_Unlawful Copy._--If a copy is made in a_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.

the proprietor's copyright is not protected, such copy is not a copy

"unlawfully made," and therefore no penalties will attach under

section 6 for knowingly importing or selling such copy;[980] but

under section 11 damages may be sued for, since under that section

it is an offence to import or sell copies made without consent, and

delivery up may be claimed under the same section, because such copies

when offered for sale become unlawful copies although not unlawfully

made.[981] The same distinction applies to selling or importing copies

made before registration, such copies not being "unlawfully made."[982]

_Separate Offence._--Each piratical copy made or dealt with, and not

only each transaction, is an offence under section 6, and involves a

separate penalty.[983] Blackburn, J., says in _ex parte Beal_:[984]

"It would be a monstrous absurdity if a man might import a cargo

of pirated works from France and £10 be the utmost penalty that

could be imposed. Such a state of the law would render it worth a

man's while to do wrong."[985]

It was held in several cases[986] that as 1/4d. was the smallest coin

of the realm, the minimum penalty must be 1/4d. for each copy. This

has now been overruled in the Court of Appeal in _Hildesheimer_ v.

_Faulkner_,[987] and a fraction of 1/4d. can be assessed as the penalty.

_Copying for Private Use_ will probably not be actionable, since

the offence is to copy, &c., for sale, hire, exhibition, or

distribution.[988] Gratuitous distribution would, however, be

actionable.

_Action on Breach of Contract._--Although no action may lie for

infringement, either because the party aggrieved has no copyright

or is not duly registered, there may be a remedy for breach of

contract express or implied. Thus if A contract to make copies of B's

drawing, even although B has no copyright therein, it is a breach of

contract for A to make any copies other than for the use of B.[989]

And again, a photographer who has been employed by a customer to

take his portrait is not justified in striking off copies of such

photograph for his own use, or selling or exhibiting them by way of

advertisement or otherwise, without the authority of such customer

express or implied, and even although the customer is not registered

as proprietor of the photograph.[990]

_Fraudulent Acts._--The following acts if committed fraudulently are

rendered penal by the Act:[991]

1. To affix any name, initials, or monogram on any

work.[992]

2. To sell, exhibit, &c., a work bearing false name, initials,

or monogram.

3. To represent a copy as the work of an original

"author."

4. To sell or publish an altered work as the unaltered

work of an original "author."

For any of these fraudulent acts the person aggrieved may recover by

action[993]--

i. Sum not exceeding £10 or double the full value of

the fraudulent works.

ii. Delivery up of the fraudulent works.

iii. Injunction.

But such penalties will not be incurred if the person whose name or

work has been fraudulently dealt with has been dead for more than

twenty years.

_Limitation of Action._--There is no special limit fixed by the Act of

1862, and therefore the remedy on an offence within the statute will

not be barred for six years.[994]

_Evidence._--In any action for the infringement of copyright in a

picture, it will be sufficient to produce in evidence an authenticated

copy of the picture, _e. g._ a photograph with the oral evidence of the

photographer.[995]

=What is a Piratical Copy.=--_No Monopoly._--There can be no monopoly

of the subject-matter of a painting, drawing, or photograph. Another

artist may independently represent the same scene or object as that

represented in a copyright work.[996]

_What is a Copy._--A piratical copy need not necessarily be an

artistic work of the same kind as the work pirated. Thus an oil

painting is infringed by a photograph of it,[997] and a photograph

may be infringed by a pencil sketch.[998] An infringement may consist

of either a taking of the design or a taking of the method of

execution, or both. Thus an infringement need not even be a kind of

work which would be protected by this Act. Although there is no direct

authority, it is clear from section 2, which gives the exclusive

right to the design of the work protected, that an engraving would

be an infringement of a painting, drawing, or photograph, and so

perhaps might a piece of sculpture.[999] Then again the design may

not be copyright, for instance, in the case of a photograph of a

non-copyright picture, and yet it would be an infringement to take a

photograph of such a photograph. That would be a taking of the method

of execution.[1000]

The infringement must be an artistic work of some kind, _i. e._ such

a work that would be protected if not under the Act of 1862, under

the Engraving Acts or Sculpture Act. In _Hanfstaengl_ v. _Empire

Palace_[1001] the Court held that the grouping of people on a stage so

as to form _tableaux vivants_ was not an infringement in the copyright

of a picture thus represented. Kay, L. J., in his judgment, said:

"Could it possibly have been said the _tableaux vivants_ were

pictures within the sense of this Act, and does not a reproduction

mean something in which, if the original author of the painting

had himself produced it, he might have had copyright."

_General Idea may be Taken._--It is not an infringement to take

merely the general idea of subject-matter and treatment from a

_tableaux vivants_ which were the subject of the last case cited were

sketched and reproduced in the _Daily Graphic_. It was contended that

these sketches infringed the copyright in the pictures from which

the _tableaux vivants_ were taken. The House of Lords, affirming

the judgment of the Court of Appeal, held that they did not. Lord

Herschell, L. C., in giving judgment, pointed out that the essence of

the design varied according to the nature of the picture. Sometimes it

might be principally in the grouping of the figures, sometimes in the

pose and countenances. Referring to one of the sketches complained of,

he said:

"There is no doubt a resemblance between the sketch and the

photograph from the painting. In each case a young man and a

young woman are standing beside one another close to a stile or

fence. In each case the woman is shading her head by a parasol,

and the dress of the man is somewhat similar in the two, but

the idea of a young man courting a young woman at a country

stile is of great antiquity. It has often formed the subject of

pictorial representation. This cannot be said to be the design

of the plaintiff's painting within the meaning of the Act. Much

more must be comprehended than this. There can only be a copy of

such design if the treatment of the subject be the same. Now,

comparing the sketch of the photograph from the painting, I do not

think this can be said to be the case. The faces are different,

the dress especially in the case of the woman is different, the

pose is different, the attitudes are different, the backgrounds

are different, and in the case of the sketch the foreground is

wanting. In the artistic design all these things play a part,

although I do not say that a variation in one or even more of

these respects would prevent the sketch being a copy of the

design. Yet, comparing the two and considering the design of

the painting as a whole, I cannot avoid the conclusion that the

sketch is not a copy of the painting or of the design thereof, and

therefore there has been no infringement."

His lordship concluded by saying that such questions really depended

on the effect produced on the mind by a study of the picture and

of that which is alleged to be a copy of it. In _Guggenheim_ v.

_Leng_[1003] the plaintiff was the owner of the copyright in a

photograph of a football team. The defendant, without authority,

made from the photograph rough sketches of the various individual

portraits, and published them in his newspaper. It was held not to be

an infringement.

_Material Part._--There is no piracy of an artistic work unless a

material part of the work is taken. What amounts to a material part

must be a question of fact in each case, and it is impossible to lay

down any definite rule. In _Moore_ v. _Clarke_[1004] a horse was

taken from a copyright print and inserted in another print among

different surroundings. In the second print the horse appeared to

be going in a different direction, and the jockey on his back was

differently dressed. The judge directed the jury to consider whether

the defendant's engraving was substantially a copy of the plaintiff's,

and the jury came to the conclusion that it was not. In _Brooks_ v.

_Religious Tract Society_[1005] a collie dog, identical in expression,

attitude, and position, was, together with a wall in the background

and a table, taken from a copyright picture and inserted in a woodcut.

The woodcut differed from the picture in that the figure of a child

was omitted, and in its place two cats and a tortoise and other

details were inserted. Romer, J., held that there was a piracy:

"It was not only the dog that was taken, but also the feeling and

artistic character of the plaintiff's work.... If a person were

to take an historical picture, and take out of it the principal

figure, and reproduce that figure without the other surroundings,

that would be an infringement. The present case was a stronger

case, because the defendants had not only taken the principal

figure of a dog, but copied as well the sentiment of the picture."

_Indirect Taking._--It is equally an infringement, although the

copying is indirect.[1006] Thus, for instance, the photograph of an

engraving may infringe the copyright of the picture from which it is

taken.[1007]

_Guilty Knowledge._--It is no defence to say that the taking was

an innocent one and unintentional.[1008] In the case of a claim

for penalties in respect of importing or selling piratical copies,

knowledge of infringement must necessarily be proved, but in no

other case. But the question of intention cannot always be wholly

disregarded, as it may guide the Court in determining whether the

alleged infringement is a copy or not.[1009]

_Replicas._--It is an infringement of the proprietor's right for an

author who has parted with his copyright to make a replica of the

work; but if he has made replicas before selling his copyright it

would be no infringement to sell these replicas. _Quære_ whether it

would be an infringement after selling his copyright in the original

work to take photographs or engravings of the replicas; probably it

would.

_Licence a Defence._--Licence must be in writing, signed by the

proprietor of copyright or by his agent authorised in writing;[1010]

but probably an oral consent would be a good defence.[1011]

An assignee is not bound by a licence granted by the assignor before

the assignment, unless he has notice of it.[1012]

The licensee will be kept strictly within the limits of his licence.

When a licence was granted to reproduce a photograph in one magazine,

it was held an infringement of copyright to reproduce it in another,

and the contention that there was a custom in the publishing trade

allowing this to be done on tender of payment was characterised as

ridiculous.[1013]

CHAPTER IX

COLONIAL COPYRIGHT

Every British Possession has the power to legislate independently

as regards the protection within its own territory of literary or

artistic works first produced therein.[1014] In respect of such

works they may either limit or extend the protection afforded by the

Imperial Acts. Most of our larger colonies have local Acts.[1015]

Some of the colonies[1016] have, for instance, created a copyright in

the news contained in foreign telegrams, a monopoly unknown under the

Imperial Acts. It is not proposed here to deal with the colonial local

Acts. They are of interest only in the various colonies themselves.

This chapter will be restricted to the rights of a work published in

one part of the British dominions to receive protection in any other

part of the British dominions. This is controlled by the Imperial

and protect works published anywhere therein apart from any local

legislation.

=Books.=--Before 1886, the Copyright Act, 1842, although it applied

to the whole of the British dominions, only protected those books

which were first published in the United Kingdom. A book, therefore,

published first, say in Canada or Australia, received no copyright

protection except by local legislation, if any, within the territory

of the particular colony where it was first published.

A book first published in the United Kingdom was protected in every

British colony, not only against copying but against the importation

of reprints. The smaller and poorer colonies found this a considerable

grievance. They alleged that they were unable to afford the price of

English books, and that as they were prohibited from importing foreign

reprints and had little or no contemporary literature of their own,

they were reduced to reading the classics or nothing at all. The

Colonial Copyright Act, 1847,[1017] was passed to give them relief.

It enacts that when reasonable protection to the British author shall

be provided in any British possession by the legislature of such

possession, Her Majesty may, by Order in Council, declare that so long

as such protecting provision shall be in force all Acts prohibiting

the importation or sale or hire of foreign copies shall be in respect

of such possession suspended. Altogether twenty colonies[1018] have

taken advantage of this Act. It has been found, however, that the

protecting provisions are of little value, and that the duties which

are supposed to be levied on foreign reprints for the benefit of the

British author are continually evaded, and the colonies under the

Foreign Reprints Act are overrun with foreign reprints of popular

books which, coming in practically free of duty, make the authors'

Books first published in the colonies received Imperial protection

in 1886, when the International Copyright Act[1019] of that year was

passed. It enacts that the Copyright Acts shall apply to a literary or

artistic work first produced in a British Possession in like manner

as they apply to a work first produced in the United Kingdom,[1020]

with a proviso, firstly, that the enactments as to registration

shall not apply if the law of the Possession in question provides

for registration; and, secondly, that no delivery of copies shall

be required. There is also a provision for evidence of colonial

_Canada_ came under the Foreign Reprints Act, and, as a result, was so

inundated with cheap reprints from the United States that the Canadian

publishers, in 1875, obtained a local Act for their protection.[1021]

This Act enacts that works of which the copyright has been granted and

is subsisting in the United Kingdom, and copyright of which is not

secured or subsisting in Canada under any Canadian or provincial Act,

shall, upon being printed and published or reprinted and republished

in Canada, be entitled to copyright under the Canadian Act.[1022] It

prohibits _inter alia_ copying and importation of foreign copies, but

nothing in the Act is to be held to prohibit the importation from the

United Kingdom of copies of such works legally printed there. The

Canadian Act is confirmed by an Imperial Act, the Canada Copyright

Act, 1875,[1023] and this enacts that the Canadian copies of a British

book may not be imported into the United Kingdom without the author's

consent.

Although Canada came under the Foreign Reprints Act, 1847,[1024] and

in accordance therewith imposed duties on foreign reprints for the

benefit of the owner of the copyright, the collection of those duties

has now been abandoned by the Tariff Customs Act (Canada), 1894,[1025]

the result of which is that as regards Canada the provisions of the

Imperial Copyright Act, 1842,[1026] section 17, are revived and the

importation of foreign copies of works having an Imperial copyright is

again prohibited.[1027] The same result will occur in other colonies

which may by statute abandon their enactments for the collection of

authors' duties.

The Canadian Legislature has recently passed a Copyright Act[1028]

purporting to affect the importation into Canada of books published

under an Imperial Copyright. The Act provides that if a book has

acquired Imperial Copyright by first publication in the British

dominions outside Canada, and a licence has been granted for its

reproduction in Canada, the Canadian Minister of Agriculture may

prohibit the importation into Canada of any copies of such book

printed out of Canada and imported without the licensee's consent.

I think it is doubtful whether the last-mentioned Act is not _ultra

vires_ of the Canadian Legislature. The Canadians have, since the

British North American Act, 1867, claimed that they have the exclusive

power of legislating in respect of and regulating copyright within

the Dominion of Canada. This claim, however, has not been recognised

in the Canadian courts. In _Smiles_ v. _Belford_[1029] a book was

copyrighted in England, but not under the local Act of 1875 in Canada.

An action was brought by the proprietor to restrain a reprint of

the book in Canada. The defendants pleaded that the book was not

protected in Canada since it was not copyrighted under the local Act.

They argued that the British North American Act, in giving to the

Parliament of Canada "exclusive legislative authority" in certain

matters, including copyrights, excluded the operation of the Imperial

Acts in Canada. They further argued that the confirmation of the

Canadian Copyright Act, 1875, by the Imperial Parliament impliedly

repealed the Imperial Copyright Act of 1842 in so far as it extended

to Canada. The Court held that neither of these arguments was sound.

With reference to the argument on the British North American Act,

Burton, J. A., in the Court of Appeal, said:

"It is clear, I think, that all the Imperial Act intended to

effect was to place the right of dealing with colonial copyright

within the Dominion under the exclusive control of the Parliament

of Canada, as distinguished from the provincial legislatures.... I

entirely concur with the learned Vice-Chancellor in the opinion he

has expressed that under that Act no greater powers were conferred

upon the Parliament of the Dominion to deal with this subject than

had been previously enjoyed by the local legislatures."

As regards the Imperial Act confirming the Canada Copyright Act, 1875,

the Court held that it was passed merely to resolve doubts which would

otherwise have arisen as to whether the Canada Copyright Act was not

repugnant to the provisions of the Foreign Reprints Act, 1847, and

the Order in Council thereunder applicable to Canada. Burton, J. A.,

said:

"It is scarcely reasonable to suppose that if the Imperial

Parliament had thought fit to accept the Canadian enactment as

a substitute for the 5 & 6 Vict. they would not have repealed

it so far as it affected Canada in express terms, or that when

stating a reason for Imperial legislation they would have confined

themselves to a reference to the Order in Council, which dealt

only with a portion of the prohibition referred to in that

statute. I am of opinion, therefore, that they have stated the

only reason which rendered it expedient to seek a confirmation of

the Provisional Act, and that it was intended to preserve intact

so much of the Imperial Act as prohibits the printing of a British

on certain conditions of securing a Canadian copyright and thus

preventing the importation into Canada of foreign reprints."

For some considerable time before the passing of the Canadian Act of

1900, the Canadians were negotiating for a clause in the Copyright

Bill in this country enabling them to pass a similar provision to that

which they have now passed without Imperial sanction. A clause was

inserted in Lord Monkswell's Literary Copyright Bill, 1900, proposing

to give to all the colonies such a power of protecting licensees. The

Canadians, however, impatient of the delay in copyright reform in this

country, passed their own Act without waiting to obtain authority. It

would certainly be satisfactory to see it confirmed by an Imperial

statute.

_Summary of Provisions in respect of Books._--The result of the

various enactments with reference to the colonies is that, as regards

copying, every book first published in any part of the British

dominions is protected in every other part of the British dominions.

The book must be duly registered either in the colony or dependency

where it is produced, or, if such colony or dependency does not

provide a proper system of registration, at Stationers' Hall in

London. The protection within the colony in which a book is first

produced depends on local legislation if such overrides the Imperial

legislation. As to importation of copies, the result is not so simple,

but it may be summarised thus:

If a book has been first published anywhere within the British

dominions, the following prohibitions apply:

I. _The United Kingdom._--There shall not be imported into, or sold

in, without the consent in writing of the owner of the copyright--

Copies printed outside the British dominions.[1030]

Copies printed in Canada under the Canadian Act.[1031]

II. _Canada._--If the book has been printed and published, or

reprinted and republished,[1032] and registered in Canada, there shall

not be imported into, or sold in, without the consent in writing of

the owner of the copyright--

Copies printed outside Canada[1033] unless legally printed in the

United Kingdom under an Imperial copyright existing prior to the

acquirement of a Canadian local copyright.[1034]

If a book has acquired Imperial copyright by first publication within

the British dominions outside Canada, and the owner of the copyright

has granted a licence to reproduce it in Canada, there shall not be

imported (if the Minister of Agriculture so order) without the consent

in writing of the Canadian licensee--

Copies printed outside Canada.[1035]

In other cases these shall not be imported or sold without the written

consent of the owner of the copyright--

Copies printed outside the British dominions.

III. _Colonies under the Act of 1847 other than Canada._--There is no

prohibition except the nominal import duty on copies printed outside

the British dominions.

IV. _Other Colonies._--There shall not be imported into or sold in

without the consent in writing of the owner of the copyright--

Copies printed outside the British dominions.[1036]

=Artistic Works.=--We have seen that since the International Copyright

Act, 1886, there is complete protection throughout the whole of the

British dominions for books first published anywhere therein. It was

evidently intended that artistic works should be placed on the same

footing, but unfortunately the distinction between the literary and

artistic Acts was overlooked. The Copyright Act, 1842, protected

books published in the United Kingdom, but expressly extended the

protection to the whole of the British dominions. None of the

artistic copyright Acts extend their protection beyond the United

Kingdom. The Engraving Acts expressly limit their protection to the

United Kingdom;[1037] the Paintings, Drawings, and Photographs Act

expressly limits its remedies to the United Kingdom;[1038] and the

Sculpture Act is silent as to the extent of its protection.[1039]

The result seems to be that although since 1886 all works of art

first published anywhere throughout the British dominions will be

protected by Imperial legislation, that protection extends no further

than the United Kingdom. This has been decided by a divisional Court

in Canada in respect of the Paintings, Drawings, and Photographs

Act, 1862.[1040] The decision will apply _a fortiori_ to engravings.

Sculptures may be different, in that there is no express limit

contained in the Sculptures Act; but probably a limitation of

protection to the United Kingdom will be implied. The result is that

artistic works are only protected in the Colonies and dependencies

under local legislation.

CHAPTER X

INTERNATIONAL COPYRIGHT

=Works first produced in His Majesty's Dominions= are protected in

those foreign countries with which there is a treaty for the mutual

protection of literary and artistic rights. These countries are the

signatories of the Berne Convention,[1041] and Austria-Hungary, with

which there is a separate treaty on similar lines. Generally it may

be presumed that each of these countries has by domestic legislation

given full effect to the international agreement, and that all works

which are protected in this country, and would have been protected if

first produced in the foreign country in question, will receive the

same protection there as would be accorded to a work first produced

in such foreign country. The protection, however, must be sought in

the foreign country and not here. The Courts of this country will not

grant any redress for the infringement of a British author's copyright

in a foreign State, even although such infringement be perpetrated by

a British subject resident in England.[1042]

=Works first produced in foreign countries with which this country has

no treaty= are in no way protected from infringement in the United

Kingdom, unless they are produced within His Majesty's dominions

simultaneously with their production elsewhere.[1043]

=Works first produced in foreign countries with which this country has

a treaty= are protected from infringement in His Majesty's dominions

by the domestic legislation of the United Kingdom.

Before December 6, 1887, foreign works were protected by virtue of the

International Copyright Acts of 1844, 1852, and 1875, and numerous

Orders in Council, now revoked, giving effect to treaties with various

foreign States. As the subsequent provisions under the International

the old law in any detail. On one important point, however, it will

be necessary to mention some of the provisions of the International

the subsequent legislation, in giving protection to works which were

produced before that date and were then unprotected, enacts that its

retrospective effect shall not prejudice rights and interests lawfully

acquired before it came into operation. The law before 1887 has to be

examined to determine what these rights and interests are.

Since December 6, 1887, the rights of foreign authors in His Majesty's

dominions have depended on the provisions of the International

of 1887, and an Order in Council of November 28, 1887. To these are

now added the Additional Act of Paris, 1896, and an Order in Council

of March 7, 1898. These may now all be read together, and apply to

all foreign works first produced in the countries to which they are

applicable. It should be mentioned here that Austria-Hungary has

a convention of its own, and in dealing with works produced there

that convention and the Orders in Council giving it effect must be

substituted for the Berne Convention and Additional Act of Paris

and the Orders in Council above mentioned. Norway has not become a

signatory of the Additional Act of Paris, and therefore in dealing

with works produced there the Berne Convention must be read as

unmodified by the Additional Act.

It is proposed to deal here in detail with the provisions of the

Acts, Orders in Council, and treaties as they apply to the majority

of the foreign countries, _i. e._ those which are signatories of the

Berne Convention and the Additional Act of Paris. As regards Norway

and Austria-Hungary the law differs very slightly. The law applicable

to Norway can easily be ascertained by reading the Berne Convention

without the Additional Act. The law applicable to Austria-Hungary is

almost identical, except that it affords protection in the United

Kingdom and all colonies except Canada, the Cape, New South Wales,

and Tasmania, and not in the whole of His Majesty's dominions, as in

the case of the signatories to the Berne Convention.

The countries whose works are protected in His Majesty's dominions are

as follows:

Germany }

Belgium }

Spain }

France }

Haiti } Signatories of the Berne

Italy } Convention, 1887, and Additional

Switzerland } Act of Paris, 1896.

Tunis }

Monaco }

Luxembourg }

Japan }

Norway Signatory of the Berne Convention, 1887.

Austria-Hungary Having a separate convention,

April 24, 1893; given effect to by

Orders in Council, April 30, 1894,

and February 2, 1895.

=What Foreign Works are entitled to Protection.=--Those works are

protected which are first produced in any of the foreign countries of

the Union, and which--

(_a_) Are protected by the law of the country of origin, and:

(_b_) Would have been protected in the United Kingdom

if first produced in the United Kingdom.

_Produced._--"Produced" means, as the case requires, published or

made, or performed, or represented,[1044] or, in other words, the

act which is deemed to vest the author or publisher of the work

with exclusive rights of reproduction or publication. Thus in the

United Kingdom a book or an engraving or sculpture is produced when

it is first published. A painting is produced when it is made. A

musical or dramatic work as regards the performing right is probably

produced[1045] when it is first performed or represented. But it

would seem that, in considering when a work is produced, the law of

the foreign country or countries in question must first be inquired

into, and it will be considered to be produced in the country where an

act is done which first invests it with protection in the nature of

If a work is produced simultaneously in two or more countries of

the Union, it is deemed to be first produced in that country where

the term of copyright accorded to it is shortest. And if a work is

produced simultaneously in His Majesty's dominions and in one or more

of the foreign countries of the Union, and according to the above

rule is deemed to be first produced in a foreign country, it will be

protected under the International Acts and not under the Copyright

Acts applicable to works first produced in the United Kingdom, and

_vice versâ_. If a work is produced simultaneously in a foreign

country not within the Union and in a foreign country within it, it

would no doubt be deemed to be first produced in the foreign country

within the Union, although there is no legislative enactment to this

effect.

_Character of Work._--In order to obtain protection in this country,

a foreign work must be such as is protected in the country of

origin.[1046] In each case, therefore, it is necessary to inquire into

the laws of the country where the work is deemed to have been first

produced.[1047]

The work must also be such as would have obtained protection if first

produced in the United Kingdom,[1048] and it is therefore necessary in

each case to inquire also into the law of this country.[1049]

_Unpublished Works._--Unpublished works of foreign authors

are expressly included in the convention as works entitled to

protection.[1050] If, therefore, they are protected in the country

of origin, and would be protected if they had been the works of

British authors, they are entitled to protection within His Majesty's

dominions. In the case of unpublished works the country to which the

author belongs is considered the country of origin.[1051]

_Special Provisions._--There is also express stipulation in the

conventions as to the inclusion of the following works:

Posthumous works:[1052]

Authorised translations (to be protected as original works):[1053]

Photographic works and works produced by an analogous process:[1054]

Choregraphic works.[1055]

=Works produced in Foreign Countries before December 6, 1887.=--As is

explained above the international treaties and domestic legislation

in this country are retrospective, and apply to all works whenever

produced. The International Act, 1886, sec. 6 (1),[1056] provides

that--

"When an Order in Council is made under the International

and publisher of any literary or artistic work first produced

before the date at which such order comes into operation, shall

be entitled to the same rights and remedies as if the said Acts

and this Act and the said Order had applied to the said foreign

country at the date of the said production."

The Berne Convention, article 14, provides that--

"The present convention applies to all works which at the moment

of its coming into force have not yet fallen into the public

domain in the country of origin."[1057]

It was suggested that these retrospective provisions only applied

to works produced between the date of the Act of 1886 and December

6, 1887, _i. e._ the date at which the Order in Council of November

28, 1887, came into operation.[1058] Charles, J., however, refused

to accept such a construction, and said that he felt no doubt that

section 6 of the International Copyright Act, 1886, applied to all

literary and artistic works produced before the date at which the

Order in Council came into operation, whether they were produced

before or after the passing of the Act.[1059]

In _Lauri_ v. _Renad_[1060] it was held by the Court of Appeal that

when under the older law a right of translation in this country had

existed, and had expired by lapse of time, the Act of 1886 would

not operate to revive such a right, even although the rights of

reproduction and translation still subsisted in the country of origin.

This is generally thought to be an unsound decision, as the proper

test in such cases is whether the right has fallen into the public

domain, not in this country but in the country of origin.

=Formalities required in case of Foreign Works.--=

_In the Country of Origin_--

All such formalities must be observed as are necessary to entitle

to protection under the domestic law of such country.[1061]

_In the United Kingdom_--

1. Registration or delivery of copies to the libraries is

unnecessary.[1062]

2. Musical works must bear a notice of reservation on

each authorised copy, otherwise the performing

right will be lost.[1063]

3. Whether other formalities such as name and date

of publication on an engraving,[1064] name and date on

sculpture,[1065] are necessary _quære_.

Before 1886 registration and delivery of copies of a foreign work

was required by the Act of 1844[1066] and various Orders in Council

in pursuance thereof. The Act of 1886, however, enacts[1067] that

the provisions of the Act of 1844 as to registration and delivery

shall not apply to works produced in a foreign country except in so

far as provided by the Order in Council referring thereto. The Order

in Council of 1887[1068] makes no provision as to registration and

delivery, and revokes all the previous Orders in Council which did.

In _Fishburn_ v. _Hollingshead_[1069] the question came before the

Court whether since 1886 any registration or delivery was necessary.

Stirling, J., held that although none of the formalities prescribed by

the International Copyright Act of 1844[1070] need be observed, yet

a foreign work must comply with the provisions of the Copyright Acts

as to registration and delivery applicable to works first produced

in this country. His _ratio decidendi_ was that a foreign work was

only entitled to the protection afforded to natives,[1071] and the

Act of 1844[1072] provided that all and singular the enactments of

the Copyright Acts in this country should apply to foreign works in

such and the same manner as if such works were published in the United

Kingdom. Charles, J., in _Hanfstaengl_ v. _Holloway_[1073] differed

from this view, and finally the Court of Appeal in _Hanfstaengl_

v. _American Tobacco Company_[1074] held that no registration in

this country was necessary. The ground of this decision is that the

enactments of 1844 as to registration of foreign works superseded the

enactments of 1842, and when the provisions of 1844 were repealed the

provisions of 1842 did not revive. This reasoning, which appears to be

undoubtedly sound, applies equally to the provisions as to delivery

of copies. It does not, however, apply to the question whether such

formalities as the name and date of publication on an engraving are

necessary. At present the position seems to be this. The reasoning of

Stirling, J., in _Fishburn_ v. _Hollingshead_[1075] equally applies

to the formalities as to name and date on engravings and sculpture as

it does to registration and delivery. The judgment of Stirling, J.,

was overruled in _Hanfstaengl_ v. _American Tobacco Company_[1076]

in the Court of Appeal, but on grounds which do not apply to these

formalities. As to them, therefore, the judgment of Stirling, J.,

stands. It is very doubtful whether this is the correct view of the

law, but it is submitted that until _Fishburn_ v. _Hollingshead_[1077]

is further overruled the law is that formalities under heading 3

_supra_ are necessary. In _Avanzo_ v. _Mudie_[1078] it was held that

a foreign print could not claim copyright under 7 & 8 Vict. c. 12,

unless the date and name were engraved thereon as required by 8 Geo.

II. c. 13. Mr. Scrutton, whose opinion in these matters carries great

weight, thinks that these formalities are not required.[1079] As a

matter of expediency they should always be observed where practicable.

=Who are entitled to sue in respect of a Foreign Work.=--The author of

a foreign work or his assignee is probably entitled to sue in the case

of all foreign works which are protected in this country.[1080]

The publisher of a foreign work published anonymously or

pseudonymously is entitled to sue if his name is indicated on the

work.[1081]

=Evidence of Title.=--Where the name of the author is indicated on a

foreign work or in the case of an anonymous or pseudonymous work the

name of the publisher, such author or publisher is, in the absence

of proof that he is disentitled, entitled to sue in respect of such

foreign work.[1082]

An extract from a register, or a certificate or other document

authenticated by the official seal or signature of a minister of

state of the foreign country of origin, or of a British diplomatic or

consular officer, lawfully acting in such foreign country, is admitted

as _primâ facie_ evidence of the owner of the copyright.[1083]

=Protection afforded to Foreign Works.=--Generally a foreign work is

accorded--

1. The same right of copyright and during the same period

as if the work had been first produced in the United

Kingdom:[1084] but

2. No greater right or longer term of protection than it

enjoys in the country of origin.[1085]

Section 10 of the International Copyright Act, 1844,[1086] provides

that all copies of foreign books in which there is copyright under the

International Acts, if printed or reprinted in any foreign country

_except the country of origin_, shall not be imported into the

British dominions without the consent of the proprietor. It has been

held,[1087] however, that this section does not supply a complete code

as to the importation of copies of a foreign book, and that copies

printed in the country of origin will also be prohibited in the same

way as if the book had been first published in the United Kingdom.

Section 3 of the International Copyright Act, 1844, applies to foreign

works, _inter alia_, the provisions 5 & 6 Vict., sections 15 and 17,

which prohibit the importation of any copies printed outside the

British dominions. Section 10 was held not to curtail the general

application in section 3 of the provisions of the Copyright Act, 1842,

to foreign books.

As to certain foreign works which are dealt with below, there is

express provision in the International legislation which results in

giving such foreign works a narrower right or shorter term than they

would have if first published in this country. Where there is no

express limitation, the above general rules apply. The law of both the

country of origin and of the United Kingdom must be examined, and the

right given will be limited according to the law which affords least

protection. Where, however, according to this rule there is a right,

the Courts here will give the same remedies as they would extend to

the author of a work first published in the United Kingdom. Thus

in _Baschet_ v. _London Illustrated Standard_,[1088] Kekewich, J.,

refused to consider whether a French Court would or would not award

penalties for infringement.

_Works published before December 6, 1887_, are protected, except in so

far as such protection may prejudice rights or interests arising from

or in connection with works lawfully produced before, and subsisting

and valuable at, that date.[1089]

This limitation is introduced by the retrospective section of the Act

of 1886, which enacts that--

"Where any person has before the date of the publication of an

Order in Council lawfully produced any work in the United Kingdom,

nothing in this section shall diminish or prejudice any rights or

interests arising from, or in connection with, such production

which are subsisting and valuable at the said date."

The following are some of the classes of literary or artistic works

which were not protected before 1886 but to which the retrospective

section and its saving clause applies:

i. Works not registered in this country under the International

ii. Works which had not acquired the translating right

under the International Copyright Act, 1852, sections 2, 4, 8.

iii. Dramatic works, as to the liberty to make fair imitations

or adaptations to the English stage under the

International Copyright Act, 1852, section 6.

"Lawfully Produced" means that the work has been produced without

contravening any right existing at the date of its production.[1091]

"Rights" and "Interests" are to be distinguished, the latter word

bearing a wider interpretation than the former. Right does not mean

the right to reproduce in common with all mankind, but right in the

strict legal sense of the term under the English Copyright Acts,

_i. e._ an exclusive right of property.

When any capital has been embarked in the production of a work,

and the publisher depends on the sale of copies in stock or on

the proceeds of a future edition to recoup himself for his outlay,

there is clearly an interest although there may be no right. Where

a bandmaster had purchased a copy of a French musical composition

and instructed his band to perform it, he was held to have such an

interest as would entitle him to continue performing it after the

French composer had acquired protection under the Act of 1886.[1092]

Even where no capital has been embarked, if the publisher has a

special interest as distinct from the rest of the public in the

reproduction of the work, he has an interest within the meaning of

the section.[1093] Thus where a firm had adopted a German picture

as a trade mark for their candles, they were held to have such an

interest in the reproduction as would constitute a good defence to an

action for infringement of copyright acquired under the retrospective

operation of the Act of 1886.[1094] It has been suggested that not

only the interests of the lawful producer will be safeguarded, but

also interests arising in a third person from or in connection with

such production, and this seems to be sound.[1095]

_Translating Right_ expires if not exercised within ten years.

The exclusive right of translation is expressly given to the foreign

author by the Act of 1886 and the Additional Act of Paris for the

full term of his copyright in the original work, but if an authorised

translation in the English language is not published after the

expiration of ten years next after the end of the year in which

the work was first produced the translating right of the author

shall cease.[1096] If a book is published in numbers, the ten years

run from the date of publication of the last part.[1097] When a

book is composed of a number of volumes, each volume is considered

as a separate work.[1098] A translation in order to preserve the

translating right must be full and substantial.[1099] A translation

might be such as, if made without the consent of the author, would

constitute a piracy, and yet not be such a translation as is required

by the Act--

"What is required is that the English people should have the

opportunity of knowing the foreign work as accurately as it is

possible to know a foreign work by the medium of a version in

English."[1100]

_Articles in Newspapers and Periodicals._[1101]--Articles, not being

serial stories or tales, appearing in a newspaper or periodical in a

foreign country, may be republished or translated in a newspaper or

periodical in this country without the consent of the owner of the

(_a_) In the case of articles of political discussion, the news

of the day, or miscellaneous information, the source

from which the same is taken be acknowledged.

(_b_) In the case of articles relating to any other subject,

the source from which the same is taken be acknowledged,

and the author has not signified his intention

in a conspicuous part of the newspaper or periodical

of preserving the copyright and right of translation.

_Photographic Works._--The Additional Act of Paris runs as

follows: "It is understood that an authorised photograph of a work of

art shall enjoy legal protection in all the countries of the Union, as

contemplated by the Berne Convention, and by the present Additional

Act, for the same period as the principal right of reproduction of the

work itself subsists, and within the limits of private arrangements

between those who have legal rights."[1102]

It would seem, therefore, that photographs of protected works of art

are not protected as original works, and that, whenever produced,

their protection stands and falls with the right in the original work.

Other photographs, including photographs of unprotected works of art,

are protected as original works.

_Performing Right in Dramatic or Dramatic Musical Works._--Exclusive

performing right in dramatic or dramatico-musical works subsists

during the existence of the exclusive right of translation. If

the translating right is allowed to fall into the public domain

by non-exercise within ten years, the performing right falls with

it.[1103]

There is not now as formerly any right in the public to make fair

imitations or adaptations to the English stage.[1104]

_Express Provision as to Particular Kinds of Infringement._--The

Berne Convention, article 8, provides that the question of the right

of extract is to be decided by the legislation of the different

countries of the Union, or by special arrangement between them.

There is no special arrangement as to this with the United Kingdom,

therefore the law as to extract and quotation applicable to works

produced in this country applies.

Article 10 of the Berne Convention enacts that indirect appropriations

such as adaptations and arrangements are included among illicit

reproductions when they do not bear the character of original work.

Here also, therefore, the law is similar to that applicable to works

produced in this country.

CHAPTER XI

COMMON LAW

As to works which have been published within the meaning of the

of copyright, that is to say, as regards the exclusive right of

reproduction, the author must rely entirely on the statutes. There

is no copyright at common law after the expiration of the period

prescribed by statute,[1105] neither is there any greater right

during that period than the statute gives.[1106] Common law remedies,

however, may be applied when the statute gives a right without a

sufficient remedy.[1107] But apart altogether from rights in the

nature of copyright, the principles of common law and equity do apply

to both published and unpublished works to prevent or to remedy the

consequences of fraud or breach of contract.

As to works which have been composed[1108] but have not been

published, the common law affords protection to the author against

reproduction or interference of any kind.[1109]

The rights and remedies at common law are perpetual, and are neither

limited in duration nor as regards the time within which action must

be brought, except in so far as the general rules of equity as to

acquiescence and delay or the statutes of limitation may be applicable.

=Title: Passing off.=--_No Copyright in Title._--There is no

few words. Thus _Belgravia_,[1110] _Sporting Life_,[1111] "Splendid

Misery,"[1112] _The Licensed Victuallers' Mirror_,[1113] and "The

Post Office Directory,"[1114] have all been decided not to be the

subject of copyright. In two decisions "The Birthday Scripture

Text-Book"[1115] and "Trial and Triumph"[1116] (as the title of a

novel) were protected on the ground of copyright in title, but since

_Dicks_ v. _Yates_[1117] in which these two decisions were cited,

and in so far as they were based on a claim of copyright in title,

disapproved, no such claim could be entertained, and the exclusive

user of a title will only be protected on the general principles of

common law and equity which prevent one man passing off his wares as

those of another man. As was pointed out by Jessel, M. R., in _Dicks_

v. _Yates_,[1118] it is conceivable that there might be a title in

which there was copyright; for instance, if it was extremely long and

elaborate, but since _Dicks_ v. _Yates_ there is no case in the books

where a title has been protected on the ground of copyright.

_Whether Protection is based on a Right of Property in the

Title._--The great bulk of authority is to the effect that the right

to prevent others passing off their literary works under the same

or a similar title does depend on a right of property in the title

as applied to a particular class of work, which right can only be

acquired by user.[1119] This right is regarded as a chattel interest

capable of assignment,[1120] and may be a partnership asset.[1121]

In _Walter_ v. _Emmott_,[1122] however, Cotton and Bowen, L. JJ.,

expressed a strong opinion that the right to prevent a deceitful use

of title was not founded on a right of property in the title, but

on the ground of deceit alone. It is submitted that the plaintiff

in an action of this kind need not prove deceit on the part of the

defendant, and that the right is strictly a proprietary right which

must have been acquired by user before the Court will intervene.

_Knowledge of Existence and Value on part of the Public._--This is

necessary before an author or proprietor of a literary or artistic

work can acquire a right to the exclusive use of a title in connexion

with works of a certain class. It is not sufficient that the title of

a proposed book or magazine has been extensively advertised or that it

has been registered, even although great expenditure has been incurred

in the preparation and advertisement.[1123] Any one, it would seem,

can seize the opportunity of another's advertisements and bring out

a similar book under the same or a similar title, either before the

publication of that other's book or immediately after its publication,

and before it became known to the public as an actually existing

publication which they have had an opportunity of reading and forming

an opinion of on its merits. The sale of a few copies only will not

establish a common law right in title.[1124] Not only must the work

be well known to the public, but it must also be distinctively known

under the title in which a proprietary right is claimed.[1125]

No right can be acquired by attaching an original title to an old

work in which the publisher has no proprietary right. In _Talbot_

v. _Judges_[1126] the plaintiffs published a work in which they had

no copyright of any kind under a title of their own invention, "The

Liberal and Radical Year-Book." The defendant published a similar

work, intituled "The Liberal Year-Book." It was held that they were

entitled to do so, as the plaintiffs could have no right in the title

when the material was in no sense their own.

_Non-user of title_ for a considerable period will leave it open

to others to adopt the same title and to acquire a right therein

to the exclusion of the original user,[1127] but no representation

must be made, express or implied, that the subsequent publication

is a continuation of the first. If the proprietor of a magazine

incorporates it with another publication, such as the _John Bull_ with

the _Britannia_, and intitules the future publication with a joint

name such as the _John Bull and Britannia_, he can prevent any taking

of the original titles either _simpliciter_ or colourably altered, as,

for instance, _The True Britannia_.[1128]

_No Fraud need be Proved._--When the exclusive right to a title has

been established, an innocent invasion is equally as actionable as one

tainted with fraud or intent to deceive.[1129] It is a question what

the public are likely to believe, not what it was intended they should

believe.

_Must be Calculated to Deceive._--The question is whether the man

of ordinary intelligence is likely to be deceived, and purchase the

later publication while intending to purchase the original. It is not

sufficient to show that some thoughtless or stupid people have made

mistakes and taken the one for the other.[1130] The exclusive right to

the use of a title only extends so far as to prevent the whole or any

part of the title being used in such a way as to deceive the public,

to the injury of the proprietor of the title. Thus a part of the

title may be taken and so used in conjunction with other words, that

there can be no possibility of confusion, or the whole title may be

taken and used for an entirely different class of work, or otherwise

put before the public in such a way that mistake is practically

impossible. Thus in questions of passing off, besides the similarity

of title, the result depends on the peculiar circumstances under which

the works are produced: the time and place of publication, appearance,

such as similarity in print and binding and price, may all be of vital

importance.

_Cases in which an Injunction was Granted._--In _Hogg_ v.

_Kirby_[1131] the defendant was interested in the sale and profits

of a magazine called _The Wonderful Magazine_. A dispute arose

between him and the proprietor of the magazine, and the defendant

thereupon published a magazine under the same title, described as _New

Series Improved_. This publication was restrained. In _Constable_

v. _Brewster_,[1132] a Scotch case, an interdict was granted on

very similar facts. In _Chappell_ v. _Sheard_[1133] the plaintiffs

published a song, the words of which were original, but set to an old

American air, "Lillie Dale," in which there was no copyright. This

song had become popular, and was sung at concerts by a Madame Thillon.

The plaintiffs published their song under the title of "'Minnie,'

sung by Madame Anna Thillon, written by George Linley," and the cover

bore a lithographed drawing of Madame Thillon. The defendants set

other words to the same air and published it as "Minnie Dale," sung

by Madame Thillon, and their cover also bore a portrait of Madame

Thillon. The defendants' song had, in fact, never been sung by Madame

Thillon. An injunction was granted. In _Chappell_ v. _Davidson_[1134]

the same song was similarly pirated by one intituled "Minnie,

dear Minnie," and an injunction was also granted. In _Prowett_ v.

_Mortimer_[1135] _The True Britannia_ was restrained as tending to

interfere with the sale of the plaintiff's paper, _The John Bull

and Britannia_, which had incorporated the plaintiff's previous

publication, _The Britannia_. In _Clement_ v. _Maddick_[1136] the

plaintiff owned a sporting periodical paper, intituled _Bell's Life_.

The defendants were restrained from publishing a similar paper under

the title, _Penny Bell's Life_. In both publications the name Bell was

entirely pseudonymous. In _Ingram_ v. _Stiff_[1137] the defendant was

the proprietor of a weekly paper, _The London Journal_, and assigned

all his interest therein to the plaintiff, covenanting not to publish

any rival weekly paper. Two years afterwards the defendant published a

daily newspaper, _The Daily London Journal_. The Court restrained him

from continuing the publication, but their judgment seems to have gone

on the ground of breach of covenant. In _Clowes_ v. _Hogg_[1138] the

proprietors of _London Society_ were held entitled to an injunction

against _English Society_, but this was also on the ground of a

covenant between the parties. In _Corns_ v. _Griffiths_[1139] the

plaintiff published a weekly newspaper under the title, "_Iron Trade

Circular_ (Ryland's)." The defendant had for some considerable time

published a weekly report headed "_The Iron Trade_ (Griffith's Weekly

Report)," but changed his title to "_The Iron Trade Circular_

(edited by Samuel Griffiths)," and published it in type and form very

similar to the plaintiff's newspaper. The defendant's publication

was restrained. In _Metzler_ v. _Wood_[1140] the plaintiffs were the

publishers of "Henry's Royal Modern Tutor for the Pianoforte." This

work had a very large sale. The defendants took an old work, intituled

"Jousie's Royal Standard Pianoforte Tutor," which had entirely fallen

into disuse, and employed Henry to revise it, and then published it as

"Henry's New and Revised Edition of Jousie's Royal Standard Pianoforte

Tutor." In both publications the word "Henry's" was published in large

letters, and was more conspicuous than any other part of the title.

The Court granted an injunction. James, L. J., in his judgment, said:

"The defendants' title-page was calculated to deceive, and I

cannot conceive any reasonable theory to explain the defendants

taking an obsolete work, getting it revised by Mr. Henry, and

putting Henry's name as the prominent and striking distinguishing

mark of his work except that he intended to do that which the name

was calculated to do, viz., to mislead the public into believing

that when they were buying the defendants' work they were buying

the plaintiffs'. If it was so calculated to mislead, the case of

the plaintiffs is made out."

_Cases where an Injunction was Refused._--In _Spottiswoode_ v.

_Clarke_[1141] Lord Cottenham, L. C., refused an interlocutory

injunction in a case of two Pictorial Almanacks, where the covers were

very similar and could hardly have been so accidentally. In a similar

case to-day an injunction would probably have gone. In _Jarrold_ v.

_Houlston_[1142] an injunction was refused to the author of "Why and

Because," in respect of a similar work intituled "The Reason Why."

There was no such similarity or colourable imitation in the title as

to support the claim. In _Bradbury_ v. _Beeton_[1143] the proprietors

of _Punch_ craved an injunction against _Punch and Judy_. There was,

however, no evidence that any one had been misled, and although the

papers were similar in size and general appearance, the colour of

the paper was slightly different, and the design on the cover was

entirely different. Malins, V. C., refused an injunction. In _Kelly_ v.

_Byles_[1144] the plaintiff had published numerous directories called

"post office" directories. Among them was "The Post Office Directory

of the West Riding of Yorkshire." An injunction was refused against

the defendant who proposed to issue a directory under the title "Post

Office Bradford Directory." The publications in no way resembled one

another. The plaintiff claimed that he had acquired an exclusive

use to the words "post office" in connection with a directory. It

was held that he could have no such exclusive right. In _Dicks_ v.

_Yates_[1145] a serial story, entitled "Splendid Misery, or East End

and West End, by C. H. Hazlewood," was being published in a magazine

called _Every Week_. Another weekly, _The World_, commenced a serial

story intituled "Splendid Misery, by the Author of Lady Audley's

Secret, Vivian, &c." The two weekly papers were of an entirely

different character, and it was held that there was nothing in the

publication of the serial story in _The World_ which was calculated to

deceive. In _Cowen_ v. _Hulton_[1146] the plaintiff was proprietor of

_The Newcastle Weekly Chronicle_ and _The Newcastle Daily Chronicle_.

He claimed an exclusive right to the use of the word "Chronicle" in

connection with newspapers in Newcastle, and craved an injunction

against the sale in Newcastle of _The Sporting Chronicle_. The Court

of Appeal, reversing the decision of North, J., refused an injunction.

In _Walter_ v. _Emmott_[1147] _The Mail_ was published three days

a week at 11 A. M., price twopence. The Court refused an injunction

against _The Morning Mail_, price one halfpenny. Both papers were

published in London. In _Borthwick_ v. _The Evening Post_[1148] the

proprietors of _The Morning Post_ claimed an injunction against _The

Evening Post_. The Court was of opinion that there was no probability

of injury to _The Morning Post_ since the papers were not competing

papers. Bowen, L. J., in his judgment, said:

"He must be an extremely unintelligent person if he thinks

that the _Evening Post_, which disclaims all connection with

the _Morning Post_, and writes upon different topics and in a

different style, is connected with the _Morning Post_. The idea

would explode itself before he got half-way through the first

page."

The injunction was refused. The commonest form of passing off is

by means of a similar title and binding, but any act which induces

the public to believe that A's book is the book of B is equally

actionable, and will be sustained. Thus for A to announce his book as

a continuation of B's book,[1149] or in any other way to so advertise

it as to induce the public to believe that it is B's work[1150] is

actionable.

=Malicious Criticism.=--It would be actionable to publish of an

author's work that which was obviously untrue; for instance, that it

was an immoral or a libellous work, when no suggestion of immorality

or libel could be found in it. Apart from absolute falsehood of this

kind there is no limit to the range of criticism;[1151] a man is

entitled to form what opinion he pleases of another's work, and to

publish these opinions. So long as he confines himself to the work

criticised and the author thereof as author, he has very full liberty

of saying what he thinks.

It may be actionable to say that a man is the author of a work which

is not his. The offence if anything would be defamation of the

author.[1152]

=Slander of Title.=--No doubt an action would lie against any one

publishing statements in disparagement of the owner's right to a

literary or artistic work.[1153] Special damage is of the essence of

such an action.

=Author who has parted with Copyright is entitled to protect his

Reputation.=--Although a purchaser of copyright may do what he

pleases with what he has purchased, he may not mutilate an artistic

or literary work and present it to the public in its mutilated form

as the work of the original author. The copyright in a law book

was purchased by a bookseller. The author refused to edit a third

edition, and the bookseller had the necessary alterations made for

himself. The third edition was then published without any notice

that it was prepared by any one other than the author. It contained

numerous errors. In an action by the author against the bookseller,

Lord Tenterden, C. J., in summing up, put it to the jury that if they

were of opinion that the third edition would be understood by those

who bought it to have been prepared by the plaintiff, the plaintiff

was entitled to a verdict; but if they were of opinion that persons

using reasonable care would think that this third edition was not

prepared by the plaintiff, their verdict should be for the defendant.

The jury returned a verdict of five pounds for the plaintiff.[1154]

The nature of the remedy is really an action for the defamation of the

plaintiff's reputation as an author. The Court is slow to grant an

interlocutory injunction in such an action. No doubt it would be done

in an extreme case, for instance, if the owner of performing rights

in a play inserted indecent or scandalous matter without the consent

of the author, but the Court prefers to have the legal question as to

whether the altered version is injurious to the plaintiff's reputation

tried first. In _Cox_ v. _Cox_[1155] the plaintiff had written a legal

article for the purpose of insertion in the defendant's book. The

defendant revised and shortened the article to a considerable extent,

and the plaintiff applied for an injunction in Chancery to restrain

the defendant from publishing the article in its mutilated form. Page

Wood, V. C., refused an injunction, and, in his judgment, said:

"In respect to what was said about the plaintiff's reputation

suffering from having the legal matter supplied by him published

in a mutilated and erroneous form, according to Sir J. Clark's

case,[1156] the loss of reputation, unless connected with

property, was not a ground for coming to this Court, though it

might be an ingredient for the Court to consider when there was

property."

One might almost infer from this judgment that if the plaintiff had

parted with his property no right of action lay for injury to his

reputation. It must be observed, however, that this was a claim for an

injunction in equity, and the judgment of Lord Tenterden in _Archbold_

v. _Sweet_[1157] was not referred to. That and the subsequent cases

make it clear that there is a right of action on the ground of injury

to reputation alone, and that in urgent cases the Court will interfere

by interlocutory injunction. In _Gilbert_ v. _Boosey_[1158] the owner

of a performing right in an opera inserted without the permission of

the author two songs, and one of the author's songs was left out. The

opera was advertised and performed _simpliciter_ as the plaintiff's

opera without any mention of alterations. On an application for an

interlocutory injunction, Denman, J., refused to interfere at such an

early stage, but he intimated that if the songs had been indecent or

such as would obviously damage the plaintiff's reputation, he might

have granted an injunction. In _Lee_ v. _Gibbings_[1159] the defendant

had acquired the copyright in the plaintiff's "Autobiography of

Edward, Lord Herbert of Cherbury." He published a condensed edition,

on the title-page of which the plaintiff was stated _simpliciter_ to

be the author. The plaintiff alleged that the work was unscholarly

and injurious to his reputation, and craved an interim injunction.

Kekewich, J., refused the motion. The plaintiff's remedy, he said,

was founded on libel by reason of the injury to his reputation. Of

late years there had been no such thing as an injunction to restrain

a libel (except in the case of a trade libel) on an interlocutory

application or before the point had been submitted to a jury. He saw

no reason for making an exception in the case before him, and he would

express no opinion as to whether there was a libel or not.

The Court would restrain one who published a book falsely representing

that it was the work of another.[1160]

=Protection from Breach of Faith or Contract.=--The relationship

of parties may give rise to rights and obligations in reference

to literary or artistic matter which could not exist as between

strangers. Such rights and obligations are supported on the various

grounds of express contract, implied contract, and breach of faith.

As to express contract there is little difficulty, the ordinary rules

of contract will apply. As to implied contract or breach of faith,

these are really the same, only common law based its remedy on the

former and equity on the latter. It usually arises in the case of a

clerk or other employee between whom and the employer a confidential

relationship exists. As regards employees, the law stated briefly is

this, that during his employment he must do nothing which is contrary

to the interests of his employer; he may not in any way assist in

the production of literary or artistic work which may compete with

the work of his employer. After the termination of his employment,

apart from express contract, he is entitled to compete with his late

employer, and for that purpose may make use of the general knowledge

and information which he acquired in his employment: but he may not

for such purpose use any materials such as documents, notes, printing

blocks, &c., which he acquired in his capacity of employee and _a

fortiori_ if he acquired them surreptitiously.

In _Jovatt_ v. _Winyard_[1161] a veterinary surgeon employed a

journeyman for the purpose of selling his medicine. While in such

service the journeyman surreptitiously got access to his books of

recipes and copied them. It was held that there was a breach of

trust, and the journeyman was restrained from selling the medicines

or printing or selling printed directions for their use. In _Prince

Albert_ v. _Strange_[1162] a workman, who was entrusted by the

Prince Consort with certain plates for the purpose of reproducing

privately drawings which had from time to time been made by Queen

Victoria and the Prince Consort, in breach of the trust reposed in

him sold impressions to the defendant, who published a descriptive

catalogue of the drawings. Knight Bruce, V. C., granted an injunction

against the publication of the catalogue. In _Reuter's Telegram

Co._ v. _Byron_[1163] the defendants had for some time acted as

agents in Australia of the plaintiff company, sending on and

receiving telegraphic messages on their behalf. In the course of

this agency they became acquainted with the cypher used by many of

the company's customers. On the termination of their employment the

defendants started a rival telegram business and sent circulars to

the plaintiffs' customers, mentioning that they had their cyphers. On

a motion to restrain the defendants from making use of the list of

cyphers acquired in the plaintiffs' employment, Jessel, M. R., refused

an interim injunction. He said:

"The Court will always restrain a man from publishing or divulging

that which has been communicated to him in confidence. But this

is a totally different case. The plaintiffs do not here seek to

restrain the defendants from publishing anything but from making

use of knowledge acquired while the relation of principal and

agent subsisted after that relation terminated."

In _Lamb_ v. _Evans_[1164] the defendants had been employed by the

plaintiff as canvasser for his trade directory. On the termination

of their employment they published a rival directory and made

use of blocks and notes which they had acquired in the plaintiff's

employment. The Court held that this was an improper use

for the defendants to make of materials so acquired. Bowen,

L. J., in his judgment, said:

"It is not a question of copyright--that must be kept out of sight

altogether--nor is it, on the other hand, a simple question of

the absolute property at law in the documents themselves or in

the blocks themselves. It is a question of whether the plaintiff,

whatever the property in the documents may be or whatever the

property in the materials may be, has not sufficient special

property in them to entitle him to restrain the use of them

against him when they had been obtained for his use by his agents

in the course of their employment. That depends entirely, I think,

on the terms upon which the employment was constituted, through

which the fiduciary relation of principal and agent came into

existence."

In commenting on _Reuter's Telegram Co._ v. _Byron_, the same judge

said:

"I think if Reuter's case is to be judged by the result, it no

doubt is right--and Sir George Jessel was generally right--but I

do not think that the propositions reported in the _Law Journal_

as laid down by him can be considered to be sound. It seems to me

that as a matter at law or as a matter of equity, the conduct of

the defendants in that case cannot be justified to the extent to

which the learned judge is made by the report to justify it. If

Reuter's case is cited as an authority for the propositions which

the Master of the Rolls is there stated to have laid down, I am

not prepared to follow it."

In _Merryweather_ v. _Moore_[1165] a clerk while in the employment

of a firm of engine-makers had made a table of dimensions of various

types of engines. After he had left their employment he was restrained

from publishing or communicating the table or its contents to any one.

In _Louie_ v. _Smellie_[1166] the plaintiff carried on a business

as a process server, the defendant while in his employment secretly

made extracts from the plaintiff's register and index of agents and

copies of the plaintiff's forms. He was restrained from making use of

such extracts in competition with the plaintiff after he had left his

employment and set up as a process server on his own account. Lindley,

L. J., in his judgment, said:

"As to the law it has been clearly laid down in _Lamb_ v. _Evans_.

It is not new law, it is as old as the hills. The good faith that

existed between employer and employed rendered it improper for the

employed to make use of any information acquired by him during the

period of the confidential relationship."

The injunction was granted in these terms:

"An injunction to restrain the defendant, his servants, and agents

from making use of any copies or extracts from the plaintiff's

obtained by the defendant when in the plaintiff's employ relating

to any person named in these books or either of them."

In _Robb_ v. _Green_,[1167] the defendant having been employed as

manager of the plaintiff's business, secretly copied a list of the

names and addresses of his customers. On leaving the plaintiff's

employment he set up a similar business, but was restrained from

making use of the list of his late master's customers. In _Gilbert_ v.

_Star Newspaper_[1168] the members of a theatrical company taking part

in the rehearsal of a new opera were held to be under an obligation

not to disclose any information concerning it until it should be

publicly performed, and the Court restrained a critique published in a

daily newspaper on the ground that the material for it must have been

unlawfully procured.

In these cases it is not only the party who is in breach of contract

or confidential relationship that will be restrained. The Court will

restrain any one who, knowing how the material has been acquired,

makes use of it.[1169] In _Tipping_ v. _Clarke_,[1170] Wigram, V. C.,

said that if the defendant availed himself surreptitiously of the

information which he could not have had except from a person guilty of

a breach of contract in communicating it, he could not be permitted

to avail himself of such breach of contract. In _Abernethy_ v.

_Hutchinson_,[1171] Lord Eldon said:

"How the gentleman who had published the letters came by them he

did not know; but whether an action would be maintained against

them or not on the footing of implied contract, an injunction

undoubtedly might be granted, because if there had been a breach

of contract on the part of the pupil who heard these lectures,

and if the pupil could not publish for profit, to do so would

certainly be what this Court would call a fraud upon a third

party."

Thus in _Prince Albert_ v. _Strange_[1172] the defendant obtained

the information from the person in whom the plaintiff's confidence

was placed, and was on that account restrained. In the _Exchange

Telegraph Co._ v. _Central News_[1173] the Court restrained a third

party from publishing information which he had obtained by inducing a

subscriber to the Telegraph Company to break his contract. If there

has been a breach of contract or trust the Court will assume a guilty

knowledge in the case of a third person, who, being in possession

of the material, cannot give any satisfactory explanation.[1174]

If a third party acquire innocently and for value materials or

information originally procured in breach of trust or contract, it

seems questionable, apart from any absolute right in the plaintiff,

such as a right to manuscript, whether he can be restrained from

making use of them in any publication. If the original act amounts to

fraud or crime, certainly the Court will not protect even an innocent

purchaser. "Let the hand receiving it be ever so chaste, if it comes

through such a corrupt and polluted channel, the obligation of

restitution must follow."[1175] But if the original act amounted to no

more than breach of confidence or contract, it may be different, and a

purchaser for value and without notice may be excused.[1176] The point

must be considered doubtful.[1177] The ground of action on breach

of faith or contract may sometimes exist concurrently with a ground

of action on copyright, and may be useful if there are any technical

difficulties in the plaintiff's way as to copyright.[1178]

=Unpublished Works.=--The author and his assignees have the right

of first publication; this right at common law is unaffected by the

matter in manuscript is clearly one of property, and is independent

of any confidential or contractual relation between the author and

those who interfere with his property without authority. "It cannot,"

said Lord Halsbury in _Caird_ v. _Sime_,[1179] "be denied that in

the present state of the law an author has a proprietary right in

his unpublished literary productions." An author may choose his own

time to publish or may choose never to publish at all, and he may

proceed against any one who attempts to publish or otherwise deals

without his authority with his unpublished work. This was definitely

decided in _Donaldson_ v. _Beckett_[1180] when the question among

others was put to the judges: "Whether at common law an author of any

book or literary composition had the sole right of first printing or

publishing the same for sale; and might bring an action against any

person who printed, published, and sold the same without his consent?"

Ten out of eleven judges consulted answered that there was such a

right, and eight of them that an action lay in cases of infringement.

Two of the judges, however, were of opinion that an action lay against

an infringer only when the manuscript had been obtained by fraud

or violence. Only one judge held that there was no right of first

publication. In _Prince Albert_ v. _Strange_[1181] Lord Cottenham,

L. C., considered the law as well settled and beyond dispute. He says:

"The property of an author or composer of any work, whether of

literature, art, or science, in such work unpublished and kept for

his private use or pleasure, cannot be disputed after the many

decisions in which the proposition has been affirmed or assumed."

The right of an author to his unpublished work is of a much wider and

more exclusive nature than his right to published matter. It probably

extends to prohibit any kind of interference whatsoever.[1182] The

public have not the right of "fair use" comment and criticism which

they have in a published work. In _Prince Albert_ v. _Strange_ Knight

Bruce, V. C.,[1183] says:

"A work lawfully published in the popular sense of the term stands

in this respect, I conceive, differently from a work which has

never been in that situation. The former may be liable to be

translated, abridged, analysed, exhibited in morsels, complimented

and otherwise treated in a manner that the latter is not."

The reason that private documents of a man should be protected from

any interference whatsoever is sufficiently obvious. "A man," says

Knight Bruce, V. C., in the same case,[1184] "may employ himself in

private in a manner very harmless, but which disclosed to society

may destroy the comfort of his life or even his success in it." In

_Miller_ v. _Taylor_[1185] Yates, J., expresses the principle of the

common law protection:

"Ideas are free. But while the author confines them to his study

they are like birds in a cage which none but he can have a right

to let fly; for till he thinks proper to emancipate them they are

under his own dominion. It is certain every man has a right to

keep his own sentiments if he pleases: he has certainly a right

to judge whether he will make them public or commit them only

to the sight of his friends. In that state the manuscript is in

every sense his peculiar property, and no man can take it from him

or make any use of it which he has not authorised without being

guilty of a violation of his property."

The common law right in manuscript ceases upon "communication to

the public" with the consent of the author,[1186] but it may still

continue notwithstanding some kind of communication to others. The

communication in order to divest the owner of common law right must

be an abandonment of his ideas and words to the use of the public at

large. Representation on the stage, delivery as a lecture, a gift or

loan of the manuscript to a friend do not _ipso facto_ determine the

author's right of property.[1187] The questions in cases of alleged

unlawful publication of manuscript are usually: What is to be presumed

as the reasonable understanding between the author and the persons

to whom literary matter in the manuscript is communicated? Are they

intended to have the right of making any use they please of it, or do

the circumstances raise a presumption that they may only use it for

a limited purpose? In _Macklin_ v. _Richardson_[1188] the Court held

that although a play had been performed on the stage, that was only

a limited publication of it, and therefore the exclusive right to

publish remained in the author.[1189] In _Nicols_ v. _Pitman_[1190]

a lecture delivered at a Working Men's College from a manuscript

previously prepared, was reproduced by the defendant without the

plaintiff's consent. Kay, J., granted an injunction. In _Caird_ v.

_Sime_[1191] the professor of moral philosophy in Glasgow University

delivered a course of lectures in pursuance of his duty as professor.

These were published by a bookseller from notes taken by a student. It

was strenuously argued that the professorship being a _munus publicum_

and the classes being open to all comers, the delivery of the lectures

was really a publication without reserve to the whole world. The House

of Lords rejected this argument, and held that the right to publish

was reserved, the persons who were present at the lecture not being

the general public, but a limited class of the public selected and

admitted for the sole and special purpose of receiving individual

instruction. Lord Halsbury, L. C., in giving judgment, suggested

possible cases where it would be implied from the circumstances that

there was publication to the world at large:

"It is intelligible that when a person speaks a speech to which

all the world is invited, either expressly or impliedly, to

listen, or preaches a sermon[1192] in a church, the doors of which

are thrown open to all mankind, the mode and manner of publication

negative, as it appears to me, any limitation."[1193]

The same rules apply to communication by delivery of the manuscript

or a copy. If I give my manuscript to another to read or for any

other limited purpose, he may not exceed the limits of use expressly

or impliedly agreed. Publication by printing and circulation among a

limited class will not destroy the common law right.[1194]

The common law right in a manuscript may be abandoned by neglect or

acquiescence in an adverse use. Thus it was said that Southey had no

right to complain when having left his poem "Wat Tyler" in the hands

of a publisher for twenty-three years the publisher published it for

his own profit.[1195]

A man's right to the exclusive use of his unpublished work does not

depend on its value, and it is immaterial whether he did or did not

intend to make profit by its publication.[1196] It is also immaterial

whether the publication would prove creditable or discreditable,

advantageous or disadvantageous.[1197]

The question has been raised whether the Courts would prevent an

unauthorised person from publishing manuscript of an immoral nature

which the author may have repented of and refused to place before the

public.[1198]

Ignorance of the author's right is no defence to an action for

interfering with unpublished literary matter. A _bonâ fide_ purchaser

for value gets no better title than the original pirate.[1199]

=Speeches and Sermons.=--Literary matter delivered orally from an

extempore composition without having been previously reduced to

writing, is protected at common law from unauthorised use. The extent

of the protection as in the case of delivery from manuscript is

defined by the terms of the relationship existing between the speaker

and his audience. He may have freely abandoned all exclusive interest

in the matter of his address, or he may give them only the right to

listen, or he may give them the right of taking notes and using them

for their own instruction. It seems to be doubtful, however, whether

the right in unwritten speeches is one based on property, or whether

it must depend entirely on implied contract between the speaker and

his audience. In _Abernethy_ v. _Hutchinson_[1200] Dr. Abernethy

delivered surgical lectures to students at St. Bartholomew's Hospital.

These lectures had not been previously reduced to writing. Lord Eldon,

L. C., granted an injunction against their unauthorised reproduction

in the _Lancet_. There was no evidence as to how the defendants

got possession of the lectures, but Lord Eldon thought that was

immaterial:

"They must have been taken from a pupil or otherwise in such a

way as the Court would not permit, and the injunction ought to go

on the ground of property, and although there was not sufficient

to establish an implied contract as between the plaintiffs and

the defendants, yet it must be decided that as the lectures must

have been procured in an undue manner from those who were under

a contract not to publish for profit, there was sufficient to

authorise the Court to say the defendants shall not publish."

In _Nicols_ v. _Pitman_[1201] a case of previously written lectures,

Kay, J., reviews the judgment of Lord Eldon in the last cited case:

"Now it is quite true that the learned judge seems at one moment

to refer to the ground of property and at another to that of

implied contract. But I take his meaning to be this, that when

a lecture of this kind is delivered to an audience, especially

when the audience is a limited one admitted by tickets, the

understanding between the lecturer and the audience is that,

whether the lecture has been committed to writing beforehand or

not, the audience are quite at liberty to take the fullest notes

they like for their own personal purposes, but they are not at

liberty having taken those notes to use them afterwards for the

purpose of publishing the lecture for profit."

The question of whether the right in an oral speech is property or

not might well be of the highest importance in a question between the

speaker and a publisher who acquired the matter in entire ignorance of

his right. The facts might be such that the Court would not, as they

did in _Abernethy_ v. _Hutchinson_,[1202] presume that the material

"must have been procured in an undue manner." If there was no such

presumption from the facts, it would appear that, apart from a right

of property, the speaker must be without remedy unless he has given

notice as a lecturer within 5 & 6 Will. IV. c. 65.[1203]

=Letters.=--Private letters are protected from publication as much as

any other manuscript. In an early case[1204] it was suggested that

there could be no property in business letters or others with no

literary merit; but as the idea of literary merit in connection with

may be disregarded. In all letters then there is a literary property

in the writer which entitles him or his executors to prohibit any

publication without his consent, express or implied.[1205] It is

immaterial whether the publication is for the purpose of profit or

not.[1206] If a letter is written by one as agent for another the

property is in the principal, and the agent cannot restrain him from

publishing.[1207] The receiver of a letter has a property in the paper

on which it is written[1208] and is entitled to retain possession

even against the writer. The receiver may make no use of a letter

except such as is implied in the sending or with the consent of the

writer.[1209] The receiver may even be restrained from parting with

possession or showing the letters to any one.[1210] The receiver is

probably entitled to prevent the publication of the letters from

copies not in his possession or from the originals which have passed

from his possession.[1211]

Although the sender has a right of property in the literary matter in

the letters, the receiver may without his consent destroy the letters

and so destroy the writer's chance of obtaining benefit from them. The

literary property of the writer and the property in the paper of the

receiver descend to their respective executors.[1212] The question

has been suggested but never answered: What would be the rights of

trustees in bankruptcy to publish for the benefit of creditors private

letters?[1213] Letters may be published against the will of the

writer when published _bonâ fide_ for the purpose of vindication of

character.[1214]

CHAPTER XII

PUBLISHING AND PRINTING AGREEMENTS

_Publishers' Agreements._--These agreements are governed by the law

of contract, and only incidentally involve questions of copyright.

The contract between an author and his publisher is a personal one

and cannot be assigned; each party is presumed to have relied on the

personal skill or reputation of the other.[1215] Thus it was held that

a half profit agreement could not be assigned by a publisher's firm

to a firm which had succeeded to their business but which contained

none of the partners of the original firm.[1216] The same principle

has been applied in the case of a limited company carrying on a

publishing business.[1217] A publishing agreement ought to provide for

an assignment of the publisher's rights and obligations to the person

or persons who may succeed to the business. Unless otherwise agreed,

the death or bankruptcy of a publisher will terminate a publishing

agreement.[1218] Similarly if an author had not performed his part of

an agreement, viz. to write and revise the manuscript, his death[1219]

or bankruptcy[1220] would terminate his obligations in that respect.

The publisher could not insist on the author's representatives

completing the work, nor could they if they completed the work insist

on the publisher publishing.[1221]

An agreement to write a book or an article cannot be enforced by

specific performance.[1222] The only remedy for breach is an action

for damages,[1223] or, if the author has agreed not to write on

a particular subject for any one else, that may be enforced by an

injunction.[1224] An agreement to assign a copyright may be enforced

by specific performance,[1225] and probably also an agreement to

furnish an unpublished manuscript already completed. An undertaking to

write a book on a particular subject is not fulfilled by furnishing

a translation of a foreign work on that subject.[1226] If A agrees

with B to write an article for a certain publication or series

of publications, and if before the article can be published the

publication or series has been discontinued, A is not bound to deliver

his article for publication in another form; but he is entitled to a

_quantum meruit_ for the work he has done.[1227]

If an author has entered into a royalty agreement with a publisher

he is not, apart from express agreement, under any obligation not to

publish the work through another publisher before the first edition

has been sold out.[1228] An author should therefore be bound not to

publish elsewhere so long as the publisher is willing and ready to

publish, and if this is done the publisher may restrain the author or

another publisher who publishes with notice of his agreement.[1229] In

a half profit agreement where nothing was said as to future editions,

it was thought that the contract might probably be determined by

either party on the expiry of each edition and before any expense had

been incurred in respect of a future edition; but until that was done

the publisher had the exclusive right to publish and recoup himself

for his outlay and earn profits.[1230]

It is not illegal as being in restraint of trade for an author

to contract to write only for a single publisher or theatrical

manager,[1231] nor for a publisher to contract not to publish a

particular class of work.[1232] If an editor engages to give his

whole time to a publication, he will be restrained from engaging in

or advertising any rival work.[1233] Unless there is an express

stipulation an author will not be prevented under a publishing

agreement from writing and publishing other books on the same subject

provided they do not reproduce in whole or in part the former

book.[1234] If there is an express stipulation against publishing

similar works, both the author and his publisher would be restrained

from doing so.[1235] Apart from express agreement a publisher is

probably free to publish any other rival work he pleases, even

although it may seriously affect the sale of the former book.[1236]

In the absence of express stipulation, the publisher under a half

profit agreement has been held entitled to fix the selling price,

choose the embellishments, and generally control the publication.[1237]

In a publishing agreement it should always be expressly stated who is

to hold the copyright. It has been held that where no mention of the

of the copyright to the publisher.[1238] In editorial agreements as to

newspapers or magazines similar careful provision should be made as to

who is to own the copyright and the goodwill in the name, otherwise

difficult questions may arise.[1239]

Where the author of a novel sold the copyright therein to the owners

of a periodical, reserving to himself the right to publish in "volume

form," it was held that under this agreement he was entitled to

publish the work in weekly parts, which when completed could be bound

into a volume.[1240]

An indemnity given by an author to a publisher against proceedings

for libel is void if the publisher knew or ought to have known that

the matter was libellous.[1241] The publisher, however, would be

entitled to rely on such an indemnity if he acted innocently. The same

principle would apply to proceedings for infringement of copyright.

A publishing agreement may be made orally unless, which will seldom

happen, it cannot be performed within a year from the making thereof,

in which case there must be a written memorandum of the terms to

satisfy the Statute of Frauds.[1242]

The agreement, if in writing, must be stamped with the usual sixpenny

agreement stamp. If it contains a conveyance of a copyright it will

probably have to be stamped with _ad valorem_ duty under section 53

of the Stamp Act.[1243] If the work is unpublished at the time of

the agreement the whole interest in the manuscript can be conveyed

by delivery; in the case of a published work the copyright could

be conveyed by entry on the register, so that in neither case need

there be a conveyance in the agreement, and the stamp duty can thus

be avoided. If a copyright is conveyed by entry on the register the

_Printers' Agreements._--A printer has a lien on the books printed

by him for his printing charges.[1245] He has no lien on stereotype

plates for the amount of the bill for printing from them.[1246] If

the printer does not print his name and address on a book as required

by Act of Parliament[1247] he will not be entitled to recover his

printing charges.[1248] An order to print a certain number of copies

of a book must as a rule be treated as an entire order, and no payment

will fall due until the whole are complete and ready for delivery, so

that if when half finished they are destroyed by fire he will not be

entitled to recover for the work done.[1249] A printer does not insure

the manuscript when in his possession,[1250] but is only liable for

loss occasioned by his negligence.

A printer cannot maintain an action in respect of his charges for

printing an immoral or seditious work, knowing it to be such.[1251]

If while a book is being printed by him he discovers that it contains

libellous, seditious, or immoral matter, he would be entitled to

discontinue the printing and sue for the work already done.[1252]

* * * * *

ADDENDUM

=Musical Copyright, Summary Remedies.=--A Bill has passed both Houses

of Parliament and awaits the Royal Assent whereby, after October

1902, owners of copyright in music may proceed in a Court of summary

jurisdiction against persons dealing in pirated music. Piratical

copies which are being hawked or offered for sale may be seized by

a constable without warrant and brought before the Court, which, on

proof, may order the copies to be forfeited or destroyed, and inflict

a penalty not exceeding twenty pounds on any one offender in respect

of the same transaction. This Act will not apply outside the United

Kingdom.

PART II

THE LAW OF COPYRIGHT IN THE UNITED STATES

CHAPTER I

INTRODUCTORY

The law of copyright in the United States, especially in relation

to literary work, is daily becoming of more interest to the owners

of copyright in this country. Since the _Act of Congress_, 1891,

commonly known as the _Chace Act_, those who are neither citizens of

nor resident in the United States can acquire a copyright therein

if copies of their books are printed from type set up in the United

States and if their books are duly recorded there before publication

either within or outside the United States. There is thus created

for English authors a property which may be of considerable value if

before publishing here they incur the trouble and expense of printing

and recording their books in America.

Apart from this commercial interest which English authors and

publishers have in a knowledge of American copyright law, there

is the further interest to English lawyers in the large body of

analogous case law to which the American statutes have given rise.

These statutes were originally founded on our own statute of Anne,

and, although the difference between the Acts now in force in the two

countries is very wide in many respects, a great deal remains the

same in substance, and the decisions of the American Courts afford

us valuable precedents. These cases, however, must not be cited in

our Courts at random, as has too frequently been done. In citing

from the American reports, it is essential to compare the statutory

provisions in America with the statutory provisions in this country,

and ascertain whether the decisions are really applicable or not.

It is for this reason that I have thought it expedient to keep the

American law and the English law entirely separate. The practice of

citing American cases promiscuously throughout a treatise on English

CHAPTER II

WHAT WORKS ARE ENTITLED TO COPYRIGHT

In order to acquire copyright in the United States the work must

fulfil the following conditions:

1. It must be an original literary or artistic work.

2. The (owner/author) must be a citizen of the United States (or

resident therein), or of a foreign country proclaimed

to that intent by the President.[1253]

3. It must have complied with the formalities prescribed

by the statutes of the United States.[1254]

4. It must be innocent.[1255]

SECTION I.--AN ORIGINAL LITERARY OR ARTISTIC WORK.

In the United States literary and artistic works are treated similarly

under the same series of statutes. The works protected are enumerated

in section 4952 of the Revised Statutes as amended by the Act of March

3, 1891 (_The Chace Act_). The protection extends to any book, map,

chart, dramatic or musical composition, engraving, cut, print, or

photograph or negative thereof, and to any painting, drawing, chromo,

statue, statuary, and to models or designs intended to be perfected as

works of the fine arts.

[Sidenote: The scope of the Constitution.]

In considering whether a work is within the protection of the

be considered, but also, and perhaps principally, the scope of the

provision in the Constitution, which grants power to Congress to

secure the protection of authors and artists.[1256] The language

of the Act must be read in connection with the Constitutional

provision and be so construed as to promote the object and conform

to the purpose expressed therein. The power given to Congress by

the Constitution is a power "to promote the progress of science and

useful arts by securing for limited times to authors and inventors

the exclusive right to their respective writings and discoveries." In

consideration of this restricted power the earlier decisions[1257]

construed the Acts of Congress as including only those works which

showed a certain degree of intellectual labour in the arts or

sciences. In _Clayton_ v. _Stone_[1258] protection was refused to a

daily price current or review of the markets issued in a newspaper.

Thompson, J., in giving judgment, said:

"The Act was passed in execution of the power given by Congress,

and the object therefore was the promotion of science; and it

would certainly be a pretty extraordinary view of the sciences to

consider a daily or weekly publication of the state of the market

as falling within any class of them. They are of a more fixed,

permanent, and durable character. The term science cannot with any

propriety be applied to a work of so fluctuating and fugitive a

form as that of a newspaper or price current, the subject-matter

of which is daily changing, and is of mere temporary use.... The

title of the Act of Congress is for the encouragement of learning,

and was not intended for the encouragement of mere industry

unconnected with learning and the sciences."

[Sidenote: Illustrated Catalogues.]

This high standard of intellectual requirement was not, however,

strictly maintained. In _Brightley_ v. _Littleton_[1259] a blank

form of application for a licence to sell liquor at retail, drawn in

pursuance of the statutes in that behalf, was protected, and it was

said that, although the matter claiming copyright must be original and

possess some possible utility, "the originality may be of the lowest

order and the utility barely perceptible." In _Ladd_ v. _Oxnard_[1260]

the English cases of _Lamb_ v. _Evans_[1261] and _Leslie_ v.

_Young_[1262] were cited with approval, and the Court agreed that

"the quality and grade of original work required by the Courts under

the Copyright Statutes are very moderate." Until the case of _Mott_

v. _Clow_,[1263] the tendency seems to have been to follow the

English judges to their extreme view, as expressed by Lord Halsbury

in _Walter_ v. _Lane_,[1264] _i. e._ "that the copyright law requires

neither literary merit nor intellectual labour nor originality

either in thought or in language." The Court, however, in _Mott_ v.

_Clow_[1265] refused to follow the English decisions. After reviewing

the American, and particularly the earlier American decisions, they

say:

"The result of these decisions would seem to place this

construction upon the Constitutional provisions under

consideration that only such writings and discoveries are

included which are the result of intellectual labour; that the

term writings may be liberally construed to include designs for

engravings and prints that are original and are founded in the

creative powers of the mind, the fruits of intellectual labour;

that prints upon a single sheet might be considered a book if

it otherwise met the spirit of the constitutional provision;

and that to be entitled to a copyright, the article must have,

by and of itself, some value as a composition, at least to the

extent of serving some purpose other than a mere advertisement or

designation of the subject to which it is attached."

The "book" before the Court was a catalogue in the form of a bound

volume, containing illustrations of household wares offered for sale,

and giving the dimensions and price of each. The Court referred

to _Maple_ v. _Junior Army and Navy Stores_[1266] where a similar

catalogue in England was protected.

"It is to be observed in this case that it was ruled largely upon

the language of the Act of Parliament (5 & 6 Vict. c. 45)....

It is to be here remarked that the Parliament of Great Britain,

unlike the Congress of the United States, is unlimited in power,

and with the construction and effect placed upon the preamble

of the Act by the Court, there would seem to be little escape

from the conclusion at which the Court arrived. In this country

under the Constitution the power lodged with the Congress is not

unlimited, but is restricted to the promotion of the progress

of science and useful arts. The ruling of the English Court is

therefore not pertinent except as it illustrates the subject."

The Court cited with approval _Baker_ v. _Selden_,[1267] which had

expressly approved _Cobbett_ v. _Woodward_,[1268] an English case

overruled in _Maple_ v. _Junior Army and Navy Stores_;[1269] they

further cited and approved the judgment of Thompson, J., in _Clayton_

v. _Stone_,[1270] quoted above. The judgment concludes with the

following paragraph:

"It is possibly not beyond comprehension that pictures of

slop-sinks, wash-bowls, and bath-tubs, with or without letterpress

statement of dimensions and prices, though intended mainly for

advertisement, may in localities where such conveniences are not

in common use, be the means of instruction and of advancement in

knowledge of the arts, and, when they are the products of original

intellectual thought, may possibly come within the scope of the

Constitutional provision. It is enough for the present purpose to

say that, in our judgment, the Congress has not seen fit to enact

a law which can reasonably be given so broad a construction."

[Sidenote: Directories. Dictionaries.]

[Sidenote: Mercantile Statistics.]

[Sidenote: Forms of Application.]

In considering the authority of some of the cases cited below, the

judgment in _Mott_ v. _Clow_[1271] must not be lost sight of. It is

probable that some of these cases are not in accordance with it, or

with the older cases, such as _Clayton_ v. _Stone_[1272] and _Baker_

v. _Selden_[1273] therein expressly approved. Subject to this note

of warning, the following may be taken as examples of what have and

what have not been accepted as works of art or literature within the

scope of the Constitution and the Acts of Congress. Directories[1274]

and dictionaries[1275] have both been protected. In the case of the

latter, there is copyright in the definitions of the words, however

short. A list of the credit ratings of marble, granite, and stone

dealers of the United States and Canada was protected in _Ladd_

v. _Oxnard_.[1276] In _Clayton_ v. _Stone_,[1277] which has been

approved as sound law,[1278] a daily state of the market was refused

protection. A racing guide containing a list of race-horses and

statistics as to their age and performances was protected in one

case,[1279] and in the other case a list of trotting horses and their

paces.[1280] In _Brightley_ v. _Littleton_[1281] a blank form of

application for liquor licence was held to be copyright. In _Carlisle_

v. _Colusa County_[1282] copyright was denied to a blank form of

property statement for assessment purposes.

This latter decision appears, however, to have been partly on the

ground that as the assessors were obliged to issue a form, it would

embarrass their duties if forms drawn up by private persons were

entitled to copyright.

A circular in pamphlet form used as an advertisement, and explaining

a certain method of distribution of coupons to cash purchasers

from certain merchants named in the pamphlet, has been held to be

the subject of copyright.[1283] The circuit judge, however, in his

judgment, says: "It requires some stretch of imagination to say that

this pamphlet comes within the purpose of Congress, the encouragement

of learning, and the increase of useful knowledge, but the official

charged with the duty has granted a copyright to this pamphlet, and

his decision is accepted."[1284]

[Sidenote: Dramatic Works.]

Dramatic works[1285] have been protected, although not of a very high

literary standard. In _Henderson_ v. _Tompkins_[1286] protection was

given to a topical song which was designed merely to amuse. It was

sufficient if it accomplished that purpose.

[Sidenote: Law Reports.]

[Sidenote: Statutes.]

Law Reports are protected so far as they consist of original

intellectual matter;[1287] the protection may thus extend to the

title-page, table of cases, the head notes, the statements of facts,

the argument of counsel, the index, the order and arrangement of

cases, the numbering and pagination of the volumes, the table of cases

cited in the opinions, the subdivision of the index into condensed

titles, and the cross references.[1288] The original work of the

reporter is alone protected.[1289] In the opinion of the Court there

is no copyright;[1290] these constitute part of the law of the land

open to all to make use of as they please, and neither the state,

the judge, nor the reporter can acquire or confer any conclusive

privilege of copying them. The same rule applies to the head notes

in those states where they are prepared by the judge.[1291] On the

same grounds of public policy no one can have copyright in the

statutes;[1292] the legislature of the state cannot confer it on any

one.[1293] There may be copyright in the head notes and arrangement of

a digest of the statutes.[1294]

[Sidenote: Notes and Additions. New Arithmetic. Adaptations.]

The contents of a book do not require to be entirely new; if

partially old there will be copyright _quoad_ the new material or new

arrangement.[1295] Thus there is copyright in notes and additions to

an old work,[1296] in a new arithmetic combining old material in new

form,[1297] in translations,[1298] in the adaptation of an old drama

introducing a new title, new dialogue, minor characters, scenery, and

dramatic situations with the orchestration and orchestra part songs

and music,[1299] and in the dramatization of a novel.[1300]

[Sidenote: Musical Arrangement.]

In one case it was held that the adaptation of a musical piece

from the notation suitable to one instrument to that suitable to

another was not a sufficiently intellectual process to entitle the

adapter to copyright in his adaptations.[1301] It was said that "a

mere mechanic could make the adaptation and accompaniment." Since

then, however, it has been held that a musical arrangement is the

subject of copyright. In _Thomas_ v. _Lennox_[1302] an orchestral

accompaniment for a non-copyright oratorio by Gounod was held to be

the subject of copyright. In _Carte_ v. _Evans_[1303] an arrangement

for the pianoforte of the orchestral score of an opera was held to be

[Sidenote: New Editions.]

of the new edition.[1304] The additions or corrections must be of

substantial value. A work which is _publici juris_ cannot be reclaimed

by colourable and immaterial alterations or additions.[1305]

[Sidenote: Form of Publication.]

[Sidenote: Mechanical Devices.]

[Sidenote: Letter File.]

[Sidenote: Account Book.]

A book need not be a book in the ordinary sense of the word; the word

in the Act is not to be construed by reference to lexicographers: "the

literary property to be protected by the Act is not to be determined

by the size, form, or shape in which it makes its appearance, but by

the subject-matter."[1306] A single sheet containing literary matter

will be protected as a book.[1307] No doubt, however, the subject

to be protected must be _ejusdem generis_ as a book or leaflet. The

subject-matter must convey, and the form must be suitably adapted

for conveying, information to the reader. The copyright law embraces

those things that are printed and published for information and not

for use in themselves. Thus what is really a mechanical instrument,

and if original entitled to protection under the patent law, will not

be protected by the copyright law. In _Amberg File_ v. _Shea_[1308]

protection was claimed in a letter file. It was said that the spaces

between the index letters were adjusted to the average requirements

of the correspondent. These average requirements were ascertained by

exhaustive research in different directories. Copyright was refused.

In _Baker_ v. _Selden_[1309] blank account books of an original type

or pattern were refused protection. The judge in that case drew the

distinction between what was a proper subject of the patent laws and

what was a proper subject of copyright law--"The object of the one

is explanation, the object of the other is use."[1310] In _Drury_ v.

_Ewing_[1311] a "ladies' chart for cutting dresses and basques for

ladies, and coats, jackets, &c., for boys" was protected. It is almost

certain, however, that this decision would not now be accepted as

sound. Mere labels will not be protected as copyright works.[1312]

They may be protected by registration in the Patent Office.[1313]

[Sidenote: Originality.]

collection and arrangement of material open to all mankind.[1314] What

is meant by originality as a requisite of copyright is that what is

claimed as the subject of copyright, whether it be the composition or

arrangement of matter, must not have been taken from some literary

or artistic work already in existence. It need not be the first of

its kind; the same thing may have been done before so as to produce

identically the same result.[1315] If the second author, artist, or

composer goes about his work independently, searching out his material

from the original sources, he is equally entitled to copyright with

the first. Herein copyright law differs from the law of patents;

in the former there may be two concurrent copyrights in what is

identically the same creation, in the latter there can only be one

patent, the first inventor being entitled.

[Sidenote: Letters.]

Letters may be the subject of copyright, whether of a business or

private nature, and although never intended by the writer to be

published as literary productions. In _Folsom_ v. _Marsh_[1316] the

letters of George Washington were the subject of controversy. Story,

J., in giving judgment, laid down the law as to the property in

letters at some length:

"There is no small confusion in the books with reference to the

question of copyright in letters. Some of the _dicta_ seem to

suppose that no copyright can exist except in letters which are

professedly literary, while others again recognise a much more

enlarged and liberal doctrine upon the whole subject. In the

first place I hold that the author of any letter or letters (and

his representatives), whether they are literary compositions or

familiar letters or letters of business, possess the sole and

exclusive copyright therein; and that no persons, neither those

to whom they are addressed nor other persons, have any right

or authority to publish the same upon their own account or for

their own benefit. But consistently with this right the persons

to whom they are addressed may have, nay, must by implication

possess the right to publish any letter or letters addressed to

them upon such occasions as require or justify the publication or

public use of them, but this right is strictly limited to such

occasions. Thus a person may justifiably use and publish in a

suit at law or in equity such letter or letters as are necessary

and proper to establish his right to maintain the suit or defend

the same. So if he be aspersed or misrepresented by the writer or

accused of improper conduct in a public manner, he may publish

such parts of such letter or letters, but no more, as may be

necessary to vindicate his character and his reputation, or free

him from unjust obloquy and reproach. If he attempt to publish

such letter or letters on other occasions not justifiable, a

Court of Equity will prevent the publication by an injunction

as a breach of private confidence or contract or of the rights

of the author, and _a fortiori_ if he attempt to publish them

for profit, for then it is not a mere breach of confidence or

contract, but it is a violation of the exclusive copyright of the

writer. In short, the person to whom letters are addressed has but

a limited right or special property (if I may so call it) in such

letters as a trustee, or bailee for particular purposes, either of

information or of protection or of support of his own rights and

character. The general property and the general rights incident to

property belong to the writer, whether the letters are literary

compositions or familiar letters or details of facts or letters of

business. The general property in the manuscript remains in the

writer and his representatives as well as the general copyright.

_A fortiori_ third persons standing in no privity with either

party are not entitled to publish them to subserve their own

private purposes of interest or curiosity or passion."

It is not quite accurate to say that the receiver of a letter is

merely a trustee or bailee for particular purposes. Clearly the

receiver of a letter is entitled to destroy it unless there is any

express or implied stipulation to the contrary, and probably he can

prevent the sender from publishing it by refusing to produce it if it

is in his possession.

[Sidenote: No Copyright in Titles.]

As a rule there can be no copyright in a title.[1317] The deposit

of the title-page with the Librarian of Congress does not give the

author any exclusive right to the use of that title.[1318] A title

can only be protected as a trade mark in connection with a particular

literary or artistic production which has become known to the public.

The public must be shown to be deceived or to be in danger of being

deceived.[1319] A title may be protected by registration as a trade

mark.[1320]

[Sidenote: Photographs.]

Photographs were first protected by the Statute of March 3, 1865;

before then protection was refused to them under the head of prints,

cuts, or engravings.[1321] It seems to have been doubted at one time

whether the protection of photographs was not _ultra vires_ of the

powers conferred by the Constitution. There is certainly an apparent

difficulty in bringing a photograph within the expression "writings"

used in the Constitution; but this word has received an extremely wide

and liberal construction, and has been held to be capable of including

any literary or artistic production of the intellect. Photographs have

been now frequently protected, but it is not every photograph that

will be protected, there must be some evidence that the photographer

has exercised an intellectual choice of subject-matter, expression,

arrangement, light, or other circumstances or conditions which go to

the production of an artistic photograph.[1322] It will be a question

of fact for the Court or jury whether the photograph is a mere manual

reproduction of subject-matter or an original work of art.[1323] In

a portrait there may be copyright in so far as the photographer has

relied on his own judgment for the choice of light, background, pose,

or attitude.[1324] In one case the photograph of a yacht under sail

was protected. It required the photographer to select and utilise the

best effects of light, cloud, water, and general surroundings, and

combine them under favourable conditions for depicting vividly and

accurately the view of a yacht under sail.[1325]

A slight colourable alteration in a non-copyright photograph will not

entitle it to copyright.[1326]

[Sidenote: Engravings.]

Engravings, cuts, and prints will be protected,[1327] but there

must be at least some merit in them as artistic or instructive

productions. Thus the prints of common articles of household use

in a tradesmen's catalogue,[1328] drawings of billiard tables in a

similar catalogue,[1329] a card of specimen colours and tints of

zinc paints,[1330] and a poster with coloured drawings of a circus

performance[1331] have all been refused protection. If there is real

artistic merit in a drawing it will not be disentitled to protection

merely on the ground that it has been used as an advertisement.[1332]

It has been held that playing cards printed in colours are entitled to

protection as "prints."[1333]

[Sidenote: Pictures.]

The Act of June 18, 1874, enacts that the protection of the Copyright

Acts conferred on "engravings," "cuts," and "prints" shall not

extend to prints or labels designed to be used for any articles of

manufacture. This Act cannot be evaded by attempting to copyright the

picture or drawing from which the label is designed. In _Schumacher_

v. _Wogram_[1334] the Court refused protection under the Copyright

Acts to a picture representing a young woman holding a bouquet

of flowers intended to be reproduced on labels for cigar boxes.

The reason for refusing protection of the copyright law to such

productions is that their only real value is as a trade mark connected

with a particular article of manufacture.[1335] They are not designed

in themselves to instruct or amuse. As trade marks they will be

protected if registered in the Patent Office. The fact that a picture

could be readily lithographed and used as a label does not deprive it

of copyright;[1336] it must in order to lose its copyright have been

made with the intention of being used as a label. If the painting

itself were to be considered a label because copies might be so used,

no masterpiece would be entitled to copyright. A painting, engraving,

or print in order to be protected must be a pictorial representation

of something and not merely a design.[1337]

SECTION II.--NATIONALITY OF THE AUTHOR.

Unfortunately the Acts of Congress are not clear as to how far the

works of foreign authors, or the works of non-residents in the United

States are protected.

Until 1891 the works of foreign authors not resident in the United

States were denied protection. Sec. 4971 of the Revised Statutes ran

as follows:

"Sec. 4971. Nothing in this chapter shall be construed to prohibit

the printing, publishing, importation, or sale of any book, map,

chart, dramatic or musical composition, print, cut, engraving, or

photograph, written, composed, or made by any person not a citizen

of the United States nor resident therein."[1338]

By the Act of 1891, the benefits of copyright are extended to the

citizens of foreign countries which are proclaimed by the President as

conferring reciprocal rights on American citizens. Sec. 4971 of the

Revised Statutes is repealed. The Act of March 3, 1891, section 13,

enacts--

"That this Act shall only apply to a citizen or subject of a

foreign state or nation when such foreign state or nation permits

to citizens of the United States of America the benefit of

when such foreign state or nation is a party to an international

agreement which provides for reciprocity in the granting of

America may at its pleasure become a party to such agreement.

The existence of either of the conditions aforesaid shall be

determined by the President of the United States by proclamation

made from time to time as the purposes of this Act may require."

The Act of March 3, 1891, section 5, amending the Revised Statutes,

sec. 4959, enacts that--

"... the alterations, revisions, and additions made to books by

foreign authors heretofore published, of which new editions shall

appear subsequently to the taking effect of this Act, shall be

held and deemed capable of being copyrighted as above provided

for in this Act, unless they form a part of the series in course

of publication at the time this Act shall take effect." (July 1,

1891.)

On these sections two questions seem to be left open:

(1) Is the test to be applied the nationality of (_a_) the

author, or of (_b_) the proprietor of the manuscript,

or other unpublished work, at the time of publication;

or will it satisfy the Act if (_c_) either of these persons

complies with the requisite conditions of nationality?

(2) Will residence in the United States or in one of the

proclaimed countries confer the privileges on one

who is not a citizen or subject of any of them?

1. It may be that it would be a sufficient compliance with the

requirements of the Act if either the author or his assignee before

publication were a citizen of the United States, or a subject or

citizen of a proclaimed country. Section 1 amending the Revised

Statutes, sec. 4952, gives the sole liberty to "the author, inventor,

designer, or proprietor, and to the executors, administrators, or

assigns of any such person." Section 13 "applies the Act" to citizens

or subjects of certain foreign states or nations. Under the Revised

Statutes, section 4971, before 1891 it was the nationality of the

author alone that was considered, and it would have been no answer to

have said that the assignee before publication was an American citizen

or resident in the United States. Perhaps in 1891 the benefit was

designedly extended to assignees before publication, who complied with

the conditions and who had taken assignments from foreign authors who

did not. On the whole, however, I am inclined to the opinion that it

will not do merely to allege that the assignee of the uncopyrighted

and unpublished work is a citizen of the United States or a subject

or citizen of one of the proclaimed countries. It must, I think, be

alleged that the author, inventor, designer, or proprietor _ab initio_

has complied with the conditions as to nationality. By proprietor _ab

initio_ (and probably this is the true meaning of "proprietor" in

section 1 of the Act of March 3, 1891[1339]), I mean one who compiles

a work by his servants or agents, for instance, a body corporate,

which cannot be said to be an "author, inventor, or designer," and yet

is entitled to the whole property in the work of its servants as it

grows up from day to day. I have not considered the assignee after

publication. I think it must be abundantly clear that his nationality

cannot be taken as the test, since if he took his assignment from a

foreign author who did not comply with the conditions of nationality

when the work was published, the work at the time of assignment would

have become _publici juris_. If he took his assignment from one who

complied with the conditions of nationality and copyrighted the work,

the fact of his being an alien would not prevent him acquiring the

2. Before 1891 residence in the United States, which was interpreted

to mean permanent residence and not merely for the purposes of

publication,[1340] was sufficient to entitle an author to the

privileges of the Copyright Acts. The provision now, under the Act

of March 3, 1891, is that the Act shall only apply to a citizen of a

foreign country which has been proclaimed. Reading the Act strictly

a foreign resident in the United States but not a citizen thereof is

excluded from protection which he formerly had, unless he is a citizen

or subject of a proclaimed country. No doubt this was not intended

to be the result of the Act of 1891, but the words are plain and

unambiguous, and there seems no reason why they should not have effect

according to their plain meaning. _A fortiori_ a foreigner resident

in, but not a subject of, one of the proclaimed countries would not be

entitled to copyright.

The following States have been proclaimed as fulfilling one or other

of the required conditions, and their citizens are therefore entitled

to acquire copyright in the United States in the same way as an

American citizen:

Belgium }

France }

Great Britain } July 1, 1891.

Switzerland }

Germany April 15, 1892.

Italy October 31, 1892.

Denmark May 8, 1893.

Portugal July 20, 1893.

Spain July 10, 1895.

Mexico Feb. 27, 1896.

Chili May 25, 1896.

SECTION III.--NECESSARY FORMALITIES.

No person is entitled to copyright unless he--[1341]

I. In the case of a book, map, chart, dramatic or musical

composition, engraving, cut, print, photograph, or chromo--

(i.) Delivers (or mails within the United States) to the

Librarian of Congress, _on or before the day of publication_,

in the United States or elsewhere a _printed copy of the

title_ of the work.

(ii.) Delivers (or mails within the United States) to the

Librarian of Congress, _not later than the day of publication_,

in the United States or elsewhere _two copies_ of

the work.

II. In the case of a painting, drawing, statue, statuary, or

a model or design for a work of the fine arts--[1342]

(i.) Delivers (or mails within the United States) to the

Librarian of Congress, _on or before the day of publication_,

in the United States or elsewhere a _description of

the work_.

(ii.) Delivers (or mails within the United States) to the

Librarian of Congress, _not later than the day of publication_,

in the United States or elsewhere _a photograph of

the work_.

The proprietor of every copyright book or other article must deliver

(or mail within the United States) to the Librarian of Congress a copy

of every subsequent edition wherein any substantial changes shall be

made.[1343] Each volume of a book in two or more volumes, when such

volumes are published separately, and the first one has not been

issued before July 1, 1891, and each number of a periodical is to be

considered an independent publication.[1344] The requirements of the

statute as to delivery of title and copies, and printing of notice

must therefore be complied with in the case of each volume of a book

or number of a periodical.

=Conditions Precedent.=--The deposit of title and delivery of copies

as prescribed by the statutes are conditions precedent to copyright

and not merely declaratory.[1345] There is no common law right after

publication, and therefore if a work is published without the proper

formalities having been observed it becomes _publici juris_, and any

one may make what use of it he pleases.[1346] Ignorance of the law is

no excuse even although a new Act has just been passed altering the

time within which copies must be delivered.[1347] In an action for

infringement the declaration must set out in detail a compliance with

the law as to formalities,[1348] and the burden of proof thereof is on

the complainant.[1349] He must prove the deposit of title, delivery of

copies, notice of copyright, and the date of publication. The latter

is essential, as on it depends the validity of the entry.[1350]

=Delivery of the Title.=--The copy of the title to be delivered must

be "printed," _i. e._ the characters used must be those ordinarily

used in printing, but they may be made by hand with a pen.[1351] The

work must be published within a reasonable time after the deposit

of the title-page, otherwise the formalities will not have been

complied with.[1352] Two months' delay in mailing to the Librarian of

Congress copies of a photograph after the filing of its title is not

unreasonable.[1353]

It will not do to publish a book under a substantially different title

from that deposited. Immaterial variations in the title, or sub-title,

or complete alteration of a description on the title-page will not

make the deposit void. In _Donnelley_ v. _Ivers_[1354] the title

deposited was "Over One Thousand Recipes. The Lake Side Cook Book: A

Complete Manual of Practical, Economical, Palatable, and Healthful

Cookery. Chicago: Donnelley, Lloyd & Company, 1878." The title on the

book as published was "The Lake Side Cook Book, No. 1. A Complete

Manual of Practical, Economical, Palatable, and Healthful Cookery.

By N. A. D." It was held that the requirement as to the deposit of

title having been "substantially, in good faith complied with," the

objection was not tenable. What is required is, that the deposited

title be sufficient to identify the book with substantial certainty.

In _Carte_ v. _Evans_,[1355] the title filed was "Pianoforte

Arrangement of the Comic Opera, The Mikado, or the Town of Titipu,

by W. S. Gilbert and Sir Arthur Sullivan. By George L. Tracey." The

book as published bore the title "Vocal Score of the Mikado, or The

Town of Titipu. Arrangement for Pianoforte by George Lowell Tracey

(of Boston, U. S. A.) of the above-named opera by W. S. Gilbert and

Arthur Sullivan." This was held a sufficient deposit to protect the

pianoforte accompaniment. In _Black_ v. _Allen_[1356] the title

deposited was "An Outline of the Political and Economic History of

the United States, with Maps and Charts: I. History and Constitution

by Alexander Johnson, M. A.; II. Population and Industry by Francis A.

Walker, LL. D." The title of the book as deposited was "United States:

Part III. Political Geography and Statistics, copyright, 1888, by

Francis A. Walker." In the absence of evidence that the defendant was

deceived or misled by the change of the title the Court held that it

was valid. In _Daly_ v. _Brady_[1357] the title of a drama deposited

was "Under the Gaslight: A Drama of Life and Love in these Times." The

actual title as published was "Under the Gaslight: A Romantic Panorama

of the Streets and Homes of New York." The Court held that the change

of title might deceive the public, and therefore the deposit of title

was bad; but this decision was reversed in _Daly_ v. _Webster_;[1358]

the variance was in the description. "The title required may include

a sub-title, but it does not include a description of the book upon

the title-page."

An author may wish to change his title entirely after he has deposited

the title-page. He may do this before the deposit of copies by

depositing a fresh title-page; but it is questionable whether the

duration of his copyright will run from the first deposit of title or

from the deposit of the altered title.[1359]

=Delivery of Description.=--Probably a short description is all that

is required. If the title is in itself descriptive, probably that

will be sufficient. The photograph of a painting, or other work of

art which is required to be delivered, does not take the place of a

description.[1360]

=Delivery of Copies.=--Under the Revised Statutes before 1891

the printed copies had to be delivered "within ten days from the

publication thereof." This was sufficiently complied with by the

delivery of two copies on the day before publication.[1361] The Act of

1891 now requires that the two printed copies shall be delivered "not

later than the day of publication."

The copies deposited with the Librarian of Congress do not require to

bear the statutory notice as to copyright.[1362]

The memorandum given by the librarian is sufficient _primâ facie_

evidence of the fact and date of deposit.[1363] The librarian's date

stamp on the book is not conclusive, and may be rebutted by other

evidence of the actual date of deposit.[1364] If the copyright matter

is ordinarily bound up with other matter, the Librarian of Congress

cannot insist on the delivery of the bound volume complete. It is a

sufficient delivery to take the volume to pieces and deliver the loose

sheets on which the copyright matter is printed.[1365] Before 1891

the two copies deposited had to be of the "best edition," but this

appears to be no longer necessary.

=Printing in the United States.=--In the case of

i. books,

ii. chromos,

iii. lithographs,

iv. photographs,

the two copies required to be delivered must be printed from type set

within the limits of the United States or from plates made therefrom,

or from negatives or drawings on stone made within the limits of the

United States, or from transfers made therefrom.[1366]

This requirement was introduced in 1891, when the privileges of

Formerly there was no obligation to print within the United States.

It has been held that a volume of music is not a "book" within the

meaning of the provision in the statute enacting that the two copies

delivered shall be printed in the United States.[1367] It would seem

to follow that the necessity of printing in the United States does

not extend either to maps or charts, or even to dramatic compositions

in book form. These are all dealt with specifically in the Act, and

therefore, on the authority of _Littleton_ v. _Oliver_,[1368] do not

come within the generic term "books."

=Retrospective Provision.=--By an Act of March 3, 1893, it is enacted--

"That any author, inventor, designer, or proprietor of any book or

other article entitled to copyright, who has heretofore failed to

deliver in the office of the Librarian of Congress two complete

copies of such book, or description or photograph of such article

within the time limited by title sixty, chapter three of the

Revised Statutes relating to copyrights and the Acts in amendment

thereof, and has complied with all other provisions thereof, who

has before the 1st day of March 1893 delivered at the office of

Librarian of Congress or deposited in the mail addressed to the

Librarian of Congress two complete printed copies of such book,

or description or photograph of such article, shall be entitled

to all the rights and privileges of such title sixty, chapter

three of the Revised Statutes and the Acts in amendment thereof."

=Notice of Copyright.=--No person can maintain an action for

infringement of his copyright unless each published copy of his work

bears one or other of the following notices:[1369]

"Entered according to Act of Congress in the year ----, by A. B.,

in the office of the Librarian of Congress at Washington.

Or:

"Copyright, 18--, by A. B."

Books must bear the notice:

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 15 / 20 章

_Unlawful Copy._--If a copy is made in a foreign country in which