count the

milestones for himself. In the case of a map of a newly-discovered

island he must go through the whole process of triangulation

just as if he had never seen any former map; and generally he

is not entitled to take one word of the information previously

published without independently working out the matter for himself

so as to arrive at the same result from the same common sources

of information, and the only use he can legitimately make of a

previous publication is to verify his own calculations and results

when obtained. So in the present case the defendant could not take

a single line of the plaintiff's directory for the purpose of

saving himself labour and trouble in getting his information....

What he has done has been just to copy the plaintiff's book and

then send out canvassers to see if the information so copied

was correct.... The work of the defendant has clearly not been

compiled by the legitimate application of independent personal

labour."[588]

In _Scott_ v. _Stanford_,[589] Page Wood, V. C., held that certain

tables of statistical returns in the coal market had been pirated. In

his judgment he said:

"The defendant, after collecting the information for himself,

might have checked his results by the plaintiff's tables, but that

is a widely different thing from this wholesale extraction of the

vital part of his work. No man is entitled to avail himself of the

previous labours of another for the purpose of conveying to the

public the same information, although he may append additional

information to that already published."

A Treatise Upon the Law of Copyright in the United Kingdom and the Dominions of the Crown, and in the United States of America Containing a Full Appendix of All Acts of Parliament International Conventions, Orders in Council, Treasury Minute and Acts of Congress Now in Force. · 第 13 / 20 章

"This definition does not extend to prints or designs separately