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Title: A Treatise Upon the Law of Copyright in the United Kingdom
and the Dominions of the Crown,

Author: Evan James MacGillivray

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*** START OF THE PROJECT GUTENBERG EBOOK A TREATISE
UPON THE LAW OF COPYRIGHT IN THE UNITED KINGDOM AND
THE DOMINIONS OF THE CROWN, ***

[i]

A TREATISE UPON
THE LAW OF COPYRIGHT

[ii]
[iii]

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

By E. J. MACGILLIVRAY, LL. B. (Cantab.)

OF THE INNER TEMPLE, BARRISTER-AT-LAW
MEMBER OF THE FACULTY OF ADVOCATES

IN SCOTLAND

LONDON

JOHN MURRAY, ALBEMARLE STREET
1902

, [iv]

TO [v]

THOMAS EDWARD SCRUTTON, Esq., K. C.

IN GRATITUDE FOR
MUCH INSTRUCTION AND KINDNESS
[vi]
[vii]

PREFACE

The foundations of this work were laid by my endeavours to understand
what is perhaps the most complicated and obscure series of statutes in the
statute book. In working from time to time at the Law of Copyright I found
great want of a text-book which should be exhaustive of the case law, and at
the same time contain a concise and clearly arranged epitome of the
statutory provisions. This want I have tried to supply for myself in the
present compilation, and it is now published in the hope that it may prove
useful to others. The present law is bad both in substance and form, but it is
the more essential that those who have anything to do with literary or
artistic property should comprehend it in so far as it is comprehensible.
There are probably more pitfalls for the unwary in dealing with Copyright
than with any other branch of the law.

We have for some time been on the eve of a general codification and
amendment of the Law of Copyright. It is, however, an eve of long and
indefinite duration. It is now twenty-eight years since the Royal
Commission on Copyright was appointed, and still nothing has been done
to ameliorate the lamentable condition in which the Commissioners then
found the law. Dissensions among those who are interested in Copyright,
failure to come to a satisfactory arrangement with the colonies, and want of
time at the disposal of the legislature are mainly responsible for this delay.
In the meantime it is well that all those who are interested in Copyright
[viii]
should make themselves conversant with the law as it now is, so that when
the time for legislation does at last come the result may be the more
satisfactory.

I have added to this work Part II., dealing with Copyright in the United
States, and I hope it may prove useful not only to English but to American
lawyers and publishers.

I have to acknowledge much assistance in the preparation of this work and
many invaluable suggestions from my friends, Mr. Langridge, of the Middle

Temple, and Mr. Mackinnon, of the Inner Temple.
E. J. MACGILLIVRAY.

3 Temple Gardens,
June 1902.

[ix]

CONTENTS

PAGE
Table of English, Scotch, Irish, Indian, and Colonial
Cases xix
Table of Cases in the United States xxxi

PART I

THE LAW OF COPYRIGHT IN THE UNITED KINGDOM

AND THE DOMINIONS OF THE CROWN

CHAPTER I

INTRODUCTORY 3

CHAPTER II

WHAT BOOKS ARE PROTECTED

Sec. 1. What is an Original Book 10
Definition of a Book 10
Essential Elements of a Book 11
Physical Form 11
Literary Matter 13
Originality 15
Examples of what are Books 16
Sec. 2. Publication 36
Divestitive Publication 37
Investitive Publication 38

First Publication within the British Dominions 40
Sec. 3. Author's Nationality 42
Sec. 4. Immoral Works 46
Sec. 5. Registration 46
Before Action 46
The Requisite Entry 49
The Actual Title 49
The Time of First Publication 51
The Name and Place of Abode of the Publisher 52
The Name and Place of Abode of the Proprietor 52
Certificate of Registration 53
False Entries 54
Rectification of Register 54 [x]
Sec. 6. Delivery of Copies to Libraries 55
Sec. 7. Duration of Protection 56
Sec. 8. Copyright in Lectures 57

CHAPTER III

THE OWNER OF THE COPYRIGHT IN BOOKS

Sec. 1. The Crown 59
Sec. 2. The Universities 61
Sec. 3. The Author 62
Sec. 4. The Employer 66
Under Section 18 66
Scope of Section 67
Under such Employment 68
On Terms that Copyright shall belong to such
Proprietor 68
Joint Employers 71
Payment 71
Author's Separate Rights 72
Employer's Rights where Section 18 does not apply 73
Sec. 5. The Assignee 74
Before Publication 74
After Publication 77

Partial Assignment 80
Assignment distinguished from Licence 81
Sec. 6. The Licensee 82
Sec. 7. The Executors or Administrators 83
Sec. 8. The Trustee in Bankruptcy 83

CHAPTER IV

INFRINGEMENT OF COPYRIGHT IN BOOKS

Sec. 1. Prohibited Acts, and Remedies 84
Causing to be Printed 85
Damages 86
Account of Profits 86
Injunction 86
Delivery up of Copies 89
Customs Act 91
Every Offence 91
Limitation of Action 91
Pleading 92
Evidence 94
Discovery 94
Mode of Trial 94
Costs 95
Sec. 2. What is a Piratical Copy 96
What is a Copy 97
A Substantial Part must be Taken 97 [xi]
No Animus Furandi need be Proved 100
Taking not necessarily for Profit 101
Copying may be Indirect and Unintentional 102
Custom of Trade 102
Fair Use 103
No one can Monopolize a Field of Labour 103
No Infringement to take Facts 104
No Infringement to take the General Scheme of
another's Work 105
Every Author must do his own work 105

Work with a Different Object 109
Extract for purpose of Criticism 111
Improvement or Addition of New Matter no
Excuse 112
Dramatization of a Novel 114
Abridgments 114
Translations 116
Licence 118
Abandonment 119
Acquiescence and Delay 119
Provision against the Suppression of Books 119

CHAPTER V

PERFORMING RIGHTS

Sec. 1. Nature of Performing Right 120
Sec. 2. Performing Right at Common Law 121
Sec. 3. What is a Dramatic Work 123
Sec. 4. What Dramatic Works are Protected, and
Duration of Protection 126
Sec. 5. What is a Musical Composition 130
Sec. 6. What Musical Works are Protected, and Duration
of Protection 130
Sec. 7. Registration of Performing Rights 131
Musical Compositions 133
Sec. 8. Assignment of Performing Rights 134
Sec. 9. Infringement of Dramatic Performing Rights 135
Public Performance 135
Substantial Part 138
Causing to be Represented 139
Knowledge 142
Innocent Agents 142
Licence 142
Sec. 10. Infringement of Musical Performing Rights 142
Substantial Part 142
Public Performance 143

Causing to be Represented 143
Sec. 11. Remedies for Infringement of Dramatic
Performing Rights 144
Sec. 12. Remedies for Infringement of Musical Performing
Rights 145 [xii]

CHAPTER VI

COPYRIGHT IN ENGRAVINGS

Sec. 1. What Works are Protected 146
What is an Original Engraving 146
Originality 147
Maps, Charts, and Plans 148
Engravings in a Book 149
Must the Engraving be made within the British
Dominions 150
The Engraving must be First Published within the
British Dominions 150
Date of First Publication and Proprietor's Name 151
Name of Proprietor 151
Immoral Works 152
Duration of Protection 152
Sec. 2. The Owner of the Copyright 152
The Engraver 152
The Employer 153
The Assignee 154
Sec. 3. Infringement of the Copyright 155
Prohibited Acts and Remedies 155
Guilty Knowledge 156
Limitation of Action 156
Costs 156
Copying for Private Use 156
What is a Piratical Copy 156
Licence a Defence 159

CHAPTER VII

COPYRIGHT IN SCULPTURE

Sec. 1. What Works are Protected 161
What is an Original Sculpture 161
The Sculpture must be First Published within the
British Dominions 162
Publication 162
Author's Nationality 162
Proprietor's Name and Date 162
Proprietor's Name 163
Date 163
Immoral Works 163
Duration of Protection 163
Sec. 2. The Owner of the Copyright 164
The Artist 164
The Employer 164
The Assignee 164 [xiii]
Sec. 3. Infringement of the Copyright 164
Prohibited Acts and Remedies 164
Guilty Knowledge 165
Limitation of Action 165
Copying for Private Use 165
What is a Piratical Copy 165

CHAPTER VIII

COPYRIGHT IN PAINTINGS, DRAWINGS, AND
PHOTOGRAPHS

Sec. 1. What Works are Protected 167
Every Original Painting, Drawing, and Photograph 167
Originality 167
Artistic Merit 168

Publication Outside the British Dominions 168
Published 169
Nationality or Residence of Artist 170
Registration 171
The Requisite Entry 171
Name 173
Place of Abode 173
Short Description 173
Immoral W 174
Duration of Protection 174
Sec. 2. The Owner of the Copyright 174
The "Author" 174
The Employer 175
The Assignee 176
Sec. 3. Infringement 177
Prohibited Acts and Remedies 177
Cause or Procure 178
Innocent Agent 179
Unlawful Copy 179
Separate Offence 179
Copying for Private Use 180
Action on Breach of Contract 180
Fraudulent Acts 180
Limitation of Action 181
Evidence 181
What is a Piratical Copy 181
No Monopoly 181
What is a Copy 181
General Idea may be Taken 182
Material Part 183
Indirect Taking 184
Guilty Knowledge 184
Replicas 184
Licence a Defence 184 [xiv]

CHAPTER IX

COLONIAL COPYRIGHT

Books 186
Artistic Works 191

CHAPTER X

INTERNATIONAL COPYRIGHT

Works Produced in His Majesty's Dominions 193
Works Produced in Foreign Countries with which this
Country has no Treaty 193
Works Produced in Foreign Countries with which this
Country has a Treaty 193
What Foreign Works are entitled to Protection 195
Produced 195
Character of Work 196
Unpublished Works 196
Special Provisions 197
Works Produced in Foreign Countries before 6th December
1887 197
Formalities Required in case of Foreign Work 198
Who are Entitled to Sue in respect of a Foreign Work 200
Evidence of Title 200
Protection afforded to Foreign Works 200
Works Published before 6th December 1887 202
Translating Right 203
Articles in Newspapers and Periodicals 204
Photographic Works 204
Performing Right in Dramatic or Dramatic Musical
Works 204
Express Provision as to particular kind of Infringement 205

CHAPTER XI

COMMON LAW

Title—Passing off 206
No Copyright in Title. 206
Whether Protection is based on a Right of Property in
Title 207
Knowledge of Existence and Value on the part of the
Public 208
Non-user of Title 208
No Fraud need be Proved 209
Must be Calculated to Deceive 209
Cases in which an Injunction Granted 209
Cases where Injunction Refused 211
Malicious Criticism 213
Slander of Title 213 [xv]
Author who has parted with Copyright is entitled to Protect
his Reputation 213
Protection from Breach of Faith or Contract 215
Unpublished Works 220
Speeches and Sermons 223
Letters 225

CHAPTER XII

PUBLISHING AND PRINTING AGREEMENTS

Publishers' Agreements 227
Printers' Agreements 230

PART II

THE LAW OF COPYRIGHT IN THE UNITED STATES

CHAPTER I

INTRODUCTORY 235

CHAPTER II

WHAT WORKS ARE ENTITLED TO COPYRIGHT

Sec. 1. An Original Literary or Artistic Work 236
Sec. 2. Nationality of the Author 247
Sec. 3. Necessary Formalities 250
Conditions Precedent 251
Delivery of Title 251
Delivery of Description 253
Delivery of Copies 253
Printing in the United States 254
Retrospective Provision 254
Notice of Copyright 255
Publication 260
Sec. 4. Immoral Works 266
Sec. 5. Duration of Copyright 267

CHAPTER III

WHO IS THE OWNER OF THE COPYRIGHT

Sec. 1. The Author 269
Sec. 2. The Employer 271
Sec. 3. The State 272
Sec. 4. The Assignee 272 [xvi]

CHAPTER IV

INFRINGEMENT OF COPYRIGHT

Sec. 1. What is a Piratical Copy 276
Copying may be Indirect 277
The Intention need not be Bad 277

Proof of Copying 277
No Monopoly in the Subject-Matter 278
Taking a Substantial Part 279
Fair Use 281
Improvement no Excuse 283
Different Object 283
Extract for Review 284
Abridgments 284
Translations 286
Dramatic Performing Right 286
Musical Rights 287
Sec. 2. Prohibited Acts and Remedies 287
Account of Profits 289
Damages 290
Penalties 290
Forfeiture 290
Injunction 291
Who is Liable 291
Limitation of Action 292
Acquiescence 292
Pleading 293
Penalties for affixing False Notice 293
Importing Books Printed outside the United States 294

CHAPTER V

COMMON LAW RIGHTS

Sec. 1. Published Work 296
Passing Off 296
Sec. 2. Unpublished Work 298

APPENDIX

BRITISH STATUTES

The Engraving Copyright Act, 1734 303
The Engraving Copyright Act, 1766 305
The Copyright Act, 1775 (Universities) 307
The Prints Copyright Act, 1777 310
The Sculpture Copyright Act, 1814 311 [xvii]
The Dramatic Copyright Act, 1833 313
The Lectures Copyright Act, 1835 315
The Prints and Engravings Copyright Act, 1836 316
The Copyright Act, 1836 (Compensation to Libraries) 317
The Copyright Act, 1842 317
The International Copyright Act, 1844 329
The Colonial Copyright Act, 1847 337
Copyright in Designs Act, 1850, secs. 6 and 7 (Sculpture) 338
The International Copyright Act, 1852 339
The Fine Arts Copyright Act, 1862 343
The International Copyright Act, 1875 348
The Canada Copyright Act, 1875 349
The Customs Laws Consolidation Act, 1876 350
The Copyright (Musical Compositions) Act, 1882 351
The International Copyright Act, 1886 353
The Copyright (Musical Compositions) Act, 1888 360
The Revenue Act, 1889 361

INTERNATIONAL CONVENTIONS

The Berne Convention, 1886 361
Order in Council, 1887 370
The Additional Act of Paris, 1896 373
Order in Council, 1898 376

TREASURY MINUTE

Government Publications Treasury Minute, 1887 377

AMERICAN STATUTES

Revised Statutes, 1874 379
Act of Congress, June 18, 1874 384

" " August 1, 1882 384
" " October 1, 1890 385
" " March 3, 1891 385
" " March 3, 1893 389
" " March 2, 1895 390
" " January 6, 1897 390
" " March 3, 1897 391 [xviii]

[xix]
TABLE OF CASES

N. B. In the page references the figures in larger type indicate that the
facts of the case will be found most fully stated on that particular page.

ENGLISH, SCOTCH, IRISH, INDIAN, AND COLONIAL CASES

Abernethy v. 1825 3 L. J. (O. S.), 37, 38, 219, 222,
Hutchinson Ch., 209 224
Adams v. Batley 1887 18 Q. B. D., 144
625
Aflalo v. Lawrence — [1902], 1 Ch., 71
264
Ager v. Collingridge 1886 2 T. L. R., 291 20
Ager v. P. & O. 1884 26 Ch. D., 637 20, 102, 118
Steam Navigation
Co.
Alexander v. 1847 9 D., 748 23, 101, 104
Mackenzie
Allen v. Lyon 1884 5 Ont. Rep., 118
615
Anglo-Canadian v. 1889 17 Ont. Rep., 191
Suckling 239
Anonymous Case 1774 Lofft., 775 115
Anstruther v. Bentley 1866 14 W. R., 630 228

Archbold v. Sweet 1832 5 C. and P., 214
219
Austria, Emperor of, 1861 4 L. T. (N. S.), 90
v. Day 494
Avanzo v. Mudie 1854 10 Exch., 203 200
Avery v. Wood — [1891], 3 Ch., 144, 156
115

Bach v. Longman 1777 2 Cowp., 623 36, 97
Baily v. Taylor 1829 1 Russ. and 15, 23, 86, 87,
My., 73 98, 105, 109
Barfield v. Nicholson 1824 2 Sim. and 62, 220, 229
Stu., 1
Barnett v. Glossop 183 1 Bing., N. C., 93
633
Baschet v. London — [1900], 1 Ch., 46, 152, 174,
Illustrated 73 179, 180, 201
Standard
Baskett v. 1762 1 Wm. Black, 59, 60
Cunningham 370
Baskett v. University 1758 2 Burr., 661 59
of Cambridge
Bastow, ex parte 1854 14 C. B., 631 54, 81, 82
Beal, ex parte 1868 L. R., 3 Q. B., 91, 173, 179,
387 181, 184
Beckford v. Hood 1798 7 T. R., 620 36, 47, 86, 206
Beere v. Ellis 1889 5 T. L. R., 330 138
Bell v. Walker 1785 1 Bro. Ch. 115
Cas., 450
Bell v. Whitehead 1839 8 L. J. Ch., 112
141
Bensley v. Bignold 1822 5 B. and Ald., 230 [xx]
335
Bentley v. Foster 1839 10 Sim., 329 42
Black v. Murray & 1870 9 M., 341 12, 26, 27, 111
Son
Blackie v. Aikman 1827 5 Sh., 719 229

Blackwell v. Harper 1740 2 Atk., 93 146, 151, 152
Blake v. Nicholson 1814 3 M. and S., 230
167
Blanchett v. Ingram 1887 3 T. L. R., 687 38
Bleaden v. Hancock 1829 4 C. and P., 230
152
Bogue v. Houlston 1852 5 De G.and 12, 34, 149
Sm., 267
Bohn v. Bogue 1846 10 Jur., 420 98, 101
Bolton v. Aldin 1895 65 L. J. Q. B., 181
120
Bolton v. London 1898 14 T. L. R., 179, 183
Exhibitions 550
Boosey v. Davidson 1846 4 D. and L., 92, 93
147
" " 1849 13 Q. B., 257 42, 94
Boosey v. Fairlie 1877 7 Ch. D., 301 26
Boosey v. Jefferys 1851 4 Exch., 145 42
Boosey v. Purday 1846 10 Jur., 1038 93
" " 1849 4 Exch., 145 40, 42
Boosey v. Whight, — [1899], 1 Ch., 11, 12
836
" " — [1900], 1 Ch., 11, 33, 97
122
Borthwick v. Evening 1888 37 Ch. D., 449 88, 207, 209,
Post 212
Boucicault v. 1876 5 Ch. D., 267 36, 41, 127, 128,
Chatterton 129
Boucicault v. 1863 1 H. and M., 41, 129, 193
Delafield 597
Boydell v. 1809 11 East., 142 230
Drummond
Bradbury v. Beeton 1869 39 L. J. Ch., 207, 209, 211
57
Bradbury v. Dickens 1859 27 Beav., 53 207
Bradbury v. Hotten 1872 L. R., 8 Ex., 1 99, 109, 110

Bradbury v. Sharp 1891 [1891], W. N., 89
143
Bramwell v., 1836 3 My. and Cr., 99
Halcomb 737
Bridgman v. Green 1755 2 Ves. Sen., 219
627
Britain v. Hanks 1902 Wright, J., 162, 163
April 15
British Museum v. 1828 2 Y. and J., 56
Payne 166
Brooke v. Chitty 1831 2 Coop. Cas., 229
216
Brooke v. Milliken 1789 3 T. R., 509 91
Brooks v. Cock 1835 3 Ad. and E., 151
138
Brooks v. Religious 1897 45 W. R., 476 183, 184
Tract Society
Brown v. Cooke 1846 16 L. J. Ch., 68, 71
140
Burnett v. Chetwood 1720 2 Mer., 441 46, 117
Butterworth v. Kelly 1888 4 T. L. R., 430 84
Butterworth v. 1801 5 Ves., 709 28, 115
Robinson
Buxton v. James 1851 5 De G. and 40, 41, 42, 87
Sm., 80
Byron v. Johnston 1816 2 Meriv., 29 215

Cable v. Marks 1882 47 L. T. (N. 31
S.), 432
Cadell v. Anderson 1787 Mor. Dic., 26
8310
Caird v. Sime 1887 12 A. C., 326 37, 38, 220, 221,
222
Cambridge 1812 16 East, 317 56, 86
University v. Bryer
Campbell v. Scott 1842 11 Sim., 31 88, 101, 112
Caproni v. Alberti 1892 40 W. R., 235 162

Carnan v. Bowles 1786 1 Cox Cha. 16, 27, 113, 164 [xxi]
Cas., 283
Carr v. Hood 1808 1 Camp., 354 213
n
Cary v. Faden 1799 5 Ves. 24 16, 46
Cary v. Kearsley 1802 4 Esp., 168 16, 75, 98, 100,
101, 113
Cary v. Longman 1801 1 East, 358 12, 16, 26
Cassell v. Stiff 1856 2 K. and J., 53, 202
279
Cate v. Devon 1889 40 Ch. D., 500 11, 21, 48, 50,
88, 99, 100, 102
Chappell v. Boosey 1882 21 Ch. D., 232 121, 127
Chappell v. Davidson 1855 2 K. and J., 210
123
" " 1856 18 C. B., 194 46, 49, 87, 93
Chappell v. Purday 1843 12 M. and W., 54, 55, 79
303
" " 1845 14 M. and W., 40, 42
303
Chappell v. Sheard 1855 2 K. and J., 50, 210
117
Chatterton v. Cave 1875 L. R., 10 C. P., 25, 26, 98, 123,
572 139
" " 1878 3 A. C., 483 25, 26, 97, 98,
102, 138
Chilton v. Progress — [1895], 2 Ch., 14, 33
Printing Co. 29
Church v. Linton 1894 25 Ont. Rep., 19, 24, 33
131
Clark v. Bell 1804 Mor. Dic. 92
Literary
Property, App.
9
Clark v. Bishop 1872 25 L. T. (N. 47, 120, 124,
S.), 908 133, 134

Clarke v. Freeman 1848 11 Beav., 112 214
Clarke v. Price 1819 2 Wills, C. C., 227
157
Clay v. Yates 1856 1 H. and N., 231
73
Clement v. Maddick 1859 1 Giff., 98 101, 207, 209,
210
Clementi v. Golding 1809 2 Camp., 25 11, 36
Clementi v. Walker 1824 2 B. and C., 40, 41, 75, 77
861
Clowes v. Hogg 1870 W. N., 268 210
Cobbett v. Woodward 1872 L. R., 14 Eq., 18, 19, 95, 238
407
Cocks v. Purday 1848 5 C. B., 860 40, 42, 76, 77,
79, 93
Colburn v. 1838 9 Sim., 151 76, 78
Duncombe
Colburn v. Simms 1843 2 Hare, 543 85, 86, 90
Cole v. Gear 1888 4 T. L. R., 246 141
Coleman v. Wathen 1793 5 T. R., 245 37, 122
Collette v. Goode 1878 7 Ch. D., 842 93
Collingridge v. 1887 57 L. T. 50, 51, 71
Emmott (N.S.), 864
Collis v. Cater 1898 78 L. T. (N. 19
S.), 613
Comyns v. Hyde 1895 43 W. R., 266 35, 149
Constable v. Brewster 1824 3 S., 215 209, 229
Cooper, in re 1902 19 Pat. Des. 31
and Trade
Mark Cases,
53
Cooper v. Stephens — [1895], 1 Ch., 34, 78, 81, 98,
567 99, 118, 154,
160
Cooper v. 1880 15 Ch. D., 501 84, 85, 87, 102
Whittingham

Coote v. Ingram 1887 35 Ch. D., 117 95
Coote v. Judd 1883 23 Ch. D., 727 70, 93
Cornish v. Upton 1861 4 L. T. (N. S.), 17 [xxii]
862
Corns v. Griffiths 1873 [1873], W. N., 210
93
Correspondent 1865 11 Jur. (N. S.), 48, 208
Newspaper v. 540
Saunders
Cowan v. Milbourn 1867 L. R., 2 Ex. 46
Cowen v. Hulton 1882 46 L. T. (N. 212
S.), 897
Cox v. Cox 1853 1 Eq. Rep., 94 77, 214
Cox v. Land and 1869 L. R., 9 Eq., 11, 21, 48, 89,
Water 324 206
Cumberland v. 1861 7 H. and N., 134
Copeland 118
" " 1862 1 H. and C., 77
194
Cumberland v. 1834 1 A. and E., 135
Planché 580

D'Almaine v. Boosey 1835 1 Y. and C. 36, 37, 42, 97,
Ex., 288 113, 115, 142
Davidson, ex parte 1853 18 C. B., 296 54, 55
" " 1856 2 E. and B., 54
577
Davidson v. Bohn 1848 6 C. B., 456 77, 80, 164
Davis v. Comitti 1885 52 L. T. (N. 14, 32
S.), 539
Day v. Simpson 1865 18 C. B. (N. 126
S.), 680
De Berenger v. 1819 2 Stark, 548 157
Wheble
Delfe v. Delamotte 1857 3 K. and J., 86, 90
581

Delondre v. Shaw 1828 2 Sim., 237 42, 86
Dennison v. Ashdown 1897 13 T. L. R., 79
226
Dickens v. Lee 1844 8 Jur., 183 116
Dicks v. Brooks 1880 15 Ch. D., 22 95, 157, 159,
213
Dicks v. Yates 1881 18 Ch. D., 76 48, 52, 96, 207,
212
Dobson, ex parte 1892 12 N. Z. L. R., 41, 80
171
Dodsley v. 1761 Amb., 403 115, 116
Kinnersley
Dodson v. Martin 1880 24 Sol. J., 572 46
Donaldson v. Beckett 1774 2 Bro. P. C., 6, 8, 61, 122,
129 152, 206, 220
Du Bost v. Beresford 1810 2 Camp., 511 174
Duck v. Bates 1884 13 Q. B. D., 136
843
Duck v. Mayen 1892 8 T. L. R., 339 142
Dupuy v. Dilkes 1879 48 L. J. Ch., 79, 172
682

Eaton v. Lake 1888 20 Q. B. D., 77, 118, 134,
378 142
Ellis v. Marshall 1895 11 T. L. R., 175, 176, 180
522
Ellis v. Ogden 1894 11 T. L. R., 56 175, 176
Exchange Telegraph — [1897], 2 Ch., 37, 219
v. Central News 48
Exchange Telegraph — [1896], 1 Q. 37, 219
v. Gregory B., 147
Eyre v. Carnan 1781 6 Bac. Abr., 59
509
Eyre v. Walker 1735 4 Burr., 2325 6

Fairlie v. Boosey 1879 4 A. C., 711 53, 134

Farina v. Silverlock 1858 4 K. and J., 168
650
Fishburn v. — [1891], 2 Ch., 199, 200
Hollingshead 371
Fisher v. Folds 1834 1 Jon. Ir. Ex., 35
12
Fitzbull v. Brooke 1844 2 D. and L., 144
477
Fores v. Johnes 1802 4 Esp., 97 152, 174
Forrester v. Walker 1741 4 Burr., 2331 220 [xxiii]
Fourmat v. Pearson 1897 14 T. L. R., 82 14
French v. Day 1893 9 T. L. R., 548 141
Frowde v. Parish 1896 27 Ont. Rep., 77, 191
526
Fuller v. Blackpool — [1895], 2 Q. 124, 126, 131
Winter Gardens B., 429

Gale v. Leckie 1817 2 Stark, 107 227
Gambart v. Sumner 1859 5 H. and N., 5 156
Gambart v. Ball 1863 14 C. B. (N. 157, 182
S.), 306
Garland v. Gemmill 1887 Canada, 14 S. 16, 106, 108,
C. R., 321 256
Gee v. Pritchard 1818 2 Swanst., 402 225, 226
Geissendorfer v. 1896 13 T. L. R., 91 170
Mendelssohn
Gibson v. Carruthers 1841 8 M. and W., 227
321
Gilbert v. Boosey 1889 The Law 214
Times, Sept.
28, 1889
Gilbert v. Star 1894 11 T. L. R., 4 218
Newspaper
Gillett v. Mawman 1808 1 Taunt., 140 230, 231
Goubard v. Wallace 1877 36 L. T. (N. 47
S.), 704

Grace v. Newman 1875 L. R., 19 Eq., 19, 77
623
Granard v. Dunkin 1809 1 Ball and B., 225
207
Graves, ex parte 1868 L. R., 3 Ch., 178
642
Graves, ex parte 1869 L. R., 4 Q. B., 54, 55, 168, 172,
Walker 715 173, 176, 182
Graves v. Ashford 1867 L. R., 2 C. P., 152, 157, 182
410
Graves v. Gorrie 1900 32 Ont. Rep., 192
266
Graves v. Mercer 1868 16 W. R., 790 156
Green v. Irish 1899 [1899], 1 I. 180
Independent R., 386
Grierson v. Jackson 1794 Irish T. R., 59
304
Griffin v. Kingston 1889 17 Ont. Rep., 33
660
Griffith v. Tower — [1897], 1 Ch., 227
Publishing 21
Company
Grimson v. Eyre 1804 9 Ves., 341 86
Guggenheim v. Leng 1896 12 T. L. R., 35, 183, 185
491
Guichard v. Mori 1831 9 L. J. (O. S.), 227
Ch.
Gyles v. Wilcox 1740 2 Atk., 142 25, 115

Hall, in re 1899 24 Vict., L. 54
R., 702
Hall v. Whittington 1892 18 Vict., L. 21
R., 525
Hanbury v. Dumsday 1884 10 Vict., L. R. 32
Eq., 272
Hanfstaengl v. — [1895], 1 Q. 198, 199
American Tobacco B., 347

Hanfstaengl v. Baines — [1895], A. C., 182, 184
20
Hanfstaengl v. — [1894], 2 Ch., 167, 182
Empire Palace 1
Hanfstaengl v. — [1894], 3 Ch., 182, 184, 196
Empire Palace 109
Hanfstaengl v. — [1893], 2 Q. 198, 199, 203
Holloway B., 1
Harris v. Smart 1889 5 T. L. R., 594 49, 94
Harrison v. Hogg 1794 2 Ves., 322 151
Hasker v. Wood 1885 54 L. J. Q. B., 144, 156 [xxiv]
419
Hatton v. Kean 1859 7 C. B. (N. 26, 63, 123
S.), 268
Hayward v. Lely 1887 56 L. T. (N. 26, 46, 51, 93
S.), 418
Hazlitt v. Templeman 1866 13 L. T. (N. 77
S.), 593
Hedderwick v. 1841 3 D., 383 27
Griffin
Henderson v. 1876 4 Ch. D., 163 51
Maxwell
" " 1877 5 Ch. D., 892 48
Hereford, Bishop of, 1848 16 Sim., 190 70, 73
v. Griffin
Hildesheimer & 1891 64 L. T. (N. 35, 53, 74, 149
Faulkner v. Dunn S.), 452
Hildesheimer v. — [1901], 2 Ch., 179, 180
Faulkner 552
Hime v. Dale 1803 2 Camp., 27 n 11, 46
Hodges v. Welsh 1840 2 Ir. Eq. Rep., 28, 70, 111
266
Hogg v. Kirby 1803 8 Ves., 215 46, 86, 87, 104,
209, 213, 229
Hogg v. Maxwell 1866 L. R., 2 Ch., 48
307

Hogg v. Scott 1874 L. R., 18 Eq., 47, 88, 92, 107,
444 119
Hole v. Bradbury 1879 12 Ch. D., 886 47, 54, 81, 90,
92, 93, 227
Hollinrake v. — [1894], 3 Ch., 14, 32, 36, 105
Truswell 420
Holt v. Woods 1896 17 N. S. W. 80, 135
Eq., 36
Hotten v. Arthur 1863 1 H. and M., 18, 19, 20, 94,
603 101, 106
Houston v. Mills 1834 1 M. and 230
Rob., 325
Howard v. Gunn 1863 32 Beav., 462 225
Howitt v. Hall 1862 6 L. T. (N. S.), 79, 80
348
Hutchins, ex parte 1879 4 Q. B. D., 135
483

Ingram v. Stiff 1859 5 Jur. (N. S.), 210
947
Isaacs v. Fiddemann 1880 49 L. J. Ch., 47, 90
412

Jarrold v. Heywood 1870 18 W. R., 279 98
Jarrold v. Houlston 1857 3 K. and J., 24, 88, 94, 100,
708 101, 105, 106,
113, 211
Jefferys v. Baldwin 1753 Amb., 164 146
Jefferys v. Boosey 1854 4 H. L. C., 15, 36, 37, 40,
815 41, 42, 43, 44,
76, 77, 79, 80,
119, 164, 206,
218, 221
Jefferys v. Kyle 1856 18 D., 906 76
Johnson, in re 1902 19 Pat. Des. 31
and Trade

Mark Cases,
56
Johnson v. Egan 1880 24 Sol. J., 572 229
Johnson v. Newnes — [1894], 3 Ch., 12, 52, 70, 72
663
Johnson v. Wyatt 1863 2 De G. J. and 88
S.
Jovatt v. Winyard 1820 1 Jac. and W., 216
394

Kelly v. Byles 1879 40 L. T. (N. 207, 211
S.), 623
Kelly v. Hodge 1873 29 L. T. (N. 90
S.), 387
Kelly v. Hooper 1841 1 Y. and C. 86, 99 [xxv]
Ch. Cas., 197
Kelly v. Hutton 1868 L. R., 3 Ch, 207, 229
703
Kelly v. Morris 1866 L. R., 1 Eq., 16, 17, 88, 101,
697 105, 106, 107,
108, 109, 113
Kelly v. Wyman 1869 17 W. R., 399 94
Kelly's Directories v. — [1901], 1 Ch., 16, 85, 95, 140
Gavin & Lloyds 374
Kenrick v. Lawrence 1890 25 Q. B. D., 168, 174, 175
99
Kenrick v. Danube 1891 39 W. R., 473 14, 37
Collieries
King v. Reed 1804 8 Ves., 223 23
Kyle v. Jefferys 1859 3 Macq., 611 77, 78

Lacy v. Rhys 1864 4 B. and S., 47, 133, 134,
873 135
Lacy v. Toole 1867 15 L. T. (N. 78
S.), 572
Lamb v. Evans — [1893], 1 Ch., 12, 17, 67, 69,
218 104, 105, 217,

237
" " — [1892], 3 Ch, 88
462
Latour v. Bland 1818 2 Stark, 382 78, 83, 119
Lauri v. Renad — [1892], 3 Ch., 65, 79, 198, 203
402
Lawrence v. Smith 1822 Jac., 471 46
Leader v. Purday 1849 7 C. B, 4 26, 50, 78, 93,
130,
Leader v. Strange 1849 2 C. and K., 84
1010
Lee v. Gibbings 1892 8 T. L. R., 773 215
Lee v. Simpson 1847 3 C B., 871 102, 123, 136,
142
Lennie v. Pillans 1843 5 D., 416 24, 98, 105
Leslie v. Young — [1894], A. C., 12, 22, 98, 113,
335 237
Levi v. Champion 1887 3 T. L. R., 286 175
Levy v. Rutley 1871 L. R., 6 C. P., 64, 78
523
Lewis v. Chapman 1840 3 Beav., 133 87
Lewis v. Fullarton 1839 2 Beav., 6 24, 88, 89, 106,
107
Leyland v. Stewart 1876 4 Ch. D., 419 77, 134
Licensed Victuallers 1888 38 Ch. D., 139 207, 208
v. Bingham
Liverpool v. — [1897], 2 Q. 53, 78, 82, 96
Commercial Press B., 1
London Printing v. — [1891], 3 Ch., 52, 78, 118, 172,
Cox 291 176, 185
London Stereoscopic 1888 5 T. L. R., 169 183
v. Kelly
Longman v. 1809 16 Ves., 269 16, 17, 24, 104,
Winchester 105, 109
Louie v. Smellie 1895 11 T. L. R, 217
515

Lover v. Davidson 1856 1 C. B. (N. 26, 41, 50, 53,
S.), 182 78, 130
Low v. Routledge 1864 L. R, 1 Ch., 47, 51, 53
42
Low v. Ward 1868 L. R, 6 Eq., 12, 44
415
Lucas v. Cooke 1880 13 Ch. D., 872 53, 80, 176
Lucas v. Williams — [1892], 2 Q. 181
B., 113
Lyon v. Knowles 1863 3 B. and S., 140
556
Lytton v. Devey 1884 52 L T. (N. 225, 226 [xxvi]
S.), 121

MacFarlane v. Oak 1883 10 R., 801 46
Foundry
Mack v. Petter 1872 L. R., 14 Eq., 207
431
Macklin v. 1770 Amb., 694 37, 120, 121,
Richardson 222
Mackmurdo v. Smith 1798 7 T. R., 518 151
Maclean v. Moody 1858 20 D., 1154 20, 62, 76
Macmillan v. 1894 Ind. L. R., 19 116
Shamsal Bomb., 557
Macmillan v. Suresh 1890 Ind. L. R., 17 25, 47, 51, 52,
Chunder Deb Calc., 77, 92
Macneill v. Williams 1847 11 Jur., 344 23, 87
Manners v. Blair 1828 3 Bligh (N. 59
S.), 391
Maple v. Junior Army 1882 21 Ch. D., 369 13, 14, 19, 26,
and Navy Stores 34, 51, 69, 87,
95, 97, 149, 238
Marchant v. Evans 1818 2 Moore, 14 230
Marsh v. Conquest 1864 17 C. B. (N. 47, 121, 134,
S.), 418 135, 140

Marshall v. 1831 1 Tyrw., 348 227
Broadhurst
Marshall v. Petty 1900 17 T. L. R., 34, 78, 154, 160
501
Martin, in re 1884 10 Vict. L. R., 54
196
Martin v. Wright 1833 6 Sim., 297 113, 155, 156,
158, 213
Marzials v. Gibbons 1874 L. R., 9 Ch., 24, 65
518
Mason v. Murray — Cited, 1 East, 26
360
Mathieson v. Harrod 1868 L. R., 7 Eq., 51
270
Matthewson v. 1806 12 Ves., 270 15, 16, 104, 105,
Stockdale 109
Mavor v. Pyne 1825 3 Bing., 285 230
Mawman v. Gillett 1809 2 Taunt., 325 231
Mawman v. Tegg 1826 2 Russ., 385 83, 86, 88, 94,
99, 104, 105,
111
Maxwell v. Hogg 1867 L. R., 2 Ch., 14, 51, 207, 208
307
Maxwell v. Somerton 1874 22 W. R., 313 95, 102
Mayall v. Higbey 1862 1 H. and C., 180, 223
148
Mayhew v. Maxwell 1860 1 J. and H., 52, 72, 73
312
Melville v. Mirror of — [1895], 2 Ch., 174, 175, 176
Life 531
Merryweather v. — [1892], 2 Ch., 217
Moore 518
Metzler v. Wood 1878 8 Ch. D., 606 46, 95, 211
Millar v. Taylor 1769 4 Burr., 2303 6, 7, 37, 42, 59,
115, 117, 119,
206, 220, 221

Moffat & Paige v. 1902 C. A., April 25 25, 26, 109
Gill
Monaghan v. Taylor 1886 2 T. L. R., 685 141
Moore v. Clarke 1842 9 M. and W., 157, 183
692
Morang v. Publishers 1900 32 Out. Rep., 53, 78, 188
393
Morison v. Moat 1851 9 Hare, 241 219
Morocco Bound — [1895], 1 Ch., 193
Syndicate v. Harris 534
Morris v. Ashbee 1868 L. R., 7 Eq., 16, 17, 18, 87,
34 105, 107, 108,
119
Morris v. Colman 1812 18 Ves., 437 228 [xxvii]
Morris v. Kelly 1820 1 Jac. and W., 79, 121
481
Morris v. Wright 1870 L. R., 5 Ch., 16, 108, 109
279
Morton v. Copeland 1855 16 C. B., 517 78, 118, 143
Motte v. Falkner 1735 4 Burr., 2326 6
Moul v. Groenings — [1891], 2 Q. 202, 203
B., 443
Muddock v. — [1898], 1 Ch., 84, 86, 92
Blackwood 58
Munshi v. Mirza 1890 Ind. L. R., 14 116
Bomb., 586
Murray v. Benbow 1822 Jac., 474 n 46
Murray v. Bogue 1852 1 Drew, 353 26, 51, 99, 102,
117
Murray v. Elliston 1822 5 B. and A., 114, 115, 121
804
Murray v. Heath 1831 1 B. and A., 159, 180
804
Murray v. 1785 Mor. Dic., 110
MacFarquhar 8309

Neale v. Harmer 1897 13 T. L. R., 99
209
Newman v. Pinto 1887 57 L. T. (N. 46
S.), 31
Newton v. Cowie 1827 4 Bing., 234 34, 148, 151,
152, 157
Nicholls v. Parker 1901 17 T. L. R., 180, 185
482
Nicol v. Stockdale 1785 3 Swanst., 687 59
Nicols v. Pitman 1884 26 Ch. D., 374 11, 37, 38, 97,
110, 118, 222,
224
Nottage v. Jackson 1883 11 Q. B. D., 52, 57, 62, 65,
627 171, 174
Novello v. Sudlow 1852 12 C. B., 177 86, 97, 102
Novello v. James 1854 24 L. J. Ch., 87
111

Oliver v. Oliver 1861 11 C. B. (N. 225
S.), 139
Ollendorff v. Black 1850 4 De G. and 42
Sm., 209
Osborne v. 1765 2 Eden, 327 6
Donaldson
Oxford and 1899 43 Sol. J., 570 102, 113
Cambridge v. Gill
Oxford and 1802 6 Ves., 689 59
Cambridge v.
Richardson

Page v. Townsend 1832 5 Sim., 395 150
Page v. Wisden 1869 20 L. T., 435 31, 51, 96
Palin v. Gathercole 1844 1 Coll., 565 225, 226
Parsons v. Chapman 1831 5 C. and P., 33 140, 141
Paton v. Duncan 1828 3 C. and P., 228
336

Perceval v. Phipps 1813 2 V. and B., 225, 226
19
Petty v. Taylor — [1897], 1 Ch., 52, 63, 171, 176
465
Piddington v. Philip 1893 14 N. S. W. 95
Rep., Eq., 159
Pike v. Nicholas 1869 L. R., 5 Ch., 86, 95, 98, 104,
251 105, 108
Pitman v. Hine 1884 1 T. L. R. 119
Pitt Pitts v. George — [1896], 2 Ch., 201
866
Planché v. Braham 1837 4 Bing. N. C., 138
17
Planché v. Colburn 1831 5 C. and P., 58 228
Platt v. Button 1815 19 Ves., 447 87, 119
Platt v. Walter 1867 17 L. T. (N. 11, 67, 206, 229[xxviii]
S.), 157
Pollard v. Photo Co. 1888 4 Ch. D., 345 172, 180, 220
Pope v. Curl 1741 2 Atk., 342 220, 225
Poplett v. Stockdale 1825 Ry. and M., 231
337
Poulton, ex parte 1884 53 L. J. Q. B., 54
320
Powell v. Head 1879 12 Ch. D., 686 65, 79, 142
Power v. Walker 1814 4 Camp., 8 76, 77, 134, 164
Price's Patent 1858 4 K. and J., 86
Candles v. Bauwen 727
Priestley's Case — 2 Mer., 437 46
Primrose Press v. 1886 2 T. L. R., 404 48
Knowles
Prince Albert v. 1849 2 De G. and 37, 90, 117, 152,
Strange Sm., 652 172, 216, 219,
220, 221, 223
Prowett v. Mortimer 1856 2 Jur. (N. S.), 48, 209, 210
414

Queensberry v. 1758 2 Eden, 329 79, 220
Shebbeare

Reade v. Bentley 1857 3 K. and J., 81, 227, 228,
271 229
" " — 4 K. and J.,
656
Reade v. Conquest 1861 9 C. B. (N. 114, 120, 123,
S.), 755 206
" " 1862 11 C. B. (N. 46, 102, 139
S.), 479
Reade v. Lacy 1861 1 J. and H., 101, 102
524
Reeve v. Gibson — [1891], 1 Q. 144, 156
B., 652
Reg v. Closs 1857 6 W. R., 109 180
Reichardt v. Sapte — [1893], 2 Q. 128, 139
B., 308
Reid v. Maxwell 1886 2 T. L. R., 790 41
Reuter's Telegram 1874 43 L. J. Ch., 216
Co. v. Byron 661
Richardson v. Gilbert 1851 1 Sim. (N. S.), 71
336
Rippon v. Norton 1839 2 Beav., 63 81
Robb v. Green 1895 2 Q. B., 315 218
Roberts v. Bignell 1887 3 T. L. R., 552 124, 142
Robinson v. Wilkins 1805 8 Ves., 224 n 87
Rock v. Lazarus 1872 L. R., 15 Eq., 52, 102, 152
104
Rooney v. Kelly 1861 14 Ir. C. L. R., 90, 229
158
Routledge v. Low 1868 L. R., 3 H. L, 40, 43, 44, 56
100
Roworth v. Wilkes 1807 1 Camp., 94 34, 47, 97, 100,
110, 112, 151,
158

Rundell v. Murray 1821 Jac., 311 24, 87, 119, 164,
267
Russell v. Brianty 1849y 8 C. B., 836y 140
Russell v. Smithy 1848y 12 Q. B., 217y 47, 123, 125,
126, 131. 133,
134, 136, 137,
140

Saunders v. Smith 1838 3 My. and C., 28, 87, 111, 119
711
Saunders v. Will — [1892], 2 Q. 18 144
B.,
Sayre v. Moore 1785 1 East, 361 n 104, 112
Schauer v. Field — [1893], 1 Ch., 203
35
Schlesinger v. 1890 63 L. T. (N. 120
Bedford S.), 762
Schlesinger v. Turner 1890 63 L. T. (N. 120
S.), 764
Schove v. Schmincké 1886 33 Ch. D., 546 48, 208
Scott v. Stanford 1867 L. R., 3 Eq., 20, 62, 99, 101,
718 107, 113 [xxix]

Seeley v. Fisher 1841 11 Sim., 581 213
Shackell v. Rosier 1836 2 Bing., N. C., 229
634
Shelley v. Bethell 1883 12 Q. B. D., 136
11
Shepherd v. Conquest 1856 17 C. B., 427 64, 67, 77, 80,
134
Sims v. Marryat 1851 17 Q. B., 281 79
Smiles v. Belford 1876 1 Tupp. App., 189
436
Smith v. Chatto 1874 31 L. T. (N. 112
S.), 775
Smith v. Johnson 1863 4 Gif., 632 72
Southern v. Bailes 1894 38 Sol. J., 681 11, 24

Southey v. Sherwood 1817 2 Meriv., 435 87, 119, 223
Spiers v. Brown 1858 31 L. T. (O. 25, 101, 116
S.), 16
Spottiswoode v. 1846 2 Phillips, 154 211
Clarke
Stannard v. Harrison 1871 24 L. T. (N. 62, 90, 148, 153
S.), 570
Stannard v. Lee 1871 L. R., 6 Ch., 15, 47, 148, 149
346
Stevens v. Benning 1855 6 De G. M. 83, 227
and G.,223
Stevens v. Bradbury 1854 1 K. and J., 81
168
Stevens v. Brett 1864 10 L. T. (N. 94
S.), 231
Stevens v. Wildy 1850 19 L. J. Ch., 78
190
Stewart v. Black 1846 9 D., 1026 92
Stiff v. Cassell 1856 2 Jur. (N. S.), 228
348
Stockdale v. Onwhyn 1826 5 B. and C., 46
173
Storace v. Longman 1788 2 Camp., 262 11, 75
Strahan v. Graham 1867 16 L. T. (N. 79, 118
S.), 87
Strong v. Worskett 1896 12 T. L. R., 35
532
Stubbs v. Howard 1895 11 T. L. R., 68
507
Sweet v. Benning 1855 16 C. B., 459 12, 28, 69, 73,
93, 97, 111
Sweet v. Cater 1841 11 Sim., 572 79, 80, 82, 83
Sweet v. Lee 1841 3 Man. and 230
G., 452
Sweet v. Maughan 1840 11 Sim., 51 28, 86, 94
Sweet v. Shaw 1839 3 Jur., 217 28, 76, 79, 111

Talbot v. Judges 1887 3 T. L. R., 398 48, 208
Taylor v. Bayne 1776 Mor. Dic., 16
8308
Taylor v. Neville 1878 26 W. R., 299 80, 82
Taylor v. Pillow 1869 L. R., 7 Eq., 79
418
Thomas v. Turner 1886 33 Ch. D., 292 27, 51
Thombleson v. Black 1837 1 Jur., 198 79, 228
Thompson v. 1774 Amb., 737 225, 226
Stanhope
Thompson v. 1792 5 T. R., 41 151, 152, 154
Symonds
Tinsley v. Lacey 1863 1 H. and M., 88, 98, 114, 116,
747 120, 123
Tipping v. Clarke 1843 2 Hare, 383 218
Tonson v. Collins 1760 1 W. Bl., 301 6, 206
Tonson v. Walker 1752 3 Swanst., 672 6, 12, 26, 115,
221
Toole v. Young 1874 L. R., 9 Q. B., 114, 120, 122,
523 123, 126
Trade Auxiliary v. 1887 4 T. L. R., 130 71
Jackson
Trade Auxiliary v. 1889 40 Ch. D., 425 11, 21, 48, 52,
Middlesboroug 67, 69, 71, 72,
80, 82, 89, 99,
100
Tree v. Bowkett 1895 74 L. T. (N. 26, 64, 78, 80,
S.),77 82 [xxx]
Troitzsch v. Rees 1887 3 T. L. R., 773 176
Trusler v. Murray 1789 1 East, 363 n
Tuck v. Canton 1882 51 L. j. Q. B., 82, 177
363
Tuck v. Continental 1887 3 T. L. R., 826 172
Tuck v. Priester 1887 19 Q. B. D., 172, 179, 180,
629 220

Turner v. Robinson 1860 10 Ir. Ch. R., 37, 39, 162, 169,
510 172, 184
" " 1860 10 Ir. Ch. R., 162, 169, 172,
121 184

Walcot v. Walker 1802 7 Ves., 1 46
Walford v. Johnston 1846 20 D., 1160 20
Walker, ex parte 1869 See Graves
Wall v. Taylor 1883 11 Q. B. D., 95, 124, 131,
102 136, 143
Wallerstein v. Herbert 1867 16 L. T., 453 63
Walter v. Emmott 1885 54 L. J. Ch., 207, 212
1059
Walter v. Howe 1881 17 Ch. D., 708 11, 48, 70
Walter v. Lane — [1900], A. C, 13, 15, 29, 30,
539 31, 37, 62, 65,
109, 139, 238
Walter v. Steinkopff — [1892], 3 Ch., 95, 103
489
Walthoe v. Walker 1736 4 Burr., 2326 6
Ward v. Beeton 1874 L. R., 19 Eq., 46, 207, 213,
207 229
Warne v. Lawrence 1886 34 W. R., 452 47
Warne v. Routledge 1874 L. R., 18 Eq., 83, 228
497
Warne v. Seebohm 1888 39 Ch. D., 73 90, 97, 113,
114, 120, 123
Webb v. Rose 1732 Amb., 694 23, 220
Weekes v. 1886 12 Vict. L. R., 104
Williamson 483
Weldon v. Dicks 1878 10 Ch. D., 247 52, 53, 92, 119,
207
West v. Francis 1822 5 B. and A., 152, 156, 157,
737 172, 183, 184
White v. Geroch 1819 2 B. and A., 11, 12, 36, 38,
298 97

Whittingham v. 1817 2 Swanst., 428 112
Wooler
Whitwood v. — [1891], 2 Ch., 227
Hardman 416
Wilkins v. Aikin 1810 17 Ves., 422 104, 105, 109,
112
Willis v. Curtois 1838 1 Beav., 189 83
Wilson v. Lake 1895 1 Vict., L. 104
R.,Eq., 127
Wood v. Boosey 1868 L. R., 3 Q. B., 113, 134
223
" " 1867 L. R., 2 Q. B., 26, 51, 78, 130
340
Wood v. Chart 1870 L. R., 10 Eq., 203, 204
193
Wooderson v. Tuck 1887 4 T. L. R., 57 174, 175
Wright v. Goodlake 1865 3 H. and C, 94
540
Wright v. Tallis 1845 1 C. B., 893 46
Wyatt v. Barnard 1814 3 V. and B., 15, 21, 25, 102,
77 117

Young Duchess, in re 1891 8 T. L. R., 41 54

[xxxi]
CASES DECIDED IN THE UNITED STATES

Amberg File v. Shea 1897 53 U. S. 242
App., 449
American Trotting v. 1895 70 Fed. 239, 267
Gocher Rep., 237
Aronson v. Fleckenstein 1886 28 Fed. 240, 241, 263,
Rep., 75 270, 275, 297
Atwill v. Ferrett 1846 2 Blatchf., 270, 271, 290
39

Backers v. Gould 1849 7 How., 798 290
Baker v. Selden 1879 101 U. S. 237, 238, 239,
Rep., 99 242
Baker v. Taylor 1848 2 Blatchf., 251, 257, 261,
82 262
Banks v. M'Divitt 1875 13 Blatchf., 241, 258, 278,
163 281, 282
Banks v. Manchester 1888 128 U. S. 241, 251, 272,
Rep., 244 296
Bartlett v. Crittenden 1847 4 M'Lean, 262, 263, 299
301
Belford v. Scribner 1892 144 U. S. 253, 289, 291
Rep., 488
Bennett v. Boston 1900 101 Fed 288
Rep., 445
Bennett v. Carr 1899 96 Fed. 253
Rep., 213
Binns v. Woodruff 1821 4 Wash. C. 245
Ct., 48
Black v. Allen 1890 42 Fed. 260, 262, 273,
Rep., 618 291
" " 1893 56 Fed. 241, 244, 252,
Rep., 764 253, 270, 271,

274, 292
Black v. Ehrich 1891 44 Fed. 298
Rep., 793
Bleistein v. Donaldson 1899 98 Fed. 246
Rep., 608
Blume v. Spear 1887 30 Fed. 253, 281
Rep., 629
Blunt v. Patten 1828 2 Paine, 397 262, 278
Bolles v. Outing 1899 175 U. S. 245, 256, 257
Rep., 262
" " — 77 Fed. 290
Rep., 966
Boucicault v. Fox 1862 5 Blatchf., 241, 263, 271,
87 296
Boucicault v. Hart 1875 13 Blatchf., 251, 260, 263,
47 296
Boucicault v. Wood 1867 2 Biss., 34 249, 260, 264,
293, 296
Brady v. Daly 1899 175 U. S. 287, 292
Rep., 148
" " 1897 83 Fed. 277, 280
Rep., 1007
Brightley v. Littleton 1888 37 Fed. 236, 237, 239,
Rep., 103 241, 242, 243,
283
Broder v. Zeno 1898 88 Fed. 266, 281
Rep., 74
Bullinger v. MacKay 1879 15 Blatchf., 236, 239, 243,
550 270, 278, 283
Burnell v. Chown 1895 69 Fed. 282
Rep., 993
Burrow-Giles v. Sarony 1884 111 U. S. 245, 256, 270
Rep., 53

Callaghan v. Myers 1888 128 U. S. 240, 251, 253,
Rep., 617 257, 267, 273,
289 [xxxii]

Carlisle v. Colusa 1893 57 Fed. 239
County Rep., 979
Carte v. Bailey 1874 64 Maine, 270, 273, 274,
458 299
Carte v. Duff 1885 25 Fed. 279, 287, 296
Rep., 183
Carte v. Evans 1886 27 Fed. 241, 251, 252,
Rep., 861 273, 274
Carte v. Ford 1883 15 Fed. 296
Rep., 439
Chapman v. Ferry 1883 18 Fed. 251, 253
Rep., 539
" " 1882 12 Fed. 289, 290
Rep., 693
Chase v. Sanborne 1874 4 Cliff., 306 241, 251
Chicago Music v. Butler 1884 19 Fed. 251
Rep., 758
Child v. New York Times 1901 110 Fed. 290
Rep., 527
Chils v. Gronland 1890 41 Fed. 239, 282
Rep., 145
Clayton v. Stone 1828 2 Paine, 382 236, 237, 239,
242
Clemens v. Belford 1883 14 Fed. 297
Rep., 728
Coffeen v. Brunton 1849 4 M'Lean, 243, 246
516
Collender v. Griffith 1878 11 Blatchf., 246
212
Colliery Engineer Co. v. 1899 94 Fed. 271, 291
United Rep., 152
Correspondence
Schools
Connecticut v. Gould 1888 34 Fed. 240
Rep., 319
Corbett v. Purday 1897 80 Fed. 244
Rep., 901

Courier v. Donaldson 1900 104 Fed. 246
Rep., 993
Cowen v. Banks 1862 24 How. Pr., 240, 267
72
Crowe v. Aiken 1870 2 Biss., 208 263, 264, 299

Daly v. Brady 1889 39 Fed. 252, 290
Rep., 265
" " 1895 69 Fed. 292
Rep., 285
Daly v. Palmer 1868 6 Blatchf., 281, 286, 291
256
Daly v. Walrath 1899 40 App. Div. 264, 296, 299
N. Y., 220
Daly v. Webster 1892 1 U. S. App., 240, 252, 281,
573 287
Davidson v. Wheelock 1886 27 Fed. 241
Rep., 61
Davies v. Vories — 42 S. W., 274
707
Dewight v. Appleton 1842 1 N. Y. Leg. 259
Obs., 195
Dielman v. White 1900 102 Fed. 271
Rep., 892
Doan v. American Book 1901 105 Fed. 298
Co. Rep., 772
Dodd v. Smith 1891 144 Pa., 340 298
D'Ole v. Kansas City 1899 94 Fed. 262
Star Co. Rep., 840
Donnelley v. Ivers 1882 20 Blatchf., 252
381
Drummond v. Altemus 1894 60 Fed. 297, 298
Rep., 338
Drury v. Ewing 1862 1 Bond., 541 242, 283

Egbert v. Greenberg 1900 100 Fed. 239, 267
Rep., 447

Ehret v. Pierce 1880 18 Blatchf., 245, 246, 282
302
Elizabeth v. Pavement 1877 97 U. S. 289
Co. Rep., 126
Emerson v. Davis 1845 3 Story, 768 241, 243, 278,
279, 281
Estes v. Leslie 1886 27 Fed. 297
Rep., 22
Estes v. Williams 1884 21 Fed. 296, 297
Rep., 189
Ewer v. Coxe 1824 4 Wash. C. 251, 296 [xxxiii]
C., 487

Falk v. Brett 1891 48 Fed. 245
Rep., 678
Falk v. Curtis 1901 107 Fed. 290, 291
Rep., 126
" " 1900 100 Fed. 290
Rep., 77
" " 1900 98 Fed. 290
Rep., 989
Falk v. Donaldson 1893 57 Fed. 245, 253, 276,
Rep., 32 280, 281, 283
Falk v. Gast 1893 54 Fed. 259, 262, 289
Rep., 890
" " 1891 48 Fed. 245, 251, 259
Rep., 262
Falk v. Heffron 1893 56 Fed. 290
Rep., 299
Falk v. Howell 1888 37 Fed. 276, 281, 283
Rep., 202
Falk v. Schumacher 1891 48 Fed. 255, 293
Rep., 222
Farmer v. Culvert 1872 5 Am. L. T. 280, 282
R., 168
Farmer v. Elstner 1888 33 Fed. 279, 289
Rep., 494

Fishel v. Lueckel 1892 53 Fed. 276, 277, 280,
Rep., 499 291
Folsom v. Marsh 1841 2 Story, 100 243, 277, 279,
280, 284
French v. Kreling 1894 63 Fed. 262
Rep., 621
French v. Maguire 1878 55 How. (N. 263, 299
Y.) Pr., 471

Gilmore v. Anderson 1890 42 Fed. 289
Rep., 267
" " 1889 38 Fed. 274, 278, 283
Rep., 846
Goldmark v. Kreling 1888 35 Fed. 281
Rep., 661
" " 1885 25 Fed. 299
Rep., 349
Gottsberger v. Aldine 1887 33 Fed. 261
Rep., 381
Gould v. Banks 1832 8 Wend., 240, 274
562
Gray v. Russell 1839 1 Story, 11 240, 241, 243,
270, 278, 279,
284
Greene v. Bishop 1858 1 Cliff., 186 243, 269, 279

Harper v. Holman 1897 84 Fed. 291, 296
Rep., 224
Harper v. Shoppell 1886 23 Blatchf., 276
431
Hefel v. Whitely 1893 54 Fed. 256
Rep., 179
Hegemen v. Springer 1901 110 Fed. 290
Rep., 374
Heine v. Appleton 1853 4 Blatchf. C. 240, 269, 271,
C., 12 272, 293

Henderson v. Tompkins 1894 60 Fed. 240
Rep., 758
Higgins v. Keuffel 1891 140 U. S. 246
Rep., 428
Hill v. Epley 1858 31 Penn., 293
331
Hoertel v. Raphael Tuck 1899 94 Fed. 294
Rep., 844
Holmes v. Donohue 1896 77 Fed. 263
Rep., 179
Holmes v. Hurst 1898 174 U. S. 263, 296
Rep., 82
Howell v. Miller 1898 91 Fed. 241, 280, 282
Rep., 129
Hubbard v. Thompson 1882 14 Fed. 291
Rep., 689
Illustrated American v. 1892 Cited, U. S., 256
New York Press 594
Isaacs v. Daly 1875 39 N. Y., 244, 245
511

Jackson v. Walkie 1886 29 Fed. 255
Rep., 15
Jewellers' Mercantile 1898 155 N. Y., 251, 260, 261,
Agency v. Jewellers' 241 262, 263, 296 [xxxiv]
Publishing Co.
Jewellers' Mercantile 1896 84 Hun., 12 251, 260
Agency v. Jewellers'
Publishing Co.
Johnson v. Donaldson 1880 3 Fed. Rep., 243, 278, 290
22
Johnson v. Klopsch 1890 88 Fed. 293
Rep., 692
Jollie v. Jacques 1850 1 Blatchf., 241, 244, 251,
618 281
Jones v. Thoms 1843 1 N. Y. Leg. 299
Obs. 408

Keene v. Clarke 1867 5 Rob. 263, 293
(NY.), 38
Keene v. Kimball 1860 16 Gray, 549 263, 266, 299
Keene v. Wheatley 1860 4 Phil. (Pa.), 262, 263, 274,
157 284
Kennedy v. 1888 33 Fed. 276
McTammany Rep., 584
Kiernan v. Manhattan 1876 50 How. Pr., 262
194
Kipling v. Fenno 1900 106 Fed. 298
Rep., 692
Koppel v. Downing — 24 Wash. L. 269
R., 342

Ladd v. Oxnard 1896 75 Fed. 237, 239, 260,
Rep., 703 261, 263, 277,
283
Larrowe v. O'Loughlin 1898 88 Fed. 263
Rep., 896
Lawrence v. Dana 1869 4 Cliff, 1 241, 242, 251,
258, 269, 271,
273, 277, 279,
280, 284, 285,
289, 293
List Publishing Co. v. 1887 30 Fed. 281, 282
Keller Rep., 772
Little v. Gould 1851 2 Blatchf., 269, 271, 272,
165 273, 274, 291
Little v. Hall 1855 18 How., 240, 299
165
Littleton v. Oliver 1894 62 Fed. 254
Rep., 597

McDonald v. Hearst 1899 95 Fed. 292
Rep., 656

MacKaye v. Mallory 1882 12 Fed. 273
Rep., 328
M'Lean v. Flemming 1877 96 U. S. 277, 296
Rep., 245
Maloney v. Foote 1900 101 Fed. 277
Rep., 264
Martinetti v. Maguire 1867 1 Abb. U. S., 266
356
Mead v. West 1896 80 Fed. 241, 278, 281,
Rep., 380 282, 283
Menendez v. Holt 1888 128 U. S. 293
Rep., 514
Merrell v. Tice 1881 104 U. S. 251, 253, 296
Rep., 557
Merriam v. Famous 1891 47 Fed. 297, 298
Shoe Co. Rep., 411
Merriam v. Holloway 1890 43 Fed. 297
Rep., 450
Merriam v. Texas 1892 49 Fed. Rep, 298
Siftings 944
Mifflin v. Dutton 1901 107 Fed. 256, 263
Rep., 708
Millet v. Snowden 1848 1 West L. J., 277
240
Morrison v. Pettibone 1897 87 Fed. 276, 277, 280
Rep., 330
Mott v. Clow 1897 53 U. S. 237, 238, 239,
App., 461 242, 246
Munro v. Smith 1890 42 Fed. 282
Rep., 266
Mutual Advertising Co. 1896 76 Fed. 240, 271, 272,
v. Refo Rep., 961 282 [xxxv]

Nash v. Lathrop 1886 142 Mass., 240
29

Oertel v. Wood 1870 40 How. Pr., 299
10
Oertel v. Jacoby 1872 44 How., 299
179
Osgood v. Allen 1872 1 Holmes, 244
185
Osgood v. Aloe 1897 83 Fed. 251, 253, 256,
Rep., 470 260

Paige v. Banks 1871 7 Blatchf., 268
152
Palmer v. De Witt 1872 47 N. Y., 263, 264, 296,
532 299, 30
Parker v. Hulme 1849 1 West L. J., 277
240
Parkinson v. Lascelle 1875 3 Sawyer, 251
330
Parton v. Prang 1872 3 Cliff, 537 273, 296, 299,
300
Perris v. Hexamer 1878 99 V. S. 280
Rep., 674
Pierce v. Werckmeister. 1896 72 Fed. 259, 263
Rep., 57
Pierpont v. Fowle 1846 2 Wood, and 267, 271
Min., 23
Press Publishing Co. v. 1896 73 Fed. 262, 270, 271,
Munroe Rep., 196 274, 300
Pulte v. Derby 1852 5 M'L., 328 260, 273

Reed v. Carusi 1845 72 Fed. 241, 290
Cas., No.
11,642; 8 L.
R., 411
Reed v. Holliday 1884 19 Fed. 277, 279, 291
Rep., 325
Rees v. Peltzer 1874 75 Ill., 475 263, 296, 299

Richardson v. Miller 1877 3 L. and Eq. 246, 262, 267,
Rep. (Am.), 294
614
Rigney v. Dalton 1896 77 Fed.
Rep., 176
Rigney v. Raphael Tuck 1896 77 Fed. 294
Rep., 173
Roberts v. Myers 1860 13 L. R. 244, 270
Mass., 398
Rogers v. Jewett 1858 12 L. R., 291
339
Rosenbach v. Dreyfuss 1880 2 Fed. Rep., 247, 294
217
Ross v. Raphael Tuck 1898 91 Fed. 294
Rep., 128

Sanborn v. Dakin 1889 39 Fed. 280, 282
Rep., 266
Sarony v. Ehrich 1886 28 Fed. 291
Rep., 79
Schreiber v. Thornton 1883 17 Fed. 245
Rep., 603
Schumacher v. Wogram 1888 35 Fed. 246, 257
Rep., 210
Schumacher v. 1885 25 Fed. 271, 272
Schwencke Rep., 466
" " — 23 Blatchf., 246
373
" " 1887 30 Fed. 277
Rep., 690
Scoville v. Toland 1848 6 West Law, 243
J., 84
Scribner v. Allen & Co. 1892 49 Fed. 251, 256, 293
Rep., 854
Serrana v. Jefferson 1888 33 Fed. 282
Rep., 347

Shook v. Daly 1875 49 How. Pr., 266
366
Shook v. Rankin 1875 6 Biss., 477 241, 263
Snow v. Laird 1900 98 Fed. 242, 245
Rep., 813
Snow v. Mast 1895 65 Fed. 257
Rep., 995
Social Register 1894 64 Fed. 296
Association v. Rep., 270
Howard
Springer v. Falk 1894 20 U. S. 259, 276, 280,
App., 296 283, 290, 292 [xxxvi]
Stephens v. Cady 1852 14 How., 273, 275
528
Stevens v. Gladding 1854 17 How., 273, 275, 289
447
Story v. Holcombe 1847 4 M'L., 306 277, 279, 283,
284, 285
Stowe v. Thomas 1853 2 Wall. Jr., 284, 286
547
Struve v. Schwedler 1857 4 Blatchf., 251
23
Stuart v. Smith 1895 68 Fed. 291
Rep., 189

Taft v. Stephens 1889 39 Fed. 294
Rep., 781
Taylor v. Gilman 1885 24 Fed. 288, 290, 292
Rep., 632
Thomas v. Lennox 1883 14 Fed. 241, 263, 279
Rep., 849
Thompson v. Hubbard 1888 131 U. S. 251,259
Rep., 123
Thornton v. Schreiber 1887 124 U. S. 290
Rep., 612
" " — 8 Sup. Ct., 288, 290, 292
618

Tompkins v. Halleck 1882 133 Mass., 263, 299
32
Trow v. Boyd 1899 97 Fed. 291, 292
Rep., 586

Wall v. Gordon 1872 12 Abb. Pr. 262
N. S. (N.
Y.), 349
Webb v. Powers 1847 2 Woodb. 273, 277, 282,
and M., 497 283
Werckmeister v. 1894 63 Fed. 256, 263, 273,
Springer Rep., 808 274
West v. Lawyers 1896 51 U. S. 240, 251, 278
App., 216
" " 1894 64 Fed. 282, 289, 296
Rep., 360
Wheaton v. Peters 1834 8 Pet., 591 237, 240, 251,
268, 296, 299
Wheeler v. Cobbey 1895 70 Fed. 292
Rep., 487
Williams v. Smythe 1901 110 Fed. 291
Rep., 961
Wood v. Abbott 1866 5 Blatchf. C. 245
C., 325

Yuengling v. Schile 1882 12 Fed. 246, 247, 248,
Rep., 97 269, 273

[1]

PART I
THE LAW OF COPYRIGHT IN THE UNITED
KINGDOM AND THE DOMINIONS OF THE

CROWN.
[2]
[3]

CHAPTER I

INTRODUCTORY

The history of copyright has been exhaustively dealt with by Mr. Copinger,
Mr. Scrutton, and Mr. Drone in their respective treatises on copyright law. I
feel that I can add nothing useful to this branch of the subject, and as a
detailed account of the evolution of the law of literary and artistic property
is of little value to the practitioner except as academic knowledge, I propose
merely to pass briefly in review the various epochs through which the
author and his publisher have passed in their struggle to obtain from the
public what they consider to be the just and adequate remuneration for their
labours. For a complete historical introduction to the law of copyright I
cannot do better than refer to Mr. Birrell's delightful lectures.[1]

The first record which we have of any monopoly in the
reproduction of literary work is in the exercise of the The Royal
alleged prerogative of the Crown to control the printing- Prerogative.
press. No book whatsoever was allowed to be printed
without a licence or grant of monopoly from the Crown. One of the
principal objects in the exercise of this prerogative was the prevention of
the dissemination of religious doctrines contrary to the accepted faith.

Henry VIII. created the Company of Stationers to
supervise and control the publication of books. This The Company of
company made various rules and regulations as to the Stationers.
printing of books, and from them licences could be
obtained by an author to print his copy. The Stationers' The Star Chamber.
Company was first incorporated in the reign of Philip and
Mary in 1556. The Crown enforced its prerogative and the rules of [4] the
Stationers' Company by means of the Court of Star Chamber, which from

time to time passed various decrees, and punished offenders by fine and
imprisonment.

By this means the Crown until 1640 exercised an
unlimited jurisdiction over the press. In this there was no The germ of
Copyright.
recognition of a right of property in the author of a work,
but merely an enforcement of the royal prerogative to
control the press. Incidentally, however, a kind of Licences.
property sprang up, since the Stationers' Company in
granting licences recognised the right of the author or his assignee to his
copy. Licences were granted to those who showed that they had a right in
the manuscript, and all others were prohibited from infringing the
monopoly. An entry in the records of the Stationers' Company in 1562, for
instance, enacts "That if it be found any other has a right to any of the
copies, then the licence touching such of the copies so belonging to another
shall be void."

When the Star Chamber was abolished in 1640 the two
Houses made an ordinance prohibiting printing unless the The Long
Parliament.
book was first licensed and entered in the register of the
Stationers' Company, and further prohibiting printing
without the consent of the owner.

At the Restoration a licensing statute[2] was passed
Licensing Statute.
similarly prohibiting printing without licence and without
the consent of the owner. The statute finally expired in
1694.

On the expiry of the licensing statute, authors and publishers thought that
all protection for literary work was gone, and made strenuous efforts for
new legislation. Bills were brought into Parliament in 1703 and 1706, and
finally in 1709 the copyright statute of Anne became law.

The Act of Anne created for the first time a statutory
property in books. The author of any book and his 8 Anne, c. 19. The
beginning of
assignee or assigns were given the sole liberty of printing Statutory
and reprinting such book for the term of fourteen years Copyright.
from publication "and no longer," and if at the end of that

period the author was still living, then such right returned to the author[5]
for
another term of fourteen years. The Act provided that an offender should
forfeit pirated copies and sheets to the proprietor of the copyright, who was
enjoined to "forthwith damask and make waste paper of them." The Act
further imposed a penalty of one penny for every sheet found in the
offender's possession, one half of the penalties to go to the Crown and the
other half to any person who should sue for the same. The Act made
registration in the Register Book of the Company of Stationers before
publication a condition precedent to an action for the infringement of any
book. A provision was made in this Act for an adjustment of the price of
books by complaint to the Archbishop of Canterbury, the Lord Chancellor
and others, if booksellers or printers set too high a price upon their
publications. Provision was also made for the delivery of nine copies at the
warehouse of the Stationers' Company for the use of various libraries.

The Act of Anne was amended in some particulars in
1801 by 41 Geo. III. c. 107. This Act gave the proprietor 41 Geo. III., ch.
107.
of the copyright an action of damages against an offender
as well as providing forfeiture and penalties.

The Act of Anne was again amended in 1814 by 54 Geo.
III. c. 156. This latter statute extended the period of 54 Geo. III., ch.
156.
copyright to twenty-eight years certain, and the residue of
the author's life thereafter.

After the passing of the statute of Anne those booksellers
who were in the habit of purchasing and publishing Copyright at
authors' manuscripts were not satisfied with the limited Common Law.
protection accorded to them by that Act. They discovered,
by the aid no doubt of legal advice, that a further Injunctions in
protection might be secured by setting up a common law Chancery.
right of literary property which would ensure not merely
a paltry term of twenty-eight years, but a perpetual monopoly. The result of
this discovery led to half a century of litigation between the authors'
booksellers and those other smaller booksellers who contended that they
might without licence print those books in which the statutory copyright
had expired. At first the authors' men were successful, and from 1735 there

is a series of cases in Chancery in which a common law right in published
books was undoubtedly recognised and a preliminary injunction granted,[6]
notwithstanding that the period of protection given by 8 Anne, c. 19, had
expired.[3]

These injunctions appear to have been acquiesced in, and
the cases did not proceed to hearing. In 1760, in the case Tonson v. Collins.
of Tonson v. Collins,[4] the great question of common law
right was argued at law before Lord Mansfield, C. J. The A collusive action.
action was in respect of the Spectator, the statutory
copyright in which had expired. It was twice argued before Lord Mansfield,
who then ordered that it should stand over for further argument before all
the twelve judges. No judgment was ever given in the case. Before it could
be argued before the whole Court, information reached the judges that the
action was collusive, brought for the purpose of obtaining a precedent to
support the contention of the authors' men. The Court refused to proceed
further with the cause.

It was not long, however, until the question was again
raised. In 1765 Messrs. Osborne & Millar, assignees of Osborne v.
Donaldson.
the copyright in Thomson's "Seasons," filed their Bills in
Chancery against Donaldson, an Edinburgh bookseller,
who had, without their authority, reprinted the book after Millar v. Taylor.
the statutory copyright had expired.[5] A preliminary
injunction was obtained, but subsequently dissolved. Donaldson v.
Lord Chancellor Northington said it was a point of so Beckett.
much difficulty and consequence that he should not
determine it at the hearing, but should send it to law for the opinion of the
judges. The question therefore again came to law, and, in Millar v. Taylor,[6]
was argued at great length before Lord Mansfield and Justices Aston, Willis
and Yates. The authors' men were victorious. The Court decided (Yates, J.,
dissenting) that there was copyright at common law, and that the period of
protection thereunder was not cut down by the statute of Anne. This great
victory, however, afforded but a short-lived triumph to literary men. In
1774, in Donaldson v. Beckett,[7] the matter came before the House of
Lords on appeal from an order in Chancery, with the result that the decision [7]

in Millar v. Taylor[8] was overruled. In this case all the judges were
consulted. Eleven consulted judges gave their opinion. The questions put to
the judges, and the answers given by them, are as follows:

1. Whether at common law an author of any book or
literary composition had the sole right of first printing Opinions of the
judges.
and publishing the same for sale, and might bring an
action against any person who printed, published, and
sold the same without his consent?

Eight Yes.
answered
One No.
answered
Two That an action would
answered only lie if the MS.
were taken by fraud or
violence.

2. If the author had such right originally did the law take it away upon his
printing or publishing such book or literary composition, and might any
person afterward reprint and sell for his own benefit such book or literary
composition against the will of the author?

Seven answered No.
Four answered Yes.

3. If such action would have lain at common law, is it taken away by the
statute of 8th Anne? And is an author by the said statute precluded from
every remedy except on the foundation of the said statute and on the terms
and conditions prescribed thereby?

Six answered Yes.
Five answered No.

4. Whether the author of any literary composition and his assigns had the
sole right of printing and publishing the same in perpetuity by the common
law?

Seven answered Yes.
Four answered No.

5. Whether this right is in any way impeached or taken away by the statute
of 8th Anne?

Six answered Yes.
Five answered No.

The House of Lords on a division, which included several [8]
lay members of the House, decided by 22 to 11 against Decision of the
House of Lords.
the contention that the common law right survived the
statute of Anne and was unrestricted by it. So the authors
and their champions the booksellers were finally Defeat of the
defeated, and had to remain satisfied with the term of Authors'
booksellers.
protection afforded to them by statute.

The Universities obtained from Parliament statutory
relief against the decision in Donaldson v. Beckett. In Relief for the
Universities.
1775, the Act of 15 Geo. III. c. 53 was passed giving
them a perpetual copyright in all books which might be
bequeathed to them. This right they still retain.

In 1842 the present literary Copyright Act was passed and
the statute of Anne and the two amending statutes of Geo. 5 & 6 Vict. c. 45.
III. repealed. The principal reform is the extension of the
term of protection to a period of forty-two years certain, or for the author's
life and seven years if that should prove longer. Perhaps the other most
important change (it cannot decently be called a reform) is the reduction of
registration at Stationers' Hall to a mere useless and troublesome
technicality. Instead of being as formerly a condition precedent to
protection, and therefore a useful index from which one could ascertain
whether a book was copyright or not, it is now made merely a condition
precedent to action, and registration can be effected the same day as that on
which a writ is issued.

Meanwhile the engravers as well as the authors had been working for the
proper protection of their art. In 1734 they first obtained a statute which,

together with the amending statutes passed in 1766, 1776,
and 1836 respectively, still contains the law of copyright Engravings.
in engravings, prints, etchings, and similar productions.

In 1798 the sculptors obtained an Act. This was repealed
by another Act obtained in 1813. This latter Act still Sculpture.
contains the whole law as to copyright in sculpture.

In 1833 authors of dramatic work obtained from
Parliament an exclusive right to perform their plays Dramatic Work.
whether published or unpublished. By the Literary
Copyright Act, 1842, the provisions of that Act are made Musical Work.
applicable to performing rights in dramatic work, and [9]
performing rights are still regulated by both these Acts, which together
contain the law on this subject. The Literary Copyright Act, 1842, also
applied the provisions of both these Acts to performing rights in musical
compositions hitherto unprotected in this respect. As regards musical
composition, the law is amended by two subsequent Acts which must be
read with the two older Acts.

In 1835 an Act was passed for the protection of copyright
in lectures. This Act, although still in force, has become a Lectures.
dead letter since the requisite notice to two Justices of the
Peace is troublesome, and lectures receive full protection from copying by
common law and under the Literary Copyright Act, 1842. The Lectures Act
never purported to give anything in the nature of a performing or lecturing
right, but merely a protection from unauthorised reproduction in print.

The artists were the last to obtain protection for their
work. It was not until 1862 that an Act was passed giving Paintings,
Drawings, and
statutory protection to paintings, drawings, and Photographs.
photographs. This Act contains the present law on the
"Fine Arts."

From 1844 onwards there is a series of Acts known as the
International Copyright Acts which extend the protection International Acts.
of the copyright law to works published in certain foreign
countries. The last and principal international copyright Act is the

International Copyright Act, 1886. That Act was passed
in view of the Berne Convention of 1887 which was then The Berne
Convention.
in contemplation. The Berne Convention is an
international copyright agreement whereby those states
which are signatory to it agree that, subject to its terms, a The Paris
work first published in any one of those states shall have Convention.
copyright in all the others. The Berne Convention is now
amended by the Paris Convention, 1898, and read together they form the
present international agreement.

There are several statutes dealing with the colonies dating
from 1847. Colonial Acts. [10]

CHAPTER II

WHAT BOOKS ARE PROTECTED

The following books are protected by statute throughout the British
Dominions:[9]

1. Every original book:[10]
2. First published within the British Dominions:[11]
3. [The author of which is a British subject or resident within the
British Dominions at the time of first publication:[12]]
4. Which is innocent:[13]
5. And has been registered before action:[14]
6. For 42 years, or the author's life and 7 years, whichever period is
the longer.[15]

Section I.—What is an Original Book.

Definition of a Book.—"Book" is defined by 5 & 6 Vict. c. 45, sec. 2, "to
mean and include every volume, part or division of a volume, pamphlet,
sheet of letterpress, sheet of music, map, chart, or plan separately
published."

As an exhaustive definition this is of little value. It only indicates what the
outward visible form of the "book" must be, and gives no indication of the
nature or quality of the literary matter which it must contain. Even as a
guide to the form it is defective, since it is only a definition by example and
not exhaustively descriptive. In the absence of an accurate statutory
definition of a "book," the Courts have given a very wide interpretation to

the term, and both as to the form and the matter have strained the ordinary
[11]
dictionary meaning of the word to the uttermost. In the light of the decided
cases a "book" might be defined as original literary matter in such tangible
form as readily conveys ideas or information to the mind of a reader.

Essential Elements of a Book.—There are three essential elements which
must be found in every book, viz.:

I. A certain physical form.
II. Literary matter.
III. Originality.

I. Physical Form.—The form of the book need not necessarily constitute
what in common parlance is known as a book or volume. Thus a single
sheet of music[16] or a printed leaflet such as an application form[17] are
both books within the meaning of the Copyright Acts.

In one case[18] it was held that a newspaper was not a book, but that
decision was not followed,[19] and there can now be no doubt that a
newspaper comes within the definition of a book as a sheet of letterpress.
[20]

The form must be adapted for conveniently conveying to the mind of a
reader the intellectual matter which the book contains. It will not be
sufficient that it can possibly be used for conveying intellectual matter to
the mind, it must be conveniently adapted for that purpose. Thus music in
the form of a perforated scroll for use in an æolian or pianola is not a
"book,"[21] for although it can be deciphered and read by the eye no one in
his senses would use it instead of an ordinary sheet of music. On the other
hand literary matter may nevertheless be in "book" form although it
requires a special training to decipher it. For instance a story written in
shorthand characters is in book form,[22] and no doubt also a story
impressed in raised characters for the blind.[23]

The substance on which the literary matter is depicted and the manner[12]of
depicting it are probably immaterial; but presumably a "book" must be at
least ejusdem generis as an ordinary printed volume or leaflet. It must be
"something in the nature of a book."[24] Thus although copies in ordinary
manuscript[25] or even engraved on thin slips of ivory would be in "book"
form, an epitaph on a tombstone probably would not.

The meaning of the words "separately published" in section 2 is by no
means clear. They do not mean that the matter in which copyright is
claimed must be issued physically separate from any non-copyright literary
matter. In the statute of Anne the words "separately published" are not used
in the definition of a book, but it was nevertheless argued that a "book"
must be entirely the original work of the author and not bound up with other
matter. In Cary v. Longman Lord Kenyon rejected such an argument. In
giving judgment he said:

"The courts of justice have long been labouring under an error if an
author have no copyright in any part of a work unless he have an
exclusive right to the whole book."[26]

Under the statute of Victoria parts of a book bound up with non-copyright
matter have frequently been protected; notes to non-copyright works,[27]
illustrations to non-copyright works,[28] a small portion of a serial story,[29]
a small part of a time table,[30] have all been protected. Clearly therefore a
person may have copyright in a book although he has not copyright in every
part of it.[31]

In Johnson v. Newnes[32] Romer, J., takes the view that "separately"
published means clearly distinguishable. He says:

"Now in my opinion if you find in a volume separate parts, and
distinguished or perfectly distinguishable from the other parts, and the
volume is published, each part that is separate and clearly
distinguished in the volume itself is separately published within the
meaning of section 2."
[13]

If we accept this as correct we exclude the case of a revised edition of an
old work, the corrections and additions to which forming the new work are
not clearly distinguishable from the old. I am inclined to think that the real
explanation and meaning of "separately published" is that it does not apply
to "volume, part, or division of a volume" at all, but only to "sheet of
letterpress, sheet of music, map, chart, or plan" which are to be protected,
even although they are "separately published," i. e. not bound up into a
volume. It was no doubt inserted as declaratory of the case law under the
statute of Anne, which laid down that a single printed sheet was a "book"
within the meaning of the Act.

II. Literary Matter.—No literary merit or great labour is required to be
shown. Lord Halsbury, L. C., in Walter v. Lane,[33] referring to the verbatim
reports of Lord Rosebery's speeches which were the subject-matter of that
action, said:

"Although I think in these compositions (i. e. the work of the
stenographer) there is literary merit and intellectual labour, yet the
statute seems to me to require neither—nor originality either in
thought or language ... the right in my view is given by the statute to
the first producer of a book, whether that book be wise or foolish,
accurate or inaccurate, of literary merit, or of no merit whatever."[34]

In many of the cases great stress was laid in argument at the bar on the
preamble of the Copyright Act, 5 & 6 Vict. c. 45. The preamble runs as
follows:

"Whereas it is expedient to amend the law relating to copyright, and to
afford greater encouragement to the production of literary works of
lasting benefit to the world...."

From this it is argued that the Act intends to protect only those works which
are likely to prove a substantial addition to the world's literature. Jessel, M.
R., in his judgment in Maple v. Junior Army and Navy Stores,[35] points out
the fallacy of this argument:

"The Act does not say that it is expedient to afford greater
encouragement to the production of literary works of lasting benefit to
the world, and to amend the law of copyright relating thereto, but that
[14]
it is expedient to amend the law of copyright generally, merely adding
the principal reason for doing so. There is therefore nothing in the
preamble to cut down the enacting part, even if the enacting part had
not been clear."[36]

Road-books,[37] directories,[38] tradesmen's catalogues,[39] mercantile
statistics,[40] telegraph codes,[41] time tables,[42] verbatim reports of
speeches[43] are all books within the meaning of the Act.

It is quite immaterial for what purpose the matter was composed or
published. Personal correspondence,[44] advertisements,[45] and a mining
report[46] are all subjects of copyright if published.

There must be some composition or arrangement of words, figures,
sentences, or paragraphs which by itself will convey to the mind of the
reader some intelligible proposition.[47] There cannot be copyright in a
single word,[48] even although it expresses a man's opinion: there is no
composition or arrangement. Neither can there be copyright in a pattern
sleeve[49] or the face of a barometer,[50] because both are really instruments
to be used in conjunction with something else, and although there may be
words and sentences on them, by themselves they convey no intelligible
proposition to the reader. Probably a drunken scrawl, absolutely
unintelligible, would not be protected. A jury having found that such a
document was not a literary composition, the Court of Appeal refused to
interfere with their verdict.[51]

The illustrations in a book are protected as part of the book,[52] and a
number of drawings bound up together without any letterpress would be
protected as a book,[53] compliance with the provisions of the artistic
Copyright Acts being in such a case unnecessary; but a single drawing or
engraving separately issued can only be protected under the artistic Acts.

A map, whether bound in a volume or separately issued, is a book within[15]
the meaning of the Literary Copyright Act, and will be protected thereunder.
[54]

III. Originality as an essential element of a book means that the
composition in the "book" must not have been copied from some other
literary composition in "book" form. Originality does not necessarily imply
an original composition on the part of the author.[55] Copyright is given not
necessarily to the first composer, but to the first producer in "book" form of
a literary composition.[56] Thus a book would be an original book if the
literary matter contained therein were taken by the author verbatim from the
oral utterances of a public speaker,[57] or probably if copied from some
ancient monument or mural writing. It would not, however, be original if
the author had merely transcribed the literary matter from some public
manuscripts, even although difficult of access.[58] Again, originality does
not necessarily imply novelty. Another book exactly the same in every
respect, word for word, may have been previously published, and yet a later
book will be original if derived from common sources, and not copied from
the earlier book. Thus two mathematicians may have independently made
the same calculations,[59] two travellers may have made a chart of the same
island or district,[60] or two reporters may have taken shorthand reports of
the same speech.[61] In each case there would be independent copyright,[62]
and the later book, even although published ten years after the first, would
be original.

Composition may consist in composition in the ordinary sense of piecing
together words, figures, sentences, and paragraphs, in order to convey
certain intellectual ideas, or it may consist in the arrangement of material,
as in the case of directories, lists of statistics, &c. Sometimes part may be
copied and part may be original, as in the case of new editions,[63]
[16]
translations,[64] abridgments,[65] selections from non-copyright authors, [66]

precedents of conveyancing, &c.[67] The new matter only is the subject of
copyright.

Examples of what are Books.—Road-books[68] were among the first
works in the protection of which by the Courts it was recognised that

copyright did not necessarily depend on the evidence of
any high mental qualities in the composition. In 1786 an Road Books.
injunction was granted to restrain the piracy of
"Paterson's Road-Book."[69] Lord Chancellor Loughborough in his
judgment said that a book in order to acquire copyright did not require to be
an operation of the mind like the "Essay on Human Understanding." There
might be copyright even although the subject-matter lay in medio, so that
every man with eyes could trace it, and the whole merit of the work
depended upon the accuracy of the observation. In 1776 the Court of
Session in Scotland protected a "Traveller's Pocket-Book," which contained
nothing but a mere list of stages and their distances.[70] The compiler of
such a work may arrive at the same, or nearly the same, result as some other
compiler working over the same country, but if each has made his own
compilation, "counting the milestones for himself,"[71] he will have
copyright and can prevent any one else from infringing such copyright.

Directories[72] soon followed road-books in their claim
for protection. Lord Chancellor Erskine in 1806 hesitated Directories.
somewhat, "thinking it dangerous to carry this doctrine of
copyright too far," but ultimately decided that an East India calendar or
directory[73] containing the names and appointments on the Indian
establishment, obtained with considerable labour and expense from the
repositories in India House, was the subject of copyright. This decision was
followed by Lord Chancellor Eldon in 1809 in the case of "A Court [17]

Calendar."[74] In 1861 a street directory of Birmingham was protected,[75]
and in 1866 "Kelly's Post Office London Directory."[76] In this last-
mentioned case it was suggested in defence that the various residents had
given their names for public use, and that therefore any one could copy
them; this contention, however, was rejected, and it was held that the
information contained in a directory was similar to that in a road-book or
map; it was open to all mankind, but that he who collected and described it
was entitled to prevent any one else from taking the results of his labours.
In Morris v. Ashbee,[77] a trade directory, called "The Business Directory of
London," was protected. This work contained the names and occupations of
merchants and traders carrying on business in or about London. Those
traders who paid the proprietor of the directory one shilling annually were

entitled to have their names printed in capital letters, and a further payment
entitled them to "extra lines" descriptive of their vocations. The defendants
took from this work the names in capital letters and the "extra lines," and
contended that they were entitled to do so; but it was held that the payment
by the several persons whose names were inserted had not the effect of
making the names and descriptions when inserted common property, and
that as the plaintiff had incurred the labour and expense of getting the
necessary information and arranging it, he was entitled to protection.

In Lamb v. Evans[78] the defendants had copied
extensively from a trade directory. The directory Trade Directory.
consisted of a list of tradesmen in various localities. In
some cases their names and addresses only were entered, Sheet of
and in others more elaborate advertisements containing Advertisements.
descriptions of articles in which the advertiser dealt. The
entries in the directory were classified under headings, giving short
descriptions of the particular trades; each separate heading was arranged so
that the proper catch-words occurred first in alphabetical order, and [18]
each
heading was repeated in three other languages after the English heading.
The Court of Appeal held that although the plaintiffs had no copyright in
each individual entry, they had copyright at least in the headings. They were
the result of literary labour both as regards the composition of the headings
themselves and their collocation and concatenation in the book.[79] Their
Lordships were also of opinion, although they said it was unnecessary to
decide the question, that there was copyright in the mass of advertisements
as collected and arranged. Lindley, L. J., said:

"I do not see myself the difficulty in the publishers having a copyright
in a sheet of advertisements. I do see a difficulty in his having a
copyright in one advertisement, because, as Mr. Justice Chitty pointed
out, that might prevent the advertiser from republishing his
advertisements in another paper, which is absurd. But to say that it
follows from that that the proprietor, say of the Times, has no copyright
in a sheet of advertisements so that he cannot restrain anybody from
copying that sheet appears to me a very different proposition."[80]

Tradesmen's catalogues, consisting of lists descriptive or
otherwise of the articles in which they deal, have been Catalogues.
often attacked as being devoid of literary merit. In Hotten
v. Arthur[81] the plaintiff's copyright in a descriptive catalogue of old books
which he had in stock was challenged. This catalogue was not a mere list of
the books by name, but contained short notices of the contents and general
nature of the various volumes. Page Wood, V. C., found no difficulty in
deciding that such a catalogue was the subject of copyright, notwithstanding
that the catalogues were for the purpose of advertising the plaintiff's stock-
in-trade, and were not themselves offered for sale. In Cobbett v.
Woodward[82] the doctrine laid down by Page Wood, V. C., received a
check. In that case the plaintiff had published a catalogue containing
numerous engravings and illustrations of designs and articles of furniture
which were sold by his firm. Lord Romilly, M. R., refused to grant an
injunction against a rival tradesman who, in a similar publication, [19]
appropriated at least fifty of the plaintiff's illustrations, and in his judgment
he said:

"But at the last it always comes round to this, that there
is no copyright in an advertisement. If you copy the Advertisements.
advertisement of another, you do him no wrong, unless
in doing so you lead the public to believe that you sell the articles of
the person whose advertisement you copy."[83]

The next case in which this question came before the Courts was Grace v.
Newman.[84] The book infringed was a volume containing lithographic
sketches of monumental designs, and a little letterpress. The sole object of
the book was to serve as an advertisement in the plaintiff's business of
"Cemetery Stone and Marble Mason." Hall, V. C., granted an injunction,
evading Cobbett v. Woodward[85] and following Hotten v. Arthur.[86] In
1882 Cobbett v. Woodward[87] was expressly overruled in the Court of
Appeal in the case of Maple & Co. v. Junior Army and Navy Stores.[88] The
plaintiffs published an illustrated catalogue consisting almost entirely of
engravings of furniture with short descriptions and prices. The catalogue
was prepared by selecting articles of furniture which were drawn by artists
in their employment and then engraved. The Court of Appeal sustaining the

opinion of Hall, V. C., in the Court below, held that the catalogue was the
subject of copyright as a book. Jessel, M. R., said:

"The case which has done all the mischief is Cobbett v. Woodward.
[89]
... I think that is not law. I am not aware that the use to which a
proprietor puts his book makes any difference in his rights. His
copyright gives him the exclusive right of multiplying copies, and he
may use them as he pleases. I think, therefore, that Cobbett v.
Woodward[90] will not bear legal examination."[91]

In Collis v. Cater[92] North, J., protected a catalogue of
medicinal articles which the plaintiff kept for sale. The Alphabetical
Catalogue of
articles were arranged by their common names in Tradesmen's Goods.
alphabetical order under various headings and sub-
headings. The learned judge strongly negatived the contention that a
tradesman's catalogue would only be protected when, as in Hotten [20]v.

Arthur,[93] some amount of skill or literary merit was shown. He said:

"A distinction is made between copyright in a large catalogue by a
clever author which gives a great deal of information, and is
interesting to persons who read it, and a catalogue like the plaintiffs,
which is nothing whatever but a simple list of certain articles described
by their common names, which every one is entitled to use with
respect to them with the addition of the prices at which they are sold....
In one way or another a man engaged in preparing a catalogue of this
sort has incurred labour in its preparation, or it may be expense and
trouble in its preparation, and has done it for the advantage of having
his own catalogue.... I cannot see any distinction between this and the
publication of a directory. It seems to me to be exactly in pari
materia."

A list of telegraphic code words carefully selected so that,
in their transmission by the Morse system of dots and Telegraph Codes.
dashes, they would not be liable to be mistaken or
misspelt was admitted to be a copyright work in Ager v. P. & O. Steam
Navigation Co.[94] The same book, "The Standard Telegram Code," was
again protected in Ager v. Collingridge.[95]

Lists of statistics compiled from various sources of
information are well recognised as original books. "The Shipping Statistics.
Clyde Bill of Entry and Shipping List," containing a
compilation of statistics collected from the official Mineral Statistics.
records and documents in the Custom houses, was
protected in Scotland in 1846[96] and again in 1858.[97] The "Mineral
Statistics of the United Kingdom of Great Britain and Ireland" was
protected in England in 1867.[98] It consisted of an annual statement of
returns in the City of London coal market, showing the quantity of coal
imported into London from the various collieries, and was compiled by the
clerk and registrar of the coal market from the day-books in the office. Page
Wood, V. C., said:

"A great deal of time and labour must have been spent in this
compilation, more, indeed, than in the case of a directory or guide, and
there can be no doubt that he is entitled to be protected in the fruits of
his labour."[99]

Compilations made from public documents and records [21]
are protected in so far as there is selection or Lists taken from
public documents.
arrangement. A mere verbatim copy of a public document
would not be protected.[100] In Trade Auxiliary Co. v.
Middlesborough,[101] "Stubbs' Weekly Gazette" was List of Bills of Sale.
protected from infringement. The gazette contained a list
of bills of sale registered under the Bills of Sale Act and of deeds of
arrangement registered under the Deeds of Arrangement Act. The
particulars of each bill of sale had been taken from the official records, not
merely from the indexes on the official register but from the instruments
themselves, for the inspection of each of which a charge of 1s. or 2s. 6d. is
made. The same and other similar lists were also protected in Cate v.
Devon.[102]

In Wyatt v. Barnard[103] Lord Chancellor Eldon refused
Specifications of
protection to a copy of specifications of patents taken Patents.
from the patent office. If this decision meant that a
selection, arrangement, or abridgment of the

specifications in the patent office would not be protected, it cannot be
considered sound law.

In Cox v. Land and Water[104] Malins, V. C., although he
refused to grant an injunction on the grounds of its List of Foxhounds.
probable inefficacy, expressed a strong opinion that a list
of packs of foxhounds, with the hunting days of each pack and their
respective masters and huntsmen, was the subject of property. The
information contained in the list was obtained by issuing circulars
requesting the masters of the hunt to fill up the required information. The
Vice-Chancellor in his judgment said:

"It is clear that in this case the getting of the names of masters of
hunts, the number of hounds, the huntsmen and whips, and so forth is
information open to all those who seek to obtain it; but it is
information they must get at their own expense, as the result of their
own labour, and they are not to be entitled to the results of the labours
undergone by others."
[22]

One of the leading cases in this branch of copyright law
is Leslie v. Young,[105] a Scotch appeal case. The pursuer's Time Tables.
book consisted of a monthly penny railway time table,
published in Perth. It was compiled from the various railway companies'
time tables. Some of these were taken verbatim and some were abridged by
the smaller stations being omitted, and to the whole was added a list of
convenient circular tours around Perth compiled by the pursuer. The
defender in compiling a rival time table, copied many of these tables and all
of the circular tours from the pursuer's book, either literally or with
colourable differences only. As regards the time tables the House of Lords
sustained the judgment of the Inner House in refusing an interdict. The
mere publication, they said, in any particular order of the time tables which
are to be found in railway guides and the publications of the different
railway companies, could not be claimed as a subject-matter of copyright.
In dealing with the abridged time tables Lord Herschell, L. C., said:

"Looking at these tables as a whole, and having regard to the fact that
it is admitted that the defender's work is, as regards these tables, not by
any means in all respects a copy of the pursuer's work, that it was not
denied that there was a certain amount of original work done by them
in compiling these tables, and that these are the differences which have
been pointed out, I do not think that it can be said that as regards these
tables there has been an appropriation by the defender of the pursuer's
work such as to entitle the pursuer to complain and to obtain the
interdict which he claims. The real truth is that although it is not to be
disputed that there may be copyright in a compilation or abstract
involving independent labour, yet when you come to such a subject-
matter as that with which we are dealing, it ought to be clearly
established that, looking at these tables as a whole, there has been a
substantial appropriation by the one party of the independent labour of
the other before any proceeding on the ground of copyright can be
justified."

As regards the circular tours the House of Lords reversed the judgment of
the Court of Session and granted an interdict. The Lord Chancellor said:

"It appears to me the only part of the work which can be said to
indicate any considerable amount of independent labour and be
[23]
entitled to be regarded as an original work.... It seems to me that this
was a compilation containing an abridgment of information of a very
useful character, and such as was likely to be taken advantage of by
those who were travelling in the neighbourhood of Perth."

Mathematical calculations are undoubtedly subjects of
copyright. In Baily v. Taylor[106] Sir John Leach, M. R., Tables of
Calculation.
evidently assumed that they were, although in that case
he refused an injunction on the grounds that a very small
part had been copied, that what was copied could have been calculated
again in a few hours, and that there was unreasonable delay in bringing the
action. In M'Neill v. Williams[107] protection was sought for
"Comprehensive Tables for the Calculation of Earthwork as connected with
Railways," &c. Knight Bruce, V. C., refused an interim injunction, but he
did not suggest that the calculations were not the subject of copyright.

Forms and Precedents and similar works are made and
published for the very purpose that they should be bought Forms and
and used in business or other transactions. To this extent Precedents.
copying is of course no infringement, but they will be
protected from any copying other than that which is Conveyancing
impliedly permitted by their publication. In Webb v. Precedents.
Rose[108] precedents of conveyancing were stolen from a
barrister's chambers and printed against his will. The Court had not the least
hesitation in restraining the defendant from printing and publishing them. In
the Scotch case of Alexander v. Mackenzie[109] the claim of "Styles and
Precedents of Conveyancing" to protection under the Copyright Acts was
recognised by the Inner House. The forms in question were drawn up from
general directions contained in the "Heritable Securities and Infeftments
Acts," and it was contended that, as all who followed these directions must
arrive at almost identically the same result, there could be no copyright in a
precedent so produced. The Court was unanimously of opinion that
although such work did not require the exercise of original or creative
genius, yet it implied industry and knowledge, and was undoubtedly the
subject of copyright. [24]

In Southern v. Bailes[110] a form of application by
intending students to a "Lessons by Correspondence Application Form.
Department" was protected by Chitty, J. The learned
judge granted an injunction against copying the plaintiff's form, but thought
it would be dangerous to extend the injunction in such a matter to
colourable imitations, as there was a great deal in the form any one could
have put together for himself.

It was very early recognised that the skill and labour of
selecting and arranging extracts from previously Selections and
Extracts from Non-
published books was sufficient to entitle the compiler to copyright Works.
copyright in the new work thereby produced.[111]
Copyright can thus be obtained without the composition
of a single sentence. There is composition, but the Collection of
Cookery Recipes.
composition is of new arrangement and not of new
matter. In Rundell v. Murray[112] Lord Chancellor Eldon
expressed his opinion that a collection of cookery recipes Topographical
Dictionary.
would have entitled the plaintiff who collected them to
copyright, even if she had merely embodied and arranged
them in a book. If, however, she had only collected them Child's A B C.
and handed them over to the publishers, he did not think
that would give her copyright. In Lewis v. Fullarton[113] "Guide to Science."
"The Topographical Dictionary of England," which
consisted partly of compilations and selections from former works, was
recognised as being the subject of copyright. In Lennie v. Pillans[114] the
Court of Session in Scotland were of opinion that "The Child's A B C,"
consisting in a great degree of extracts from and repetition of previous
publications by other authors, was entitled to protection on account of the
original arrangement, selection, abridgment, or amplification of such
borrowed materials. In Jarrold v. Houlston[115] Page Wood, V. C., granted
an injunction against the piracy of Dr. Brewer's "Guide to Science." The
book was intended for the instruction of tiros in science, and was composed
largely from previous works, aided by notes taken from time to time of
popular ideas concerning various scientific phenomena. The Vice-
Chancellor said: [25]

"That an author has a copyright in a work of this description is beyond
all doubt. If any one by pains and labour collects and reduces into the
form of a systematic course of instruction those questions which he
may find ordinary persons asking in reference to the common
phenomena of life, with answers to these questions and explanations of
these phenomena, whether such explanations and answers are
furnished by his own recollection of his former general reading or out
of works consulted by him for the express purpose, the reduction of
questions so collected, with such answers under certain heads and in a
scientific form, is amply sufficient to constitute an original work of
which the copyright will be protected."

The same judge, in Spiers v. Brown,[116] in considering an
French Dictionary.
alleged infringement of "Spiers' School Dictionary," said:

"In a large part of his work Dr. Spiers could have no copyright as to
words and expressions, though he might have it as to new words
introduced or new acceptations, or as to the order and arrangement by
which he improved the particular work he had in hand."

In an Indian case Palgrave's "Golden Treasury of Songs
and Lyrics" was protected. It consisted in a selection and Selections of
Poetry.
arrangement of poems and fragments of poems from the
non-copyright works of many poets. The defendant took
the selected portions, rearranged them, and made a few additions. His book
was condemned as an infringement.[117]

Lawfully made abridgments are protected on account of
the judgment which the abridger must exercise in order to Abridgments.

do his work well.[118]

Lawfully made translations are also protected as if they
were original works.[119] The protection will only extend Translations.
to the work of the translator. A translator by translating a
non-copyright work acquires no exclusive right to translate. Others may do
the same from the original non-copyright source.

An author is entitled to copyright by reason of lawful
adaptation of a book from one form to another; thus, if he Adaptations.
dramatizes a novel, or by material alteration and
[26]
rearrangement produces a new version of an old play.[120] The adaptation of
music, for instance an opera score for the pianoforte,[121] or the
rearrangement of an old tune,[122] is the subject of copyright.

New editions either of copyright or non-copyright works
are protected as original books, but only to the extent to New Editions and
Notes.
which they consist of original material in the way of
notes to, or substantial revision and alteration of the old
text. Lord Chancellor Hardwicke[123] granted an injunction against the
piracy of a new edition of Milton's "Paradise Lost" containing original notes
by Dr. Newton. In Cary v. Longman[124] new material added to an old road-
book was protected. In Murray v. Bogue[125] in the case of a subsequent
edition of a guide-book, Kindersley, V. C., said:

"If a man prints a second edition, not being a mere reprint of the first
edition, but containing considerable and material alterations and
additions, quoad those, it is a new work."[126]

In Cadell v. Anderson[127] the Court of Session in Scotland held that the
pursuers had the sole right of printing and reprinting "Blackstone's
Commentaries;" and as regards those editions in which there were
corrections and continuations, their term of copyright began to run afresh
with respect to such new material. In Black v. Murray & Son[128] the notes
in Lockhart's edition of Scott's "Border Minstrelsy" were protected, the
copyright in the original edition of the "Border Minstrelsy" having expired.
Lord President Inglis, in the course of a long and elaborate judgment, said:

"Questions of great nicety and difficulty may arise as to how far a new
edition of a work is a proper subject of copyright at all; but that must
always depend upon circumstances. A new edition of a book may be[27] a
mere reprint of an old edition, and plainly that would not entitle the
author to a new term of copyright running from the date of the new
edition. On the other hand, the new edition of a book may be so

enlarged and improved as to constitute in reality a new work, and that
just as clearly will entitle the author to a copyright running from the
date of the new edition.... That there may be copyright in the notes,
even when the book is not under the protection of copyright, is quite a
fixed principle in the law, and most desirably so. There is no doubt that
the compilation of good notes to a standard work is a task worthy of
the highest literary talents and reputation.... Of the 200 notes the
defender's counsel tells us that 15 only consist of original matter, while
the remaining 185 are quotations from other books and authors. Now
this seemed to be considered to be a sort of disparagement of the value
of the notes, in which I cannot at all agree.... The quotations are, in
many places, most apposite, and highly illustrative of the text, and
exceedingly interesting to the reader, and certainly the selection and
application of such quotations from other books may exercise as high
literary faculties as the composition of original matter."

If a new edition is a mere reprint of what has been published in "book" form
before, it is obvious that no new or independent copyright can be claimed in
it.[129] So also if there are only slight corrections, verbal alterations, and the
like. Lord Mackenzie, in the Scotch case of Hedderwick v. Griffin,[130] said:

"I doubt very much if there can be right of literary property in the
exclusion from an edition of the works of any author of articles not
truly written or published by that author, or in the correction of
accidental errors, or in the mere order and titles of articles which seem
to be all, or nearly all, that can be claimed by the pursuers in this case."
[131]

The publication of an old work with an index not previously published
would undoubtedly be copyright as to the index.[132]

In Black v. Murray[133] Lord Deas was of opinion that the alteration of a
single word in a poem was sufficient to give a new edition an independent
copyright, inasmuch as the alteration was very important and entirely
altered the meaning of the line in which it was used. The other judges,
[28]
however, did not altogether concur in Lord Deas' opinion; and it would
seem that his lordship stretched the law as to new editions too far.

The question whether a verbatim report of oral
proceedings is a "book" within the meaning of the Reports.
Copyright Acts was long a moot question. That there
might be copyright in law reports and similar matter, in Law Reports.
so far as they consisted of a summary of the proceedings
in the author's own language, was early recognised. In Butterworth v.
Robinson[134] the "Term Reports"; in Sweet v. Shaw,[135] Meeson and
Welsby's reports, and others; and in Sweet v. Maughan[136] the reports in the
"Jurist" were protected; but it does not appear in the reports of these cases
whether any copyright was claimed in the verbatim reports of the judgment
of the Court. In Saunders v. Smith[137] Lord Cottenham, L. C., refused an
injunction against "Smith's Leading Cases" on equitable grounds, but said
he would not decide the legal question as to whether that publication
infringed the copyright in the "Term Reports" and others. In Sweet v.
Benning[138] the defendants published a "Monthly Digest" into which were
copied numerous head notes of cases taken bodily from the "Jurist." The
Court held that these head notes were copyright, and that the defendant's
work was an infringement.

"The head note or the side or marginal note of a report is a thing upon
which much skill and exercise of thought are required to express in
clear and concise language the principle of law to be deduced from the
decision to which it is prefixed, or the facts and circumstances which
bring the case in hand within some principle or rule of law or of
practice."[139]

So far, therefore, as appears from the reports of these
cases our Courts had only recognised copyright in the Verbatim Reports.
matter of reports to the extent to which that matter was
the composition of the author, only, in short, when it was a description in
his own language of what had taken place. The American Courts had
[29]
held[140] that there was no copyright in the verbatim report of a judgment of
the Court, but their decisions were based to a large extent on the ground of
public policy. The judgments of the Court, they said, were published to the
whole of the people of the United States, and no individual could acquire a
monopoly with respect to them. Walter v. Lane[141] has to a large extent

cleared up the doubtful state of our law as regards reports, but it cannot be
said that it has done so entirely. Walter v. Lane[142] decides that a reporter
can have copyright in a verbatim report of the oral utterances of another
from whom he derives no title. In that case certain reporters of the Times
were present at various meetings at which Lord Rosebery made speeches.
These speeches were taken down in shorthand and appeared in the Times
the following morning, reproducing as nearly as possible verbatim the
words which Lord Rosebery had spoken. Lane, a publisher, subsequently
published a book entitled "Appreciations and Addresses: Lord Rosebery,"
and purporting to be a collection of some of Lord Rosebery's speeches. Five
of the speeches in this book were taken from the reports in the Times, as
was admitted by the defendant, substantially verbatim. The House of Lords
reversing the judgment of the Court of Appeal and restoring the judgment
of North, J., held that the reports in the Times were copyright, and that the
reporters' assignees, the proprietors of the Times, were the owners of the
copyright. Lord Chancellor Halsbury in his judgment said:

"My Lords, I should very much regret it if I were compelled to come
to the conclusion that the state of the law permitted one man to make
profit and to appropriate to himself the labour, skill, and capital of
another. And it is not denied that in this case the defendant seeks to
appropriate to himself what has been produced by the skill, labour, and
capital of others. In the view I take of this case I think the law is strong
enough to restrain what to my mind would be a grievous injustice....
The speeches and the sheets of letterpress in which they were
contained were books first published in this country; and I confess,
upon looking at the definition and the right conferred, I am wholly
unable to discern why they are not protected by the statute from being
pirated by unauthorised persons. The sole ground, as I understand the
judgment of the Court of Appeal, is that in their judgment the producer
of a written speech, unless he is the original speaker, cannot be an [30]
'author' within the meaning of the Act. My Lords, it seems to me that
this argument is based upon too narrow and misleading a use of the
word 'author.'... The producer of this written composition is, to my
mind, the person who is the author of the book within the meaning of
the statute.... I do not find the word 'original' in the statute, or any word

which imparts it as a condition precedent, or makes originality of
thought or idea necessary to the right."[143]

We must be careful not to carry the doctrine of Walter v. Lane[144] further
than the actual decision warrants. It should be noticed, for instance, that the
essence of the case is that the reporter was entitled to copyright, because it
was he who first reduced to "book" form the literary composition contained
in Lord Rosebery's speeches. If, therefore, Lord Rosebery had, before
delivering his speeches, done as some statesmen and many clergymen do, i.
e., reduced them to writing, the reporter would probably not have had
copyright, since his report would then have been a mere copy of the
speaker's original manuscript, a very different thing from being the first
manuscript.[145] Again, it must be noticed that Lord Rosebery claimed no
proprietary right in his speeches. It was admitted by counsel that he had
freely abandoned his words to the world so that any one might make of
them what use he pleased. Lord Rosebery might have secured a right in his
own speeches if he had cared to do so. He might have delivered them to a
limited audience[146] under an implied contract that those who heard his
speeches should make no other use of them except by listening to them and
benefiting by the entertainment and general information conveyed. Possibly
he might also have secured a statutory copyright in them as lectures by
giving notice in writing two days before delivering the same to two justices
living within four miles of the place of delivery.[147] If in either of these
ways Lord Rosebery had secured a proprietary right for himself it is
doubtful whether a reporter unauthorised by him could have acquired
copyright in his report. The report would have been an infringement of Lord
Rosebery's rights, but the reporter might nevertheless be held to have [31] a
copyright against the rest of the world. It should also be noticed in
connexion with this case that it was expressly stated by the judges in the
House of Lords that any number of reporters could make a report of the
same speech, and each would have a separate copyright. In Walter v.
Lane[148] the defendant admitted that he took his book from the Times'
report. It is obvious, however, that if a speech were reported in, say, six
newspapers, any one could reprint it, and by careful correction of the parts
in which the reports varied baffle any one of the newspaper proprietors in
an attempt to prove that the speech was taken from his newspaper. Another

question with regard to verbatim reports, which is not necessarily covered
by Walter v. Lane,[149] is in reference to verbatim reports of judgments in
the Courts. Will the American doctrine be adopted that it is against public
policy that there should be any monopoly in them?[150]

The law of copyright does not protect anything in the
nature of a mechanical device, except in so far as apart Mechanical
Devices.
from any mechanical application it conveys ideas or
information to the person reading it. In Page v.
Wisden[151] it was claimed by the plaintiff that he had Cricket Scoring
Card.
literary copyright in a cricket-scoring card, the only
novelty in which was a line along which could be
indicated "Runs at the fall of each wicket." Malins, V. C., held that such a
thing was not a book within the Act, and characterised it as absurd to
contend that a particular mode of ruling a book constituted an object for a
copyright.[152]

In Cable v. Mark,[153] Bacon, V. C., refused to protect
under the Literary Act "The Christograph—the Shadow Trick.
Christian's Puzzle: suitable for all sects and
denominations." This consisted of an envelope on which Barometer Face.
the above title was inscribed. Inside the envelope was a
card perforated in such a way that when held up in a strong light it threw
upon the wall a shadow which was supposed to represent the picture "Ecce
Homo." The Vice-Chancellor in his judgment described it as a mere child's
[32]in
trick and nothing else. The face of a barometer was held by Chitty, J.,
Davis v. Comitti[154] not to be a book. It consisted of a circular card on
which were printed various words such as "set fair," "high winds," &c., and
on which the hands of the barometer moved. The learned judge said:

"Separated from the instrument it was not intended to have and has no
use or meaning whatever. Regarded as a card apart from the instrument
it not only foretells nothing, but tells nothing. By reading the printed
matter on the card alone, no intelligible proposition is arrived at."

Protection was claimed in Hollinrake v. Truswell[155] for
a cardboard pattern sleeve called the "Cosmopolitan Sleeve Chart.
Sleeve Chart." It consisted of a piece of cardboard cut to
suitable shape and size and marked with figures and directions, such as
"measure round the thick part of the arm," and it was intended to be used
for the purpose of measuring and cutting out sleeves. The Court of Appeal
reversed the judgment of Wright, J., and dismissed the action. Lord
Herschell said:

"The object of the Copyright Act was to prevent any one publishing a
copy of the particular form of expression in which an author conveyed
ideas or information to the world. These may be retained by any one,
although the book, map, or chart which embodied them has passed out
of his possession. If he were to commit to memory the contents of the
book or the information disclosed by the map or chart, he would be as
much in possession of the author's ideas or information as if the book,
map, or chart were physically in his hands. But this is not the case with
the words or figures upon the sleeve chart. They are intended to be
used, and can only be used in connection with that upon which they
are inscribed.... I think it clear, therefore, that what the plaintiff has
sought to protect under the Act for the protection of literary
productions is not a literary production, but an apparatus for the use of
which certain words and figures must necessarily be inscribed upon
it."[156]

In a Canadian case a railway ticket containing the names
of stations on the line and dates so arranged that when Railway Ticket.
punched it indicated where the holder was entitled to
travel, was refused protection. It was said that without the application of[33]
the
[157]
conductor's punch, the ticket was senseless and meaningless.

In Boosey v. Whight[158] it was held that a sheet of music
was not infringed by a perforated scroll for use in a Scroll for
Mechanical
mechanical instrument; and further, that the directions in Instrument and
the printed music, e. g. pp., crescendo, were not the Directions thereon.
subject of copyright apart from the printed sheet, and
therefore might be taken and used in conjunction with the perforated scroll.

It seems to follow that neither the perforated scroll nor the directions
thereon would constitute a "book" within the meaning of the Act.

Chilton's Special Guide published weekly sporting
information. Among other matter it contained their Sporting Tips.
sporting prophet's "tips" for the big races in the ensuing
week. This was contained in a list, thus:

One Horse Selections.
Tuesday Keelson.
Wednesday Priestholm.
Thursday Cœlus.
Friday Dromonby.

The Progress Printing and Publishing Company published daily at the
various race meetings racing sheets with the day's "tips" from various
sporting papers, thus:

The Specials, One Horse Trials.
The Jockey Rusina
Racing World Keelson
Gale's Keelson
Chilton Keelson.
Grant's Opinion Juda.
Turf Marvel Kenney.

The Court of Appeal held[159] that there could be no copyright in the
individual selections for each day, but suggested that there might be
copyright in the list of selections for the week, and that it would be an
infringement to take it bodily. Lindley, L. J., in giving judgment, said:

"Unless you find the one horse selection and that block which is
headed by the title 'One Horse Selections' in the shape in which the
plaintiff has published it, I doubt whether you can bring it within [34]
literary composition at all. Perhaps the whole of that might be called
literary composition; but there is no literary composition in the word
'Priestholm.'"[160]

Engravings, prints, designs, or other reproductions of
artistic matter will be protected under the law of literary Illustrations.
copyright either when published in the form of a volume
or when published in connexion and together with To Non-copyright
letterpress. By this means compliance with the stringent Letterpress.
requirements of the Acts relating to artistic copyright is
avoided. The first case where an illustration was held to be part of a book,
and therefore protected under 5 & 6 Vict. c. 45, was Bogue v. Houlston.[161].
The plaintiff published some old non-copyright tales, including "Reynard
the Fox," and illustrated them with original drawings of animals. These
woodcuts were pirated by the defendants, and used as illustrations in their
serial publication, "The Story-Book for Young People, by Aunt Mary." The
plaintiff did not claim copyright in any letterpress.[162] The defendants
maintained that the woodcuts not having been published so as to comply
with the provisions of the Engravings Acts, could not be protected from
piracy. It was held, however, that they were part of a book. Parker, V. C., in
giving judgment, quoted the definition of a book from the Act 5 & 6 Vict. c.
45, and continued:

"This definition does not extend to prints or designs separately
published, but only to the prints and designs forming part of a book,
and the book is not less a book because it contains prints or designs or
other illustrations of the letterpress. This Act vested in the proprietor of
such book duly registered the right to sue in respect of any invasion or
infringement of the copyright of his book. It appears to me that a book
must include every part of the book; it must include every print,
design, or engraving which forms part of the book as well as the
letterpress therein which is another part of it."[163]

In Maple & Co. v. Junior Army and Navy Stores,[164] the
engravings in an illustrated catalogue, containing almost No Letterpress.
no letterpress, were protected under 5 & 6 Vict. c. 45.
"There may be such things," said Jessel, M. R., "as Christmas Card.[35]
picture-books for those who cannot read letterpress."[165]
In Hildesheimer & Faulkner v. Dunn & Co.,[166] Plate issued
protection was claimed for a Christmas card cut out and separately.
painted in the form of a lady's hand. It opened out book-
wise, and inside were delineated the lines of life according to the rules of
palmistry, and on one side there was an original verse. This work was
registered both under 5 & 6 Vict. c. 45 as a book and 25 & 26 Vict. c. 68 as
a painting. Kekewich, J., in granting an injunction against a piracy, said he
would not decide whether the work was a picture or a book, but as it was
well registered under both Acts, an action lay. In Comyns v. Hyde,[167] a
coloured plate representing an Orpington cock was issued with the weekly
number of a serial publication called The Feathered World. The plate was
not in any way physically connected with the rest of the publication, but it
was illustrative of an article in the journal, and a copy was given to every
purchaser. Stirling, J., held that it must be protected as part of the book. If a
plate or picture has been previously published in separate form, without
complying with the provisions of the Engravings Acts, it will not
subsequently receive protection by reason of its incorporation into a
volume.[168] In Strong v. Worskett[169] a magazine was before publication
advertised by means of illustrated posters. The same illustration as appeared
on the posters was afterwards reproduced in the magazine. It was held that
it could not be protected as part of the magazine. The result of these
decisions appears to be that an artistic work will be protected under the
Literary Copyright Act, 1842, if it is bound up with other artistic works in
the form of a volume, or if it is published in connexion with letterpress. The
picture on a Christmas card on which there are also verses, would, it is
submitted, be protected as a book, and, it would seem, whether or not the
verses were copyright, and whether or not (but this is more doubtful) the
picture was in any way illustrative of the verses. It is also submitted that an
engraving published in a magazine without any relation to the letterpress, [36]
except that of physical connexion, would be protected as part of the book;
but an engraving or print which had neither any relation to the letterpress

nor physical connexion would probably not be protected even although
issued gratis with every copy of the magazine.

It need hardly be said that anonymous works are entitled to copyright. The
publication of a work without the author's name is not to be construed as an
abandonment of the literary property.[170]

Maps, charts, and plans are expressly included in the
definition of a "book." If incorporated in a volume they Maps.
will be protected with the rest of the volume under its
general title; if published separately they will be protected as "books" by
themselves. The meaning of "maps," &c., will be literally construed; but it
must be something which in itself conveys information to the person
studying it. Davey, L. J., in speaking of maps, said[171]:—

"I agree ... that a 'map' is not confined to what is popularly known as a
map—viz. a geographical map; and that a 'chart' is not confined to
what is popularly called a chart—viz. a map of a portion of the seas
showing the rocks, soundings, and such-like information for the use of
navigators.... There may, no doubt, be an anatomical and physiological
plan showing the structure and distribution of the muscles and bones of
the human arm, or any other part of the human frame, which would be
protected by the Copyright Act."

The exclusive right of making copies of original music is
expressly protected by the Act of 5 & 6 Vict. c. 45 under Music.
the definition of a book. Under the statute of Anne it was
protected by case law, "book" being held to include a volume or sheet of
music.[172]

Section II.—Publication.

Publication divests the author or proprietor of an unpublished work of his
[37]
common law rights therein. After publication his right to protection depends
solely upon the statute. Publication must be looked at from two points of

view—divestitive, i. e. as taking away the author's common law right; and
investitive, i. e. as clothing him with the statutory right.

Divestitive Publication.—If a literary work is communicated to the public
without restriction, the common law right of the author terminates. This
may be done orally or by written or printed manuscript. Either kind of
communication, however, may be so limited as not to amount to a
publication. A drama or musical work is not published by being publicly
performed in a theatre or concert room,[173] since the communication is
limited to those who have paid their price for admission, and they are
admitted under an implied contract that they will not make any use of what
they hear except for their own entertainment and instruction. The same
applies to lectures delivered at a University[174] or by a private lecturer.[175]
The question as to when a public speaker or preacher publishes the speech
or sermon which he delivers is one of extreme difficulty, and depends on
the relation of the speaker to his audience.[176] If a literary composition is
orally communicated in a place to which all have admission as of right, or
to which all are admitted without distinction, and where there are no
circumstances from which a contractual relationship between the speaker
and his audience can be inferred, the matter so communicated will be
abandoned to the public to make what use of it they please. Similarly
communication by means of manuscript or print may be limited or
unlimited. Private distribution of copies of a book is not publication,
because the essence of publication is that the matter must be available to all
comers and not only to a class;[177] but the issue of a book to subscribers
only would be publication if the subscription list was open to the public [38]at
large, and even although the number of copies available was very small. In
one case[178] the words of a song were held to be published by being printed
on a music-hall programme and distributed in the streets as an
advertisement. Exhibition in a public place without distribution of copies
would undoubtedly be divestitive publication. Divestitive publication must
be with the consent of the proprietor; an unlicensed publication would
merely be an infringement of his rights.

Investitive Publication.—Publication vests the statutory right of copyright,
but a publication which divests the common law right does not necessarily
invest the statutory right. An investitive publication is of necessity also a

divestitive publication, but not vice versâ. The principal distinction is that
an investitive publication must be a publication of a book, while a
divestitive publication is a publication of the literary composition which is
or may be contained in a book. Thus the delivery of a lecture does not vest
copyright, although under certain circumstances it may divest the common
law right. The book itself must be given to the public, and not merely the
contents, in order to secure copyright. It has been suggested that a book will
not be published within the meaning of the Copyright Act unless it is also
printed. There is certainly some colour for this suggestion. The Act 5 & 6
Vict. c. 45 gives protection to all books which are "published" without any
express restriction to printed books. It seems to be assumed, however,
throughout the Act that a book when published must necessarily be in print.
For instance, section 6 requires "That a printed copy ... shall be delivered at
the British Museum." In section 11 again, where provision is made for
registration, it is not contemplated that a book in which there is copyright
could be in manuscript, although the section makes express provision for
the registration of manuscript dramatic and musical pieces, in respect of
performing right. There is no authority on this point. In White v. Geroch[179]
it was said that publication of a musical piece in manuscript vested[39] the
statutory copyright; but this was under the statute of Anne, which seems
expressly to contemplate publication in manuscript which 5 & 6 Vict.
certainly does not. In Boucicault v. Chatterton[180] James, L. J., says: "a
book is published by being printed and issued to the public;" but this was
said only in illustration of the point he was then making, viz. that
publication does not necessarily mean the same thing in dealing with
copyright as it does in dealing with performing right. On the whole,
although the point is extremely doubtful, I am of opinion that printing is not
required. Suppose an illuminated hand-made book, fifty copies put on the
market, is that to be denied copyright? If it is, the result seems to be that it
is unprotected from piracy, since the common law right terminates with
unconditional publication. Another point on publication has been raised but
not decided, viz.: Must there be a distribution of copies to the public, or will
it be sufficient if one or more copies are made accessible to the public; for
instance, by deposit of a copy at the British Museum or in other public
libraries. Sir James Stephen, in his Digest appended to the "Report of the
Copyright Commission, 1878," Art. 4, says: "publication ... means in
reference to books, publication for sale;" and James, L. J., as cited above,

suggests that there must be an "issuing to the public." On the other hand, the
disjunctive use of the terms "published" and "offered for sale " in section 6
of 5 & 6 Vict. c. 45 is rather in favour of the view that there can be
investitive publication without "offering for sale." Analogy from other
branches of the law is unreliable; the exhibition of a picture in a public
gallery is publication of the picture,[181] but that is the only way in which a
picture can be published. On the whole, I think that if the public have free
and unrestricted access to a book there will be publication, even although
they may not be able to procure copies for themselves. Something might
depend on the rules of a library where the book was deposited.

There is a common practice among publishers to accept as proof of first
publication a receipt given on the sale of a single copy of the book.[40] No
doubt this is primâ facie proof of publication, but the sale of a single copy
does not necessarily imply publication, and it would be open to any one
disputing the date of the publication to say that the sale was collusive, and
that the book was not at that time, as it must be in order to constitute
publication, offered to the public. It would be sufficient publication for the
publisher to place copies, or even one copy of the book, in his window for
sale. The record in his books should be sufficient evidence of the date if it is
disputed.

In a case[182] under the statute of Anne it was held that publication must be
by or on behalf of the proprietor, or at least with the view of conferring
copyright upon him. The publication in that case was made by an oral
assignee to whom the author had purported to convey the exclusive right of
publication in the United Kingdom. It was held that the assignee had no
copyright because there was no written assignment, and that the author did
not acquire copyright because the publication was not on his behalf. The
result seems to be that the copyright was lost. If the principle is sound,
which is extremely doubtful, it might be applied to the case of first
publication by a licensee, unless it could be implied from the contract
between the licensor and licensee that the licensee was not acting entirely
on his own behalf, but also on behalf of his licensor to secure copyright.

First Publication within the British Dominions.—Under the Act of 5 & 6
Vict. c. 45, it was held essential that first publication should be within the

United Kingdom;[183] but since the International Act of 1886[184] first
publication anywhere within the British dominions will equally secure
copyright. If a book is published simultaneously within and without the
dominions it is sufficient.[185] Publication a day later than publication
abroad would probably lose the copyright; but if on the same day, even
although an hour or two later, it would be deemed simultaneous. If a serial
story in a periodical is being published simultaneously, say here and in[41]the
United States, some parts may have lost their copyright by too hasty
publication in America, but this would not deprive the whole serial of
copyright if the other parts were "first published" within the British
dominions.[186] The date on the title-page of an American book has been
held not to be conclusive evidence of the time of publication in the United
States.[187] It is quite immaterial where the manuscript is written;[188] and
probably equally immaterial where the book is printed. It has been
suggested, however, that under 5 & 6 Vict. c. 45, printing within the United
Kingdom was necessary, and that now since the "International Copyright
Act, 1886," printing within the British dominions is a condition precedent
to protection. I do not think the suggestion is of any weight. It is founded on
two obiter dicta—one of Lord St. Leonards in Jefferys v. Boosey,[189] and
the other of Bayley, J., in Clementi v. Walker.[190]

If a book is first published outside the British dominions there will be no
copyright[191] in it except under the International Statutes.[192] Section 19 of
7 & 8 Vict. has been held to apply to publication in all foreign countries,
and not only to those with which an international convention is in existence;
[193]
and it has been further held to apply to the works of a British subject as
well as to those of a foreigner.[194]

If a dramatic or musical work is first performed abroad before publication
as a book, although that may destroy the performing right within the British
dominions, it probably will not affect the author's right to acquire copyright
by first publication here in "book" form. It may be said that "first
published" in 7 & 8 Vict. c. 12, sec. 19, has been held to include "first
performed."[195] That decision, however, dealt only with a question[42]of
performing right. In Boosey v. Davidson[196] there was first performance

abroad, and it was held that copyright was obtained here by first
publication; but there was no argument on section 19.

Section III.—Author's Nationality.

It must still be considered doubtful whether or not the author of a book
must be a British subject, or at least resident within the British dominions at
the time of publication. This point is the subject of a considerable body of
case law under the statute of Anne; but there has been no definite and
authoritative decision under the statute of Victoria. The question was first
seriously argued in the case of D'Almaine v. Boosey,[197] when it was
decided in the Court of Exchequer that the work of a foreigner would be
entitled to protection if first published in England by an English assignee.
The next case was Bentley v. Foster,[198] before Shadwell, V. C., who
decided that the foreigner himself could acquire a copyright by first
publication in this country. After that there is a series of confused and
conflicting cases,[199] terminating with the decision of Jefferys v.
Boosey[200] in the House of Lords. The plaintiff in that case was the English
assignee of the unpublished work of a non-resident foreigner. The first
publication was in England. The judges were consulted, and of these six
were in favour of the plaintiff's right and four against it. The House of
Lords, however, were unanimous against the plaintiff's right. They decided
that the work of a non-resident foreigner could not acquire copyright in this
country.

Lord Cranworth, L. C., said:

"The statute (8 Anne) must be construed as referring to British authors
only. Primâ facie the legislature of this country must be taken to make[43]
laws for its own subjects exclusively, and where, as in the statute now
under consideration, an exclusive privilege is given to a particular
class at the expense of the rest of her Majesty's subjects, the object of
giving that privilege must be taken to have been a national object and
the privileged class to be confined to a portion of that community for
the general advantage of which the enactment is made. When I say that
the legislature must primâ facie be taken to legislate only for its own

subjects, I must be taken to include under the word 'subjects' all
persons who are within the Queen's dominions, and who thus owe to
her a temporary allegiance. I do not doubt but that a foreigner resident
here, and composing and publishing a book here, is an author within
the meaning of the statute: he is within its words and spirit. I go
further: I think that if a foreigner having composed but not having
published a work abroad were to come to this country, and the week or
day after his arrival were to print and publish it here, he would be
within the protection of the statute."

Jefferys v. Boosey[201] then definitely decided that under the statute of Anne
a foreigner, unless at the time of publication he was resident within the
jurisdiction of the crown, could not be an author within the meaning of the
Act, and therefore neither he nor his assigns before or after publication
could acquire copyright. It would seem to follow that the construction of 5
& 6 Vict. c. 45 would lead to a similar decision. This, however, has been
doubted in the House of Lords in the case of Routledge v. Low.[202] The
actual decision in that case went no further than holding that a foreign
author who was resident for a few days in Canada expressly for the purpose
of acquiring copyright while her book was published in London was an
author within the Act, a proposition which had not been disputed in Jefferys
v. Boosey.[203] Their Lordships, however, discussed the wider issue whether
even temporary residence was necessary. Lord Cairns, L. C., and Lord
Westbury were of opinion that it was not. Lord Cairns, after pointing out
that Jefferys v. Boosey[204] was a decision under the Act of Anne, said:

"It was impossible not to see that the ratio decidendi in that case
proceeded mainly, if not exclusively, on the wording of the preamble
of the statute of Anne, and on a consideration of the general character
[44]
and scope of the legislation of Great Britain at that period. The present
statute had repealed that Act, and professed to aim at affording greater
encouragement to the production of literary works of lasting benefit to
the world. And accepting this decision of the House as to the
construction of the statute of Anne, it is, I think, impossible not to see
that the present statute would be incompatible with a policy so narrow
as that expressed in the statute of Anne."[205]

Lords Cranworth and Chelmsford agreed that temporary residence within
the dominions was sufficient to give a foreigner the right to acquire
copyright as a British author, and therefore concurred in the judgment of the
House. They, however, differed strongly from the view that a non-resident
foreigner could be an author within the Act. Lord Cranworth said:

"I have no hesitation in concurring with my noble and learned friend in
thinking that the decree below was right. I find it difficult to concur
with him in the opinion that the present statute extends its protection to
all foreigners wherever they may be resident without saying that the
case of Jefferys v. Boosey[206] is not good law—a conclusion at which I
should be very unwilling to come as to any case decided in this House,
more especially as to one so elaborately considered as that of Jefferys
v. Boosey.[207] That case, as my noble friend has pointed out, was
decided not on the construction of the Act of 5 & 6 Vict. c. 45, but on
the statute of Queen Anne; but I own I do not as at present advised see
any difference between the two statutes so far as relates to the subject
of the residence of foreign authors."

Routledge v. Low[208] is followed as to its actual decision in Low v. Ward;
[209]
but as to the rights of a non-resident foreign author the law remains, as
left by Routledge v. Low,[210] truly in a most unsatisfactory state. It is
difficult to escape from the conclusion, however willingly one would, that
there is really no distinction between the application of the statute of Anne
and that of Victoria, and that, therefore, a case arising on this point under
the Act of Victoria is governed by Jefferys v. Boosey,[211] a decision which,
if erroneous, was not so for want of deliberate research and consideration.
The general opinion, however, seems to be that Lords Cairns and Westbury [45]
were right and Lords Cranworth and Chelmsford wrong. This view is
adopted by Stephen, J., in his digest.[212] Mr. Scrutton is of the same
opinion, and cites the Naturalisation Act and the proviso that copyright is
personal property.[213] Mr. Chamier does the same.[214] It is respectfully
submitted that the provisions of the Naturalisation Act and the indisputable
fact that a foreigner wherever resident can acquire a British copyright are
entirely beside the mark, and do not in the least help one to decide whether
the legislature is to be presumed to have applied the Act of 5 & 6 Vict. to

the works of foreign authors. The decision that the work of a non-resident
foreign author will not be protected is in no way contrary to the provision of
the Naturalisation Act that an alien friend may acquire and hold personal
property in the same way in all respects as a British subject. The logical
conclusion from that provision is that an alien friend as well as a British
subject may acquire British copyright wherever it exists; but it does not
necessarily follow that British copyright exists in the work of a foreign
author, and that either an alien friend or a British subject can acquire it.
After the passing of the Chace Act (1891) in the United States, the law
officers of the Crown in England were consulted by the American law
officers, and they advised that an American author could acquire copyright
in his work by simultaneous publication in this country and America, even
although he was not at any time resident within the British dominions.
Consequently on that advice the President of the United States proclaimed
Great Britain as one of the countries which gave by their law reciprocal
rights to American authors; and English authors are thereby entitled to
acquire copyright in the United States. It would certainly be most
unsatisfactory if the law of England were now to be declared contrary to the
advice then given by our law officers, but it cannot be said that this should
influence our Courts if their decision on the point was called for. [46]

Section IV.—Immoral Works.

Profane,[215] indecent,[216] seditious,[217] and libellous[218] books will not be
protected. Neither will those which are a fraud upon the public.[219] For
instance, a book published as translated from the German of Sturm, which
was entirely untrue and induced purchasers to buy it, was refused
protection.[220] Quære whether a piratical book would be protected in so far
as it was original. Probably it would.[221] If a book is not wholly
mischievous, but only in part, it will probably be protected except as to that
part;[222] and if a book is subsequently published purged of its immoral
matter or fraudulent nature it would be protected.[223] If an action is brought
in respect of a mischievous publication the practice of the Court is to
dismiss the action without costs.[224] In one case[225] Mathew, J., would not
take cognisance of immorality mero motu, and when it was not pleaded by

the defendant he gave the plaintiff his remedy. Notwithstanding this, there
can be no doubt that the Court may refuse to interfere even when both
parties are willing to waive the question of immorality. The Court cannot be
compelled to sit to take an account between public malefactors.

Section V.—Registration.

Before Action.—Before an owner of copyright sues for infringement his
[47]
book must be registered at Stationers' Hall.[226] The omission to register
does not affect the copyright in a book, but it is a condition precedent to the
right to sue in respect of the infringement thereof.[227] At one time it was
thought that registration was only a condition precedent to an action for the
particular remedies given by the statute, and that whether registration was
effected or not the common law right of action for damages lay.[228] This,
however, is not law. Registration is a condition precedent to any right of
action for infringement of copyright. If an action is brought without proper
registration, that action must fail; but a correct entry may then be made and
a fresh action commenced.[229]

No registration is necessary to maintain an action for the infringement of
performing rights in a book which is a dramatic or musical work.[230]

Registration need not be made before infringement: it may be effected at
any time before the writ is issued.[231] In one case it was held a good
registration when entry was made on the same day, but a few hours before
the issue of the writ.[232] In Hole v. Bradbury,[233] Fry, J., held that
registration after infringement did not entitle the plaintiff to delivery up of
copies for his own use under the 23rd section of the Act of 1842, but that
under its general jurisdiction the Court had power to order delivery up for
destruction. In Isaacs v. Fiddemann,[234] Jessel, M. R., thought that even
although infringement was before registration the plaintiff was entitled to
have delivery up for his own benefit, and that the 23rd section applied to
such a case. Which is the correct view it is difficult to say. The argument of
Fry, J., in support of his view is elaborate and appears sound, whereas
Jessel, M. R., seems to have gone more on the ground of convenience.

Registration must be effected after the publication of the book.[235][48]In
several cases an attempt has been made to secure a monopoly in a title by
registration before the book was published or even written.[236] Such
registration is entirely inoperative to secure a monopoly in the title or the
right to sue in respect of the copyright in the book when published.
Registration does not give the plaintiff any right (except perhaps as to
delivery of copies) which he would not equally have had without
registration.[237] All registration does is to perfect the right and give a title
to sue on it.

It must be remembered that it is the book which is to be registered and not
the copyright. It is common but erroneous to talk of "registering copyright."
The distinction was pointed out in Trade Auxiliary v. Middlesborough.[238]
The three several proprietors of three periodicals had employed and paid a
contributor under section 18 on the terms that the matter contributed should
belong to these three proprietors. The matter appeared in each of the three
newspapers and each registered his own newspaper in his own name. It was
argued that the registration was bad, since they should have been registered
as joint proprietors, but the Court of Appeal held that the registration was
good, since each had registered his "book," and section 19 was literally
complied with.

A newspaper is a sheet of letterpress within the Act and must be registered.
[239]
In one case[240] Malins, V. C., protected a newspaper which was not
registered, but that case has been expressly overruled[241] and is clearly
unsound. No registration is necessary other than that required by the Act of
1842. In Cate v. Devon[242] it was contended that a newspaper would not be
protected unless it had been registered under the Newspaper Libel Act,
1881. This contention was held erroneous, and registration under the Act of
1842 was alone required. Similarly it is not a good defence to an action[49]
for
infringement that the publisher's name and address is not printed on the first
or last page of a book as required by 2 & 3 Vict. c. 12.[243]

The Requisite Entry.—Registration is made in the Book of Registry which
the Act enacts[244] shall be kept at the Hall of the Stationers' Company. The
fee for registration is five shillings. The Book of Registry must at all

convenient times be open to the inspection of any person on payment of one
shilling for every entry searched for or inspected. This, however, does not
entitle any one to make a copy of an entry; but any one may demand a
certified copy of an entry from the keeper of the Registry on payment of
five shillings.

The proprietor of the copyright must register in the Book of Registry:[245]

i. The title.
ii. The time of first publication.
iii. The name and place of abode of the publisher.
iv. The name and place of abode of the proprietor.

In the case of an encyclopædia, review, magazine, periodical work, or other
work published in a series of books or parts, the publisher must register:[246]

i. The title.
ii. The time of first publication of the first part.
iii. The name and place of abode of the proprietor.
iv. The name and place of abode of the publisher if different from the
proprietor.

The Actual Title.—This must be registered: a description of the book will
not be sufficient, even although accurate. Thus in Harris v. Smart[247] the
plaintiffs' book was intituled "Illustrated Catalogue and Price List," and
they registered it as "Illustrated Book of Shop-fittings." The Court of
Appeal, reversing the decision of Mathew and Grantham, JJ., held that the
objection to the registration was fatal. When there is a clear and distinct
title, that title they held must be registered. It might be different if a book
had no title; perhaps such a book could not be registered at all; but probably
a description of the book, stating that it had no title, would be sufficient.[50]
[248]

In Collingridge v. Emmott[249] the plaintiff's newspaper was intituled
"Warehousemen and Drapers' Trade Journal and Review of the Textile

Fabric Manufacturers"; but it was registered as "Warehousemen and
Drapers' Trade Journal: Failures and Arrangements." Kay, J., thought that
the discrepancy was fatal to the registration.

It has been questioned whether in the case of a volume, a considerable part
of which, being old matter, is not entitled to copyright, and which is
published under one comprehensive title, there must not be some indication
on the book itself or on the register that the owner does not claim copyright
in the whole work. The point has never been definitely decided. It has been
held that one who adapts new words and music to an old air and describes
himself proprietor of the whole composition is entitled to protection;[250]
but the question raised in these cases was whether the author was entitled to
copyright at all unless he could show that the whole was original. It should
always be remembered in questions of this kind that the purpose of
registration is not, as has frequently been suggested in argument, to notify
to an intending copyist what he may copy and what he may not. In Cate v.
Devon[251] the plaintiffs had published a "Commercial Compendium,"
containing lists of bankruptcies and bills of sale. They reprinted several
copies of it under another title, viz. "The London Association for the
Protection of Trade," and it was issued "privately and confidentially" to that
association. The defendants copied matter from the latter issue and pleaded
that it was unregistered, and therefore that they were entitled to copy it.
North, J., held that the act of the defendants was an infringement of
copyright in the "Commercial Compendium," which was registered under
that title. In his judgment he said:

"It is not intended that there should always be complete registration of
the publication in which there is copyright in order that persons may
know what they may legitimately copy and what they cannot copy. The
Act itself contains provisions which make that clear. It is well known[51]
that registration is only necessary as a condition precedent to suing,
and the almost universal practice on the part of large publishers
notoriously is that they do not register until just on the eve of taking
some proceeding. Then they take care to register their copyright and
sue upon it. I think, therefore, that the contention that the defendants
have not been warned by registration of the title under which the
document appears is one which cannot be entertained."[252]

The Time of First Publication.—This must be exactly entered to the day of
the month. In Low v. Routledge[253] an entry of "23rd May 1864" was held
to be bad when the actual publication was on the 25th of May 1864.[254]
Under the International Copyright Act, 1844, an entry of the year only was
held to be fatal,[255] and under the Copyright Act of 1842 it has been held in
two cases that an entry of the month only is bad.[256] When a subsequent
edition of a book is published, in so far as it is a reprint of the first edition,
it will not be protected unless the first edition and the date of the first
publication thereof is entered on the register;[257] in so far as it consists of
new matter there must be an entry bearing the date of the publication of the
edition in which such new matter was first published;[258] but the previous
editions and the date of their respective publications do not require to be
entered in order to protect the new matter,[259] and subsequent editions do
not require to be entered in order to protect old matter.[260] Where a book
has been revised and altered as each new edition has come out, every
edition should be entered separately in the register, with the date of the
publication of such edition. When a story, or article, or serial story, or a
series of articles is published in a magazine or other periodical, the
proprietor of the magazine need only register the first number of the
magazine and the date of the publication thereof in order to entitle him to
sue.[261] If, however, the action is at the instance of the author [52] of a
contribution to a collective work against third parties, the proper
registration would be of the story or article only with the date of the first
publication in the collective work of such story or article, or if serial, of the
first part thereof.[262] Against the proprietor, for publishing separately
without permission, the author does not require to be registered, as the right
sued on is not one of copyright but presumably of implied contract.[263] If
the owner of the periodical has acquired the entire copyright in a story or
article, he can sue on a registration either of the first number of the
magazine or of the first part of the story or article.[264]

The Name and Place of Abode of the Publisher.—The publisher to be
entered is the first publisher of the book.[265] No subsequent publisher,
unless of a revised edition, need be entered on the register.[266] If the
publishers are a firm it is sufficient to enter their firm name, such as Newby

& Co.; the individual names of the members of the firm need not be
entered.[267] A publisher's ordinary place of business describes sufficiently
his "place of abode": his private residential address need not be entered.[268]

The Name and Place of Abode of the Proprietor.—The proprietor to be
entered is the proprietor at the time of registration, and it is unnecessary to
trace his title from the first proprietor.[269] The joinder of the unregistered
proprietor as co-plaintiff with a person who has been erroneously
registered, or who, being rightly registered, is no longer proprietor, will not
render an action for infringement of copyright maintainable.[270] It is not
sufficient to register a mere agent or nominee of the proprietor.[271] The
registered proprietor, however, if legal owner, may sue as trustee for the
equitable owner of the copyright.[272] If the plaintiff in an action is[53] the
assignee of a former proprietor already registered, either the assignment
must have been by entry in the register, or the assignment, if made
otherwise, must be entered. In every case the plaintiff, either as proprietor at
the date of registration or as his assignee, must appear on the face of the
register.[273] It is probably not necessary to register every mesne assignment
from the proprietor originally registered to the plaintiff.[274] When the
original proprietor is registered, and the assignee from him is subsequently
registered, it is necessary that both entries should be correct, in order to
entitle the assignee to sue.[275] If the proprietor has no fixed abode in the
United Kingdom, an address in the United Kingdom through which he can
be conveniently communicated with will probably be a sufficient
compliance with the statute.[276]

If there is an error in any of the particulars required to be entered in the
register it is fatal to the success of an action, even although caused by
neglect or carelessness on the part of one of the officials at Stationers' Hall.
[277]
If the necessary particulars are entered it is immaterial that superfluous
matter is also entered.[278]

Certificate of Registration.—The officer appointed by the Stationers'
Company for the purposes of registration under the Copyright Acts must,
whenever reasonably required, give a copy of any entry in the Book of
Registry, certified under his hand and impressed with the stamp of the

Stationers' Company, to any person on payment of five shillings, and such
copies are to be received in evidence in all Courts, and are primâ facie
proof of the proprietorship or assignment of copyright or licence, but
subject to be rebutted by other evidence.[279] Registration does not,
however, give a title against the whole world except the true owner.[280][54]

False Entries.—If any person wilfully makes or causes to be made any
false entry in the Registry Book of the Stationers' Company, or wilfully
produces in evidence any paper falsely purporting to be a copy of any entry
in such book, he will be guilty of an indictable misdemeanour.[281]

Rectification of Register.—If any person "deems himself aggrieved" by
any entry in the Registry Book, he may apply by motion to the King's
Bench Division for an order that such entry may be expunged or varied.[282]
An order to expunge will not be made at the trial of an action:[283] it must
be applied for by motion in accordance with section 14, unless, perhaps, it
is specifically claimed in the statement of claim in the action. There is
probably no appeal from an order to expunge.[284] If a wrong entry has been
made in the Book of Registry, the proprietor of the copyright in the book so
erroneously entered is, even although he has by mistake made the wrong
entry himself, a person aggrieved within the meaning of the statute, and can
apply to the Court for an order to vary such entry.[285] An order to expunge
or vary will not be made without definite proof that the existing entry is
erroneous, and that the proposed entry in lieu thereof is correct.[286] By the
words "deem himself aggrieved" the legislature did not mean that any
person who said he was aggrieved could apply: the applicant must show to
the Court that he has a right to consider himself aggrieved.[287] When the
copyright in a book is in dispute either party claiming the right is a party
aggrieved.[288] If a non-copyright book is entered on the register, probably
any one who wished to copy it would be a party aggrieved;[289] but it is not
open to any one to make application to the Court on the ground of technical
[55]
flaws in a registration.[290] The applicant, unless he claims the copyright,
must be able to show a substantial defect on the merits of the registered
proprietor's title.[291]

When once an entry on the register has been struck out, the Court has
probably no power to restore it.[292]

Section VI.—Delivery of Copies to Libraries.

Copies of all books first published in the United Kingdom after 1842 must
be delivered to the undermentioned libraries by the publisher. In default the
respective librarians may recover from the publisher:[293]

i. The value of the copy which ought to have been delivered.
ii. A sum not exceeding £5.
iii. Solicitor and client costs.

The proceedings may either be summary by way of conviction before two
Justices of the Peace in the county or place where the publisher making
default resides, or by action in any Court of Record in the United Kingdom.
[294]

The following copies are to be delivered:

I. To the British Museum:[295]

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

i. Every book first published.
ii. Every subsequent edition of a book, unless
(a) it contains no additions or alterations, and
(b) some preceding edition has been delivered:

Within one calendar month after publication or offering for sale in
London.

Within three calendar months after publication or offering for sale
elsewhere in the United Kingdom.

The copy must be delivered between 10 A. M. and 4 P. M. on any day
except Sunday, Ash Wednesday, Good Friday, and Christmas Day.
[296]

The officer of the Museum appointed to receive these copies is
[56]
required to give a receipt in writing.[297]

II. To each of the following Libraries,[298] or to Stationers' Hall for their
use:

The Bodleian Library at Oxford.
The Public Library at Cambridge.
The Library of the Faculty of Advocates at Edinburgh.
The Library of Trinity College at Dublin.

One copy of those copies of which the largest number is printed for
sale, and in the like condition of

i. Every book first published.
ii. Every subsequent edition of a book, unless
(a) it contains no alterations or additions.

Within one month after demand.

Provided that within twelve months after publication demand has been
made to the publishers under the hand of the officer of the
Company of Stationers or other person authorised thereto by the
respective libraries.

The officer at Stationers' Hall and librarians of the several libraries are
required to give a receipt in writing when a copy of a book is

delivered to them.

The clauses as to delivery of copies are to be considered as being strictly
penal. In The British Museum v. Payne,[299] under the similar provisions in
54 Geo. III. c. 156, it was held that when a book was published in parts, a
single part was not demandable. The Court refused to consider the question
when, if ever, the complete book would be demandable.

It will be noticed that neither the copyright nor the right to sue is affected
by non-delivery of these copies. The only consequence of omission to do so
is a penalty on the publisher.

The right of the various bodies to delivery of a copy applies to all books
published within the United Kingdom and not only to those entered at
Stationers' Hall.[300]

Section VII.—Duration of Protection.

Protection dates from first publication.

Generally.—The period of protection is for the natural life of the author and
for seven years after his death, or for forty-two years from the date [57]of

publication, whichever period shall be longer.[301]

Posthumous Works are protected for forty-two years from the date of
publication.[302]

Encyclopædias are protected for the life of the proprietor and seven years
(by 5 & 6 Vict. c. 45, sec. 18, the proprietor of a collective work enjoys the
same rights as if he were the actual author thereof), or for forty-two years
from the date of publication, whichever period shall be the longer.[303]

Reviews, Magazines, and other periodical works of a like nature[304] have
two separate copyrights, viz.:

i. The proprietor's copyright in the publication, as a whole, for his life
and seven years, or forty-two years from first publication.
ii. The contributor's copyright in his separate contribution as a
separate work, beginning twenty-eight years after
publication of the collective work, or on separate
publication, if such should by agreement take place within
the twenty-eight years, and lasting for his life and seven
years, or forty-two years from first publication in the
collective work.

New Editions.[305]—As to each edition, the copyright runs from the date of
publication thereof, in so far as the matter therein is then first published.

Joint Works.—Although there is no statutory provision, they are probably
protected for the life of the surviving author and seven years, or for forty-
two years from first publication.[306]

Section VIII.—Copyright in Lectures.

There is no lecturing right, i. e. no exclusive statutory right to deliver a
lecture in public. The only Act applying to lectures is 5 & 6 Will. IV. c. 65,
which, under pain of penalties, prohibits printing or publishing, or
knowingly selling lectures, which at the time of delivery have not been
published in book form, without leave of the author thereof, or of the person
to whom the author thereof has sold or otherwise conveyed the same.[58] The
remedy is action in the High Court for: (i) Forfeiture of copies. (ii) One
penny per copy; half to the Crown and half to informer. A condition
precedent of protection under this Act is the giving of notice in writing to
two justices living within five miles from the place where such lecture or
lectures are delivered, two days at least before delivering the same. The Act
has fallen into entire desuetude, partly, no doubt, on account of this
somewhat troublesome stipulation as to notice, but principally because a
lecturer has, in fact, full protection at common law, if, as is usually the case,
he can make out an implied contract between himself and his audience that

the delivery of the lecture is for purposes of instruction only, and that those
present are entitled to make no other use of it whatsoever.[307] His remedy
at common law will be for damages and injunction. Of course he cannot sue
for penalties, unless he has brought himself within the Act.

The Lectures Act does not apply so as to protect any lecture or lectures
delivered in any university, or public school or college, or on any public
foundation, or by any individual in virtue of, or according to, any gift,
endowment, or foundation.[308] The law relating to such lectures is declared
to be the same as if the Lectures Act had not been passed. The result of this
proviso is that these special kinds of lectures are nearly always protected at
common law by implied contract in the same way as other lectures.[309] [59]

CHAPTER III

THE OWNER OF THE COPYRIGHT IN BOOKS

Section I.—The Crown.

When the Crown ceased to have the complete control which it originally
exercised over the printing-press, it still claimed to retain, as its prerogative,
the exclusive right of printing such works as it considered its own peculiar
property.[310] These included the authorised translation of the Bible, the
Common Prayer Book, Acts of Parliament[311] and Proclamations,[312] Latin
Grammars and Year Books. Law books, such as "Rolle's Abridgment," and
reports collected by the judges were also claimed by the Crown on the
ground that the laws were the King's Laws. Classical books, almanacs and
the like, were claimed by the Crown as bona nullius and things derelict. As
regards those books which the Crown claimed as its own property, it
granted licences and patents. The Stationers' Company, the King's printers,
the Universities, and from time to time various individuals received grants
of authority to print such works.

Many of the claims, for instance, to almanacs, law reports, Latin grammars,
have for long been abandoned. The patentees of the Crown, however, still
claim a prerogative copyright in—

1. The Authorised English Translation of the Bible.[313]
2. The Book of Common Prayer.[314]

[60]
The Universities of Oxford and Cambridge and the King's printers have
each the right to print the Bible and the Prayer Book.

No objection has ever been taken on behalf of the Crown or her patentees to
the printing of the Bible with notes, and this is in practice constantly done
without authority. The notes, however, must be substantial and not merely
illusory.[315]

In 1887 the Treasury published a Minute[316] in which the claims of the
Crown to the exclusive right of publishing Government publications are set
out. The Minute was published in the London Gazette.

The following publications are declared to be free from restriction of any
kind, and any person may therefore publish them with or without notes:

1. Reports of Select Committees of the Two Houses of Parliament,
or of Royal Commissions.
2. Papers required by Statute to be laid before Parliament, e. g.
Orders in Council, Rules made by Government Departments,
Accounts, Reports of Government Inspectors.
3. Papers laid before Parliament by Command, e. g. Treaties,
Diplomatic Correspondence, Reports from Consuls and
Secretaries of Legation, Reports of Inquiries into Explosions
or Accidents, and other Special Reports made to
Government Departments.
4. Acts of Parliament.
5. Official books, e. g. King's Regulations for the Army or Navy.

In the following works the Government claims to retain the copyright:

1. Literary or quasi-literary works, e. g. the Reports of the
Challenger Expedition, the Rolls Publications, the State
Trials, the "Board of Trade Journal."
2. Charts and Ordnance Maps.

The ancient prerogative claimed by the Crown was a perpetual copyright.
The Crown is not mentioned in the Copyright Act, and it is open to doubt

whether it could enforce a perpetual copyright in works compiled by its
servants, or whether it could only claim the term of copyright granted[61]by
the Copyright Act.

Section II.—The Universities.

By an Act of George III.[317] provision is made for the vesting of copyrights
in perpetuity in the Universities of Oxford and Cambridge, the Scottish
Universities and the Colleges of Eton, Westminster, and Winchester. These
privileges were obtained in consequence of the decision in Donaldson v.
Beckett[318] in the House of Lords to the effect that there was no perpetual
copyright.

Perpetual Copyright under the Universities' Act attaches to those books
which are "bequeathed or otherwise given" to one of the Universities or
Colleges. A work such as The Revised Version of the Bible, which was
compiled under the direction and at the expense of the two Universities,
will probably not have perpetual copyright under the Act since it is neither
bequeathed nor given. The same would apply to copyrights purchased by a
university or college.

The book in which University privilege is claimed must be registered within
two months after the time when the bequest or gift of the copyright comes
to the knowledge of the Vice-Chancellor of the University or head of the
college, as the case may be.

The remedy against unauthorised printing or importing or knowingly
selling, publishing, or exposing for sale any book in which there is
University copyright is an action in the High Court for—

(a) Forfeiture for destruction.
(b) One penny for every sheet found in the custody of the infringer,
half to go to the Crown and half to the informer.

The perpetual privilege granted by the Act only subsists so long as the book
is printed only within the respective Universities or Colleges, and for their
sole benefit and advantage. This does not debar them from selling[62] the
copyright, but if sold it will only subsist for the term granted to authors by
the Copyright Act, 1842.

Quære if some of Jowett's works, for instance, were printed in the United
States in order to acquire American copyright, whether that would destroy
the perpetual copyright by reason of copies being printed outside the
University.

Section III.—The Author.

Copyright in every book published in the lifetime of the author thereof
"shall be the property of such author and his assigns."[319] Copyright
therefore in the first instance ordinarily vests in the author. The word author
is not defined in the Act, and from time to time difficult questions have
arisen as to who is the author of a particular book within the meaning of the
Act. Difficulties have generally arisen from the fact that two or more people
have been engaged in the production of a book. The rule appears to be that,
if the literary matter is composed by those who make the manuscript,[320]
the author is the man from whom emanates the general conception and
design, and that although much of the detail may have been the work of
subordinate brains and hands, he is the author of the entirety, and may sue
for any infringement of it. Thus in Scott v. Stanford,[321] where the plaintiff
compiled and published periodically statistical returns of the London coal
market, Page Wood, V. C., in giving judgment, said that it appeared to him
quite immaterial whether the plaintiff had been assisted in the compilation
by his own clerks or by those of the Corporation. In Barfield v.
Nicholson[322] a case under the statute of Anne, Leach, V. C., said that he
was of opinion that under the statute the one who formed the plan and
embarked on the speculation of a work, and employed various persons to
compose different parts of it adapted to their own peculiar acquirements,
was the author and proprietor of the work, if not within the literal [63]
expression, at least within the equitable meaning of the statute of Anne. In

Hatton v. Kean[323] the defendant had arranged certain of Shakespeare's
plays with adjuncts of scenery, music, dancing, &c., and employed artists
and authors to aid him in carrying his design into effect; amongst others, the
plaintiff was employed to compose and arrange the orchestral
accompaniments. The Court of Common Pleas held that the defendant was
the author of the entire production. Erle, C. J., said:

"I am of opinion that the music so composed by the direction and
under the superintendence of the defendant, and as part of the general
plan of the spectacle, must, as between him and the plaintiff, become
the property of the defendant, and that consequently the defendant has
violated no right of the plaintiff in causing it to be represented in the
manner alleged."[324]

In Wallerstein v. Herbert,[325] where the facts were similar to those in
Hatton v. Kean,[326] that case was approved by the Court of Queen's Bench.
Cockburn, C. J., said:

"Looking at the nature of this composition, it is clear that it became a
part and parcel of the drama, and was not an independent
composition."

These decisions seem equally applicable to books which are not dramatic
compositions, but quære whether Hatton v. Kean[327] did not go too far. It
seems a strange thing to say that the arranger of a play becomes the author
of, inter alia, the musical accompaniment of which, perhaps, he could not
have composed a single bar. Would, for instance, the author of a book be
also the author of illustrations which he had procured another to draw for
him? Kekewich, J., in Petty v. Taylor, thought not.[328]

The mere suggestion of a subject or idea which is then entirely designed
and executed by another does not constitute the originator of the idea an
[64]
author, even although the actual composer is his employee.[329] In Shepherd
v. Conquest[330] the plaintiffs, proprietors of a theatre, employed a "stock
author" who, on payment of a weekly salary and travelling expenses,
composed plays for them. Under this employment the author composed

"Old Joe and Young Joe," a dramatic piece, which he handed over to the
plaintiffs, and which was produced by them at their theatre. There was no
contract or assignment in writing, but there was an oral understanding that
the plaintiffs should have the sole right of representing the piece in London.
It was held in the Court of Common Pleas that the plaintiffs had acquired no
title under the Dramatic Copyright Act, 3 & 4 Will. IV. c. 15, by reason of
which they could sue an infringement of the performing right.[331] Jervis, C.
J., delivered the judgment of the Court:

"We do not think it necessary in the present case to express any
opinion whether, under any circumstances, the copyright in a literary
work or the right of representation can become vested ab initio in an
employer other than the person who has actually composed or adapted
a literary work. It is enough to say in the present case that no such
effect can be produced when the employer merely suggests the subject,
and has no share in the design or execution of the work. It appears to
us an abuse of terms to say that in such a case the employer is the
author of a work to which his mind has not contributed an idea."

There may be joint authorship of a book. To constitute joint authorship the
work must be produced by joint labour in prosecution of a preconceived
joint design. In Levy v. Rutley[332] A wrote a play, to which subsequently B
added a scene, and made a few alterations and additions in other parts of the
piece. It was held that there was not joint authorship. Byles, J., said:

"If the piece had been originally written by A and B jointly in
prosecution of a preconcerted joint design, the two might have been
said to be the co-authors of the whole play, notwithstanding that
different portions were respectively the sole productions of either."

And Keating, J., said: [65]

"I entirely agree with my brother Byles that though it may not be
necessary that each should contribute the same amount of labour, there
must be a joint labouring in furtherance of a common design."

Quære whether co-authors are joint owners with the right of survivorship.
In Marzials v. Gibbons[333] it was suggested that they were, but see the
decisions where co-assignees are held to be owners in common, or part
owners without the right of survivorship.[334] Quære also whether each co-
author, as is the case with each co-assignee,[335] is entitled to sue in respect
of an invasion without the concurrence of the other co-author or co-authors.

Until Walter v. Lane[336] was decided in the House of Lords, it was a
prevalent opinion that the author must be he who actually designs and by
himself or through others composes the literary matter contained in the
book. That case, however, demonstrates that the author is the first producer
of literary matter in "book" form, i. e. in some permanent form from which
it can be copied by the printer's compositor, usually, but not necessarily,
manuscript. As a rule such person is also the composer of the literary matter
contained in the book, but this is not a necessary attribute of the character of
author. In Walter v. Lane[337] Lord Rosebery had delivered without reserve
of any kind certain public speeches. They were delivered orally, not having
been previously committed to writing. On the various occasions when they
were delivered reporters from the Times were present, and they took down
the speeches verbatim. From these reports they were transcribed into long
hand, and published in the Times. Mr. Lane, a publisher, took these
speeches from the columns of the Times, and without any authority from the
proprietors thereof, published them in a volume entitled "Appreciations and
Addresses, by Lord Rosebery." In this action at the instance of the
proprietors of the Times for the infringement of the copyright in their
reports, it was finally held in the House of Lords, firstly, that as these
[66]
reports contained literary matter published for the first time in "book" form,
they were the subject of copyright, and secondly, that the reporters were the
authors within the meaning of the Act, since they first reduced the literary
matter orally delivered by Lord Rosebery to "book" form.

Section IV.—The Employer.

Under Section 18.—An employer is ab initio entitled to the copyright
when he employs an author within the meaning of and subject to the

conditions imposed by section 18. Section 18[338] enacts that—

"When any publisher or other person shall before or at the time of the
passing of the Act have projected, conducted, and carried on, or shall
hereafter project, conduct, and carry on, or be the proprietor of any
encyclopædia, review, magazine, periodical work, or work published
in a series of books or parts, or any book whatsoever, and shall have
employed or shall employ any persons to compose the same in any
volumes, parts, essays, articles, or portions thereof for publication in or
as part of the same, and such works, volumes, parts, essays, articles, or
portions, shall have been or shall hereafter be composed under such
employment on the terms that the copyright therein shall belong to
such proprietor, projector, publisher, or conductor, and paid for by such
proprietor, projector, publisher, or conductor, the copyright in every
such encyclopædia, review, magazine, periodical work, and work
published in a series of books or parts, and every volume, part, essay,
article, and portion so composed and paid for shall be the property of
such proprietor, projector, publisher, or other conductor, who shall
enjoy the same rights as if he were the actual author thereof, and shall
have such term of copyright therein as is given to the authors of books
by this Act; except only that in the case of essays, articles, or portions
forming part of and first published in reviews, magazines, and other
periodical works of a like nature, after the term of twenty-eight years
from the first publication thereof respectively, the right of publishing
the same in a separate form shall revert to the author for the remainder
of the term given by this Act: provided always that during the term of
twenty-eight years the said proprietor shall not publish any such essay,
article, or portion separately or singly without the consent previously
obtained of the author thereof or his assigns: provided also that nothing
herein contained shall alter or affect the right of any person who shall
have been or who shall be so employed as aforesaid to publish any
such his composition in a separate form, who by any contract, express
or implied, may have reserved or may hereafter reserve to himself such
right; but every author reserving, retaining, or having such right, shall[67]
be entitled to the copyright in such composition when published in a
separate form, according to this Act, without prejudice to the right of
such proprietor, projector, publisher, or conductor, as aforesaid."

The nature of a proprietor's rights in the articles contributed to his
periodical under section 18 is well summarised by Chitty, J., as follows:

"This 18th section when fairly examined comes to this: the author of a
literary work is the proprietor of the copyright under the general
sections of the Act. If it is unpublished matter, probably the better term
is to say that his right is to prevent any one else from publishing. If it is
published matter, then his right is a true copyright, and it is to prevent
anybody else from multiplying copies, and that right is vested in
him.... Then comes this 18th section, the short effect of which is to
transfer for a limited period a portion of the copyright to the proprietor
of the periodical for whom the article has been composed; it being a
condition that there shall not only be a composition of the article on
the terms that it shall belong to the proprietor or publisher, but also that
the sum agreed to be paid has been paid."[339]

Scope of Section.—In some of the earlier cases it seems to be suggested that
section 18 applies only to works of a periodical nature.[340] But this gives
no meaning to the words "or any book whatsoever," which surely could not
be construed as including only books ejusdem generis as periodicals. The
first part of the section appears to include all books if produced under the
conditions as to employment and payment there enacted.[341] The judgment
in Shepherd v. Conquest[342] suggests that in the opinion of the Court in that
case section 18 did not apply when the performing right in a play was
claimed by the proprietors of a theatre, the play having been produced by a
"stock author" in their employment. It is difficult to see why section 18
should not be equally applicable to the performing right as to the copyright.
Section 20 of 5 & 6 Vict. c. 45 provides that—

"The provisions hereinbefore enacted in respect of the property of such
copyright and of registering the same shall apply to the liberty [68] of
representing or performing any dramatic piece or musical composition
as if the same were herein expressly re-enacted and applied thereto,
save and except that the first public representation or performance of
any dramatic piece or musical composition shall be deemed equivalent
in the construction of this Act to the first publication of any book."

Under such Employment.—The author must be "employed" and the work
must be composed "under such employment." It appears therefore that a
work or part of a work would not come within this 18th section unless
actually executed in the course of the author's employment by the
proprietor. In other words, there must be antecedent employment.[343] A
contribution voluntarily sent to a magazine would not, even although
accepted and paid for on the terms that the copyright should belong to the
proprietors, come under the provisions of section 18. It is submitted that it
would become the sole property of the proprietor of the magazine for all
purposes without any reservation of the right of separate publication to the
author.[344]

If A employs B, who in his turn employs C, the copyright will vest in A if B
acted as a mere agent for A. Thus in Stubbs v. Howard,[345] Stubbs
employed the Mercantile Press to obtain the necessary information for their
Gazette, and the Mercantile Press employed P. to collect and compile. It
was held that the copyright vested ab initio in Stubbs under section 18. But
if A employs and pays B to do certain literary work, and B, of his own
authority, employs and pays C, D, and E to do certain portions of it, it is
doubtful whether the copyright in these portions will vest in A under section
18. The author has been neither employed nor paid by the proprietor of the
work since B acted not as an agent for him, but as an independent
contractor.[346] The operation of section 18 seems to be exhausted in the
first employment.

"On the terms that the copyright therein shall belong to such proprietor."—
The terms may be implied from the nature of the employment and the
circumstances under which the work is composed. In Sweet v. Benning[69] [347]

various members of the bar had furnished reports of cases to the plaintiffs,
the proprietors of the Jurist. The reporters selected what cases they thought
fit to report and were paid for their work. The arrangements were entirely
oral, and nothing seems to have been said about copyright. The Court of
Common Pleas held that the proprietors of the Jurist became the owners of
the copyright under the 18th section. Maule, J., in support of his opinion
said:

"When a man employs another to write an article or to do anything
else for him, unless there is something in the surrounding
circumstances or in the course of dealing between the parties to require
a different construction, in the absence of a special agreement to the
contrary, it is to be understood that the writing or other thing is
produced upon the terms that the copyright therein shall belong to the
employer."

In Trade Auxiliary v. Middlesborough[348] the proprietors of Stubbs' Weekly
Gazette and two other weekly papers jointly employed on salary two men to
examine the official records and extract the particulars of bills of sale and
deeds of arrangement registered in accordance with the Acts. The
information so obtained was published in the weekly papers. It was held
that the proprietors of the respective papers became owners of the copyright
under section 18. In Lamb v. Evans[349] the plaintiff employed and paid
several persons in canvassing for advertisements and arranging them under
appropriate headings in a Trades Directory. Lindley, L. J., in giving
judgment, said he thought that—

"The burthen of proof was on the plaintiff to show that the headings
were composed upon the terms that the copyright therein should
belong to him; but the statute does not say anything about the kind of
evidence which is to be adduced for the purpose of proving that an
article has been composed on these terms.... If there is no express
agreement the question is, what is the inference to be drawn from the
circumstances of the case. In drawing the inference regard must be had
to the nature of the articles which are here merely the headings to
groups of advertisements with translations, and the view expressed by
Mr. Justice Maule in Sweet v. Benning[350] may be very safely acted
upon, viz. that primâ facie at all events you will infer, in the absence [70]
of
evidence to the contrary, from the fact of employment and payment
that one of the terms was that the copyright should belong to the
employer. That is not a necessary inference; but in a case of this sort,
where any other inference would be unbusinesslike, I should not
hesitate myself to draw that inference."

Bowen, L. J., in the same case, says:

"From where are you to collect the terms? You may collect them from
what passed between the parties, that is to say between the plaintiff
and the persons whom he employed, but you may also collect them
from the nature of the business itself, and it seems to me to be
impossible as a matter of business to suppose that these headings were
composed and furnished to the plaintiff upon any other terms than that
he was to have the copyright in them, because otherwise those who
composed them having furnished them to the plaintiff might
themselves have published them and defeated his object."

On the other hand in Walter v. Howe,[351] Jessel, M. R., held that the Times
could not sue in respect of a biography of Lord Beaconsfield which had
appeared in their columns. There was evidence that the author had been
paid for his literary services, but there was apparently no evidence as to
whether he had been "employed" "on the terms that the copyright should
belong" to the plaintiff. Notice that in this case no antecedent employment
whatsoever is shown. In Johnson v. Newnes[352] a series of stories were
contributed to the Weekly Dispatch under an arrangement between the
proprietor and the author. The author was not on the permanent staff of the
Weekly Dispatch. He was paid by the proprietors for his contributions, the
arrangement being that the author should have the right of separately
publishing the stories, provided such separate publication did not take place
until after all the stories had appeared in the Weekly Dispatch. In an action
by the author against an infringer, Romer, J., in giving judgment for the
plaintiff, said that he had come to the conclusion that although the plaintiff
was paid he was not paid on the terms that the copyright in the stories
should belong to the proprietors of the journal. The author had therefore not
[71]
parted with the copyright and was the proper plaintiff.[353]

In Aflalo v. Lawrence[354] the defendants published a work called "The
Encyclopædia of Sport." A, one of the plaintiffs, agreed with the defendants
that he would edit the work. He was to receive £500 for his services, and to
write without further remuneration 7000 words of special articles. He was
entitled to pursue his literary work in so far as it did not interfere with the
performance of his duties. A contributed an article to the encyclopædia
under this agreement. A, by the request of the defendants, procured C, the
other plaintiff, to write certain articles for the encyclopædia at the rate of £2

per thousand words. The articles of both plaintiffs were published in the
encyclopædia. Joyce, J., held that the contributions of neither plaintiff came
within section 18, since there was nothing to show that they were
contributed on the terms that the copyright therein should belong to the
defendants. The defendants were therefore not entitled to publish the
plaintiff's articles in any other form than as part of the encyclopædia. In
view of the earlier authorities I think this decision is extremely doubtful.

Joint Employers.—As has been seen above in the case of Trade Auxiliary v.
Middlesborough,[355] two or more proprietors of several periodicals may
jointly employ an author so as to acquire the copyright under this section.
Each has a separate copyright in his respective paper, and, although the
matter contributed to the several papers is the same, may sue without
joining the other proprietors. Each is "a transferee by virtue of section 18 of
a limited portion of the copyright in that particular composition."[356]

Payment.—Not only must there be employment for reward, but payment is
a condition precedent. If payment is not proved the section will not operate
to transfer the copyright from the author.[357] Payment must be made before
the commencement of an action.[358] It has been suggested that it must be
made before piracy, and this appears a sound view since there is no
copyright in the proprietor until payment, and an infringement before [72]

copyright is assigned is no cause of action in the assignee.[359] There is
nothing to suggest that payment must be made before publication.[360]

Author's Separate Rights.—When an author has contributed to a periodical
and the conditions of the section have been fulfilled so as to vest the
copyright in the proprietor of the periodical, it would seem that for twenty-
eight years, i. e. until the right of publishing in separate form reverts to the
author, the author has no right to sue third parties in respect of an
infringement without joining the proprietor of the periodical as co-plaintiff.
If, however, the author, while contributing on the terms that the proprietor
should have the copyright, reserves the right of publishing his composition
in a separate form within the meaning of the proviso at the end of the
section, when he does publish in separate form he will be entitled to
copyright concurrently with the proprietor, but semble that he will have no

right to sue alone until publication in separate form,[361] or until the lapse of
twenty-eight years.

During the twenty-eight years the proprietor of a periodical work is not,
apart from express agreement, entitled to publish the contribution in
separate form. If the proprietor does publish separately in breach of the
provision of the section, the author has a right of action against him, and the
author's right not being one of copyright but in respect of a breach of
implied or statutory contract he does not require to be registered.[362]
"Separate" means in any other form than the original collective publication,
whether as a single work by itself or in conjunction with other matter. When
the proprietor of a magazine reprinted certain stories which had appeared in
the magazine from time to time, and published them as a supplement to the
current number, this was held to be a publication in separate form which the
author could prevent.[363] So also the republication of the Christmas number
of a periodical under a different title, form, and price, is a separate
[73]
publication of an article contained in such number.[364] A Christmas number
of a serial publication, although published in an entirely different form with
separate pagination and sold at a different price from the ordinary numbers,
is part of the periodical, and separate publication of the stories therein will
be prohibited under section 18.[365]

An article may be contributed to a periodical under express or implied
terms that the copyright shall belong to the proprietor for all purposes, in
which case there will be no reservation of a right of separate publication.
[366]

It should be clearly noted that the second part of section 18 applies only to
periodical works. Therefore in the case of an encyclopædia or similar
collective works the owner has, apart from special terms, a right to publish
the contributor's article separately from the original publication.

Employer's Rights where Section 18 does not Apply.—A question of
some difficulty has been raised from time to time to which there is no
definite authoritative answer, viz. whether apart from the provisions of
section 18 the copyright ever vests ab initio in the employer of an author.
We shall see in dealing with assignment that probably the sole right before

publication to acquire the copyright of a book on first publication may pass
from the author to his assignee without writing, either by an implied gift on
delivery of the manuscript or by express oral assignment. The question now
considered is whether by the fact of employment alone the work of the
employee may not ipso facto on production become the property of his
employer. In Sweet v. Benning[367] it was held that the employment of
certain members of the bar as reporters came within section 18, and that the
copyright vested in the employers themselves; but during the argument
Maule, J., is reported to have said:

"One might almost infer without the aid of an Act of Parliament that
one who employs another to write an article or to make anything else
for him is the owner or proprietor."

I think that this suggestion is wrong if applied to the case of an independent
contractor, and that if such an employment does not come within section 18
there will be no proprietary right in the employer ab initio, although it [74]
may
be transferred to him before publication by mere delivery of the manuscript
with the mutual intention to convey all rights. But in the case of a servant or
agent who produces literary work in the course of his employment, I think it
is different. I think that his work will vest ab initio irrespective of section
18, and that section 18 only applies to an independent contractor and not to
a servant. In Hildesheimer v. Dunn[368] Kekewich, J., takes this view. He
says:

"I entertain a strong opinion that when a person has composed verses,
we will say on behalf of another, that is to say as his servant or agent,
whether for pay or not, the person on whose behalf such verses are
composed is properly registered under the Act as the proprietor,
notwithstanding that there is no assignment in writing or indeed any
assignment at all."

Section V.—The Assignee.

Before Publication.—Before a manuscript has been published the right to
publish and acquire the copyright may be assigned so that on publication

the copyright will be the property of the assignee. If the publication takes
place during the lifetime of the author, the assignee takes the copyright
under sections 2 and 3 of the Copyright Act, 1842.[369] Section 3 provides
"that the copyright in every book which shall, after the passing of the Act,
be published in the lifetime of its author ... shall be the property of such
author and his assigns." Section 2 provides that the word "assigns" shall be
"construed to mean and include every person in whom the interest of an
author in copyright shall be vested, whether derived from such author
before or after the publication of any book, and whether acquired by sale,
gift, bequest, or by operation of law or otherwise." If the publication takes
place after the death of the author, the assignee takes the copyright under
section 3, which enacts that "the copyright in every book which shall be
published after the death of its author ... shall be the property of the
proprietor of the author's manuscript from which such book shall first be
published and his assigns." The possession and right of property in[75] the
manuscript is primâ facie proof of the right to publish and acquire
copyright, but such proof may be rebutted by showing that the possession or
ownership of the manuscript has been separated from the right to publish
and acquire copyright. Thus in the case of letters the literary property
remains in the writer and his assigns, whereas the property in the physical
substance of the manuscript has passed to the receiver and his assigns.

If an assignment of manuscript, purporting to carry with it the right to
publish and acquire copyright, is made before publication, it is submitted
that no writing is required. The requirement that an assignment of copyright
after publication must be in writing is founded not on an express enactment,
but on implication from section 15 of the Copyright Act, 1842.[370] This
section prohibits the reproduction of any book in which there is subsisting
copyright without the consent in writing of the proprietor thereof. From this
it is deduced by a fortiori argument that an assignment of subsisting
copyright must be in writing.[371] It does not in the least follow that the
common law right in manuscript may not be assigned by any mode by
which property of that description might be assigned at common law. The
Courts have not, however, sufficiently distinguished between an assignment
before and an assignment after publication, and as a result the case law on
the subject is in a most unsatisfactory condition. There are several cases
under the statute of Anne, which statute, in very similar words to the statute

of Victoria, provides that copyright shall belong to the author and his
assignee or assigns. There is no definition of "assigns," as in the statute of
Victoria, but the rule that assignment of copyright must be in writing is
deduced in the same way from the proviso that consent to copy must be in
writing. The cases under the statute of Anne should therefore be equally
applicable as authorities under the statute of Victoria. In Clementi v.
Walker[372] a French author had assigned orally to an English subject the
exclusive right of printing and publishing a musical composition in this
country. The work had not been published in England, and apart altogether [76]
from the question of a prior publication in France, the Court was of opinion
that the publication in England did not give copyright to the English
publisher, "because there was not any assignment or consent in writing
given to the author previously to that publication. The case of Power v.
Walker[373] is an authority to show that a parole assignment is not sufficient
to give to the assignee the privileges conferred by the legislature upon the
author." In Colburn v. Duncombe[374] there was a written publishing
agreement whereby the author agreed to write a book and assign the whole
copyright therein. On completion the manuscript was delivered to the
publisher, and the author gave a written receipt for the consideration and
agreed to deliver a regular assignment when called upon. This was never
done, and in an action by the publisher against an infringer it was held that
he could not sue without the author in whom the copyright had vested and
remained. In Sweet v. Shaw[375] the plaintiffs agreed with A and B that A
and B should report cases for them. A and B accordingly took notes of
cases, and these were printed and published by the plaintiffs. Shadwell, V.
C., said that he thought the plaintiffs had a copyright in equity but not in
law. "I cannot," he said, "see how the agreement that persons shall prepare a
work for the plaintiffs gives the plaintiffs a copyright in law, for there can
be no assignment in law except of that which actually exists." In all these
three cases last cited it is submitted that the whole right of the author should
have been held to have passed to the publisher by the delivery to him of the
manuscript with the mutual intention that he should acquire all rights
therein. The first case in which it is recognised that the author's right may
before publication pass without writing is Jefferys v. Boosey.[376] Erle, J.,
[377]
and Coleridge, J.,[378] decided that no writing was required. Speaking
of an oral assignment abroad of a manuscript subsequently published here,

Coleridge, J., said: "The assignee is clearly within the enabling clause of[77]
the
statute (8 Anne, c. 19); he is the assignee of an author, and even if these
words may in some cases mean an assignee under an instrument in writing
attested by two witnesses, it has not been shown or decided that they must
or can mean this in all cases. I think the contrary has been shown. Larger
words and less restrained the legislature could scarcely have used, and on
what sound principle are we to import a restraint by implication?" Lord St.
Leonards, however, in the same case, seemed to be of opinion that the
assignment must be in writing and attested by two witnesses (under 8 Anne,
c. 19) even although made before publication. In some of the cases the
publisher with whom the author has agreed that he shall have the whole
copyright, but to whom there has been no assignment in writing, has been
said to be an equitable owner of the copyright.[379] But it is submitted that if
the manuscript passes before publication with mutual intention to convey to
the publisher all right, title, and interest therein, the publisher is the legal
assignee, and on publication is the legal owner of the copyright, and there is
no necessity for a formal assignment in writing.[380] The same principle
may not apply to performing rights in dramatic and musical works under 3
& 4 Will. IV. c. 15. It is probable that statutory performing rights vest in the
author on production,[381] and if this is so there would probably be no
common law performing right, and therefore no common law assignment;
the statutory mode of assignment would attach from the beginning.[382]

After Publication.—After publication an assignment must be in writing.
[383] [78]
It need not be by deed nor attested by witnesses,[384] nor, it would
seem, need it be signed by the proprietor or any one.[385] The assignment
may be given by an agent. An assignment does not require to be registered
in order to make it valid as a transfer of the property: but an assignee who
sues must be registered.[386] If the assignor is registered as proprietor
complete assignment may be made by entry on the Book of Registry at
Stationers' Hall.[387] Probably an author, even although not registered, may
make a valid assignment by registering the book in the name of his assignee
as proprietor.[388] It has been held that an unregistered author may so
register himself and two others and give all three a title to sue as joint
proprietors, from which it seems to follow that he could have registered the

two others without himself.[389] An assignee may make the entry on the
register himself without the concurrence or consent of his assignor.[390]

In the case of an assignment made otherwise than by entry on the register,
the writing must in itself amount to a present conveyance of the copyright
although no particular words of conveyance are required. An executory
contract to assign is not sufficient,[391] neither will it invalidate a
subsequent regular assignment to others.[392] A written agreement "to let A
have" a particular drama in discharge of a debt of £10 was held a complete
assignment of all rights in the drama.[393] A receipt for money purporting to
be paid in respect of an assignment is not in itself an assignment.[394] The
copyright will not pass merely by the sale and transfer of possession of any
instrument whereby the book may be reproduced such as stereotype blocks.
[395] [79]
In the event of mesne assignments the burden of proof is in those
disputing the title to show that they were not rite et solenniter acta;[396] and
even in the case of an alleged assignment to a party in the action, a valid
assignment has been presumed from a long course of dealing without actual
evidence of an assignment in writing.[397]

An executory contract or a purported assignment not valid at law will be
recognised in equity, and the Court will order specific performance or
compel the assignor to allow the assignee to sue in the assignor's name.[398]

The assignee cannot sue in his own name in respect of acts of infringement
committed before he became proprietor.[399] An assignee cannot, apart from
special agreement, prevent his assignor selling against him copies of the
book which such assignor has printed before assignment.[400] Probably the
assignment of copyright implies a warranty of the right to convey, free from
encumbrances, and quiet enjoyment.[401]

Co-assignees take as tenants in common and not as joint tenants,[402] and
any one or more may maintain an action against a stranger for an
infringement of the entire copyright.[403] It follows that one of several co-
assignees cannot grant an effective licence without the concurrence of the
others.[404]

In Jefferys v. Boosey[405] Chief Baron Pollock expressed an opinion that if a
foreigner resident abroad had a copyright in this country, an assignment
valid by the laws of a foreign country would be sufficient, inasmuch as
copyright is expressly enacted to be personal property, and would therefore
pass according to the laws of the country where the transfer took place. [80]

Partial Assignment.—It was laid down in Jefferys v. Boosey[406] by Lord
St. Leonards that copyright was one and indivisible, and could not be
partially assigned. If this is correct, any attempt to assign a partial right
would operate if at all as a mere licence. This opinion of Lord St. Leonards
was in respect of the statute of Anne. It seems to be more or less accepted
that under the statute of Victoria copyright is divisible; that there may be
partial assignment limited as to place,[407] e. g. provincial rights, right to
publish in a particular country, or limited as to the nature of the right,[408] e.
g. the right to dramatize, the right to translate. This view appears to be
based on section 13 of the Act of Victoria,[409] which enacts that a
registered proprietor may assign his interest or any portion therein by
making entry on the register. I do not think that this provision in itself is
conclusive or that it necessarily follows that a copyright can be split up and
partially assigned. Section 13 may merely mean that the owner can assign a
certain undivided share in his copyright to another. Cotton, L. J., in Trade
Auxiliary v. Middlesborough,[410] refers to Lord St. Leonards' doctrine. He
does not disapprove of it, but he distinguishes the case of common
ownership in a copyright from the case of a partial assignment as to place.

In a case decided in the Supreme Court of New South Wales,[411] it was
held that the assignee of a performing right limited to the Australian
colonies could sue in his own name for infringement. The Court
distinguished between the performing right and the copyright. They said
that even although the copyright, in accordance with Lord St. Leonards'
opinion, was not divisible the performing right was.[412]

In any view of partial assignment I do not think there can be partial
assignment as to time.[413] Such an assignment would create an estate in
possession and reversion in personal property, and there is no reason for
holding that copyright is any exception to the general rule that such[81]an

interest cannot be created in personalty. Equitable estates, limited as to
time, can no doubt be created as in the case of any other personal property.
[414]
What purports to be an assignment limited as to time must as a rule be
treated as a licence.

Assignment distinguished from Licence.—The distinction between an
assignment and a licence must be carefully observed; questions of the
utmost importance will often depend on whether a transaction was one or
the other. An assignment is a conveyance of the right denuding the grantor
and carrying to the grantee the whole interest including the right to sue and
the right to re-assign, whereas a licence is only a personal permission to the
grantee to infringe the grantor's right, and carries with it no right of action
except in the grantor's name. In determining whether a particular transaction
is an assignment or a licence, the first question is whether, on a true
construction of the statute, the right purported to be given can be given by
assignment or only by licence. If the right is one so limited that it cannot
legally be the object of assignment, the transaction must necessarily be a
licence; but if it can legally be the object of assignment, the further question
arises as to what was the intention of the parties as evidenced by what they
have said and done. There may often be clear words to show what was
intended, but more often it may never have occurred to the parties that there
was any distinction between an assignment and a licence, and the form used
will consequently be ambiguous. The principal test in such cases is to
examine the contract and the circumstances under which it was made, and
see whether or not it bears the impress of a reliance by the grantor on the
personal skill or reputation of the grantee. If it does a licence will be
presumed rather than an assignment; for instance, in a publishing agreement
a licence only will be presumed, since either the pocket or the reputation of
the author would suffer if the right of publication were to pass into
[82]
incompetent hands.[415]

Section VI.—The Licensee.

Whether a bare licensee can bring an action for infringement without
joining the legal owner of the copyright is open to doubt. It is submitted that
he cannot. The essence of a licence proper is that it is merely a personal

relationship between a licensor and a licensee whereby the latter is
permitted to infringe the former's copyright. The old cases are not
satisfactory. The distinction between partial assignment and licence is not
clearly drawn, and the result is a confusion of the respective rights of the
assignee and the licensee. In several cases it was said that licensees could
sue[416] but quære whether they were not really partial assignees. It has also
been said that an owner of copyright who has granted an exclusive licence
cannot sue in respect of an infringement which touches only the rights
included in such licence, unless such owner has the consent of his licensee.
[417]
This again, it is submitted, is not a correct statement of the law, and
arises from a confusion between a partial assignee and a licensee. In Taylor
v. Neville[418] the grant of provincial performing rights although called a
licence was really treated as an assignment and distinguished from a
"merely personal licence." It is submitted that a licence proper is always
"merely personal" and that the grantor may sue without consent of his
licensee. Where a licence has been granted or when there is doubt as to
whether a particular grant is an assignment or a licence, it will always be
safer to join both grantor and grantee as co-plaintiffs. A licence will not be
presumed to be a sole licence, and unless it is expressly stated, or must
necessarily be implied from the circumstances that it is so, the first licensee
cannot restrain the licensor from granting, or a second licensee from acting
[83]
on, a second licence.[419]

Section VII.—The Executors or Administrators.

Copyright is personal property, and descends on the death of an owner to
his personal representatives.[420] "Assigns" is expressly interpreted to
include one taking by bequest or by operation of law. The common law
property in the manuscript passes on the death of the owner in the same
way as copyright. A bequest of "all my books" has been held to include
valuable manuscript notes left by a physician.[421]

Section VIII.—The Trustee in Bankruptcy.

Copyright comes within the vesting section of the Bankruptcy Act and
passes to the trustee of a bankrupt owner.[422] A bankrupt's unpublished
works, probably, cannot be published for the benefit of his creditors without
his consent. [84]

CHAPTER IV

INFRINGEMENT OF COPYRIGHT IN BOOKS

Section I.—Prohibited Acts, and Remedies.

Copyright is defined by the Copyright Act, 1842, as "the sole and exclusive
liberty of printing or otherwise multiplying copies." Any invasion of this
monopoly is an infringement of copyright. Besides infringement of
copyright, i.e. illegal copying, the Act makes it an offence to deal in certain
ways with unlawful copies. The offences against copyright and the owner's
remedies may be conveniently summarised as follows:

For the following offences:[423]

i. Piratical copying.
ii. Importing for sale or hire unlawfully printed books.
iii. Selling or hiring, or having in possession for sale or hire,
unlawfully printed books, knowing the same to be
unlawfully printed.[424]
iv. Causing any of the above acts to be done.

The remedies[425] are an action in a Court of Record for:

1. Damages and account of profits.
2. Delivery up of copies.
3. Injunction.

For the following offences:[426]

v. Importing without the consent of the proprietor a foreign copy
or copies,[427] i. e. printed outside the British dominion. [85]
vi. Selling or hiring or having in possession for sale or hire foreign
copies knowing them to be unlawfully imported.[428]

The remedies are:

1. Seizure and destruction by any officer of Customs,[429] and
on conviction before two justices of the peace.
2. £10 for every offence.[430]
3. Double the value of every copy dealt with,[431] and

An action in the High Court for

4. An injunction.[432]

Causing to be Printed.—The prohibition in section 15 is against "printing,
or causing to be printed." Thus the author, publisher,[433] and printer of a
piratical book are all equally liable, and it is no defence for the publisher,
who has employed the printer, or for the printer to say he was acting merely
as an innocent agent.[434] There may sometimes be difficulty in determining
whether a person who, to a certain extent, is interested in the publication
has yet caused it to be printed within the meaning of the section. Thus, in
the case of Kelly's Directories v. Gavin and Lloyds,[435] the plaintiff had
published a directory of merchants and shipping statistics. The defendant
Gavin prepared a similar directory, and agreed with the defendants Lloyds
for its publication. Lloyds were to print part of it and allow the use of their
name in the title and receive some share in the profits. The book was
accordingly published under the title of "Lloyds' Diary for Merchants, &c.,"

and bore on the title-page the statement "printed at Lloyds, Royal
Exchange, London." Part of the book was held to be an infringement of the
plaintiff's copyright; but it was proved on the trial that that part was not
printed by Lloyds, but by a printer employed by Gavin, and that Lloyds had
no knowledge of its piratical nature. Byrne, J., found that Lloyds were not
[86]
partners in the undertaking with Gavin, and that the printing of the piratical
portion was not done by the printer as their agent. He therefore held that
Lloyds had not "caused" that portion to be printed within the meaning of the
section, and dismissed the action as against Lloyds, but without costs, as
they had allowed their name to appear on the title-page as printers.

Damages.—An action for damages lies, irrespectively of sections 15 or 23,
for any infringement of copyright as defined by section 2.[436] The damages
are damages as for conversion or detinue,[437] and may be matter for inquiry
before a master or official referee, but frequently are assessed by the judge
on a rough estimate.

Account of Profits.—An order for an account of profits is an equitable
remedy. The defendant is held to have been in possession of the plaintiff's
property, and must account for the profits thereof.[438] The account will be
for an account of net profits.[439] On an interlocutory application for an
injunction the defendant may undertake to keep an account of profits until
trial; but, strictly, the right to an account depends on the right to an
injunction, and will not be ordered when the case for an injunction fails.[440]
If the defendant's work is not wholly piratical, the profits must be
apportioned according to the relative value of the piratical with the non-
piratical matter. The defendant's profits may not entirely recoup the plaintiff
for the damage he has suffered, and in that event he is entitled to an inquiry
into damages to supplement his compensation.[441]

Injunction.—This is also an equitable remedy. It is not specially provided
for in the Copyright Act, but being the ancillary remedy in equity for the
protection of legal rights, it will be granted or withheld according to[87]
the
discretion of the Courts in all cases of infringement or other offences
against the Act.[442]

An interim injunction is usually granted on motion before trial where the
plaintiff shows a primâ facie case on affidavit. In doubtful cases weight will
be given to the consideration which side is more likely to suffer from an
erroneous judgment.[443] The Court will consider the balance of
convenience on the one side and the other.[444] The reason for granting an
interim injunction is that a continuing infringement might cause damage for
which it would be difficult or impossible to assess an adequate money
compensation. If the taking is of an inconsiderable part, an interim
injunction might not be given, although an injunction might go at the
hearing. In urgent cases an interim injunction may be granted ex parte. In
all interim injunctions the plaintiff is, as a rule, required to undertake to
give compensation to the defendant if on trial he fails to establish his case.
[445]
When such an undertaking is given the defendant is, if he succeed in
his defence, entitled to an inquiry as to the damage sustained on account of
the interim injunction against him.[446] When there has been undue delay in
bringing an action, or where the conduct of the plaintiff has been such as to
induce the defendant to believe that his conduct would not be objected to,
an interim injunction will probably be refused.[447] A mere expression of
opinion by the plaintiff that it would be legal to make a certain use of his
work is not a sufficient ground for refusing an injunction if in point of law
the use made by the defendant is illegal.[448] "Copyright is not to be lost by
the mere expression of opinion."[449] At the hearing of the action a perpetual
injunction will be granted on the plaintiff proving his title and infringement.
Delay or acquiescence not amounting to fraud will not prevent an injunction[88]

going at the hearing when the plaintiff proves his right;[450] "for at the
hearing of the cause it is the duty of the Court to decide upon the rights of
the parties, and the dismissal of the bill upon the ground of acquiescence
amounts to a decision that a right which has once existed is absolutely and
for ever lost."[451] When an infringement has been shown the Court will not
wait until it can ascertain distinctly what parts have been pirated. It will
grant an injunction in general terms restraining the defendant, his agents,
servants, or workmen from further printing, publishing, selling, or
otherwise disposing of any copy or copies of the defendant's book
containing any passage or passages copied, taken, or colourably altered
from the plaintiff's book.[452] If it appears that the piratical parts of the

defendant's book can be distinguished from that which is innocent, this will
be done in the injunction.[453] For a form of injunction against a servant
restraining him from using blocks and materials obtained while in the
plaintiff's employment, see Lamb v. Evans.[454] An injunction will be
granted without any inquiry as to actual damages;[455] but there must be
probability of damage. In Borthwick v. Evening Post,[456] Cotton, L. J., said:

"In my opinion, in order to justify the Court in granting an injunction,
we ought to be satisfied that there probably will be injury to the
pockets of the plaintiff ... an injunction is an equitable remedy, and
ought not to be granted unless the Court is satisfied that there is
damage to the plaintiff—probable damage, not necessarily damage
already suffered—as the result of the defendant's conduct."[457]

Quære whether an injunction will be granted to protect the future numbers
of a periodical. In Cate v. Devon and Exeter Constitutional Newspaper
Company,[458] North, J., in granting an injunction to restrain a systematic
infringement of a periodical, said: [89]

"It is clear that an injunction can only be granted in respect of matters
in regard to which the plaintiffs now have the copyright and a present
right to sue; they cannot have any protection by injunction to restrain
the defendants from publishing hereafter any future entries with
respect to which the plaintiffs may possibly ... acquire a copyright, ...
but as to which they clearly cannot at this moment have any
copyright."[459]

In another case, however, where a single illustration had been taken from
Punch, Kekewich, J., said he saw no objection to the injunction extending
to the protection of the contents of future numbers of Punch, and granted a
perpetual injunction accordingly against the Ludgate Monthly.[460] An
injunction will not be granted when it is difficult or impossible to enforce it,
[461]
for instance, when the defendant can readily reprint the same matter,
compiling it from original sources.[462] The piracy proved may be so
inconsiderable, and so little likely to injure the plaintiff, that the Court may
decline to interfere by injunction.[463]

Delivery up of Copies.—All copies of any books wherein there is
copyright and of which entry has been made in the Registry Book and
which are unlawfully printed or imported, are deemed to be the property of
the registered proprietor of such copyright, and he is entitled after demand
in writing to sue for the same in detinue and trover.[464]

This right to the delivery up of pirated copies for the benefit of the
proprietor of the copyright is purely statutory. Under the Acts of Anne and
George III. the proprietor on delivery up was enjoined to damask and make
waste paper of the copies.[465] Under the Act of Victoria the proprietor for
the first time is entitled to recover such copies for his own use. It has been
doubted whether there was any right to delivery up at common law,[466][90] but
[467]
the bulk of authority is in favour of the view that there was, although
[468]
the delivery up was for destruction only. It is a doubtful point whether
section 23 applies to unlawful copies made before registration of the
plaintiff's title. Fry, L. J., held that it did not,[469] and therefore in the case of
such copies ordered delivery up for destruction as a common law remedy,
but refused the statutory remedy of delivery up for the plaintiff's benefit.
Jessel, M. R., however, differed from this view,[470] and thought that the
23rd section applied to unlawful copies made before the plaintiff's title was
registered. It must also be considered doubtful whether section 23 applies
where the defendant's book is not merely a reprint of the plaintiff's. In an
Irish case O'Brien, J., said:

"It would be difficult to maintain that under the 23rd section the
proprietor of the copyright in a book would acquire the property of all
copies of another book which contained printed therein a few pages or
passages of his book."[471]

But, whether or not in such a case the plaintiff would be entitled under the
section to extraction and delivery up for his benefit of the pirated parts, he
is under the general jurisdiction of the Court entitled to delivery up for
cancellation.[472] In Warne v. Seebohm[473] the order was that the defendant
should first state upon oath what copies of the work exist; secondly, extract
from those copies which are in his possession or power and deliver up to
the plaintiffs for cancellation all passages copied, taken, or colourably

imitated from the plaintiffs' book; thirdly, produce to the plaintiffs, if
required by them for examination, the copies after the pirated passages have
been extracted.[474] Quære whether the Court would order delivery up in an
action to which the person who owned the books and paper and at whose
[91]
expense the printing was executed was not a party.[475]

Customs Act.—The Customs Laws Consolidation Act, 1876,[476] provides
for the seizure of foreign books, and in this respect is somewhat
inconsistent with section 17 of the Copyright Act. Section 42 of the
Customs Act prohibits the importation of books "first composed or written
or printed in the United Kingdom and printed or reprinted in any other
country, as to which the proprietor of such copyright or his agent shall have
given to the Commissioners of Customs a notice in writing duly
declared[477] that such copyright subsists, such notice also stating when
such copyright will expire." On reference to section 17 of the Copyright Act
it will be noticed that the prohibition there is as to books "reprinted in any
country or place outside the British dominions." Quære does the provision
in the Customs Act enlarge the protection by the words "printed or reprinted
in any other country"? Does this include the colonies? Again it will be
noticed that the Copyright Act has no condition as to notice to the
Commissioners of Customs. Quære is the notice required by the Customs
Act a condition precedent to all protection from unlawful importation, and
in this respect does the Customs Act limit the provisions of the Copyright
Act, or is the Customs Act merely directory to the Custom-house officials?
To be on the safe side the notice should always be given. Section 44 of the
Customs Act provides for the keeping of a list of books as to which notice
has been given, and section 45 entitles any person who shall have cause to
complain of the insertion of any book in such list to apply to a judge at
chambers for the rectification thereof.

Every Offence.—Each separate transaction of sale or importation will
constitute a separate offence, for which a separate penalty of £10 will
accrue.[478] It would seem that "every such offence" does not, as in the
Artistic Copyright Act, mean "or the sale or importation of every copy."[479]

Limitation of Action.—Section 26 of the Copyright Act, 1842, enacts,
"that all actions, suits, bills, indictments or informations for any offence that

shall be committed against this Act shall be brought, sued, and commenced
within twelve calendar months next after such offence committed, or [92] else
the same shall be void and of none effect." It is clear that even although the
remedy for one offence is barred, that in no way extinguishes the owner's
right, and the owner may sue for subsequent offences;[480] thus although a
piratical book has been printed and published more than twelve months
before action brought, yet the owner will be entitled to sue in respect of
sales, &c., made within the twelve months. In a Scotch case, Stewart v.
Black,[481] it seems to have been held by Lord President Boyle that the
limitation in the 26th section did not apply to an action of damages for
infringement, and Malins, V. C., says obiter in Weldon v. Dicks,[482] that in
his opinion the limitation only applies to an action for penalties. It is
submitted that Stewart v. Black, if applied to books published after 1842, is
wrong, and that the dictum of Malins, V. C., in Weldon v. Dicks, is also
wrong. The section seems sufficiently clear and applicable to all actions
brought in respect of an infringement of copyright. The argument contra
seems to be based on the use of the words "for any offence that shall be
committed," from which it is argued, that penalties only are pointed at.
Offence, however, is used in the 15th section as applicable to infringement
of copyright not involving penalties. In cases where the Public Authorities
Protection Act applies, the shorter limitation of six months must be
substituted.[483]

Pleading.—The defendant is required to give to the plaintiff a notice in
writing of any objections on which he means to rely on the trial of the
action. If the defendant intends to dispute that the plaintiff is author or first
publisher, or that he is proprietor, he must state the name of the person
whom he alleges to be the author or proprietor, together with the title of the
book and the time when, and the place where, such book was first
published.[484] It has been said to be sufficient, in the case of an old
publication, to state the year of first publication without stating the day and
[93]
month in the notice of objections.[485]

The notice of objections must be specific, and give full notice of the nature
of the defence.[486] If the defence is that the book has not been registered at
all, that must be stated.[487] If a faulty registration is relied on, it is not

sufficient to deny that the book has been duly registered; the notice must
state what the particular objection to the registration is.[488] If the plaintiff's
title is denied, it will not do merely to state that the proprietor "is some
person unknown, but not the plaintiff;"[489] the full particulars as required
by the section must be given.[490] In objecting to the registration, however,
it is not necessary for the defendant to state what the correct entry should
he. Thus if he says the time of first publication is wrongly entered, he does
not require to specify the true date of first publication.[491] It is unnecessary
to deliver a separate "Notice of Objections," as was the practice at one time,
[492]
it is sufficient if it is incorporated in the defence. A suggestion of
defective title contained in an affidavit would not be sufficient.[493] If a
defective title is apparent from the plaintiff's own statement of claim or
evidence, the action would probably be dismissed by the Court, proprio
motu, even although the defendant had not given notice of objection.[494]
Leave to amend the pleadings and take further objection may be allowed on
conditions under the judicial discretion given by the Rules of the Supreme
Court,[495] but if the objection be merely technical, the Court will not give
leave to amend,[496] unless, perhaps, the plaintiff had otherwise fair notice
that the objection might be taken.[497] It has been held by a County Court
judge that section 16 of the Copyright Act does not apply to proceedings in
the County Court, as that Court was created after the date of the Act.[498][94]

The plaintiff may be ordered to specify the particular passages which he is
prepared to prove have been pirated from his work.[499]

Evidence.—The great test of piracy is coincidence of blunders, and when
some passages are proved by the recurrence of blunders to have been
copied, other passages which are the same with passages in the original
book are presumed primâ facie to be likewise copied, although no blunders
occur in them.[500]

It will greatly prejudice the defendant if his manuscript is not produced or
accounted for.[501]

A denial by the defendant that he has made any use whatsoever of the
plaintiff's work raises a presumption of piracy if it is shown that he must
have made some use of it, however fair.[502]

To prove that A on a certain date heard certain music performed from
printed sheets, is no evidence that the music was published as a book at that
date.[503]

Discovery.—The defendant is entitled to administer interrogatories to
ascertain the extent of the sale of plaintiff's book, and to enable the
defendant to ascertain the damages and pay into Court.[504]

The plaintiff is entitled to interrogate as to the original sources from which
the defendant alleges his work to have been compiled.[505]

Mode of Trial.—Formerly the question of piracy or no piracy and the
amount of damages was frequently tried by jury, but now the trial of the
action is almost invariably before a judge alone, either in the Chancery or
the King's Bench Division. Either party may ask for a trial by jury, but not
as a matter of right, it is a matter entirely in the discretion of the Court and
semble that the onus lies on the party applying for a jury to show that[95] the
[506]
cause could be more conveniently tried in that way.

Costs.—In copyright as in other actions a successful party may be refused
his costs. The plaintiff will not get his costs if he has unduly acquiesced in
the defendant's conduct, and thereby induced the defendant to incur
expenses,[507] or if after acquiescence and delay an action is brought
without fair warning.[508] So, too, if the plaintiff has suffered no real harm,
but brings an action for the purpose of making money out of it;[509] and in
one case where the Court was of opinion that although the plaintiff was
entitled to nominal damages, the action was one which should never have
been brought, the plaintiff was ordered to pay the defendant's costs as well
as his own.[510] If the plaintiff has increased the expenses by raising other
questions in which he has failed, the costs will be apportioned.[511] A
defendant, although successful, may lose his costs or part of them if he has
acted in such a way as was not fair and right as between man and man;[512]

for instance, if he has made some use of the plaintiff's book, but does not
acknowledge it at the hearing.[513] A successful defendant may lose his
costs if in his defence he challenges the plaintiff's title and fails in his
attack, but wins on the question of piracy. If a defendant by his conduct in
lending his name to a publication has led the plaintiff to assume that he
"caused it to be printed," he will probably not be allowed his costs.[514] A
defendant may also be refused his costs if the Court is of opinion that he
brought the action on himself by sailing too near the wind.[515] The Court
will not encourage a plagiarist or one who has made an illiberal use of
another's work, even although he has not actually committed a piracy. Costs
have also been refused where, although the defendant succeeded,[96] his
defence was a merely technical one, such as a defect in registration.[516] If
copyright is claimed in part of a book only, the whole of which is registered
without distinction, the notice of motion or statement of claim should
specify the parts in which copyright is claimed, or the plaintiff may be
liable in costs unnecessarily incurred by the defendant.[517]

Section II.—What is a Piratical Copy.

Literary property may be invaded in three ways:

(i.) Open Piracy;
(ii.) Literary Larceny;
(iii.) Commercial Fraud.[518]

With the first there is no difficulty once a title has been established and the
pirate caught. It consists in a bodily reprinting and publishing of the whole
or of large portions of a copyright book. The third is not properly speaking
an infringement of copyright. It is the invasion of the common law rights of
an author or publisher, and will be dealt with later. The second, literary
larceny, gives rise to many difficult questions and is dealt with in this
section.

The question put by the law is, in its simplest form: "Is the alleged
infringement an unauthorised copy of the whole or part of a copyright
work?" The statute does not attempt to define what a copy is, and such rules
as there are for determining whether one work is a copy of another are
entirely derived from the case law on the subject. It is impossible to lay
down any very definite rules as to infringement; it is really a question of
fact not of law; and although now almost invariably tried by a judge sitting
alone, it was at one time constantly referred to the decision of a jury. The
judges either in giving their own decisions or in directing juries have from
time to time laid down general rules as an aid to determining these
questions of fact.

The Copyright Acts have always received a liberal interpretation in favour
[97]to
of the author, and against the plagiarist. "If we can construe the Act so as
promote fair and honest dealing, such a construction is to be preferred."[519]

What is a Copy.—A copy is that which will provide a substitute for the
whole or for a substantial part of the original book.[520] The owner of the

copyright has the sole and exclusive liberty of printing or otherwise
multiplying copies. It has been held that the right is not in any way limited
by section 15 of the Copyright Act, 1842, which section applies its remedy
only to cases where the subject-matter is multiplied by printing.[521] Thus
copies produced by writing,[522] lithography,[523] type writing,[524]
photography,[525] are copies within the meaning of the Act. The symbols
used matter little in themselves; the question in each case is whether the
defendants are multiplying copies.[526] It is not necessary that the copy
should be primarily intended to be used for the same purpose as the
original. Thus a copy in shorthand characters intended for instruction in
shorthand was held to be an infringement of a story in a magazine.[527] But
the copy must provide a reasonable substitute for the whole or part of the
original work. A perforated scroll used for the mechanical reproduction of
music from an instrument is not a copy, since no reasonable being would
use it as a substitute for the original sheet of music.[528]

A Substantial Part must be Taken.—In other words, De minimis non
curat lex.

"Part is not necessarily the same as particle, and there may be a taking
so minute in its extent and so trifling in its nature as not to incur the
statutable liability."[529]

In Sweet v. Benning,[530] Jervis, C. J., said:

"It is undoubtedly exceedingly difficult, perhaps absolutely impossible,
to lay down any general rule upon this subject. I do not assent to the [98]
argument that every publication of a portion of a work in which there
is subsisting copyright will afford a ground of action: it is a question of
degree which must depend upon the circumstances of each particular
case."

In Chatterton v. Cave,[531] Brett, J., said:

"Unless there is a taking of a material and substantial part there is no
infringement of copyright. It is true that the question under the second

section is not only whether the whole production has been copied, but
also whether a part has been copied; but by a part this section must
mean a material and substantial part."[532]

In Chatterton v. Cave,[533] two small points or incidents were taken from
one drama by the author of another, and it was held that the taking was not
of a substantial part. In Pike v. Nicholas,[534] in the case of two rival essays
on the same subject, one quotation from a classical author was taken by the
defendant directly from the plaintiff's book; Lord Hatherley, L. C., and
Giffard, L. J., were of opinion that it would not do to show merely one or
two passages; some material part of the book must be shown to have been
taken.

The question is not altogether one of quantity, it is perhaps mainly one of
quality,[535] and depends on the character of the work and the relative value
of the material taken.[536]

"The question of the extent of appropriation which is necessary to
establish an infringement of copyright is often one of extreme
difficulty: but in cases of this description the quality of the piracy is
more important than the proportion which the borrowed passages bear
to the whole work."[537]

"It ought to be clearly established that, looking at the works as a
whole, there has been a substantial appropriation by the one party of
the independent labour of the other before any proceeding on the
ground of copyright can be justified."[538]

"When it comes to a question of quantity it must be very vague. One [99]

writer might take all the vital[539] part of another's book, though it
might be but a small proportion of the book in quantity. It is not only
quantity, but value that is always looked to."[540]

"The principle of the cases is that, when one man for his own profit
puts into his work an essential part of another man's work from which

that other may still derive profit, or from which but for the act of the
first he might have derived profit, there is evidence of piracy."[541]

Although it is no excuse for infringement to say that the matter taken has
been improved upon or added to, yet there may be so much new matter that
the part borrowed becomes so insignificant that the Courts will not
interfere. In Mawman v. Tegg,[542] Lord Chancellor Eldon says:

"After the quantity of matter which has been copied has been
ascertained, the quantity of matter not piratical with which the piratical
matter has been intermixed is still a circumstance of great importance."

The materiality of the part taken may sometimes be judged more by the
proportion which it bears to the defendant's work than to the work from
which it is taken. Thus in Neale v. Harmer[543] the plaintiff had prepared
and published an elaborate work intituled "The Abbey Church of St.
Alban," containing about 200 architectural drawings. The defendant took
and published three of these in a magazine article on St. Alban's Abbey, and
they were the only strictly architectural drawings illustrating the article. It
was held to be an infringement. Kekewich, J., said in his judgment:

"It is said that these drawings did not form a material part of the
plaintiff's work. In one sense that is true. The plaintiff's work is a large
one, and it is a very learned work. The test is not so much what
proportion of the plaintiff's work had been taken, but rather what
portion of the defendant's work is the plaintiff's."

In questions of amount it is material to inquire whether the matter was taken
[100]
so as to compete with the plaintiff's work,[544] but an infringement need not
necessarily be shown to be in competition with the work infringed, since it
is sufficient if the defendant has made such a use of part of the plaintiff's
work as the plaintiff might himself have done.

If matter is taken regularly and systematically by one periodical from
another, and particularly if it is taken and claimed to be taken as of right, a
very small amount will suffice.[545] As to a claim of right, North, J., said in
Cate v. Devon:

"That of itself is sufficient to put the plaintiff in the wrong in the action
and get over any question as to the amount of matter actually taken."
[546]

Although the Court will not grant a remedy for a trifling infringement, it
will not refuse an injunction merely on account of the minute inquiries into
detail which, in some cases, may be necessary to establish even an
extensive piracy.[547]

No Animus Furandi need be Proved.—In Cary v. Kearsley[548] Lord
Ellenborough's judgment contained a reference to the animus furandi in
cases of infringement, from which a mistaken idea seems to have arisen that
in all cases of infringement the animus furandi must be proved.[549] Lord
Ellenborough said:

"That part of the work of one author is found in another is not in itself
piracy or sufficient to support an action; a man may fairly adopt part of
the work of another; he may so make use of another's labours for the
promotion of science and the benefit of the public, but having done so
the question will be, was the matter so taken used fairly with that view
and without what I may term the animus furandi."[550]

This did not mean that in every case of infringement alleged it was
necessary to prove an animus furandi or guilty intention. Lord
Ellenborough in a subsequent case[551] said:

"The intention to pirate is not necessary in an action of this sort; it is
enough that the publication complained of is in substance a copy [101]
whereby a work vested in another is prejudiced. If A takes the property
of B the animus furandi is inferred from the act."[552]

In Scott v. Stanford,[553] Page Wood, V. C., after quoting the above passage
from Lord Ellenborough's judgment in Cary v. Kearsley,[554] said:

"It is urged that this is a case in which no animus furandi can be found
on the part of Mr. Hunt, who has taken these statistics in perfect good

faith and with the fullest acknowledgment[555] in his book of the
source from which they are derived. But if in effect the great bulk of
the plaintiff's publication—a large and vital portion of his work and
labour—has been appropriated and published in a form which will
materially injure his copyright, mere honest intention on the part of the
appropriator will not suffice, as the Court can only look at the result
and not at the intention in the man's mind at the time of doing the act
complained of, and he must be presumed to intend all that the
publication of his work effects."[556]

Although the animus furandi does not require to be proved, it is a useful aid
to proof, and where it appears piracy is more readily presumed.[557]

Taking not necessarily for Profit.—The prohibition in section 15 of the
Copyright Act, 1842, is against printing or causing to be printed "either for
sale or exportation," but as this has been held not to confine piracy to
copying by means of printing, neither does it confine it to copying for sale
or exportation, and the purpose for which the copy when made is to be used
is immaterial. In Alexander v. Mackenzie[558] the Society of Writers to the
Signet in Edinburgh prepared for the use of their own members a book of
forms taken largely from a similar copyright work. The Court of Session
held that this was an infringement of copyright. A catalogue of books,
although not intended for sale, may be an infringement of another
[102]
catalogue;[559] manuscript copies of a copyright song distributed
exclusively among the members of a philharmonic society,[560] and a
telegraphic code distributed only among the agents of a shipping firm have
also been prohibited.[561] In Ager v. The P. & O., Kay, J., said:

"It has long been settled that multiplying copies for private distribution
among a limited class of persons is just as illegal as if it were done for
the purpose of sale."

It is submitted that making a single copy for private use is an infringement.

Copying may be Indirect and Unintentional.—If matter in which
copyright exists is taken it is immaterial that the appropriation was made
not directly from the original work but indirectly through some other work,

copyright or non-copyright, authorised or unauthorised. Thus a book may
be infringed by retranslating or copying a translation of it,[562] and a drama
may be infringed by dramatizing a novel founded on the drama.[563] In Cate
v. Devon and Exeter Constitutional Newspaper Company,[564] it was argued
that an indirect copying could not be considered an infringement, because
since the copyist is ignorant of what works he is indirectly copying, he
cannot know whether or not he is infringing any copyright books, but this
argument was rejected. Ignorance on the part of the copyist does not excuse
him from the consequences of his act.[565]

Custom of Trade has been pleaded in defence of what was otherwise
clearly a piracy. A custom was alleged whereby provincial newspapers were
entitled to make large extracts, without criticism, from articles in magazines
which were sent to them;[566] and in another case "a usual practice" among
[103]
publishers of magazines to take articles from each other[567] was pleaded. It
[568]
is clear that no such customs can be admitted. In Walter v. Steinkopff
the St. James' Gazette alleged that there was a universal understanding
among journalists and newspaper proprietors that paragraphs of news may
be quoted verbatim by one daily paper from another without express
consent, provided (1) the source was acknowledged, (2) the papers were not
direct rivals, (3) there is give and take between the papers, and (4) no
expressed objection. The St. James' Gazette took articles from the Times on
this alleged footing. North, J., held that they had not complied with these
conditions, and that even if they had it would have been no defence.

"The plea of the existence of such a habit or practice of copying, as is
set up, can no more be supported when challenged than the
highwayman's plea of the custom of Hounslow Heath."[569]

Fair Use.—When an author writes on a subject in which there are common
sources of information he must do the work of research and compilation for
himself, and the only use he can lawfully make of a prior copyright work on
the same subject is—

i. Using the information or the ideas contained in it without copying
its words or imitating them so as to produce what is
substantially a copy.
ii. Making extracts (even if they are not acknowledged as such)
appearing under all the circumstances of the case reasonable
in quality, number, and length, regard being had to the
objects for which the extracts are made and to the subjects to
which they relate.
iii. Using one book on a given subject as a guide to authorities
afterwards independently consulted by the author of another
book on the same subject.
iv. Using one book on a given subject for the purpose of checking the
results independently arrived at by the author of another
book on the same subject.[570]

No one can monopolize a Field of Labour.—Although an author has been
[104]
the first to deal with a particular subject, his priority gives him no exclusive
right therein.[571] Any one else can do exactly the same as he has done. If a
man draws a map of a newly-discovered island, or writes a book on the
habits of its natives, he acquires no right to prevent any one from competing
with him in the publication of maps and books dealing with that island.[572]
His only right is to prevent any one else from taking matter from his book.
In one of the older cases it was suggested that there was a usage among
booksellers—a sort of comity among them—by which if one preoccupied a
certain subject he was considered a sort of proprietor.[573] In that case Lord
Eldon repudiated the idea that such could be the law, and now no monopoly
of the kind could be suggested.

"All human events are equally open to all who wish to add to or
improve the materials already collected by others making an original
work."[574]

No Infringement to take Facts.—It is no infringement to state a fact or an
opinion which another man has stated for the first time: but you must not
take his mode of expression or his selection or arrangement of facts which

he has thought proper to state. Thus there is no copyright in a mere piece of
news, for instance, "The Emperor of China is dead." If one newspaper
proprietor received a telegram from abroad to that effect, another could take
the information as published and print it in his newspaper. But although
there is no copyright in news as such, the smallest taking of a selection or
arrangement of news will be prohibited. In a case in Victoria[575] the
defendants had taken the plaintiff's telegrams, rearranged them, and altered
the expression, and yet they were held to have been guilty of an
infringement.

No Infringement to take the General Scheme or Idea of another Book or [105]
the
Theories therein.—Copyright does not extend to ideas or schemes or
systems or methods: it is confined to their expression; and if their
expression is not copied the copyright is not infringed.[576] Thus in Jarrold
v. Houlston,[577] Page Wood, V. C., said that even although Dr. Brewer's
"Guide to Science," which purported to give popular scientific information
under various headings in the form of question and answer, had been the
first book of the kind, there was nothing to prevent another person from
originating another book in the same general form, provided he did so from
his own resources.[578] In Pike v. Nicholas, the case of two rival historical
essays on "The Origin of the English Nation," James, V. C., said:

"There is no monopoly in the main theory of the plaintiff, or in the
theories and speculations by which he has supported it, nor even in the
use of the published results of his own observations."[579]

A careful distinction must be drawn between the taking of a scheme and the
taking of it as applied to certain material, i. e. the taking of the expression.
For instance, in Kelly v. Morris,[580] the plaintiff had adopted a "very
ingenious form of arrangement" in his "Street Directory." The defendant
was held to have infringed the plaintiff's copyright by taking his list of
streets from the plaintiff's work. The only thing he was entitled to do was to
adopt the "ingenious form of arrangement" and apply it for himself.

Every Author must do his own Work.—In Longman v. Winchester,[581] the
action being for the infringement of copyright in a court calendar, Lord

Eldon drew an analogy to the case of a map describing a particular county
and a map of the same county afterwards published by another person,
which, if the description be accurate in both, must be very much the same,
yet he said:

"It is clear the latter publisher cannot on that account be justified in
sparing himself the labour and expense of actual survey."
[106]
In Lewis v. Fullarton,[582] Lord Langdale, M. R., said:

"Any man is entitled to write and publish a topographical dictionary
and to avail himself of the labours of all former writers whose works
are not subject to copyright, and of all public sources of information:
but whilst all are entitled to resort to common sources of information,
none are entitled to save themselves trouble and expense by availing
themselves for their own profit of other men's works still subject to
copyright and entitled to protection."[583]

In the case of Dr. Brewer's "Guide to Science,"[584] Page Wood, V. C., said:

"In publishing a work in the form of question and answer on a variety
of scientific subjects the defendant had a right to look to all those
books which were unprotected by copyright, and to make such use of
them as he thought fit by turning them into questions and answers. He
had also a further right if he found a work like Dr. Brewer's, and
perusing it was struck by seeing—as I think has been the case in the
present instance—that the author had been led up to particular
questions and answers by the perusal of some other work to have
recourse himself to the same work, although possibly he would not
have thought of doing so but for the perusal of the plaintiff's book.... It
would also be a legitimate use of a work of this description if the
author of a subsequent work, after getting his own work with great
pains and labour into a shape approximating to what he considered a
perfect shape, should look through the earlier work to see whether it
contained any heads which he had forgotten."[585]

In Hotten v. Arthur[586] the same judge held that the defendant had infringed
the plaintiff's descriptive catalogue of books for sale:

"The only fair use you can make of the work of another of this kind is
where you take a number of such works, catalogues, dictionaries,
digests, &c., and look over them all, and then compile an original work
of your own founded on the information you have extracted from each
and all of them: but it is of vital importance that such new work shall
have no mere copying, no merely colourable alterations, no blind
repetition of obvious errors."

In Kelly v. Morris,[587] a directory case, there is another clear dictum from
the same judge:

"In the case of a dictionary, map, guide-book, or directory, when there
are certain common objects of information which must, if described [107]
correctly, be described in the same words, a subsequent compiler is
bound to set about doing for himself that which the first compiler has
done. In case of a road-book he must count the milestones for himself.
In the case of a map of a newly-discovered island he must go through
the whole process of triangulation just as if he had never seen any
former map; and generally he is not entitled to take one word of the
information previously published without independently working out
the matter for himself so as to arrive at the same result from the same
common sources of information, and the only use he can legitimately
make of a previous publication is to verify his own calculations and
results when obtained. So in the present case the defendant could not
take a single line of the plaintiff's directory for the purpose of saving
himself labour and trouble in getting his information.... What he has
done has been just to copy the plaintiff's book and then send out
canvassers to see if the information so copied was correct.... The work
of the defendant has clearly not been compiled by the legitimate
application of independent personal labour."[588]

In Scott v. Stanford,[589] Page Wood, V. C., held that certain tables of
statistical returns in the coal market had been pirated. In his judgment he
said:

"The defendant, after collecting the information for himself, might
have checked his results by the plaintiff's tables, but that is a widely
different thing from this wholesale extraction of the vital part of his
work. No man is entitled to avail himself of the previous labours of
another for the purpose of conveying to the public the same
information, although he may append additional information to that
already published."

In Morris v. Ashbee,[590] Giffard, V. C., held that the copyright in a business
directory had been infringed in so far as the compilation and arrangement of
the advertisements and names of traders were taken from the plaintiff's
directory. In giving judgment he commented on Kelly v. Morris,[591]
pointing out that the decision in that case was not based solely on the fact
that the information was reprinted bodily by the defendants and then
verified when possible:

"The decree is general in its terms, following Lewis v. Fullarton,[592]
and the substance of the judgment is that in a case such as this no one
has a right to take the results of the labour and expense incurred by
another for the purposes of a rival publication, and thereby save
himself the expense and labour of working out and arriving at these [108]
results by some independent road."

In reference to the case before him the Vice-Chancellor said:

"It is plain that it could not be lawful for the defendants simply to cut
the slips which they have cut from the plaintiff's directory and insert
them in theirs. Can it be lawful to do so because in addition to doing
this they sent persons with the slips to ascertain their correctness? I
say, clearly not. Then, again, would their acts be rendered lawful
because they got payment and authority[593] for the insertion of the
names from each individual whose name appeared in the slips? And to
this again I answer, clearly not. They had no right to make the results
arrived at by the plaintiff the foundation of their work or any material
part of it, and this they have done."[594]

In Morris v. Wright,[595] another case of alleged infringement of the same
business directory, Giffard, L. J., distinguished it from Kelly v. Morris[596]
and Morris v. Ashbee,[597] inasmuch as the plaintiff's work had only been
used by the defendant as a guide to original sources. He held that there was
no infringement. Referring to the passage quoted above from the judgment
of Page Wood, V. C., in Kelly v. Morris,[598] he said:

"This passage does not mean that a subsequent compiler may not look
into the book for the purpose of ascertaining whether it was worth his
while to call upon that person or not, but it means that he may not take
that particular slip and show that to the person and get his authority as
to putting that particular slip in."[599]

So also quotations from and references to previous authors must not be
taken bodily from a rival work. They may be used as a guide and as a guide
only. Lord Hatherley, L. C., in Pike v. Nicholas,[600] a case of rival historical
works on the same subject, said:

"Although the defendant might have been led to look more minutely
into Prichard than he otherwise would have done by referring to the
plaintiffs work, still the plaintiff could not say, 'I, having found these
passages in Prichard, will prohibit all the world who may find the
same passages from making use of them.' The moment he had given [109]
that degree of light to the defendant which led him to refer to that
common source, if the defendant did really and bonâ fide look at that
common source, he did all that this Court required him to do. He must
not simply copy the passage from the plaintiffs book, but, having been
put on to the track, and having looked at that particular part of the
book which the plaintiff led him to, he was entitled to make use of
every passage from that author which the plaintiff had made use of."
[601]

In this case the quotation was proved to have been taken directly from the
plaintiff's work, but this was considered to be so small a taking that the bill
was dismissed, though without costs, the Court being satisfied "that the
book of the defendant was his own composition in this sense, that wherever

he got the materials from they were worked up by him into his own
language."[602]

It is no excuse for piracy to say that with a little labour the copyist could
have produced identically the same result.[603] The fact that the result may
be identical is a reason for not making a new book, but it is no reason for
copying another's book.

Work with a Different Object.—An author is much less restricted in the use
which he may make of a previously published copyright book if such book
is of an entirely different nature or has a different scope or object from his
own work. Considerable portions may then be taken for the purpose of
comment, criticism, or illustration. Lord Eldon suggested in one case[604]
that a copyright map might be taken bodily for the purpose of insertion in a
book giving an historical account of all the different maps of a particular
district. In Bradbury v. Hotten,[605] Kelly, C. B., suggested that a picture
might be reproduced amongst a large collection published for an entirely
different object from that which the first publisher had in view.

"We must consider in each case the intent of the copyist and the nature
of the work. A traveller publishes a book of travels about some distant
country like China. Amongst other things he describes some mode[110] of
preparing food in use there. Then the compiler of a cookery book
republishes the description. No one would say that was a piracy. So,
again, an author publishes a history illustrated with woodcuts of the
heads of kings, and another person writing another history of some
other country finds occasion to copy one of these woodcuts. That again
would not be a piracy."[606]

These obiter dicta illustrate sufficiently well the distinction between taking
for a rival work and taking for an entirely different object; it is probable,
however, that some of them go too far and tend to follow the mistake of the
older view of infringement in looking more to the value of the work done
by the plagiarist than to the value of the material taken. As authoritative
dicta they must, therefore, be accepted with caution. The best test of
infringement or no infringement in a taking of this kind is to inquire
whether the subsequent work by reason of the taking provides a substitute

for the whole or any substantial part of the prior publication. In Bradbury v.
Hotten,[607] nine cartoons, illustrative of the career of Napoleon III., were
published in Punch in nine several weekly numbers. The defendants
published a volume entitled "Story of the Life of Napoleon, as told by
popular Caricaturists of the last thirty years," which contained among
numerous other illustrations taken from French and English comic journals
the nine cartoons first produced in Punch. This was held to be an
infringement of the copyright in Punch. In Nicols v. Pitman[608] the
defendant published in an educational work for the purpose of instruction in
shorthand writing a lecture delivered by the plaintiff on "The Dog as the
Friend of Man." The Court held there was an infringement, because
although the lecture was reproduced in shorthand characters, it might by
those who could read shorthand be reasonably used as a substitute for the
lecture printed in ordinary characters. A compiler of an encyclopædia or
similar work would probably be allowed to quote to a certain extent from
copyright monographs, but this must not be carried to such an extent as to
supersede the original work.[609] Several cases have been before the Courts
on the verbatim copying of law reports in whole or in part into [111] legal
treatises of various kinds. The collection of all the reports on a particular
branch of law such as "Poor Law"[610] or "Registration of Voters,[611] is an
infringement of copyright if they are copied verbatim from previously
published copyright reports. This will be so even although they are
collected from the reports of many different reporters.[612] In Sweet v.
Benning,[613] a digest compiled by taking verbatim the head notes from
copyright law reports and arranging them under appropriate titles was held
to be an illegal publication, the Court being of opinion that the defendant
had been guilty of an abuse of the fair right of extract, which the law allows
for the purpose of comment, criticism, or illustration. No doubt in text-
books large portions of the head notes, arguments of counsel, and
judgments may be taken verbatim. In an ordinary legal text-book it would
require a very free use of verbatim quotation to found the necessary
argument that the text-book provided even to the smallest extent a substitute
for the original reports. A more difficult question arises where volumes of
leading cases are published, the cases being reproduced verbatim from the
original reports but with extensive notes and comment. In Saunders v.
Smith,[614] the Court refused to decide whether "Smith's Leading Cases"

constituted an infringement of the original reports, judgment going for the
defendants on the ground of acquiescence. In the Irish case of Hodges v.
Welsh[615] a similar problem was suggested but not decided. The better view
probably is that such a wholesale taking is an infringement of the copyright
of the original reporters.

Extract for Purpose of Criticism.—Lord Eldon, in Mawman v. Tegg,[616]
says:

"Quotation is necessary for the purpose of reviewing, and quotation for
such a purpose is not to have the appellation of piracy affixed to it; but
quotation may be carried to the extent of manifesting piratical
intention."
[112]
Considerable quotation may be made for the bonâ fide purpose of criticising
a copyright book;[617] in one case[618] nearly a quarter of a controversial
article in a magazine was quoted in a reply thereto published in another
magazine, and the Court held that this constituted no infringement, as the
extracts were clearly inserted for the purpose of criticism and argument.
The question is whether so much of the original work is extracted that the
review substantially communicates the same knowledge as the book
reviewed.[619] Thus in Campbell v. Scott,[620] the defendant published "The
Book of Poets" containing, inter alia, an essay and biographical notice of
the poet Campbell, and, as the defendant said, by way of illustrating the
poet's works, a large number of his poems and extracts therefrom were
appended to the biographical notice without any particular observations in
the way of notes to individual pieces or extracts. This was clearly an
infringement of the poet's copyright. In a similar case, Smith v. Chatto,[621]
the defendants published a book entitled "Thackerayana." It purported to be
a critical essay on the life and works of Thackeray, and contained extensive
quotations from his writings, prefaced and interspersed with comments by
the writer of the book. Hall, V. C., held in fact that the defendants had
inserted the extracts for the purpose of increasing and enhancing the value
of their book, and that they had therefore infringed the copyright in
Thackeray's works.

Improvement or Addition of New Matter no Excuse.—In the earlier cases of
taking material from a rival publication if it was shown to have been greatly
improved and added to, this was accepted as an excuse for the piracy, on the
ground that a new and more useful work had been given to the public. Thus
in Sayre v. Moore[622] Lord Mansfield said:

"If an erroneous chart be made, God forbid it should not be corrected
even in a small degree if it thereby become more serviceable and
useful for the purposes to which it is applied."
[113]
In Cary v. Kearsley,[623] Lord Ellenborough said:

"While I shall think myself bound to secure every man in the
enjoyment of his copyright, one must not put manacles on science."

In Martin v. Wright,[624] Shadwell, V. C., says:

"Any person may copy and publish the whole of a literary composition
provided he writes notes upon it so as to present it to the public
connected with matter of his own."

The theory of these early cases on infringement seems to have been—
colourable alteration is not to be allowed, but no check must be put on the
taking of material when it is taken bonâ fide in the interests of scientific or
literary knowledge. Gradually, however, the Courts in questions of
infringement came to look more to the interests of the author than to those
of the public, and regarded the law of copyright more as a means of
securing rights of property to the individual than as an unnatural monopoly
created for the purpose of encouraging and developing literary effort. Thus
in D'Almaine v. Boosey,[625] in 1835, it was held to be an infringement to
publish the music of an opera in the form of waltzes and quadrilles, and this
notwithstanding that these waltzes and quadrilles would, if taken from the
music of a non-copyright opera, have been protected as original works.[626]
Since then many cases have followed on the same lines, and no addition,
correction, or improvement will now be accepted as an excuse for taking a
material part of a copyright publication.[627] But although improvement and
addition is no excuse for taking a substantial portion of another author's

work, the fact that there has been such improvement and addition is not to
be entirely ignored in questions of infringement. It may be an important
factor in determining whether or not there has been a taking of a substantial
part.[628] We have seen that to determine that question the two works must
be taken as a whole and their relation to one another considered,[114] and
[629]
particularly the relative value of the material taken.

Dramatization of a Novel.—The representation on the stage of a dramatized
version of a copyright novel is not in itself an infringement of copyright in
such novel, since copyright only prohibits the reproduction of copies, and
representation on the stage does not necessarily imply that a copy of the
whole or any material part of the novel has been made.[630] But if in
dramatizing any substantial passages are taken from the novel, it is an
infringement of copyright to print and publish the drama,[631] and in Warne
v. Seebohm[632] Stirling, J., held that the making of four manuscript or
typewritten copies of a drama taken from a copyright novel—one for the
Lord Chamberlain and the other three for use in representation—constituted
an infringement of the copyright in the novel. In this case, as in Tinsley v.
Lacy,[633] considerable passages in the play had been extracted verbatim
from the novel.

Whether if no actual sentences be taken it is an infringement of copyright to
take the characters, the sequence of events, and scenes, in short, the plot, is
doubtful. In Warne v. Seebohm it was suggested by Stirling, J., in his
judgment, that a novel might be lawfully dramatized if a few copies of the
novel were purchased and a drama compiled therefrom by cutting out and
pasting in the passages which it was thought desirable to take. This,
however, would involve a copying of the arrangement of scenes and events,
and it is suggested that even that might be an infringement.

Abridgments.—Probably an abridgment in the ordinary sense of the word,
that is, the reproduction of a book in a shorter form, retaining the general
scheme and arrangement, and the sequence of ideas, would now be held to
be an infringement.[634] In the earlier cases, which tend to excuse a taking
by reason of the utility of additional work bestowed upon the material [115]
taken, an abridgment is recognised as a lawful use of a copyright book. In

1740 Lord Hardwicke, L. C., in dealing with an alleged abridgment of Sir
Matthew Hale's Historia Placitorum Coronæ,[635] said:

"Where books are colourably shortened only they are undoubtedly
within the meaning of the Act of Parliament, and are a mere evasion of
the statute and cannot be called an abridgment. But this must not be
carried so far as to restrain persons from making a real and fair
abridgment, for abridgments may with great propriety be called a new
book, because not only the paper and print but the invention,
judgment, and learning of the author is shown in them, and in many
cases are extremely useful though in some instances prejudicial by
mistaking and curtailing the sense of an author."

It will be noticed how completely this argument is founded on the idea that
an author may take the materials of another so long as he sufficiently
modifies it by such addition, extraction, or correction as to give it the
character of a new work. It is a good argument in favour of a plaintiff who
has dealt with a non-copyright work and desires protection, but it would not
now be considered a sound answer to a charge of infringement. Since Gyles
v. Wilcox[636] it seems to have been accepted as law that what was called a
fair abridgment would be allowed.[637] In Dodsley v. Kinnersley[638] the
Court went so far as to admit as a fair abridgment a magazine article
containing about one-tenth of Dr. Johnson's "Prince of Abyssinia."
Selections were, it appears, taken and reproduced verbatim. The same
doctrine as to abridgments was repeated in D'Almaine v. Boosey:[639]

"It is a nice question what shall be deemed such a modification of an
original work as shall absorb the merit of the original in the new
composition. No doubt such a modification may be allowed in some
cases, as in that of an abridgment or digest. Such publications are in
their nature original. Their compiler intends to make of them a new
[116]
use, not that which the author proposed to make. Digests are of great
use to practical men, though not so, comparatively speaking, to
students. The same may be said of an abridgment of any study, but it
must be a bonâ fide abridgment, because if it contains many chapters
of the original work or such as made that work most saleable, the
maker of the abridgment commits a piracy."[640]

When the view as to plagiarism being excusable on account of its utility
began to alter, and the Courts began to look more to what was taken and the
value of it than to what labour was expended on it afterwards, the view
taken of abridgments began to change too. In 1844 one of Dickens'
Christmas stories was abridged evidently much in the same way as Dr.
Johnson's tale in Dodsley v. Kinnersley.[641] Knight Bruce, V. C., held that
there was an infringement:[642]

"The defendant has printed and published a novel, of which fable,
persons, names, and characters of persons, the age, time, country, and
scene are exactly the same, the style of language in which the story is
told is in many instances identical, in all similar, except where certain
alterations by way of extension or substitution have been made, as to
which whether they improve or do not improve upon the original
composition it is not necessary for me to express any opinion. Now
this has been said to be an abridgment, and as an abridgment to be
protected. I am not aware that one man has the right to abridge the
works of another. On the other hand, I do not mean to say that there
may not be an abridgment which may be lawful, which may be
protected; but to say that one man has the right to abridge and so
publish in an abridged form the work of another without more is going
much beyond my notion of what the law of this country is."

In 1864 Lord Hatherley, then Sir William Page Wood, said:[643]

"The Court has gone far enough in the direction of sanctioning fair
abridgments; and it is difficult to acquiesce in the reason sometimes
given that the compiler of an abridgment is a benefactor to mankind by
assisting in the diffusion of knowledge."

Translations.—There are two recent decisions in India to the effect that the
translation of an English book into an Indian language is not an
[117]
infringement of the author's copyright.[644] If we are to be guided by the
general principles of the law of copyright now accepted by our Courts, I
think these Indian decisions must be held to be wrong. A translation takes
everything in a book but the actual words; it takes the selection of material
and its arrangement, and is certainly a very material taking of the work and

labours of another. The translator is making a profit from the author's work
by using it in a manner in which the author might have himself used it and
made a similar profit. The only real answer which the translator has is that
he has expended a great deal of skilled labour in putting the author's book
into another form. This might have been a defence fifty years ago, but I do
not think it is a good defence now. In England there is no direct decision;
although there are several obiter dicta to the effect that a translation is not
an infringement. In Burnett v. Chetwood,[645] in 1720, there is a dictum of
Lord Chancellor Macclesfield, in which he expressed his opinion that a
translation might not be within the prohibition of the Act (8 Anne c. 19),
"on account that the translator had bestowed his pains upon it." In Millar v.
Taylor,[646] Yates, J., and in Prince Albert v. Strange,[647] Knight Bruce, V.
C., suggest that a translation is not an infringement. In Wyatt v. Barnard[648]
it was held that a translation would be protected as a new work, but it does
not follow that it is not an infringement of an old one. I think that these
English dicta are practically useless as authorities, since it cannot now be
maintained that the translator will be permitted to take the work of an
original author merely because he "bestows his pains upon it." In Murray v.
Bogue,[649] Kindersley, V. C., said that if an English book were translated
into a foreign language and then retranslated into English without authority
such translation would be an infringement of the original work. If this is so,
it is difficult to see why the translation into the foreign language is not also
an infringement if done without authority. The translation and the
retranslation appear to be exactly on the same footing, both take the
substance of the book, the plot, the arrangement, the selection of material;
neither takes the author's words. If it is said that one competes with [118]
the
original which the other does not, the answer is that it is no defence to say
that an infringement is made for a wholly different market from that which
the original commands.[650] An author is entitled not only to the uses which
he does make of his work, but also to the uses which he might make of it.

Licence.—A licence in writing[651] granted by the plaintiff to the defendant
is a good defence to an action for infringement. The licence need not be
written or signed by the proprietor himself. It may be granted by an agent
having authority.[652] It would seem that a licence might be valid without
being signed by any one. The onus of proving a written licence lies upon

the defendant in an action. An assignee of the copyright is not bound by the
licence granted by his assignor, unless at the date of assignment he has
notice of the licence.[653] A licence, unlike an assignment, may be given
before the copyright has come into existence, or even before the work is
composed.[654] A licence from the Dramatic Authors' Society was held to
include the dramas composed by the members of the society after the date
of the licence.[655]

If an oral licensor were to sue in respect of acts done by the defendant under
his oral licence, the plaintiff's conduct would probably be considered
fraudulent, with the result that he would be refused an injunction, get
nominal damages, and have to pay the defendant's costs.[656]

It need hardly be said that when the use for which a book is published and
sold includes a copying of the whole or part of it, such copying is not an
infringement, even although no express consent in writing is obtained from
the author, for instance, in the case of copy-books, school maps, precedents
of conveyancing. This, however, does not entitle any one who uses the book
to make a larger use of it in the way of multiplying copies than that which
[119]
must be presumed from the nature of the publication.[657]

It has been suggested that a foreigner resident abroad, who had obtained a
copyright in the United Kingdom, could grant an oral licence, if by the law
of copyright in his own country an oral licence would be valid.[658] I do not
think this is sound.

Abandonment.—Copyright may be abandoned by giving a general licence
to print. Probably, however, this could only be done by some declaration in
writing.[659] The Common Law right in an unpublished manuscript might be
abandoned by leaving it for a long time in the hands of others.[660]
Copyright would not be lost or abandoned by the fact of a book, during the
life of the author, being allowed to remain out of print.[661]

Acquiescence and Delay.—This is no ground of defence, unless in the
view of the Court it would make it a fraud afterwards to insist on the legal
right. It would seem that the defendant must show some act on the part of

the plaintiff inducing the defendant to infringe or continue an infringement
of the copyright.[662] At the best, the defence is only an equitable one, and
will avail no more than to prevent the plaintiff from getting an injunction or
substantial damages, and as the costs are always in the discretion of the
Court, he might be ordered to pay the defendant's costs.

Provision against the Suppression of Books.—After the death of an
author, if the proprietor of his published work refuses to republish it, and
the book is thereby withheld from the public, the Judicial Committee of the
Privy Council may, on complaint, grant a licence to the complainant to
publish such book on such conditions as they may think fit.[663] There is no
record of any attempt to put in force the provisions of this section. [120]

CHAPTER V

PERFORMING RIGHTS

Section I.—Nature of Performing Right.

As copyright is the exclusive right of making copies of a book, so
performing right is the exclusive right of representing or performing in
public dramatic or musical works. In a dramatic or musical work, the two
rights—the copyright and the performing right—exist side by side; but they
are quite distinct from one another, and may pass into different hands. The
copyright can only be infringed by copying, the performing right by
representation or performance. It is no infringement to dramatize and
represent on the stage a copyright novel, since the only exclusive right as to
non-dramatic work is the multiplication of copies;[664] but a drama on
which a novel has been founded may be infringed by another drama taken
from the novel.[665] A writes and publishes a novel. He then dramatizes it,
but does not publish the drama. B represents a drama founded on the novel.
Such a representation is no infringement either of A's drama[666] or of his
novel. It makes no difference even if A has published his drama.[667] In
dramatizing a copyright novel, however, the making of a single copy of the
drama may be an infringement of the copyright in the novel.[668] It is no
infringement of performing right to print and publish as a book a play
which has been publicly performed,[669] but it may be an infringement of
the common law right in the MS.,[670] or the statutory copyright in the book
if already printed and published, or it may be a breach of implied contract.
[671] [121]
If a dramatic piece or musical composition is first published as a book,
this does not take away the performing right. This was decided in Chappell
v. Boosey[672] in respect of music, and is equally applicable to dramatic
work. Conversely the representation or performance of a dramatic piece or

musical composition in public does not deprive the author of his common
law right to publish as a book, or of his copyright when he so publishes.[673]
Performing right extends throughout the British dominions.[674]

Section II.—Performing Right at Common Law.

It is doubtful whether there ever was any performing right at common law.
The only case from which it could be gathered that there was is Morris v.
Kelly,[675] where an injunction was granted by Lord Eldon restraining the
performance of a comedy. The play was apparently in manuscript, but it
does not appear whether it had been performed or not. The ground of the
decision is very uncertain. From the fact that the Lord Chancellor asked for
proof that the assignment was in writing, it might almost appear that
protection was given under the statute of Anne, which would certainly have
been unsound. The decision may also have been on the ground of common
law right in unpublished manuscript, i. e. the right to prevent any one but
the owner from interfering with it in any way, or it may have been on the
ground of breach of implied contract. Altogether the decision is
unsatisfactory; the application seems to have been ex parte, and the law
hardly to have been considered, so that it is impossible to base any definite
proposition of law on the case. On the other hand Erie, C. J., stated in the
course of the argument in Marsh v. Conquest,[676] that there was no
performing right at common law. For his authority, however, he cites
Murray v. Elliston,[677] which is hardly sufficient to support the proposition.
In Murray v. Elliston a tragedy by Lord Byron was printed and published [122]
for sale. The defendants abridged it and represented it on the stage in the
abridged form. It was argued for the defendant that the tragedy having been
printed and published as a book, must depend for protection entirely on the
statute of Anne in accordance with the decision in Donaldson v. Beckett.
[678]
The statute of Anne gave no performing right, and therefore there was
no protection. The Court gave judgment for the defendant, but the ground of
their judgment is not quite clear. Some stress seems to be laid on the fact
that the tragedy was abridged, and it is therefore left doubtful whether the
judges would have considered the representation of an unabridged version
to be an infringement of the plaintiff's rights. In either view it is not a

decision that there was no performing right at common law. Another case
which may be relied on for the contention against performing right at
common law is Coleman v. Wathen,[679] but on examination it will be seen
that all that case decides is that the statute of Anne gave no performing
right, and that representation on the stage was not an infringement of
copyright.

It is submitted that the history of the law of performing right is this: At
common law there was no performing right in the proper sense of the term,
but an unpublished manuscript was protected from performance as from
any other invasion of the author's exclusive right to it. If it was performed
on the stage without being published as a book, there would be a remedy on
breach of implied contract, the public only being admitted for the purpose
of hearing the performance. Once, however, it was published as a book, all
exclusive right of performance was gone. The statute of Anne gave no
performing right, and performing right proper was first created by 3 & 4
Will. IV. c. 15. This statute and 5 & 6 Vict. c. 45 govern the performing
right in dramatic pieces. The performing right in musical compositions is
governed by these two Acts, as modified by the Copyright (Musical
Compositions) Acts of 1882 and 1888. [123]

Section III.—What is a Dramatic Work.

The subject of dramatic performing right must be—

1. An original composition.
2. Of a dramatic nature.

The amount of original composition required is probably the same as in a
literary work claiming the protection of the Copyright Act, 1842, as a
"book." As has been seen the standard is extremely low, no literary merit or
great skill being essential.[680] Adaptations, translations, and the like, are
protected quoad their transformation.[681]

As to what amount of dramatic element is required is not clear from the
statutes, and not much clearer from the decisions. It is now well decided
that in order to secure a performing right there must be some dramatic
element. That is to say, one cannot compose a non-dramatic work, and after
publishing it in its non-dramatic form, claim the exclusive right to represent
the non-dramatic work on the stage in dramatic form.[682] But the difficulty
is to define what is "dramatic form." The dramatic works protected by 3 &
4 Will. IV. c. 15 are "any tragedy, comedy, play, opera, farce, or any other
dramatic piece or entertainment." In 5 & 6 Vict. c. 45 "dramatic piece" is
defined as including every tragedy, comedy, play, opera, farce, or other
scenic, musical, or dramatic entertainment. Neither definition is very
satisfactory. In Lee v. Simpson[683] it was held that an introduction to a
pantomime, being the only written part, and intended to be followed by
"comic business," was a dramatic piece. This case as reported, however, is
of little assistance, as it does not show what the exact nature of the
"introduction" was, and the judgment of the Court does not contain any
definition of a dramatic piece. In Russell v. Smith[684] the question was
more carefully considered. The work in which a performing right was
claimed was a song called "The Ship on Fire." It was founded on the loss[124]of
The Kent by fire in the Bay of Biscay. According to the judgment—

"It represents a storm at sea, the burning of the ship, and an escape by
boat to another ship, and so a safe return to land. It moves terror and
pity and sympathy, by presenting danger, and despair, and joy, and
maternal and conjugal affection. A witness of great experience in
publishing music deposed that this was considered a dramatic song."

The Court held that it was a "dramatic piece." Lord Denman, C. J., said:

"The nature of the production places it rather in the representative than
the narrative class of poetry, according to Lord Bacon's division of
dramatic from epic; and the evidence states it to be known as dramatic
among those who are conversant with such things. The interpretative
clause of 5 & 6 Vict. c. 45, sec. 2, declares that 'dramatic piece' within
the Act includes 'tragedy, comedy, play, opera, farce, or any other
scenic, musical, or dramatic entertainment.' These words comprehend
any piece which could be called dramatic in its widest sense, any piece

which on its being presented by any performer to an audience would
produce the emotions which are the purpose of the regular drama, and
which constitute the entertainment of the audience."

In Clark v. Bishop[685] an original song, "Come to Peckham Rye," was
composed and set to an old air. It was sung at music halls with appropriate
character dress, gesture, and expression. The Court were of opinion that it
was a dramatic piece, within the meaning of 5 & 6 Vict. c. 45. Kelly, C. B.,
said:

"The plaintiff, by his powers of singing, acting, and characterisation,
had made this song a thing of value, not as a song merely, but as acted
by him in character, and so as a dramatic piece."

In Wall v. Taylor[686] it was suggested that by reason of the interpretation
clause in 5 & 6 Vict. c. 45, sec. 2, every musical entertainment whatsoever
was a "dramatic piece," but Brett, M. R., refused to accept this view. In
Roberts v. Bignell,[687] a very imperfectly reported case, a divisional court
(Day and Wills, JJ.) held that a music hall song, "Oh, Jenny Dear!" the
exact nature of which is not apparent, was a "dramatic piece." The leading
case on this subject is now Fuller v. Blackpool Winter Gardens,[688] and in
[125]
this the doctrine which seemed to have been growing up that every literary
production with the least dramatic flavour was a dramatic piece received a
check. The subject of this action was a popular music hall song called
"Daisy Bell." The song was sung in character costume, and the inference to
be drawn from the song itself and from the evidence was that it was a
composition intended for the stage either of the theatre or of music halls.
The Court of Appeal, sustaining the judgment of Kennedy, J., held that the
song was not a dramatic piece. Lord Esher, M. R., said:

"The fact that it is sung in costume does not make it a dramatic piece.
If the dress of the singer could have that operation, the singer and not
the author of the song would be the person who caused it to be a
dramatic piece. The same may be said of the manner in which the
singer treats the song. The question must be what was the character of
the composition when it was first written and published. I can quite
understand that it is possible that a thing to be performed by one

person only may be a dramatic piece. But whether the composition is
to be sung by one or more persons, if a song is sung, and only a song,
there is no performance of a dramatic piece."

A. L. Smith, L. J., after reviewing the previous cases, says:

"It is not necessary to determine whether each of these cases was
rightly decided or whether the reasons given in each for holding the
song to be a dramatic piece are satisfactory. Every case must depend
upon its own attendant circumstances. In each case it is a question of
fact. I think that to constitute a song a dramatic piece it must be such a
song that for its proper representation, acting, and possibly scenery,
formed a necessary ingredient, and that if neither of these be a
requisite to the efficient representation of the song it is not a dramatic
piece. It is an entire misnomer to call a mere common, ordinary,
music-hall song, which required neither acting nor scenery for its
production, a dramatic piece, for it is in truth nothing of the kind."

The result then seems to be that "dramatic" must not be used in the widest
sense of the term as suggested by Lord Denman, C. J., in Russell v. Smith,
[689]
and that the test is not that of dramatic or epic in the sense in which
Lord Bacon applies the words to poetry. There must be more than the
dramatic flavour, there must be the dramatic form; that is to say, the work
must be so constructed as to be obviously intended for reproduction by
means of acting with scenic effect. This test will apply equally to [126]non-
musical as to musical works. A case in point is that of the novel in Toole v.
Young.[690] The facts as stated in the judgment are:

"that Mr. Hollingshead wrote a story which he published in a work
called Good Words, and having in his mind at the time he wrote and
published it the intention of afterwards dramatizing the story, he
composed it very much of a dramatic character."

Yet it was held that it was no infringement of the author's right to put this
novel into dramatic form and represent it on the stage. If the novel could
have been considered a dramatic piece on account of its "dramatic
character," it ought to have been protected against the performance of an

adaptation. Mr. Scrutton in his book on copyright considers that "the
dramatic character consists in the representative as opposed to the narrative
element:" but this seems rather a return to the older theory in Russell v.
Smith[691] and contrary to Fuller v. Blackpool Winter Gardens.[692] For
instance, a poem, song, or piece for recitation may be representative in that
it depicts action and dialogue rather than narrates events: this according to
Russell v. Smith[693] would constitute it a "dramatic piece," but according to
Fuller v. Blackpool Winter Gardens[694] we must find not only the
"representative element" but an element which requires acting in order to
represent it adequately.[695]

Section IV.—What Dramatic Works are Protected: Duration of

Protection.

It has been suggested by some writers that there is no statutory protection of
performing rights until first representation in public.[696] It has also been
suggested that the duration of performing right is in every case for the
period laid down by 5 & 6 Vict. c. 45, i. e. forty-two years from first
performance or the author's life plus seven years. It is difficult to concur in
these views, which seem to imply that 5 & 6 Vict. has taken away from [127]
the
dramatic author certain rights given to him by 3 & 4 Will. IV. c. 15.

The law appears to stand thus. Before the statute of 3 and 4 Will. IV. c. 15
there was no statutory performing right. Whether there was a common law
performing right quære.[697] By the Act of 3 & 4 Will. IV. c. 15 the author
of a dramatic piece not printed and published in book form is given a
perpetual performing right. This presumably dates from the composition of
the dramatic piece. If the dramatic piece is printed and published as a book,
the protection is then limited to twenty-eight years from publication or for
the life of the author, whichever be the longer period. In neither case is the
performing right dependent for its existence on public performance.[698]
Then comes the Act of 5 & 6 Vict. c. 45, which enacts in section 20—

"that the provisions of the said Act of His late Majesty (3 & 4 Will. IV.
c. 15) and of this Act shall apply to musical compositions, and that the
sole liberty of representing or performing or causing or permitting to
be represented or performed any dramatic piece or musical
composition shall endure and be the property of the author thereof and
his assigns for the term in this Act provided for the duration of
copyright in books; and the provisions hereinbefore enacted in respect
of the property of such copyright and of registering the same shall
apply to the liberty of representing or performing any dramatic piece
or musical composition as if the same were herein expressly re-enacted
and applied thereto save and except that the first public representation
or performance of any dramatic piece or musical composition shall be
deemed equivalent in the construction of this Act to the first
publication of any book."

As regards dramatic pieces which have been publicly performed it is clear
that the Act of Victoria gives them protection from that date for forty-two
years, or for the life of the author and seven years.[699] But does 5 & 6 Vict.
c. 45 take away the protection given by 3 & 4 Will. IV. c. 15 to such
dramatic pieces as do not come within the provisions of the later statute, i.
e. unperformed dramatic pieces? It is submitted that it does not, and this
appears to be the view of Hawkins, J., in Reichardt v. Sapte,[700] the[128]
only
decision on the point. In that case A wrote a dramatic piece, B subsequently
wrote one very similar: B's drama was first performed, and a few days
afterwards A's drama was performed. In an action by B against A for
infringement of performing right, Hawkins, J., held that A had acquired his
performing right under 3 & 4 Will. IV. when he wrote his drama. He says:

"In none of the enactments in 5 & 6 Vict. c. 45 will be found anything
which prejudicially affects the right of sole representation conferred by
the statute of 3 & 4 Will IV. c. 15. The first production of a dramatic
piece mentioned in section 20 of the statute of Victoria confers no
priority upon the first producer, nor does it confer a title to the sole
liberty of representation. That is conferred by the statute 3 & 4 Will.
IV. c. 15 upon the author or his assignee: it[701] only fixes the first
production as the point from which (if entitled to it) the endurance of
the sole liberty of representation is to be calculated."

What Hawkins, J., decided was that there is a vested statutory interest in a
dramatic piece immediately it is composed, and although it is not quite clear
from his judgment, it seems necessarily to follow that the whole rights and
remedies given by 3 & 4 Will. IV. c. 15 still attach immediately on
composition, and that there is nothing in 5 & 6 Vict. to divest the author of
that right. When a dramatic work is performed, no doubt the protection to
performing right is restricted as well as extended to the period given by 5 &
6 Vict. c. 45, i. e. forty-two years from the date of first performance, or life
and seven years: but as regards unperformed works, it is submitted that the
performing right is given by 3 & 4 Will. IV. c. 15 on composition, and is
perpetual if the work be not printed and published as a book within the
British dominions, or if it be printed and published as a book, then for forty-
two years from the date of publication as a book, or for the author's life and
seven years.

Extremely difficult questions may arise as regards performing rights when a
dramatic or musical work has been published as a book or publicly
performed outside the British dominions before the first publication or the
first public performance within the British dominions. [129]

Section 19 of 7 & 8 Vict. c. 12, provides:

"That neither the author of any book, nor the author or composer of
any Dramatic Piece or Musical Composition ... which shall, after the
passing of this Act, be first published out of Her Majesty's Dominions,
shall have any copyright therein respectively, or any exclusive right to
the public representation or performance thereof, otherwise than such,
if any, as he may become entitled to under this Act."[702]

The whole difficulty lies in the meaning of the words "first published" as
applied to the performing right. In Boucicault v. Delafield,[703] and
Boucicault v. Chatterton,[704] it was held that when an unpublished play
was first performed outside the British dominions the performing right in
this country was extinguished. "First published" was held to include the
"first performance" of a drama. This, however, only provides for one
possible contingency. As the literary exchange with America, with which
we have no international convention, is becoming larger every year, it may

be useful to consider some of the other contingencies which may arise, and
the difficulties of which are not yet judicially solved. The cases suggested
are in connexion with the United States, but apply equally to any foreign
country, except in so far as rights may be acquired under International
Convention.

Dramatic or Musical Work unpublished, first performed in America.—This
has been decided as above. The performing right in this country is lost.

Dramatic or Musical Work first published in America, subsequently first
performed within the British Dominions.—This problem is not solved by
the above cases. The alternative views are that "publication" in the section
means: (i) a putting before the public in any form, whether by
representation or in print, or (ii) as regards copyright, a publication in print,
as regards performing right, a publication by representation. I am inclined
to think that the second alternative is the correct one, and that the
performing right in this country is not lost. The contrary, however, seems to
have been assumed in Boucicault v. Chatterton,[705] both by the bench and
bar. [130]

Dramatic or Musical Work first published in the British Dominions,
subsequently first performed in America.—This problem depends on the
same two alternatives as the last. I therefore think that the performing right
here would be lost, even although there was first publication as a book
within the British dominions.

Dramatic or Musical Work first performed in America, subsequently first
published in the British Dominions.—The performing right in this country
would be lost, but probably not the copyright.

Dramatic or Musical Work first performed in the British Dominions,
subsequently first published in America.—The performing right in this
country would be secured, but the copyright lost.

Section V.—What is a Musical Composition.

The necessary originality in a musical composition consists either in a new
air or melody, or in the new arrangement and adaptation of an old air. Thus
an arrangement of an opera for the pianoforte is an original work separate
and distinct from the opera itself.[706] So the adaptation of new words and
accompaniment to an old air is a musical composition entitled to protection.
[707]
It must always be remembered, however, that a new arrangement or
adaptation will only be protected quoad its novelty. In so far as the new
work is taken from a non-copyright work, an unauthorised taking of that
part is not an infringement of the new work.

Section VI.—What Musical Works are Protected: Duration of

Protection.

As in the case of dramatic works, so in the case of musical compositions it
is submitted that the statutory protection dates from composition, not from
first public performance. Musical compositions are protected under the
same provisions which protect dramatic works. The protection is therefore
identical, except as to the two amending statutes noticed below which [131]
do
not apply to dramatic works. It was contended in one case that the extension
of 3 & 4 Will. IV. c. 15 to musical compositions was only applicable to
musical compositions of a dramatic nature.[708] This, however, is not the
case, and all musical compositions are protected.[709]

By the Copyright (Musical Compositions) Act, 1882, the performing right
in musical compositions which have been published in "book" form is
conditional[710] on a notice reserving the performing right, and printed on
every published copy. If the copyright and performing right are in different
hands the owner of the performing right must give notice in writing to the
owner of the copyright, requiring him to print such notice, and if the latter
after due notice fail to do so, he shall forfeit to the owner of the performing
right the sum of £20.

Even if the musical composition is also a dramatic piece or part thereof, it
comes within this requirement as to notice of reservation on published
copies.[711]

Once a musical composition has been printed and published without notice
of reservation, it will probably be impossible to obtain any protection for
the performing right afterwards by publishing copies with reservation.[712]

A limited reservation is constantly made, and is probably effectual, e. g.
reserving the right to sing in music halls, but permitting public
performances elsewhere without fee or licence.[713]

Section VII.—Registration of Performing Rights.

Section 20 of 5 & 6 Vict. c. 45 enacts that "the provisions hereinbefore
enacted" in respect of registering the copyright in books shall apply to the
liberty of representing or performing any dramatic piece or musical
composition; provided that in the case of a dramatic piece or musical [132]
composition in manuscript it shall be sufficient to register—

1. The title.
2. The name and place of abode of author or composer.
3. The name and place of abode of the proprietor.
4. The time and place of first representation.

In the case, therefore, of a dramatic piece or musical composition which has
been published as a book, the proper registration in respect of both
copyright and performing right would seem to be that provided by section
II, viz.:

1. The title.
2. The time of first publication.
3. The name and place of abode of the publisher.[714]
4. The name and place of abode of the proprietor.[715]

This is probably correct, although it may not strictly be in accordance with
the proviso in section 20, viz.:"save and except that the first public

representation or performance of any dramatic piece or musical
composition shall be deemed equivalent in the construction of this Act to
the first publication of any book." If, however, the provision as to
registration in section 11 were strictly construed in accordance with this
proviso, the result is that the proper registration would be:

1. The title.
2. The time of first representation.
3. The name and place of abode of the person who first represented
it.
4. The name and place of abode of the proprietor.

It is obviously absurd that this should be the form of registration when the
dramatic piece or musical composition has been printed and published, and
that the form in section 20 should be the form of registration when it is in
manuscript. The distinction between the two forms is meaningless.
[133]
Section 24 of 5 & 6 Vict. c. 45, which enacts that no action for infringement
of copyright shall be brought unless the book is registered, provides "that
nothing herein contained shall prejudice the remedies which the proprietor
of the sole liberty of representing any dramatic piece shall have by virtue of
the Act 3 & 4 Will. IV. c. 15, or of this Act, although no entry shall be made
in the book of registry aforesaid."

The provisions as to registration of dramatic pieces are therefore merely
permissive and are in no way a condition precedent either to the performing
right itself or to the right of action upon infringement;[716] but registration is
primâ facie proof of the right of representation subject to rebuttal by other
evidence.[717]

All the provisions as to the keeping of the registry book,[718] making false
entries therein,[719] and motion to expunge,[720] apply equally to registration
of a dramatic piece for the purpose of protecting performing right as to
registration of a book for the purpose of protecting copyright.[721]

Musical Compositions.—The requisite registration is the same as for
performing rights in dramatic works; but quære whether in the case of
performing right in a musical composition it is not a condition precedent to
action. This doubt is raised by section 24, which provides that the
registration of a book is a condition precedent to an action for infringement
of copyright, and it specially excepts "the remedies which the proprietor of
the sole liberty of representing any dramatic piece shall have" from the
operation of the section. It is curious that "musical compositions" are
omitted from this saving clause, whereas in nearly every other part of the
Act "dramatic piece and musical compositions" are dealt with together. The
arguments against registration being a condition precedent are, (1) the first
part of section 24 relates only to copyright which does not include
performing right; (2) section 20 does not extend the provisions of section 24
to performing right, since it only applies the provisions "before enacted."
There is also a suggestion that "dramatic piece" in the saving clause of
[134]
section 24 includes "musical composition," since the definition of "dramatic
piece" in section 2 includes "musical or dramatic entertainment." There is
no authority directly in point. In Russell v. Smith[722] the song called "The
Ship on Fire" was protected without registration, but then it was held to be a
"dramatic piece" and something more than a musical composition. In Clark
v. Bishop[723] the song protected was also held to be a "dramatic piece." In
Lacy v. Rhys,[724] where it was held that in the case of a dramatic piece
there was clearly no obligation to register, Crompton, J., said that if it had
not been for the proviso in section 24, there would have been a doubt
whether registration were not necessary.[725]

In registering an unpublished arrangement of dance music taken from an
opera, the arranger, not the composer of the original opera, must be entered
as composer.[726]

Section VIII.—Assignment of Performing Rights.

The performing right in dramatic pieces and musical compositions can only
be transferred by a written assignment[727] or by entry on the register.[728]
See decisions as to assignment of copyright;[729] but note that as regards

performing right the assignment, even if before publication or performance,
must be in writing.[730] The performing right will not pass by a mere
conveyance of the copyright in a dramatic or musical work[731] unless an
entry shall be made of such assignment in the register expressing the
intention of the parties that such right should pass.[732] As in the case of
copyright, there is no express enactment that assignment must be in writing;
but it is inferred from the fact that a licence which is a smaller right cannot
[135]
be given except by writing.[733] The assignment does not require to be by
[734] [735]
deed, and if by written document it is valid without registration.
Section 22 of 5 & 6 Vict. c. 45 appears at first sight to make registration
necessary in every assignment of performing right, at least if the copyright
is assigned with it; but this is not so. If in the written assignment there is a
specific conveyance of the performing right,[736] or if general words are
used such as "all other the estate, right, title, and interest," showing that
something else than the copyright was intended to be conveyed, the
performing right will pass without registration.[737] Cotton, L. J., in
considering this section, says:

"I incline to think that this enactment was not meant to control the
operation of deeds of assignment, but only to regulate the effect of
entries in the registry book."[738]

In fact it was passed on account of Cumberland v. Planché,[739] which
decided that the assignee of the copyright took the performing right as well.

If the view is right that the statutory performing right vests immediately on
production,[740] there can be no question of assignment of common law
rights.[741]

Performing rights can probably be partially assigned so as to make a
grantee of provincial rights not only a licensee but an assignee, with full
power to sue alone and re-assign.[742]

Section IX.—Infringement of Dramatic Performing Rights.

By 3 & 4 Will. IV. c. 15, section 1, the author or his assignee has "the sole
liberty of representing, or causing to be represented, at any place or places
of dramatic entertainment whatsoever" in the British dominions.

Public Performance.—It is no infringement of performing right in a
dramatic work to represent it otherwise than in a place of dramatic
[136]is
entertainment; but it has been held that any place where a dramatic work
publicly performed is for the time being a place of dramatic entertainment.
In Lee v. Simpson,[743] Wilde, C. J., says:

"The legislature clearly meant places where dramatic entertainments
are represented to which the public are admitted."

In Russell v. Smith[744] the Court decided that a certain song, "The Ship on
Fire," was a dramatic piece. Denman, C. J., said:

"It follows that as Crosby Hall was used for the public representation
for profit of a dramatic piece, it became a place of dramatic
entertainment for the time, within the statutes now in question. The use
for the time in question and not for a former time is the essential fact.
As a regular theatre may be a lecture-room, dining-room, ball-room,
and concert-room on successive days, so a room used ordinarily for
either of these purposes would become for the time being a theatre if
used for the representation of a regular stage play. In this sense, as
"The Ship on Fire" was a dramatic piece, in our view Crosby Hall,
when used for the public representation and performance of it for
profit, became a place of dramatic entertainment. In thus deciding we
do not declare that the defendant's performances at Crosby Hall were
unlawful without a theatrical licence within Stat. 6 & 7 Vict. c. 68."
[745]

In the judgment of Brett, M. R., in Wall v. Taylor[746] there is a suggestion
that although a single item in a programme might be dramatic, that would
not be sufficient to render the whole entertainment dramatic or to make the
place a place of dramatic performance. In Duck v. Bates[747] the defendant
represented a dramatic piece without the author's consent. The
representation took place in a room of Guy's Hospital, and was provided

entirely for the amusement of the nurses and attendants of the hospital. The
medical officers of the hospital, the students and some of their friends were
present. A reporter to a theatrical newspaper was also present by invitation.
It was held by Brett, M. R., and Bowen, L. J. (Fry, L. J., dissenting), that the
room was not a place of dramatic entertainment. Neither profit[748] nor
habitual use were essential elements, but there must be a representation [137]to
which a portion of the public is admitted. Brett, M. R., said:

"Did the legislature intend to forbid a representation without the
author's consent by children in a nursery before their parents, or by
grown-up persons in a drawing-room? It is clear that something more
than that must have been intended; and why should not a
representation of that kind be called a dramatic entertainment?
Because it is obviously domestic and private. Suppose that the servants
of the household are invited to witness the performance; nevertheless it
is a domestic entertainment. As I have already intimated, the author
wants protection for the pecuniary value of his drama, and a
representation in a private room is of no pecuniary value. In order to
entitle the author to penalties there must be a representation which will
injure the author's right to money; such, for instance, as a
representation which, although it is not for profit, would attract
persons who are willing to pay money, and would induce them not to
go and see a performance licensed by the author. Suppose that a
representation in the presence of friends takes place for the amusement
of friends and of the members of the household in an unfurnished
house hired for the occasion: that is not an infringement of the statute:
the representation must be other than domestic or private. There must
be present a sufficient part of the public who would go also to a
performance licensed by the author as a commercial transaction;
otherwise the place where the drama is represented will not be a 'place
of dramatic entertainment' within the meaning of the statute. Suppose
that a drama is represented in a county town, and that all persons of a
certain class throughout the county are free to come: suppose that a
member for a parliamentary constituency (I do not mean shortly before
or during an election) organises dramatic entertainments to which the
inhabitants are admitted without paying: suppose that an amateur
company choose to act some drama for a charitable object, with

admission upon payment or by tickets issued generally: in each of
these instances an infringement of the statute has been committed.... I
wish to say, by way of warning, that those who go beyond the facts of
the present case may incur the penalties of the statute."

This case is most instructive as being quite on the border line between a
private and public representation. Performing right in a drama may be
infringed by a representation without scenery and appropriate dresses.

"We should take away a part of the protection conferred on authors if
we hold that there could be no public representation without these
accompaniments."[749]
[138]
Substantial Part.—As in literary copyright the part taken must be material
and substantial in order to infringe performing right. In Chatterton v. Cave,
[750]
Lord Chief Justice Coleridge at the trial found as a fact "that two
scenes or points of the drama of the defendant had been taken directly from
the drama of the plaintiff;" there was no further copying. He thereupon gave
judgment for the defendant. On a rule for a new trial, Lord Coleridge,
sitting in the Court of Common Pleas, stated orally that what he meant to
convey by his finding was, "that looking to the general character of the
plaintiff's and defendant's dramas, the extent to which the one was taken
from the other was so slight, and the effect upon the total composition was
so small, that there was no substantial and material taking of any one
portion of the defendant's drama from any portion of the plaintiff's." On this
explanation the rule was discharged, and the judgment subsequently
affirmed by the Court of Appeal and the House of Lords. Lord Hatherley
said that the principle de minimis non curat lex applied to a supposed wrong
in taking a part of dramatic works as well as in reproducing a part of a
book. He could not read the word "part" in the Dramatic Copyright Act as
"particle," so that the crowing of the cock in "Hamlet," or the introduction
of a line in the dialogue might be held to be an invasion. In Planché v.
Braham,[751] Tindal, C. J., directed the jury that if either one song, or more
than one song be taken from a piece and be performed on the stage or any
place of theatrical entertainment, that would be a "representing" within the
Act of Parliament. The jury, having found that the defendant had
represented "a part of the plaintiff's opera," a rule for a new trial was

refused.[752] In Beere v. Ellis,[753] two plays purported to be founded on the
same novel. The defendant's play contained some of the dialogue and
several dramatic incidents and situations taken directly from the plaintiff's
play. Baron Pollock held that a small piece of dialogue would not alone
amount to an infringement, but the defendant had taken two dramatic
incidents on which the plot of the play depended. He had therefore taken a
material part, and although he had done a considerable quantity of work [139]
for
himself, he had "extracted the plums" from the plaintiff's work, and this he
was not entitled to do. An indirect taking is, as in literary copyright, an
infringement, e. g. to copy and perform passages from a play by
dramatizing a novel founded on that play.[754] It is no infringement to
produce a play almost identically similar to that of another author, if this is
the result of coincidence and not of any piracy direct or indirect.[755] As to
the taking of a plan or idea, see the chapter on infringement of literary
copyright.[756] There must be more than the taking of a general idea or
scheme. Lord Blackburn, in Chatterton v. Cave,[757] said:

"An idea may be taken from a drama and used in forming another
without the representation of the second being a representation of any
part of the first. For example, I have no doubt that Sheridan in
composing 'The Critic' took the idea from 'The Rehearsal,' but I think it
would be an abuse of language to say that those who represent 'The
Critic' represent 'The Rehearsal,' or any part thereof, and if it were left
to me to find the fact, I should without hesitation find that they did not.
On the other hand, in composing 'The Trip to Scarborough,' Sheridan
took so much from 'The Relapse,' that if it were left to me to find the
fact, I should find that those who represent 'The Trip to Scarborough'
do represent parts of 'The Relapse.'"

Causing to be Represented.—The "penalty" prescribed by the Act of 3 &
4 Will. IV. c. 15 is recoverable from those who "represent or cause to be
represented" an unauthorised work. Section 20 of 5 & 6 Vict. c. 45 provides
"that the sole liberty of representing, or performing, or causing or
permitting to be represented or performed, any dramatic piece or musical
composition, shall endure," &c. Notice that this section uses the word
"permitting," whereas 3 & 4 Will. IV. c. 15 only uses "represent or cause to
be represented." The later statute, however, does not purport to extend the

nature of performing right, and therefore the word "permitting," if it have
any meaning at all, can only be explanatory of the words "cause to be
represented" in the earlier statute. When then does a person "cause a
dramatic piece to be represented"? Shortly, the answer probably is, that[140]
if he
does not actually take part as an actor, the defendant must be shown to have
had some initiation in or control over the performance. In Parsons v.
Chapman,[758] an acting manager, who paid the performers' salaries, and
was entitled to dismiss them, was held to have caused a dramatic piece to be
represented within the meaning of 10 Geo. III. c. 28, sec. 1. In Russell v.
Briant,[759] the defendant was the landlord of "The Horns" Tavern, at
Kennington. His premises included a large assembly room which was hired
for evening entertainments. The defendant furnished the platform and the
lights, and allowed bills to be put up in the tavern, and tickets of admission
to be advertised to be sold at the bar. At one entertainment a song, "The
Ship on Fire," which in Russell v. Smith[760] was held to be a copyright
dramatic piece, was sung. It was held that the defendant had not represented
or caused to be represented the dramatic piece in question. Wilde, C. J., said
that no one could be considered as an offender unless by himself or his
agent he actually took part in the representation. In Lyon v. Knowles[761] the
defendant let his theatre. He provided and paid for the scenery, lights,
printing, advertising, band, doorkeepers, scene-shifters, and
supernumeraries. His servants collected the money at the door, and he
retained half the gross profits to recoup himself. The lessee brought his own
company, and represented pieces of his own choice, the defendant having
no control over any person employed in the representation. It was held that
the defendant had not caused the piece to be represented within the meaning
of the Acts. In Marsh v. Conquest[762] the defendant was the proprietor of a
theatre, and his son, the acting manager, hired it for a "benefit." The Court
held that the defendant came within the statute. Erle, C. J., delivered the
judgment of the Court:

"It appears that the defendant is the proprietor of the Grecian Theatre,
and the employer of the dramatic corps attached thereto; that his son,[141]
the stage manager, hired for his benefit-night the theatre, together with
the company of actors, and servants, and lights, for the sum of £30;
and that the son, in the defendant's theatre, and with the aid of his

actors and actresses, musicians, servants, lights, and other
paraphernalia, represented the dramatic piece in question, in violation
of the plaintiff's sole and exclusive right of representing or causing it
to be represented. I think the defendant is responsible for that
representation. He was the proprietor of the theatre, and had entire
control over the establishment and all belonging to it, and what was
done by his son was done with his permission."

In Monaghan v. Taylor[763] the defendant was the proprietor of a music hall,
and paid a singer to perform, leaving him his own choice of songs. The
singer sang a copyright song. The Court held that the defendant came
within the statute. This decision would not now apply to musical
performing right, since, by the Musical Copyright Act of 1888, a proprietor
is not liable unless he permits the performance knowing it to be an
infringement. It is still applicable to dramatic performing rights. Suppose,
for instance, the proprietor of a variety theatre hired the services of a troop
of players, telling them to fill up twenty minutes on the programme with
any dramatic scene they pleased. If they infringed a dramatic copyright, the
proprietor would be liable.

It seems to be doubtful whether if B, acting entirely as the agent of A,
causes C and others to perform a dramatic piece, he can be held liable if he
took no part in the representation. In Parsons v. Chapman[764] Lord
Tenterden, C. J., directed the jury that it was sufficient if the defendant
caused the piece to be performed; and that it made no difference that he did
so as an agent for others. This was a decision under 10 Geo. II. c. 28, and
the principle should be the same under 3 & 4 Will. IV., and 5 & 6 Vict; but
in French v. Day[765] Kennedy, J., took a different view. One of the
defendants was the manager of a theatre. He received instructions for the
production of the piece in question from the proprietor, and he could not
engage or dismiss artistes; he was in every respect bound to conform to[142]
his
employer's orders. Kennedy, J., said:

"The whole thing was carried on by the proprietor, who merely used
the manager as his mouthpiece. I think I ought not to hold that a person
in his position 'represented,' or 'caused to be represented,' the piece."

Knowledge.—In an action for infringement of dramatic performing right it
is unnecessary to prove that the defendant knew the performance was an
infringement.[766]

Innocent Agents.—All the actors who take part in an unlawful
performance are within the section as "representing," and are liable to
penalties.[767]

Licence.—It is an infringement of performing right to perform "without the
consent in writing of the author or other proprietor."[768] See decisions on
licence as to copyright in books.[769] The licence must be in writing,[770] but
it does not require to be written by the proprietor or signed by him or any
one else.[771] The secretary of a dramatic author's society may, if he has
authority, grant a good licence on behalf of the authors.[772] A part owner
cannot grant a licence without the consent of the other part owners.[773]

Section X.—Infringement of Musical Performing Rights.

Substantial Part.—The rule that the taking of a part but not of a particle in
infringement applies equally to musical compositions and to the performing
rights therein. In D'Almaine v. Boosey[774] the taking of airs from an opera
and arranging them as quadrilles and waltzes was held to be an
infringement of the copyright in the opera. Lord Lyndhurst said:

"Substantially the piracy is when the appropriated music, though
adapted to a different purpose from that of the original, may still be
recognised by the ear."
[143]
This test, however, will hardly apply to the piracy of an adaptation where
the air or melody is a non-copyright one. A comparison of the actual notes
and treatment of the phrases would have to be made.

Public Performance.—It has been contended that the protection afforded
by 3 & 4 Will. IV. c. 15 to musical compositions is only an exclusive right
of performance in places of dramatic entertainment. That is the protection
given to dramatic pieces, and it was said that 5 & 6 Vict. c. 45, in applying

3 & 4 Will. IV. c. 15 to musical compositions did not give them a wider
protection than dramatic pieces had. In Wall v. Taylor[775] the Court held
that this view was wrong. Bowen, L. J., said:

"I think the answer is this, that what is called in the argument a
'condition' of recovering a penalty in sec. 2 of 3 & 4 Will. IV. c. 15 is
nothing of the kind, but part of the definition of the offence upon
which the penalty is to be incurred.... The right granted is the privilege
of representing at places of dramatic entertainment.... Now sec. 20 of 5
& 6 Vict. c. 45 creates a new right of property as to a musical
composition, and gives the author and his assigns the sole liberty of
representing or performing it. That is the right given, and sec. 21 says
that the person who shall have that right 'shall have and enjoy the
remedies given and provided' in the Act of 3 & 4 Will. IV. c. 15. Why
read into that word 'remedies' that the second section of that Act is
only to be put in force not where there is an infringement of that right,
but where there has been a representation or performance at a place of
dramatic entertainment."

The view of Cotton, L. J., in the same case was that the remedies of 3 & 4
Will. IV. c. 15 were not applicable unless the musical composition was
performed in a place of dramatic entertainment; but that in every case of
public performance there was a remedy under 5 & 6 Vict. c. 45 for damages
and injunction. Since the Musical Copyright Act of 1888 the distinction
between these opinions has become immaterial, for in every case in which
the performance is actionable at all the Court may assess the damages as it
thinks proper.

Causing to be Represented.—The offence is representing or "causing [144]to
be represented." As to what the latter includes see page 139, on performing
right in dramatic pieces. The liability for "causing to be represented" differs
from that in the case of dramatic pieces in that since the Copyright (Musical
Compositions) Act, 1888, "the proprietor, tenant, or occupier of any place
of dramatic entertainment or other place at which any unauthorised
representation or performance of any musical composition shall take place
... shall not by reason of such representation or performance be liable to any
penalty or damages in respect thereof, unless he shall wilfully cause or

permit such unauthorised representation or performance, knowing it to be
unauthorised."[776] In respect of those who are not proprietors, tenants, or
occupiers the liability is the same as in the infringement of dramatic
performing right.

Section XI.—Remedies for Infringement of Dramatic Performing

Rights.

An action for—

1. Penalty[777] of 40s. for each performance, or the defendant's
profits, or the actual damage sustained, whichever be the
greater.
2. Injunction.[778]
3. A full and reasonable indemnity as to costs.[779]

[145]
Action must be brought within twelve calendar months of the offence.[780]

Section XII.—Remedies for Infringement of Musical Performing

Rights..

An action for—

1. Damages.[781]
2. Injunction.[782]
3. Costs in the discretion of the Court.[783]

[146]
Action must be brought within twelve calendar months of the offence.[784]

CHAPTER VI

COPYRIGHT IN ENGRAVINGS

Section I.—What Works are Protected.

The following works are protected under the Engraving Acts:

1. Every original engraving or print:[785]
2. [Made within the British dominions:][786]
3. First published within the British dominions:[787]
4. Which bears the date of first publication and the proprietor's
name thereon:[788]
5. And is innocent.[789]

The protection endures for twenty-eight years from publication.[790]

The protection is limited to the United Kingdom.[791]

What is an Original Engraving.—By 8 Geo. II. c. 13 (1734) copyright is
given to "every person who shall invent and design, engrave, etch, or work
in mezzotinto or chiaro oscuro, or from his own works and invention shall
cause to be designed and engraved, etched, or worked in mezzotinto or
chiaro oscuro any historical or other print or prints."

In Blackwell v. Harper[792] (1740) it was decided that the above Act was not
limited to works of invention such as an historical group, but extended to
the "designing or engraving anything that is already in nature."

In Jefferys v. Baldwin[793] (1753) it was held that prints of herring fishing-
boats were not within the protection of the Act.

By 7 Geo. III. c. 38 (1766), which was passed in consequence probably of
[147]
the doubt thrown upon the earlier Act by the above and other decisions, the
copyright in engravings is given to "all and every person or persons who
shall invent or design, engrave, etch, or work in mezzotinto or chiaro
oscuro, or from his own work, design, or invention shall cause or procure to
be designed, engraved, etched, or worked in mezzotinto or chiaro oscuro
any historical print or prints, or any print or prints of any portrait,
conversation, landscape, or architecture, map, chart, or plan, or any other
print or prints whatsoever," and "to all and every person who shall engrave,
etch, or work in mezzotinto or chiaro oscuro, or cause to be engraved,
etched, or worked any print taken from any picture, drawing, model, or
sculpture either ancient or modern."

Notwithstanding this widely worded protection, doubts arose as to whether
lithographs and certain new processes of reproducing prints came within the
Acts, and in consequence a clause was inserted in the Copyright Act of
1852[794] whereby it was declared that the provisions of the Engraving Acts
were intended to include prints taken by lithography or any other
mechanical process by which prints or impressions of drawings or designs
are capable of being multiplied indefinitely.

Prints of every description, therefore, are protected under the Engraving
Acts, and it is immaterial whether the design produced is:

1. The imaginative invention of the maker,
2. Taken from some object in nature, or
3. Taken from some other work of art, such as a picture or model.

Originality.—The only originality required is an originality in execution, i.
e. the work must not be taken from some other print and reproduce from
that other print those characteristics of execution wherein the peculiar merit
of the engraver's art lies.

"The engraver produces his effects by the management of light and
shade, or as the term of his art expresses it, the chiaro oscuro. The due
degrees of light and shade are produced by different lines and dots; he
who is the engraver must decide on the choice of the different lines or
dots for himself, and on his choice depends the success of his print.[148]
If
he copies from another engraving he may see how the person who
engraved that has produced the desired effect, and so without skill or
attention become a successful rival."[795]

Map, Chart, or Plan.—It will be remembered that maps, charts, and plans
are included under the definition of books in the Copyright Act, 1842,[796]
and receive protection as such. Doubt has consequently been raised as to
whether a map must comply with both the Engraving Acts and the Literary
Act in order to obtain protection, or whether it will be sufficient to comply
with the requirements of one only, and if so, which. The decided cases are
unsatisfactory. In Stannard v. Lee[797] protection was claimed for a
"Panoramic Bird's-eye view of France and Prussia," with the railway and
strategic positions illustrating the Franco-Prussian War of 1870. This was
not registered as a book under the Copyright Act, 1842, and the objection
was held to be fatal. The judges in the Court of Appeal seemed to be of
opinion that the Act of 1842 had taken maps, charts, and plans out of the
protection of the Engraving Acts and placed them under the protection of
the Literary Act, consequently that the requirements of the latter and not of
the Engraving Acts must be observed. James, L. J., said:

"It was reasonable and proper to take a map out of the class of artistic
copyrights and to give to it the better and more complete copyright
which is intended to be given to literary works. And there would be, as
I have pointed out clearly, great inconvenience in having two laws of
copyright as to two sets of maps or as to the same set of maps."[798]

Mellish, L. J., said:

"I think it is a perfectly rational enactment that maps shall no longer be
included among works of art but be classed in future with literary
works."[799]

After this case had been decided a petition was brought to the Court praying
that another case, Stannard v. Harrison,[800] in which the same map had
been copied, and to which the defendants had consented to a decree [149]
for
injunction and damages, should be reheard. Bacon, V. C., refused the
petition, and indicated in the course of his judgment that a map not
registered as a book might be protected as an engraving if the claim was
properly stated. The judgment in Stannard v. Lee,[801] he said, had gone on
a question of pleading, the plaintiffs having voluntarily brought their map
under the category of books. This is by no means a satisfactory explanation
of the decision in the Court of Appeal, as it is abundantly clear from the
judgments as reported that in the view of the Lords Justices the Copyright
Act, 1842, took maps, charts, and plans out of the category of artistic works
and placed them in the category of literary works. Whether this is a correct
view is another matter, but at present it would seem to be law. It is
submitted that the true view probably is that a map may be protected under
either Act if the requisite formalities are observed. The Literary will
probably give a wider protection than the Engraving Acts. The Engraving
Acts will protect a map from infringement of the method of execution, that
is to say, the work which is the peculiar work of the engraver; while the
Literary Act will protect it not only from that, but from a piratical taking of
information imparted. Thus suppose a map of India giving battles and dates
and, say, the principal products of the various districts marked with printed
letters on the surface. It is difficult to see how the taking of all these dates
and products and placing them perhaps printed in different letters on the
new map could be an infringement of the engraving copyright in the map;
there is nothing in the nature of a design or drawing taken; and yet it is
quite clear it will be an infringement under the protection afforded by a
literary copyright, because there is a taking of the particular expression by
which information is imparted.

Engravings in a book are protected by the Copyright Act, 1842, as part of
the book, and, as such, do not require to comply with the requirements of
the Engraving Acts.[802] The protection of a print forming part of a book is
probably a double one, and if it had the name and date inscribed would[150]be
protected without registration or notwithstanding faulty registration of the
book.

Must the Engraving be made within the British Dominions.—The Act
17 Geo. III. c. 57 giving a remedy by action for damages is expressly
confined to works made in Great Britain. The other two Acts, 8 Geo. II. c.
13 and 7 Geo. III. c. 38, are not expressly limited to works there made, but
it has been held that the limitation is to be supplied in them.[803]

"It is plain that the object of the legislature was to protect those works
which were designed, engraved, etched, or worked in Great Britain,
and not those which were designed, engraved, etched, or worked
abroad, and only published in Great Britain."[804]

The Act 6 & 7 Will. IV. c. 59 extends the application of the Engraving Acts
to Ireland, and in section 2 there is a general proviso protecting "any
engraving or print of any description whatever ... which may have been or
which shall hereafter be published in any part of Great Britain or Ireland." It
is quite arguable that this extends the protection to engravings wherever
made if published in the United Kingdom; but probably it would be held to
be only applicable to engravings made in the United Kingdom, and is
merely a proviso that there will be no copyright until publication in the
United Kingdom. The point, however, is one of great uncertainty.

Under the International Copyright Act, 1886,[805] works first produced
anywhere within the British dominions are protected equally with those first
produced in the United Kingdom. The doubt still remains whether the
engraving must not be made as well as first published within the British
dominions.

The Engraving must be first Published within the British Dominions.—
There is no protection until publication[806] except at common law.
Publication is an act which gives to the public an opportunity on payment or
otherwise of viewing the print. There may probably be publication without
offering copies for sale or distribution. See as to publication of books[807]
[151]
and pictures;[808] but the analogy is not complete with either. There seems
to be no direct authority as to what constitutes publication of an engraving.

Before 1886 the work had to be published in the United Kingdom.[809] Now
first publication anywhere within the British dominions will be sufficient to

secure the copyright.[810]

Date of First Publication and Proprietor's Name.—It is a condition
precedent to protection that there must be truly engraved on each plate, and
printed on every print or prints[811]—

i. The name of the proprietor;
ii. The day of first publication.

This qualification of the engraver's right is only inserted in 8 Geo. II. c. 13,
and not in the subsequent Acts which extend the protection to works not
there included and give remedies not there given. It has been held, however,
that as the Acts are in pari materia they must be taken together, and the
qualification in the first read into the others.[812]

The proviso as to the name and date is a condition precedent to protection,
and not merely directory.[813] In one case Lord Hardwicke thought that,
although no action for penalties would lie unless the name and date were
correctly published, an injunction might be granted even although the name
and date were not published at all.[814] He was probably wrong.

Name of Proprietor.—There is some little doubt as to whether this must be
the name of the person who was proprietor at the date of first publication or
at the date on which protection is claimed. In Thompson v. Symonds[815]
Lord Kenyon said:

"The name of the proprietor should appear in order that those who
wish to copy it might know to whom to apply for consent. It seems,
therefore, necessary that the date should remain, but that the name of
the proprietor should be altered as often as the property is changed."[152]

But Buller, J., in the same case, thought the proprietor always meant the
inventor and first proprietor, notwithstanding the property had passed to his
assignee. The point is certainly doubtful, but the latter view that the name of
the first proprietor only need be on the print seems the more reasonable, and

not contrary to the wording of the Act. The proprietor need not be described
as such on the plate.[816] If his name is there it is sufficient, even if there is
more than one name and it is uncertain which is the proprietor.[817] The
proprietor need not be described by his full name, his surname is sufficient.
[818]
When a partnership firm are proprietors of an engraving the trading
name of the firm is a sufficient designation, inasmuch as it enables parties
to know whom to apply to for information.[819] If a single proprietor trades
under the designation of A. B. & Co. that is a sufficient designation.[820]

Immoral Works.—There will be no copyright in profane, libellous, or
indecent prints.[821]

Duration of Protection.—The statutory right begins on publication, and
runs for twenty-eight years from the day of first publishing.[822]

After publication protection will depend entirely on the statute.[823]

Before publication there is a common law right to prevent all interference
with what is a man's private property,[824] and to protect this the formalities
prescribed by the statute need not be complied with.

Section II.—The Owner of the Copyright.

The Engraver.—The persons to whom the copyright is given by the Acts
[153]or
are, "Every person and persons who shall invent or design, engrave, etch,
work in mezzotinto or chiaro oscuro, or from his own work, design, or
invention, shall cause or procure to be designed, engraved, etched, or
worked in mezzotinto or chiaro oscuro any prints ... and every person who
shall engrave, etch, or work in mezzotinto or chiaro oscuro, or cause to be
engraved, etched, or worked any print taken from any picture."

The engraver, therefore, is the first owner of the copyright when he does the
work on his own behalf, or, if he does it on behalf of another, executes it
entirely from his own work, design, or invention.

The Employer.—When one man employs another to execute an engraving
it would seem that by the Acts[825] the copyright vests ab initio in the
employer:

1. In the case of an engraving taken from another work of art.
2. In the case of an engraving with an original design, if it is
executed from the employer's own work, design, or
invention.

An employer may be the inventor of a design even although he is unable to
draw, and would himself be unable to execute it. For instance, in the
case[826] of a war map for the Franco-Prussian war in 1870, it was held that
a publisher who had employed an engraver, giving him material and
instructions from time to time was the inventor, and therefore the first
owner in the copyright in the map. Bacon, V. C., said:

"As to whether the design or invention is that of the plaintiff or not is a
mere matter of character.... The compiler has proved that it is the
design of the plaintiff; that the plaintiff brought to him his rough
sketch or draught, a drawing of the same size as the stone on which it
was to be engraved, pointing out, as the compiler has said, 'a rough
sketch of the forts and towns to give me an idea; he furnished me also
with a large French map, and some maps published in the Times and
Daily Telegraph; he gave me notice also daily of the earthworks that
were made and produced, besides a picture published in the Illustrated
London News.' That the plaintiff cannot draw himself is a matter [154]
wholly unimportant if he has caused other persons to draw for him. He
invents the subject of the design beyond all question. He prescribes the
proportions and the contents of the design; he furnishes a part of the
materials from which the drawing has to be made in the first instance,
and afterwards collects daily from the proper sources, and even, if it be
necessary to say so, from official sources, the decrees, the reports, the
bulletins and accounts contained in the newspapers of the different
phases of the war, and especially of the places in which earthworks are
thrown up. These he communicates to the man whom he has employed

to make a drawing for him.... It is clear to my mind that this is a work
of diligence, industry, and for aught I know of genius on the part of the
plaintiff, for the notion never seems to have occurred to the compiler
himself."

If the person employed is the servant of the employer and not an
independent contractor, the whole right in the engraving will probably,
irrespective of the Acts, vest ab initio in the employer.[827]

The Assignee.—In one case[828] it was contended that there could be no
assignment under the Engraving Acts enabling an assignee to sue in his own
name, since these Acts only provide for the licence and exemption from
liabilities of a purchaser.[829] It was held, however, that there could be an
assignment, and that the assignee could sue in his own name.[830]

As a licence is required to be in writing, signed by the proprietor and in the
presence of two or more credible witnesses,[831] so must the assignment
which passes a greater right.[832]

The sale of plates will not in itself operate as an assignment;[833] but, if it
were clearly intended to pass the whole right, probably it would pass with
the plates without assignment in writing.[834]

Before publication the whole right in the engraving, i. e. the common law
[155]
right, may be assigned without writing.[835]

Section III.—Infringement of the Copyright.

Prohibited Acts and Remedies.—It is an offence "for any print-seller or
other person whatsoever"[836]—

1. To engrave, etch, or work, or in any manner copy and sell the
protected work.
2. To print, reprint, or import for sale any pirated copy.
3. Knowingly to publish, sell, or expose for sale, or in any other
manner dispose of any pirated copy.
4. To cause or procure any of these acts to be done.

For any such offence the remedy is an action in the High Court for—

i. Forfeiture of plates and sheets to proprietor for destruction.[837]
ii. Penalty of 5s. for every published copy.[838]
iii. Damages.[839]
iv. Injunction.[840]
v. Inspection and Account.[841]

Further it is an offence—

5. Innocently to publish, sell, or expose for sale, any pirated copy.
[842]

6. To make a copy or copies, whether for sale or not.[843]
7. To cause or procure any of these acts to be done.

For any such offence the remedy is an action in the High Court for—

i. Damages.[844]
ii. Injunction.[845]
iii. Inspection and Account.[846]
[156]

Penalties and delivery of plates or copies may also be recovered by
summary proceeding before any two justices having jurisdiction where the
party offending resides.[847]

Guilty Knowledge.—It will be noticed that in order to recover penalties and
forfeiture of copies under 8 Geo. II. c. 13, for the offence of selling a
piratical copy, it must have been committed knowing the copy to have been
produced without consent. In 17 Geo. III. c. 57, however, the offence for
which an action for damages lies is merely "selling," thus not requiring
proof of guilty knowledge. It has been contended that the requirement of
guilty knowledge in 8 Geo. II. c. 13, should be read into 17 Geo. III. c. 57,
and the action of damages provided by the latter statute applied to guilty
selling only. This contention has been rejected as erroneous.[848]

Limitation of Action.—Actions for penalties under the Acts must be brought
within three months of the discovery of the offence sued on[849] and within
six months after the committal of such offence.[850]

There is no express limitation in the Acts in respect of actions for damages
under 17 Geo. III. c. 57, and therefore such action will not be barred for six
years.[851]

Costs.—The litigant if successful in an action for infringement is to recover
"full costs."[852] This proviso, however, has been construed to mean nothing
more than ordinary costs taxed as between party and party.[853] Probably,
however, they may be claimed as of right and are not in the discretion of the
Court under Rules of the Supreme Court, o. 65, r. 1.[854]

Copying for Private Use will probably be actionable under 17 Geo. III. c.
57;[855] but no penalties could be recovered under 8 Geo. II. c. 13, as under
that Act the making must be a making for sale.

What is a Piratical Copy.—The right under the Acts is "the sole right[157]
and
[856]
liberty of printing and reprinting the same," and the prohibition is
against "engraving, etching, or working in mezzotinto or chiaro oscuro or

otherwise, or in any manner copying, in the whole or in part, by varying,
adding to or diminishing from, the main design."[857]

The taking of a material part is a piracy;[858] the copy which contains a
material part of a copyright engraving is a piratical copy, and it is an
offence to import or sell it.[859]

The copyright in an engraving may be infringed otherwise than by another
engraving. Thus a photograph of an engraving is an infringement of the
copyright in it.[860]

It is doubtful how far the Engraving Acts protect the design in an engraving.
It is clear that when an engraving is taken from a work of art previously
existing, such as a pen and ink drawing or a painting, the engraving is only
copyright so far as the work of the engraver[861] is concerned; that is to say,
apart from the copyright in the drawing or painting, which may or may not
be his, the engraver acquires no monopoly[862] of the right to engrave the
picture; the fact of his being the first engraver does not prevent others from
doing the same, they can only be prevented from copying from his
engraving the peculiar execution of the design. In Dicks v. Brooks[863] a
printed pattern for Berlin wool work was taken from an engraving of the
well-known picture "The Huguenot," by Millais. The owner of the
copyright in the engraving sued for infringement. It was held that the
printed pattern constituted no infringement of his engraving; it contained no
reproduction of that which was the engraver's meritorious work in the print.
But if the whole invention and design of the engraving is the engraver's own
do the Engraving Acts protect the engraver in such design and invention?
There is no authority where the point has been expressly considered and
decided. It is suggested that the Engraving Acts protect that part of [158]an
engraving only which is the result of the engraver's peculiar art; for the rest,
for the design, for the invention, for the grouping of the figures, protection
can only be obtained under the Act protecting drawings, or (in the case of
maps) under the Literary Copyright Act, or at common law. In Roworth v.
Wilkes[864] Lord Ellenborough considered a copying of the design was an
infringement of copyright under the Engraving Acts. The action was in
respect of an alleged infringement of certain plates in a treatise on fencing.

These plates had been copied in so far as the position of the figures went,
but they were represented as differently dressed. His Lordship, in directing
the jury, said:

"As to the prints, the question will be whether the defendant has
copied the main design ... it is still to be considered whether there be
such a similitude and conformity between the prints that the person
who executed the one set must have used the others as a model. In that
case he is a copyist of the main design. But if the similitude can be
supposed to have arisen from accident, or necessarily from the nature
of the subject, or from the artist having sketched designs merely from
reading the letterpress of the plaintiffs work, the defendant is not
answerable. It is remarkable, however, that he has given no evidence to
explain the similitude or to repel the presumption which that
necessarily causes."

In Martin v. Wright[865] it was held that when an artist had from sketches of
his own produced an engraving, and the defendant had it copied on canvas
in colours on a very large scale, with dioramic effect, and publicly exhibited
it, such a copying and exhibiting was no infringement of the engraving. The
ground of this decision seems to have been partly that the merit of the new
work had absorbed the merit of the old. Thus Shadwell, V. C., prefaces his
judgment with the remark that "any person may copy and publish the whole
of a literary composition provided he writes notes upon it, so as to present it
to the public connected with matter of his own."[866] Another ground of the
decision seems to have been that the diorama was produced for purposes of
exhibition and not of sale. The real point, whether the Acts protected more
than that which was peculiar to the engraver's art, does not appear to[159]
have
been considered either in the argument or judgment. In Dicks v. Brooks[867]
James, L. J., appears to have been of opinion that 8 Geo. II. c. 3, in
protecting the work of an engraver where the invention and design was his
own, protected not only the work peculiar to the engraver's art, but the
invention and design of the pictures as well.

"These words were intended to give protection for the genius exhibited
in the invention of the design, and the protection was commensurate
with the invention and design."[868]

Bramwell, L. J., however, seems inclined towards the opposite view. He
says:

"I do not say that if this were an ordinary engraving with no picture, a
lithograph taken from it would not be a copy. I think that a photograph
taken from it would be a copy. I do not say that if this were an original
engraving with no picture, and a copy were made of it and afterwards
coloured there might not be some ground for saying that there was a
piracy of the art and skill of the engraver. I should have very great
misgiving about it, because I doubt whether the statutes were not
intended to protect the artist's skill as an engraver only, and not as a
draftsman."[869]

It is no defence to an action for infringement that the work has been
extensively added to or improved.[870]

Striking prints from the proprietor's own plate has been held not to be an
infringement, although it was clearly an unauthorised act and a breach of
contract.[871] Thus a printer who had plates in his possession would not
infringe the copyright and be liable to penalties by striking copies for his
own use, but he would be liable in damages for breach of contract.

Licence a Defence.—A licence in order to be a defence must be in writing
signed by the proprietor in the presence of two or more credible witnesses,
[872]
but a licensee who is also a purchaser of any plates for printing may
presumably without any document in writing print from the said plates
[160]
without incurring penalties[873] under 8 Geo. II. c. 13 or 7 Geo. III. c. 38,
but quære whether such purchaser would not technically be liable to
damages under 17 Geo. III. c. 57. A bare licensee, although a purchaser of
plates, could not authorise third persons to print from the plates except as
[161]
his agent and on his behalf.[874]

CHAPTER VII

COPYRIGHT IN SCULPTURE

Section I.—What Works are Protected.

The following works are protected under the Sculptures Act:

1. Every original sculpture:[875]
2. First published within the British dominions:[876]
3. [The author of which is a British subject or resident within the
British dominions]:[877]
4. Which bears the proprietor's name and the date [of first
publication] thereon:[878]
5. And is innocent.[879]

Protection endures for fourteen years from publication, and another term of
fourteen years if the author is then alive and retains the copyright.[880]

Protection is probably limited by implication to the United Kingdom.[881]

What is an Original Sculpture.—The work protected is "any new and
original sculpture, or model, or copy, or cast of the human figure or human
figures, or of any bust or busts or of any part or parts of the human figure
clothed in drapery or otherwise, or of any subject being matter of invention
in sculpture, or of any alto or basso-relievo representing any of the matters
or things hereinbefore mentioned, or any cast from nature of the human
figure or of any part or parts of the human figure, or of any cast from nature
of any animal or of any part or parts of any animal, or of any such subject

containing any of the matters or things hereinbefore mentioned, whether
separate or combined."[882]

In one case it was contended that the Act only applied to representations[162]of
human figures and animals. North, J., however, held that "any new and
original sculpture" applied to any subject "being matter of invention in
sculpture," and that casts of fruit and leaves used for instruction in drawing
were protected.[883]

Carefully modelled toy soldiers have been protected as works of sculpture.
[884]

The Sculpture must be First Published within the British Dominions.—
The Act provides that protection shall run from the first publication of the
work.[885] Before 1886 it is possible that first publication within the United
Kingdom was required, now first publication anywhere within the British
dominions will vest the copyright;[886] first publication outside the British
dominions will destroy it.[887]

Publication.—A work of sculpture is published when the "eye of the
public"[888] is allowed to rest upon it, that is to say when the sculpture itself
and not merely a photographic copy or sketch is so exhibited that the
general public have an opportunity of viewing it.[889] Exhibition in any
public gallery such as the Royal Academy would be publication; but a
private view in the artist's studio would not be publication.

Author's Nationality.—It is extremely doubtful whether the author must
not at the time of first publication bear some allegiance to the crown by
virtue of nationality or residence. If this is so in the case of books,[890] there
seems to be no good ground for saying that the statute as to sculpture[891]
was intended to be more generous to the foreigner than that as to books.[892]

Proprietor's Name and Date.—The protection given by the Sculpture Act
is conditional on the proprietor or proprietors having caused his, her, or
their name or names with the date to be put on every sculpture before the
[163]
same shall be put forth or published.[893]

Proprietor's Name.[894]—As to what will probably be a sufficient statement
of the proprietor's name, see the cases on engravings[895] on which also the
proprietor's name is required. As to this provision the two statutes seem to
be in pari materia and the cases equally applicable to both.

Date.—It is not stated what date: but there can be no reasonable doubt but
that the date of first publication is intended. The older statute governing
sculptures[896] (now repealed) required the proprietor's name and "date of
publication." The International Act, 7 & 8 Vict. c. 12, in reciting the
provisions as to sculptures, runs "and by the said Acts[897] it is provided that
the name of the proprietor, with the date of first publication thereof, is to be
put on all such sculptures." It should be noticed, however, that both statutes
were then in operation and 38 Geo. III. c. 71 had not yet been repealed, so
that the recitation in 7 & 8 Vict. c. 12 may apply only to the provision in 38
Geo. III. c. 71, and is not necessarily explanatory of 54 Geo. III. c. 36.
There can be no doubt, however, that the omission in 54 Geo. III. c. 56 to
state what date was required was an oversight, and everything points to its
being the date of first publication that is meant. The statutory protection
begins then, and from then the duration of the copyright is measured so that
there is strong reason for the public being apprised of the date of first
publication, while the date of making, which is the only other conceivable
date, is of no importance. When the date affixed was a date a few days
before publication, Wright, J., held it was immaterial, as it would only
shorten the term of the copyright.[898]

Immoral Works.—Profane, libellous, or indecent works will not be
protected. There are no direct authorities in respect of unlawful works of
sculpture, but as in books,[899] paintings,[900] and engravings[901] the general
policy of the law not to take an account between wrong-doers will apply.
[164]
Duration of Protection.—Statutory protection commences on publication.
[902]
Before publication the unpublished work will be protected at common
law from any use which may be made of it without the permission of the
owner. After publication the statutory protection alone exists and subsists
for fourteen years[903] with a further term of fourteen years if at the

expiration of the first term the person who originally made or caused the
sculpture to be made is alive and has not parted with the copyright.[904]

Section II.—The Owner of the Copyright.

The Artist.—If a work of sculpture is made by an artist on his own behalf
he becomes on publication the proprietor of the copyright if before
publication he has not assigned his interest in the work.

The Employer.—If one procures an artist to make a work of sculpture for
him the employer will be ab initio the owner of the copyright without any
necessity for assignment from the artist. In order so to vest the work the
employer, it would seem, requires to take no part in the invention or design
of the work. If he causes the work to be done, he comes within the Act. No
valuable consideration need be shown.

The Assignee.—Assignment must be under seal, i. e. by a deed in writing
signed by the proprietor in the presence of and attested by two or more
credible witnesses.[905]

Section III.—Infringement of the Copyright.

Prohibited Acts and Remedies.—The Act (54 Geo. III. c. 56) gives to the
proprietor "the sole right and property" of works in sculpture. [165]

The prohibited Acts are[906]—

1. Making a pirated copy.
2. Importing a pirated copy.
3. Exposing for sale or otherwise disposing of a pirated copy.
4. Causing any of these acts to be done.

The remedy is an action at the suit of the proprietor for[907]—

i. Damages.
ii. Injunction.
iii. Costs—"a full and reasonable indemnity."[908]

Guilty Knowledge.—Ignorance is no defence to an action in respect of any
of the prohibited Acts, even that of selling.

Limitation of Action.—All actions under the Act must be commenced
within six months of the discovery of the offence sued on.

Copying for Private Use.—Either making or importing a single copy for
private use would technically be an infringement. The prohibition is not
limited to making or importing for sale, hire, exhibition, or distribution, as
in the case of paintings, &c., under 25 & 26 Vict. c. 68, sec. 6.

What is a Piratical Copy.—A pirated copy may be "produced by moulding
or copying from or imitating in any way any of the matters or things put
forth or published under the protection of the Act ... to the detriment,
damage, or loss of the proprietor."[909]

The prohibition is against "imitating in any way." This prohibition does not
seem so wide as that in 25 & 26 Vict. c. 68, which prohibits the
multiplication of a painting or drawing or the design thereof. It is more
similar to the prohibition in the Engraving Act 8 Geo. II. c. 13, viz., against
engraving, &c., "or in any manner copying" a copyright print. It seems
therefore to be open to question as with engravings whether a piece of
sculpture can be infringed except by some work of art which reproduces [166]
the
peculiar art of the sculptor. Would a piece of sculpture be infringed by a
picture, sketch, or engraving copying the design of the work?

Licence would be a defence, and it probably does not require to be in
writing. There is nothing in the Act from which the necessity for a licence
to be in writing could be implied. [167]

CHAPTER VIII

COPYRIGHT IN PAINTINGS, DRAWINGS, AND
PHOTOGRAPHS

Section I.—What Works are Protected.

The following works are protected under the Fine Arts Copyright Act, 1862:

1. Every original painting, drawing, and photograph:[910]
2. Not first published outside the British Dominions:[911]
3. The "author" of which is a British subject, or is resident within
the dominions of the crown [when the work is made]:[912]
4. Which has been registered before infringement:[913]
5. And is innocent.[914]

Protection vests at the date of making, and endures for the author's life and
seven years.[915]

Protection is limited to the United Kingdom.[916]

Every Original Painting, Drawing, and Photograph.—There is no
attempt to define what is a painting, drawing, or photograph within the
meaning of the Act.[917] The substances used in the making are no doubt
immaterial, so long as the result is ejusdem generis with what is ordinarily
meant by a picture, drawing, or photograph. A painting on the wall of a
house would doubtless be protected, but not a design created by grouping
figures in a tableau vivant.[918]

Originality as an essential of protection means that there must be something
either in the design or execution of the work which is not merely copied
from some other artistic work. The whole work need not be original. Thus
the execution may be original but not the design, as in the case of a
[168]
photograph of an old picture;[919] or part only of the design may be original,
as in the case of the design of an old drawing added to or altered. In so far
as the work is new there will be protection, but in so far as it is old there
will be no protection.[920]

Artistic Merit.—The Court will not inquire as to whether a painting,
drawing, or photograph is good, bad, or indifferent. If it consists in the
representation of some object by means of light and shade or colour, it will
suffice, and even the coarsest or the most commonplace, or the most
mechanical representation of the commonest object would be protected so
that an exact reproduction of it, such as photography, for instance, would
produce, would be an infringement of copyright.[921] Probably there must
be a representation of some concrete object, real or imaginary. Protection,
for instance, was refused to a label for Eau de Cologne,[922] which merely
bore the legend "Johanna Maria Farina gegenüber dem Julichs Platz,"
written in copperplate with sundry dots and flourishes. It was held that any
one who had a right to sell Farina's Eau de Cologne might manufacture and
use the label, since although the label was a trade mark there was no
copyright in it. A label with anything in the nature of a picture on it would
undoubtedly be copyright, as the use to which a work of art is put is
immaterial, but it is doubtful whether a label containing merely geometrical
figures and fancy dots and lines would be protected under the Act of 1862.
Probably it would not.

Publication outside the British Dominions.—Copyright in works of art
under the Act of 1862 begins on the making thereof, and is not dependent
on publication. It is immaterial where the work is made, whether in the
British dominions or elsewhere, and it would be as immaterial where it was
first published, or whether it was published or not, but for the provision of
the International Copyright Act, 1844. Section 19 of this Act provides that
the maker of a work of art which shall be first published out of the British
dominions shall not have copyright therein otherwise than such as he[169]may
become entitled to under the International Acts; which means that where

there is no treaty a work first published abroad is not protected at all. The
result of this section was evidently not contemplated when the Fine Arts
Act, 1862, was framed. There seems to be no doubt that the work, wherever
made, will acquire copyright immediately on the making, but that that
copyright may be lost if the work is published abroad before it is published
in the British dominions.

Published.—A painting, drawing, or photograph is probably published
when it is so exhibited as to give the public an opportunity of viewing it.
The leading case on publication of works of art is Turner v. Robinson[923] in
the Court of Chancery in Ireland. This case was decided before 1862, and
therefore before there was any statutory copyright in paintings. The subject-
matter was a painting from which certain stereoscopic views had been taken
without the proprietor's consent. The painting had been previously, with the
consent of the proprietor, published in the form of an engraving in a
magazine, and exhibited at the Royal Academy in London and in
Manchester. It was then exhibited with the proprietor's consent in Dublin
for the purpose of obtaining contributors to a proposed engraving, and
while so exhibited the defendant, without consent, copied it and produced
his stereoscopic photographs. The Master of the Rolls[924] thought that the
picture had never been published, because the exhibitions to the public in
the Academies and in Dublin were on the condition that no copies should be
taken, and the engraving in the magazine was not a publication of the
picture, but only of a rough representation of it. He therefore held that the
common law right in the picture had not been lost by publication, and that
the proprietor could recover against the taker of the stereoscopic views as
against an infringer of common law rights. The Court of Appeal in
Chancery upheld the judgment of the Master of the Rolls, but on different
grounds. They said it was unnecessary to decide whether there had been
publication in London and Manchester since, in their opinion, the act of the
defendant in taking stereoscopic views from the painting was a breach [170]of
faith. He was admitted to the view in Dublin for one purpose only, i. e. to
become if he wished a subscriber to an engraving; but he abused his
privilege by taking a copy of the painting which might well compete with
the plaintiff's proposed engraving. The defendant was, therefore, restrained
on the ground of breach of faith or implied contract. In his judgment the
Lord Chancellor disapproved of the view of the Master of the Rolls that

there had been no publication in London or Manchester. He thought
exhibition in the Academy, even although to a certain extent conditional,
would be sufficient publication to vest the copyright, e. g. in a work of
sculpture under the statutes applicable to such works. Exhibition in a public
gallery, therefore, would be publication, but not a private view in the artist's
studio to which only a small and selected portion of the public are invited.
Whether the publication of a print would be publication of the picture from
which it was taken, quære; the Master of the Rolls thought not, and on this
point the Court of Appeal neither approved nor disapproved.

Nationality or Residence of Artist.—The protection of the Act is expressly
limited to the works of British subjects and of such foreigners as are
resident within the dominions of the Crown.[925] There is no direction in the
statute as to the time when the author must possess the requisite nationality
or residence. Must it be at the time of making or at the time of publishing,
or both? It is submitted that it must be at the time of making, since
copyright in the work vests at that time, and there may never be publication
at all. There seems to be no reason for suggesting that the date to be looked
at is the date of publication, except that the next words in the section
provide that the work may be made anywhere, and the proviso as to the
residence of the author, if applied at the date of making, means that—

1. A work by a British subject may be made anywhere; but,
2. A work by an alien must be made within the dominions of the
Crown.

There does not seem to be anything absurdly contradictory in this, and [171]
there
is, on the other hand, a patent absurdity in not being able to determine
whether the author is an author within the Act until long after the right has
begun to run.

Registration.—A condition precedent to protection is registration in the
book kept at the Hall of the Stationers' Company.

The Requisite Entry.—There must be registered:

1. Name and place of abode of the "author."
2. Name and place of abode of the proprietor.
3. Short description of the nature and subject of the work.
And if desired,
4. A sketch outline or photograph of the work.

The wording of section 4 of the Act of 1862 providing for compulsory
registration is very confused, the requirements on first registration being
unaccountably mixed up with the requirements on subsequent assignment.

On first registration whenever it takes place it is submitted that the
particulars entered should be as above.[926] The author and proprietor may
very likely be the same individual, in which case the one name will be
entered twice, once under each description. It would probably not be
sufficient merely to enter the author's name once as author and leave it to be
implied that he is the owner. Even if the author and proprietor are different
persons, either because the author has been employed for valuable
consideration or because he has granted an assignment, the particulars to be
entered on first registration are the same, no entry of the terms of
employment or assignment being necessary.[927] The real proprietor must be
on the register, and if the wrong person is registered as proprietor it will not
give a cause of action to join such person as co-plaintiff with the real
proprietor who is not on the register.[928]

As in the Literary Copyright Act, copyright in the work exists before
registration, but no action is maintainable without registration, and under
[172]
this Act even after registration there is no remedy in respect of infringement
committed before registration.[929]

It need hardly be said that the necessity of registration only applies to an
action on copyright proper, and an action will without registration lie on
breach of contract, express or implied,[930] and probably on the common
law right of an author and his assigns in unpublished work.[931]

If an unauthorised copy is made before the proprietor is registered but sold
afterwards, an action for damages will lie for the offence of selling such
copies, but no action for penalties.[932] No action at all will lie for making.
[933]

If an action is brought by an assignee, such assignee must be on the register
as proprietor,[934] and it will not avail to join as co-plaintiff an unregistered
assignee with the assignor who although registered has parted with the
copyright.[935] An assignee taking from a registered assignor probably
cannot sue in respect of acts of infringement committed before the
registration of the assignment.[936] It is not necessary that the original
proprietor, whether author or employer, should have been registered,[937]
but once registration has been effected it would seem that all future
assignments must be entered on the register.[938]

The registration by an assignee under an assignment, subsequent to first
registration, must contain the following particulars:[939]

1. Date of assignment.
2. Names of parties to the assignment.
3. Name and place of abode of the assignee.
4. Name and place of abode of the author. [173]
5. Short description of nature and subject of the work.
And if desired,
6. A sketch outline or photograph of the work.

The enactments of 5 & 6 Vict. c. 45 (the Literary Copyright Act) as to

1. Keeping the Register Book;
2. Searches and certified copies therefrom;
3. False entries;
4. Application to expunge,

apply mutatis mutandis to registration of paintings, drawings, and
photographs.

The charge for making an entry is one shilling.

Name.—The trading style of a firm is a sufficient registration of the name
of a proprietor.

Place of Abode.—The place where a man can readily be found on inquiry is
sufficient. A business address is a "place of abode" within the statute.

Short Description of the Nature and Subject of the Work.—The title of the
work will sometimes be a sufficient description. The following were held
sufficient descriptions of Sir John Millais' well-known pictures, viz.:
"Painting in oil, 'Ordered on Foreign Service'"; "Painting in oil, 'My First
Sermon'"; "Photograph, 'My Second Sermon.'"[940] Blackburn, J., said:

"It is the object of the legislature that enough be stated to identify the
production, and that the registration must be bonâ fide, that a man shall
not first claim one thing and then sue for another. The description must
be such as shall earmark the subject.... The picture 'Ordered on Foreign
Service' represents an officer who is ordered abroad taking leave of a
lady, and no one can doubt that is the picture intended.... There may be
a few instances in which the mere registration of the name of the
picture is not sufficient: for instance, Sir Edwin Landseer's picture of a
Newfoundland dog might possibly be insufficiently registered under
the description of 'A Distinguished Member of the Humane Society.'
So also of a bullfinch and a couple of squirrels described as 'Piper and
a Pair of Nut-crackers.' ... It would be advisable for a person proposing
[174]
to register to add a sketch or outline of the work."[941]

In the learned judge's opinion deficient description although it would not be
sufficient in itself, may be made sufficient by the addition of a photograph,
sketch, or outline. It would seem, however, that there must be a description
of some kind, and that a photograph or sketch would not by itself be
sufficient.