Cornell University Law Library The Moak Collection PURCHASED FOR The School of Law of Cornell University And Presented February M , l8 p 3 IN HEHORY OF JUDOE DOUGLASS BOARDMAN ■ FIRST DEAN OF THE SCHOOL By his Wife and Daughter A. M. BOARDMAN and E LLEN D . WILUAMS The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924022164341 THE LAW OF COPYRIGHT. THE LAW OF COPYRIGHT, IN WORKS OF LITERATURE AND ART: INCLUDING THAT OF THE DRAMA, MUSIC, ENGRAVING, SCULPTURE, PAINTING, PHOTOGRAPHY, AND ORNAMENTAL AND USEFUL DESIGNS ; TOOETHEB WITH INTERNATIONAL AND FOREIGN COPYRIGHT, WITH THE STATUTES RELATING THERETO, AND REFERENCES TO THE ENGLISH AND AMERICAN DECISIONS. WALTER ARTHUR ^OPINGER, OF THE MIDDLE TEMPLE, ESQ., BAREISTER-AT-LAW. AUTHOR OF ' INDEX TO PRECEDENTS IN CONVEYANCING ; ' ' A TREATISE ON THE CUSTODY AND PRODUCTION OP TITLE DEEDS;' 'TABLES OF STAMP DUTIES,' ETC. * Non equidem hoc studeo, bullatis ut mihi nugis Pagina turgescat, dare pondus idonea fumo." — Pers. SECOND EDITION. LONDON: STEYENS AND HAYNES, BELL YARD, TEMPLE BAR, 1881. LONDON : PRINTED BY WILLIAM CLOWES AND SONS, Limited, STAMFORD STREET AND CHARING CROSS. TO THE EIGHT HONOUKABLE HUGH McCALMONT EAEL CAIRNS, K.B., D.C.L., LL.D., &e., FORMERLY LORD HIGH CHANCELLOR OF GREAT BRITAIN, IS BY HIS LORDSHIP'S KIND PERMISSION BESPECTFTJLLY DEDICATED BY THE AUTHOR. PKEFACE TO THE SECOND EDITION. Ten years have elapsed since this, the first of the Author's literary adventures, was placed before the public. The favour- able manner in which it was then received, and the undeserved terms in which it has been so frequently referred to by his professional brethren, has induced the Author to revise the whole work and make the volume as complete a treatise on the subject of copyright as was in his power, and any failure in this respect must be attributed rather to his want of skill than to lack of labour. Though the legislative changes during the last ten years have been few, yet many cases have been decided involving principles of great magnitude. Matters, too, of great value were evolved in the evidence given before the Eoyal Commissioners on Copyright, and where in their valuable report they have suggested alterations and amendments in the existing law, these have invariably been referred to throughout the present work. The Author's best thanks are due to his friend S. Moore, Esq., of Lincoln's Inn, for his kind assistance in the chapter on Foreign Copyright, the greater part of the additions to which have been compiled by him. It is hoped that the forms in the Appendix, especially those under the Fine Arts Copyright Act, 1862, may prove of use to authors, artists, and others. The Index has been compiled by the Author with great care, and has been made as comprehensive as the case seemed to require ; for the Author is one of those who consider that Vlll PREFACE. many of our best law books are rendered far less valuable than they otherwise would prove to the professional man, by reason of their meagre index, while on the other hand many an in- different treatise is rendered comparatively valuable by reason of the exhaustive character of its index, whereby reference is easily found to general principles and particular cases on the point in question. W. A. Copingek. Linoolx Chambbbs, 18 South King Street, Manchester. December 1880. PREFACE TO THE FIRST EDITION. The decisions of our Courts of Law and Equity on the subject of Copyright during the last few years have been numerous ; and so severely has been experienced the want of a work embodying these decisions, and presenting an exposition of the principles on which they have been determined, that little apology will be deemed necessary for introducing to the profession a digest of the Copyright Laws. If I have, by the classification adopted, in any way facilitated the lawyer in his search for the principles of law as applicable to particular circumstances, and have proved of assistance to the literary man or the artist in the acquirement of that peculiar knowledge of the law which, for the due protection of his production is so requisite, I shall have attained an object at once gratifying to myself, and sufficiently compensative for my labour. W. A COPINGEE. Middle Temple Lane, Temple. September 1870. CONTENTS. CHAPTER I. Histobical View of the Copyright Laws. Definition and nature of copyright — Property in literary compositions — No copyright in mere ideas — Copyright, however, in the material that has embodied the ideas — Author's right to the first publication of his own manu- script — Lord Clarendon's 'History,' 'Precedents of Conveyancing,' 'Love a la Mode' — The Statutes do not affect right before publication — Prince Albert's case — What amounts to publication at common law — What does not amount to publication — The effect of publication — Primary recognition of copyright — The original charter of the Stationers' Company — On abolition of Star Chamber all restraints on printing deemed illegal — The Licensing Act of Car. 2 — Ordinance of the Stationers' Company in 1681 — A byelaw of the Stationers' Company in 1694 — A petition presented to Parliament in 1709 for protection of copyright — The first Copyright Act, 8 Anne, u. 19 — The common law right to old copies — Injunctions issued in support of this right — Principle on which the injunctions were issued — The celebrated cases of Millar v. Taylor and Donaldson v. Becket — The case of Jeffreys v. Boosey — The Universities obtain an Act for the protection of their copyrights — The present Literary Copyright Act, 1842 Pages 1-36 CHAPTER II. What may be the Subject of Copyright. The subject of copyright— Work must be original — Copyright may exist in a new arrangement or in novel additions — ' Gray's Poems ' — ' Patterson's Road Book ' — Accounts of natural curiosities, &c. — Receipt books — Similitude between maps — Component parts of a compilation not protected apart from the arrangement — Mathematical tables — Selections of poems, &c. — Copyright in private letters— Distinction between commercial or friendly letters and literary compositions — No such distinction at the present time admitted — — Motives why no distinction should be drawn — The author's right of pro- perty alone protected by the Court — Lord Eldon's opinion of the case of Perceval v. Phipps — Mr. Story's opinion — Principles on which the determi- nations of the Court of Session have proceeded — Ground on which a Court of Equity will frequently interfere — Instances in which the publication of private letters has been permitted — Not permissible for the purpose of re- presenting that to be true which has been admitted to be false — Communi- Xll CONTENTS. cations sent to editors of periodicals — What is publication of private letters — Letters written by one person for or on behalf of another— Power of Government to publish or withhold letters — Copyright in lectures — The Lec- ture Copyright Act, 5 & 6 Will. 4, c. 65— Lectures not within the meaning of the Act — Alterations suggested by the Copyright Commissioners — Copy- right in abridgments — What constitutes an abridgment — Considerations in discriminating a bond fide abridgment from a piracy — Impropriety of the rule respecting abridgments — Quantum but little criterion of piracy — Copy- right in digests — Head-notes of reports — Selections from reports and judg- ments — Copyright in forms or precedents — As to whether copyright may exist in a work not claiming originality in the doctrines contained therein — No copyright in that which has no present existence— Copyright in a title — Titles infringed — Where the precisely same title is taken — Where exact title not taken — Where necessary to shew fraud — Taking part of title without fraud — Assuming a title which has been disused — Copyright in encyclopaedias and periodicals — Reservation by author of right to separate publication — Eight of separate publication in whom vested — Proprietors of periodicals may acquire copyright by contract — Suggestions of Copyright Commissioners as to periodicals, &c. — Registration of periodicals — Copyright in translations — Every fair translation an original work — Dr. Priestley's Case — No copy- right in a libellous, immoral, or obscene work — No copyright in a work of an irreligous tendency — Don Juan — Life of Jesus — No copyright in a work of a scandalous nature — No copyright in works intended to deceive the public — So decided on ground of fraud — No copyright in a dry catalogue of names- Wood, V.C., opinion on copyright in descriptive catalogues — Catalogues Raisonnees — Tradesmen's catalogues — No copyright in advertisement of place and kind of business only — Illustrated furniture guide, copyright in — Prin- ciples on which copyright in an advertising medium depends — Copyright in a diagram — Scoring-tablet — No copyright in a mere plan — Copyright in newspaper telegrams — How far new editions the subject of copyright — Copy- right in each edition Pages 37-105 CHAPTER III. Tekm of Copyright, and in whom Vested. Term of copyright — Considerations respecting a perpetuity in copyright — The effect of a perpetuity in copyright — The Emperor Napoleon's opinion of a perpetuity — Present term of copyright — As to copyright subsisting at the time of passing of Copyright Act, 1842 — Judicial Committee of Privy Council may license republication of certain books — Suggestion of Copyright Com- missioners as to extension of term of copyright — Meaning of the word " book " — What is a publication — Gratuitous circulation when a publication — Private distribution of lithographic copies — Circulation among pupils of a system of bookkeeping — Work must be first published in this country, or simultaneously with that in another — Publication must be in United King- dom — An Englishman resident abroad may have a copyright — Copyright no existence in the law of nations — Persons who may claim copyright— How aliens may acquire copyright in this country — Whether a foreigner resident abroad can obtain a copyright in a work first published in this country — Case of Jefferyt v. Bomey — Extension of copyright by the Act of 1842 — CONTENTS. XU1 Necessity for alien to be in the British dominions and publish in United Kingdom to obtain copyright — Lord Cairns' and Lord Westbury's opinions on the interpretation of the Copyright Act — Such portion of a work as is first published in this country will be protected — There may be copyright in part of a work — The Government may own a copyright— Copyright in work written for another, in the employer — Not so, however, if employer merely suggest the subject — As to joint authorship — -Abandonment of copyright — Abandonment of copyright not presumed from book being out of print — Effect of unlimited right to publish Pages 106 — 134 CHAPTER IV. Registration of Copyright. The book of registry — Entry must be correct to support action for penalties — Full name of firm must be set out — Sufficient to enter first publication under name of firm — First date of publication must be stated — As to the place of residence — As to the abode of the assignee — Expunging or varying entry — But the entry must be clearly shewn to be false — Who has a right to have entry expunged — No copyright acquired by registration before publication — Registration of name of intended periodical will not give copyright — Condi- tion of work to secure sufficiency of registration — Registration of periodicals — A newspaper need not be registered — Registration a condition precedent to the title to sue under 5 & 6 Vict. c. 45 — As to new matter — Editions of works of compilation published since Copyright Act, 1842, are books which must be registered, but the old matter may be sued upon, though the subsequent editions are not registered — As to registration of maps — Copy of every book to be delivered to the British Museum— Copies for the use of University libraries — Distinction between a delivery to the British Museum and the other libraries — Penalty for default — Delivery of copies to the various libraries — Origin of claim — Suggestions of the Copyright Commissioners . . . Pages 135 — 155 CHAPTER V. Assignment of Copybight. Copyright personal property — A local right — Its distinctive features — The copy- right passes on bankruptcy of author to his trustees without writing — Assign- ment of manuscript — An assignment not to be presumed — As to whether assignment must be in writing — An assignment under the Statute of Anne — Under the 5 & 6 Vict. c. 45— Assignment must be in writing, but need not be attested — Assignment may be made by letter — Divisibility of copyright as to locality — Divisibility of copyright as to time — Assignment by foreigner — Right of assignor to sell stock on hand after assignment — A license not an assignment — Assignment of share in copyright by entry at Stationers' Hall Pages 156—171 CHAPTER VI. Infringement of Copyright. Infringement of copyright — Plagiarism not necessarily an invasion of copyright — Want of originality in modern works— Encyclopaedias may not outstrip the XIV CONTENTS. limits of fair quotation — The latter, to be a piracy, need not serve as a sub- stitute for the former work —Principles by which a piracy is judged — How far prior literature may be used — Sale of a sheet almanac printed from a directory restrained — The ' Guide to Science ' |and the ' Reason Why ' — A compiler must produce an original result — The case of a dictionary analyzed — The case of Spiers v. Brown — Modes in which copyright may be infringed — By reprinting the whole verbatim — By reprinting verbatim a part — Quantity but slight criterion of piracy — Selections from various writers — ' The Man of his Time ' — To illustrate career of person — ' Thacker- ayana, Notes and Anecdotes' for biography — Extracts for criticism — Re- views or criticisms — The Great Western Railway inquiry — Copying short stories for review — Law Reports — The custom of the trade no excuse — By imitating the whole or part by reproduction with colourable alterations — Distinction between a copy and an imitation — One test, substantial identity — Not every imitation a proof of plagiarism — By reproduction under an abridged form — Piracy by way of digest — What use of former musical compo- sition constitutes a piracy — By translation — Translation of protected work a piracy — Principle on which this rests — Translation of a foreign work infring- ing a protected work — Opinion of some that piracy not committed by trans- lation of protected work — Compiling for various objects — Copying general arrangement — Dramatising copyright work — Gratuitous distribution of copies an infringement of author's rights — Infringement by importation — Offence committed though no copy sold or let out on hire — By Customs Act copies of books protected may not be imported Pages 172 — 221 CHAPTER VII. Remedies at Law in Cases of Infringement of Copyright. Three remedies for infringement of copyright — Remedy for piracy by action on the case — Ignorance of wrong no excuse for printer or importer — Action for recovery of pirated copies — Notice of objection to plaintiff's title to be given — When sufficient — Amending notice of objection — In any action the defend- ant may plead the general issue and give special matter in evidence — Con- struction of the words "in pursuance of this Act" — All actions to be com- menced within twelve months — To what proceedings does not apply — Matters of evidence — Effect of evidence of offer to compromise — Security for costs Pages 222-232 CHAPTER VIII. Remedy in Equity in Cases of Infringement of Copyright. Remedy by injunction — Definition of an injunction — Lord Mansfield's opinion upon the issuing of injunctions — The modern practice — Where this remedy applied, and on what evidence — Equitable title will support injunction — Prima facie title must be shewn — Injunction auxiliary to legal right — In what cases it will be granted — When refused — Scotch law on this subject — As to the continuation of the injunction, or its dissolution — Where a portion only of the work is piratical — To what extent the injunction is to go — Similarity of appearance — Publication falsely represented to be the production of another — Due diligence to be observed in obtaining an injunction — What CONTENTS. XV sufficient excuse for delay — Tendency of modern decisions on the subject — Institution of proceedings after lapse of twelve months — Injunctions not granted generally where there has been acquiescence — Custom of trade no excuse for piracy— Methods usually adopted by the Court in particular instances — In instances where the publication is of a temporary character — As to bringing to hearing where interlooutory injunction granted — Dissolution of interlocutory injunctions — Where copyright infringed, injunction granted without proof of damage — Proprietor entitled to nett profits only — Matters of procedure — Not necessary to specify in statement parts of work said to be pirated — On claim by assignee what must be shewn — Nature of relief usually sought and obtained — Form of injunction — Eight to account incident to other relief — Nature of discovery given — Where no account allowed — To what account limited — If the account small, usually waived — Points as to costs Pages 233-273 CHAPTER IX. Crown Copyright. Prerogative copyright — Nature of the right — The Bible and Common Prayer Book — View taken in Ireland — View taken in England — The right in state documents — Acts of Parliament, &c. — As to the publication of proceedings in courts of justice — When publication during trial prohibited — Publication of ex parte statements upon a coroner's inquest — As to the right in almanacs — The Nautical Almanac — As to the Latin grammar ... Pages 274-289 CHAPTEB X. University and College Copyright. Copyright at the universities and colleges — As to their registration and sale — Registration — Piracy — Copyrights at present possessed by the uni- versities Pages 290-292 CHAPTEB XI. Musical and Dramatic Copyright. Musical compositions within the literary Copyright Act — Instrumental music — Formerly representation not equivalent to publication — American law on this subject — Performing play in an abridged or altered form — The 3 & 4 Will. 4, c. 15, to amend the law relating to dramatic copyright — Provisions of the 3 & 4 Will. 4, c. 15, extended to musical compositions, and representation made equivalent to publication — Effect of representation of manuscript play — The remedies provided by the Act of Will. 4, not affected by the 5 & 6 Vict. c. 45 — Omission to register does not affect the copyright or the recovery of penalties — Where the copyright in unpublished work dates from — As to the consent of the author — Performance at a place of dramatic entertainment — Punishment for infringement not to be visited on one not actually taking part in the performance — What amounts to a representation — What is a dramatic composition — Copyright in a spectacular piece — Adaptation of old play — Translation of foreign drama — Principal decisions on questions of XVI CONTENTS. piracy under the Act of Will. IV. — Immoral play — Licenses — Assignment of the right of representation — Assignment of the right of representation need not be registered — The legal assignment must be in writing — No assignment necessary when work executed for another — "What constitutes joint authorship — The right of representation in MS. plays — Suggestions of the Copyright Commissioners as to musical and dramatic copyright — Private performance — What is piracy of a dramatic piece — What amounts to substantial identity — Infringement of the copyright in a musical composition — Representation first in a foreign country precludes exclusive right of representation being obtained here — A novel may be dramatised without infringement — But the drama may not be printed — Author may protect his novel by dramatising before publication — But not by dramatising it after publication — The piano- forte score of an opera — The adaptation of words and accompaniment to an old air — Eemedy in cases of infringement — The Copyright Commissioners' suggestions — Actions to be brought within twelve months Pages 293-350 CHAPTER XII. Copyright in Engravings, Prints, and Lithographs. Nature and origin of the right — Fine arts encouraged by the Stuarts — The first Copyright Engraving Act — The second Act — The third Act — Provisions and Acts to be strictly complied with — As to the date — Engravings or etchings when published with letterpress — Maps — Christmas cards — Ignorance no excuse — As to what is an infringement — An engraver has no monopoly in the subject — Engraving Acts extending to Ireland — Engraving Acts to include lithographs — The right in engravings may be infringed by photo- graphy — What not an infringement — In what class of engravings no copy- right — International copyright — Penalty for piracy — Special action on the case — Limitation of time as to actions — Summary proceedings for the recovery of penalties — In England and Ireland — In Scotland — Orders for inspection or account — Evidence on behalf of plaintiff . . . Pages 351-378 CHAPTER XHI. Copyright in Sculpture and Busts. The Art of sculpture — Extent and duration of Acts — Conditions to be complied with in order to effectuate a copyright — Assignment of the right — Registra- tion — Infringement of the right, and penalties attached thereto Pages 379-386 CHAPTER XIV. Copyright in Paintings, Drawings and Photographs. The Arts of painting and drawing — Creation of copyright in works of art — By whom it may be claimed — Assignment and registration — Assignment of the copyright when limited in effect — Benefit of Act cannot be claimed until after registration — "Aggrieved person" — Expunging entry in register — Infringement of the right, and penalties attached thereto — The penalties cumulative — Provisions as to forfeiture of piratical copies — Provisions for repressing the commission of fraud in the production and sale of works of art CONTENTS. XV11 — The penalties imposed as a punishment for a criminal offence — Artists' studies and sketches — Eeplicas — Copyright in photographs and property in negative Pages 387-408 CHAPTER XV. Copyright in Desions. Copyright in designs — The first Act for protection of designs — Division of the right — Copyright in designs for ornamental purposes — Duration of the right — The Commissioners of Patents empowered to extend time — Registration of designs for ornamental purposes — What sufficient registration — Mode of registration — Permissible to register by pattern — When advisable to do so — When not advisable — When sample of article registered, design not infringed by article produced on same principle if different in style — The appointment and duties of the registrar — Power to dispense with drawings, &c, in certain cases — Certificate of registration — The registration mark — Penalty for wrong- ful usage of the registration mark — The registration books open to inspection — The transfer and authority to register same — Transfer or licence to be in writing — An original combination a proper subject of registration — But the combination must be one design and not a multiciplicity — Copy of photograph of well known character not a new design — Remedies for piracy of the right in designs for ornamental purposes — As to what is a subject proper for regis- tration under the Designs Act — Action for damages — In England — Scotland — Ireland — Limitation of actions — Justices may order payment of costs in oases of summary proceedings — Tbe above provisions to apply to useful designs — Proceedings may be taken in the county court — Considerations as to the remedy to select — No provisions for delivery up of pirated designs — Copyright in designs of utility — What necessary in order to obtain protection — Amending or cancelling registration — Protection afforded only to shape or configuration — Discretionary power in registrar — Provisional registration of designs — Exhibition of design provisionally registered not to prevent future registration — Fees for provisional registration — All powers by Designs Acts given to Board of Trade now vested in Commissioners of Patents Pages 409-452 CHAPTER XVI. Newspapers. Newspapers — Name and abode of printer to appear — Prosecutions to be com- menced within three months — All proceedings to be conducted in the name of the Attorney or Solicitor-General — Copyright in newspaper, though regis- tration unnecessary — Copyright in newspaper included in the term "goods and chattels " in the Bankruptcy Act — Mortgage of share of newspaper not assignment of copyright requiring registration — Newspaper articles — Wrong- fully assuming name of newspaper Pages 453 — 470 CHAPTER XVII. International Copyright. International copyright the offspring of modern civilisation — International copy- right regulated by 7 Vict. c. 12, and 15 Vict. u. 12— The Act of 1837 has XV111 CONTENTS. reference solely to books — Enlargement of the power conferred on Her Majesty of concluding international copyright conventions — Registration — Delivery of copies — Dramatic pieces or musical compositions — Engravings and Prints — Articles of sculpture — Mode of entry — Registration of books published anonymously — Effect of registration — As to expunging or varying entry grounded in wrongful first publication — Order may specify different periods for different foreign countries, and for different classes of works — No order to have effect unless stating reciprocity secured — Orders to be published in Gazette — Proposal of the Copyriglit Commissioners as to registration — Trans- lations — Articles of political discussion — Dramatic works — Fair imitations or adaptations not prohibited — What is a translation — Requisites in order to obtain protection — Convention between England and France — Registration — Fees for registration — Suggestions of Copyright Commissioners as to trans- lations and adaptations of foreign plays — As to dramatic pieces and right of performance — Importation of copies prohibited — Extended to unauthorized translations — Provision of the 5 & 6 Vict. c. 45, as to forfeiture, &c, to extend to works prohibited to be imported under this Act — Colonial copy- right — The Copyright Commissioners on the " Foreign Reprints Acts " — The Canadian Act of 1875 — Suggestions of Copyright Commissioners as to colonial copyright — Not recommend repeal of Foreign Reprints Acts — International copyright conventions — Copyright in India Pages 471 — 506 CHAPTER XVIII. Copveight in Foreign Countries. France. Copyright in France— Decree of 13 January, 1791— The drama Decree of 19 July, 1791 — Literary copyright decree 19 July, 1793 — Posthumous works — Pro- cedure and remedies — Penal code in piracy^The Drama Law of 3 August, 1844— Reciprocity decree, 28 March, 1852— Copyright law, 8 April, 1854 — Copyriglit law, 14 July, 1866 — Literary copyright — What protected — Dura- tion — Rights of author's widow — Rights of widower of an authoress — Post- humous works — The State — Registration and deposit — Assignment — Piracy — Piracy whether whole or partial forbidden — Unauthorized translation — Points of note which have been decided — Dramatic and musical works — Operas, &c. — Registration and deposit — Representation — Right of representa- tion not lost by publication — Musical works — Piracy — Adaptations — Piracy of unpublished works — Combined effect of laws of 1791 and 1793 — Penalties — Artistic copyright — Duration — What protected — Photographs — Registra- tion and deposit — Penalties for piracy — Reciprocity — Rights of foreign dramatic authors Pages 507 — 524 Belgium. Literary copyright in Belgium — Duration — Piracy and penalties — Registration What protected — Assignment — Dramatic and musical works — Representation — Artistic copyright — Rights of foreigners ... Pages 525 526 Holland. Copyright in Holland Pages 527— 529 CONTENTS. XIX The German Empire. Literary copyright in the German Empire — What works protected — Duration- Registration —Assignment — Infringement and piracy — Piracy by copies made by hand — Piratical translations — Exceptions — Piracy of music — Remedy of authors — Prescription — Confiscation of pirated works — Penalties — Sale of pirated works — Nationality and reciprocity — Dramatic and musical represen- tations — Duration— Cop yright in art — What is protected — Persons protected — Duration — Registration — Alienation — Piracy — What acts piratical — Ex- ceptions — Remedies and penalties — Nationality and reciprocity — Copyright in photographs — What protected — Who protected — Duration — Alienation of copyright — Piracy — Remedies and penalties — Nationality — Copyright in industrial designs and models — What protected — Who protected — Duration — Registration — Piracy — What is not piracy — Nationality and reciprocity Pages 529—541 Austria and Hungary. Literary copyright — Duration — What works protected — -Registration — Assign- ment — Piracy — Remedy of the author and penalties — Dramatic and musical representations — Artistic copyright Pages 541 — 543 Norway. Works of literature, what protected — Persons protected — Translators — Duration — Registration — Alienation — Piracy and infringement — What is piracy — Piratical translations — What is not piracy — Works long out of print — Penalties — Right to prosecute lost by delay — Nationality and reciprocity — Representation of dramatic and musical works — Representation within the meaning of this law — Consent of joint authors — Right of representation not assignable without author's consent — Duration of right of representation — Artistic copyright — What protected — Who is protected and duration — Regis- tration — Alienation — Piracy — What is not piracy — Works of art in public places — Penalties, procedure, remedies — Nationality and reciprocity — Photographic copyright — Who and what protected — Regulations — Dura- tion — Commissioned photographs — Penalties — Procedure — Prescription — Reciprocity Pages 543 — 549 Sweden. Literary copyright — What protected — Persons protected — Translators — Publishers of periodicals — Duration — Registration — Alienation of copyright — Piracy and infringement — Piratical translations — What is not piracy — Penalties — Nationality and reciprocity — Representation of dramatic and musical works — Duration — Penalties — General provisions — Additional law — Artistic copyright Pages 549 — 553 Denmark. Literary copyright — What protected — Duration — Works out of print — Registra- tion — Remedies — Penalties — Dramatic and musical works — Representation — Artistic copyright — What protected — Duration ... ... Pages 554 — 555 c 2 XX CONTENTS. Spain. Literary copyright— -What protected — Persons protected — Duration — Eegistration ■ — Reciprocity — Dramatic and musical works — Duration — Eegistration — Works of art Pages 556 — 558 Portugal. Literary copyright — What protected — Duration — Eegistration — Assignment — Piracy — Penalties — Dramatic and musical works — Representation — Penalties — Artistic copyright — What protected — Eegistration — Assignment — Piracy — Eeciprocity Pages 558— 559 Italy. Copyright in Italy — Duration— Translations — Works of academies and public bodies — Eegistration — Assignment — Piracy — Penalties — Dramatic and musical works — Bepresentation — Artistic copyright . . . Pages 559 — 562 Switzerland. Copyright in Switzerland — Works protected — Duration — Piracy and infringement Penalties — Eeciprocity Pages 562 — 563 Turkey. Former and present law — Duration — Piracy Page 563 Russia. Literary copyright — What protected — Duration — Eegistration — Assignment — Eemedies of the author against piracy — Penalties — Dramatic and musical works — Artistic copyright — What protected — Piracy — Assignment — Eegis- tration Pages 564 — 566 Greece. Copyright in Greece — Duration — Eeciprocity Page 566 Brazil — Republic of Chili — Japan — Mexico — The United States of Venezuela 567 Countries with no copyright laws 568 United States. Copyright and its extent in the United States — To acquire a copyright in the States a person must be a citizen — Deposit of title and published copies — Book of entry and attested copy — Copies of copyright works to be furnished to the librarian of Congress — Penalties for omission — Assignment of copy- right — Publication of notice of entry for copyright prescribed — Penalty for false publication of notice of entry — Damages and forfeiture for infringement — Dramatic compositions — How to secure exclusive right of performance — Damages for printing or publishing manuscripts ... ... Pages 568 — 574 CHAPTEE XIX. Abeangements between Atjthoes and Publishebs. Arrangement between authors and publishers — The reward due to the authors — Contracts between authorsand publishers should be in writing — What neces- sary to satisfy the Statute of Frauds — An action maintainable for not CONTENTS. XXI supplying a work agreed to be furnished — Should the work be stopped the author must be paid for work already done — Payment to author's represen- tative for parts of work furnished — No specific performance of agreement to write book — An author may bind himself not to write upon a particular subject — But Court will not interfere until- there be an actual publication — Independent of agreement to the contrary, author at liberty to publish a continuation of his work — ' The Edinburgh Philosophical Journal ' — ' The London Journal ' — ' London Society ' — As to the alteration of an author's work by another — Where agreement is for a, specified number of copies — Agreements as to style of publication — After parting with copyright, author cannot reproduce matter in any other book — "Warranty on sale of copyright — Copyright of articles in the proprietor of periodicals— How far proprietor of periodical can interfere with editor — Construction of agreements between authors and publishers — Agreements for division of profits, personal — The benefit of right to publish not transferable by publisher — Nor whether author receives a royalty — Otherwise when he receives a sum down — Agreement for division of profits a joint adventure terminable by notice — Agreement not to sell under a certain price — Ordinary agreement between authors and publishers not a partnership — Construction of the word " edition " — Eight of publisher to sell copies on hand prior to the expiration of his limited copy- right — Assignor after assignment of copyright may sell copies remaining on hand — But the right is not an exclusive right — Accounts between authors and publishers Pages 575 — 612 APPENDICES. (A.) Statutes : — 8 Anne, u. 19 (1709) 8 Geo. 2, c. 13 (1735) 12 Geo. 2, e. 36 (1739) .. 7 Geo. 3, c. 38 (1766) 15 Geo. 3, c. 53 (1775) .. 17 Geo. 3, c. 57 (1777) .. 27 Geo. 3, c. 38 (1787) . . 29 Geo. 3, u . 19 (1789) .. 34 Geo. 3, c. 23 (1794) .. 38 Geo. 3, c. 71 (1798) .. 41 Geo. 3, c. 107(1801) .. 54 Geo. 3, c. 56 (1814) .. 54 Geo. 3, c. 156 (1814) .. 3 Will. 4, c. 15 (1833) ... 5 & 6 Will. 4, .;. 65 (1835) 6 & 7 Will. 4, c. 59 (1836) 1 & 2 Vict. c. 59 (1838) .. 2 Vict. u. 13 (1839) 2 Vict. c. 17 (1839) 5 & 6 Vict, c- 45 (1842) .. " 5 & 6 Vict. c. 47 (1842) .. PAGE 613 613 615 616 618 621 622 622 623 623 623 623 626 626 628 630 631 631 631 631 644 XX11 CONTENTS. PAGE (A.) Statutes — continued. 5 & 6 Vict. c. 100 (1842) 645 6 & 7 Vict. o. 65 (1843) 658 6 & 7 Vict. c. 68 (1843) 661 7 & 8 Vict. u. 12 (1844) 668 7 & 8 Vict. c. 73 (1844) 678 8 & 9 Vict. c. 93 (1845) 678 9 & 10 Vict. c. 58 (1846) 678 10 & 11 Vict. c. 95 (1847) 678 13 & 14 Vict. c. 104 (1850) 680 14 Vict. c. 8 (1851) 686 15 & 16 Vict. c. 12 (1852) 686 16 & 17 Vict. c. 107 (1853) 691 18 & 19 Vict. c. 96 (1855) 692 21 & 22 Vict. c. 70 (1858) 692 24 & 25 Vict. u. 73 (1861) 695 25 & 26 Vict. c. 68 (1862) 695 32&33 Vict. 0.24(1869) 701 38 Vict. c. 12 (1875) 706 38 & 39 Vict. c. 53 (1875) 707 38 & 39 Vict. c. 93 (1875) 715 39 & 40 Vict. c. 36 (1876) 717 (B.) Kevised Statute of the United States, being the Act of July 8th, 1870, as contained in the Kevised Statutes, 2nd Edition, 1878, and Actof June 18th, 1874 719 Official .Regulations 726 (C.) Orders in Council consequent on adjustment of international copyright convention with Prussia 729 (D.) Directions issued by the Commissioners of Patents for registration of designs 732 (E.) Forms used at Stationers' Hall : (a) of requiring entry of proprietorship 745 (6) of concurrence of the party assigning in any book previously registered 745 (c) of requiring entry of proprietorship of dramatic piece or musical composition 746 (. . . 606 , Constable & Co. v. 46, 67, 585 Briant, Bussell v. . . 305, 306 Bridson v. Benecke . . 249 Briggs v. Bainbridge 764 Brlnckerhoff v. Brown . 26 1 Bristol and South Wales Union Eailway Co., Wintle v. . 249 British Museum v. Payne 110, 152 Brook v. Wentworth . 580, 584, 591 Brooke v. Chitty . . 247, 584 v. Clarke . 35 v. Evans . . . 285 , Fitzbull v. . . 302 TABLE OF CASES. XXVll PAGE Brooke v. Milliken . . 224, 400 Brooks v. Cock . . .358 , De Witt v. . . . 127 , Dicks v. _. . 370, 766 Brown, Brinckerhoff v. . . 261 v. Cooke . 76, 144, 594 , Spiers v. 1,3, 181, 182, 237 Browne, Lowndes v. . 412, 416, 446 Bruce v. Bruce . . 29, 235 Brunton, Coffeen v. . 110 Bryer v. Cambridge University 29, 110, 145 Burgess v. Hill . . 272, 273 ■ v. Hately . . 272, 273 Burghley (Lord), Hopkinson v. . 43 Burnett v. Chetwood" 83, 156, 213, 375 Buttermere v. Hayes . . 170 Butterworth v. Robinson 59, 61, 63, 207, 285 133, 159, 233, 237, 252, 263 . 117, 248, 249 68, 75 . 240 96, 247 Button, Piatt v. Buxton v. James Byles, Kelly v. . Byron (Lord) v. Dugdale — - v. Johnston C. Cadell v. Anderson ... 31 and Davies v. Eobertson . 30 v. Stewart 45, 49 v. Stewart . . 43 Cady, Stevens v. . . 157, 266 Caldwell, Banker v. . . .46 Calvert, Farmer v. . .65 Cambridge University v. Bryer 29, 110, 145 Campbell v. Scott 172, 191, 200, 243, 248, 252, 254, 260, 338, 764 Carl, Pope v. . . 7, 43, 44 Carnan v. Bowles 41, 237, 245, 382, 572 ■ Byre and Strahan v. - Stationers' Co. v. . Carpenter v. Smith. . Carter v. Bailey , Curlewis v. . v. Pinto Leite Carusi, Keed v. Cary v. Faden . v. Kearsley . v. Longman 111 287 . 411 157 . 256 . 269 . 39 . 39, 40, 237 173,178,183 39, 183, 243 PAGE Cassell v. Stiff 136, 142, 488. 489, 612 Cater, Sweet v. 175, 200, 236, 237, 595, 597, 600, 602, 605, 750 Cave, Chatterton v. 191, 311, 312, 326, 348 Chapman, Lewis v. . 248, 249, 252 , Parsons v. . 300, 307 Chappell «>. Davidson 73, 145, 231, 246, 272 v. Purday 113, 116, 117, 141, 144, 228, 235, 286, 241, 396 v. Sheard . 73, 330, 346, 761 Chart, "Wood v. 481 Chatterton, Boucicault v. . 332, 491 v. Cave 191, 311, 312, 326, 348 Chatto, Smith v. . 191, 238, 273 Chetwood, Burnett v. Cbilds, Gardiner v. Chitty, Brooke v. Clark v. Bell . v. Bishop v. Freeman Keen v. . Moore v. Clarke, Brooke v. v. Freeman v. Law . v. Price , Spottiswoode v. , Tipping v. Clay v. Yates . Clayton v. Stone Wroe v. Clemens, Darthey v. Clement v. Maddick , Eeg. v. Clementi v. Goulding . v. Walker . Clementson, Adams v. Clifton, Tonson v. Closs, The Queen v. . Clowes v. Hogg Coates, Sherriffw. Cobbett v. Woodward 98, 191, 200, 243 Cock, Brooks v. 358 Cocks v. Purday 113, 117, 160, 165, 167, 170, 227 83, 156, 213, 275 . 605 . 247, 584 . 229 . 302, 310 . 240 . 297 . 368 35 . 590 . 269 580, 581, 583 68, 238, 242, 246, 258 247, 266 578, 580 110, 294 . 260 264 68, 69, 172, 173 367,761 . 284 92, 110, 294 112, 113, 161 . 435 . 145 . 402 67, 586 235, 268, 446 XXV1U TABLE OF CASES. Cooks, Leader v. Coffeen v. Brunton . Cohen, Eeg. v. . Colburn v. Duncombe — : , Planche v. . PAGE . 346 . 110 . 398, 403 156, 159,165, 235, 263 . 580 — v. Simms 171, 225, 226, 247, 261, 265, 268, 270, 271, 592,764 Coleman v. Wathen . . 110, 296 v. West Hartlepool Kail- way ... .285 Collender v. Griffith ... 97 Collette v. Goode . 137, 232 Collier, Corey v. 569 Collins, Tonson «. . 39, 116 & Co. v. Walker . . 259 Colman, Morris v. . 582, 583 Colnaghi v. Ward . 358 Commonwealth v. Desilver . 128 Company of Stationers v. Seymour 286 Comyns, Trnsler v. . . . 237 Conquest, Marsh v. 307, 316, 317, 318 . Reade v. 32, 216, 326,336, 337 , Shepherd v. 162, 302, 318, 321,593 Constable & Co. v. Brewster 46, 67, 585 v. Bobinson's Trustees . . 156, 581 Conston, Moet v. 272 Cook v. Leonard . 228 Cooke, Brown v. 76, 144, 594 , Lucas v. . . 392, 395 Cooper, Gahagan v. . . . 381 v. Gunn . . . 157 v. Whittingham . . 218 Copeland, Cumberland v. 161, 162, 164, 318 ■ , Moreton v. 307, 316, 317, 318 , Le Man v. . . 298 Cornish v. Keene . . .411 v. Upton . . 182, 257 Corns v. Griffiths ... 73 Correspondent Newspaper Co. v. Saunders . . 67, 70, 142 Cory v. Collier Cotton, Garth v. Cowan v. Milbourn Cowie, Newton v. Cowley v. Cowley , Cowley v. . 569 . 270 88, 580 41, 358, 370, 381 261 . 261 PAGE Cox v. Cox . . 127, 588 — , Cox v. . . 129, 588 — v. The Land and Water Co. 135, 144, 176, 177, 184, 196, 273, 459 Crichmore, Theobald v. . . 228 Crittenden, Bartlette v. 71, 39, 111, 133 Crookes v. Pelter . . 588, 594 Crossley v. Derby Gas Light Co. 248 Crowe v. Aiken . .110 Cruttwel v. Lye . . 67, 106 Cumberland v. Copeland 161, 162, 164, 318 v. Planchd . 317 Cumming, Brand v. . . . 261 Cunningham, Baskett v. . 234, 286 Curie, Knaplock v. . , Pope v. . Curlewis v. Carter Curry, In re Curtis v. Piatt. 7, 43, 44 256 157, 612 . 255 D. D'Allaquerque, Nunn v. . . Ill Dale, Hime v. . 84, 92, 110, 239, 240 Dalglish v. Jarvie 18, 411, 413 D'Almaine v. Boosey 63, 116, 167, 209, 293, 330 Daly v. Palmer Dana, Lawrence v. Darthez v. Clemens Davidson v. Bohn , Boosey v. . 327 . 39, 128, 159, 191 . 264 161, 163, 164 117, 170, 227, 228, 231 , Chappell v. 73, 145, 231, 245, 272 , Ex parte . . 140, 142 , Lover v. . . 139, 158 Davies, Emerson v. 39, 42, 172, 198, 200 ■ v. Marshall Davis v. Miller .... Day and Kossuth, The Emperor of Austria v. v. Smee . De Berenger v. Wheble De Cento, Stephens v. De Pinna v. Polhill . De Witt v. Brooks Delafield, Boucicault v. 259 51 Delamotte, Delf v. 375 259 369 75 170 127 112, 273, 297, 330, 333, 490 226, 261, 270, 759 TABLE OP CASES. XXIX PAGE Delarue v. Dickenson . . 271 Delf v. Delamotte 226, 261, 270, 759 Delondre v. Shaw . . 112, 116 Denis v. Laclero ... 50 Derby Gas Lights Co., Crossley v. 248 Derby, Pulte v. . . 159, 591, 596 Desilver, Commonwealth v. . 128 Dewitt, Palmer v. Dicey, Sayer v. Dickens, Bradbury v. 7, 11, 17, 296 . 357 67, 76, 594 v. Lee 207, 237, 238, 239, 267 Dickenson, Delarue v. . . 271 Dicks v. Brooks . . 370 , Weldon v. . 70, 133, 139 Dilkes, Dufuy v. . 395 Dilly v. Doig . . 261 Dilworth, Re ... 432 Directors (The) of Le Theatre de la Monnaie, Verdi v. Dixon v. Enoch Dodgson, Johnson v. . Dodsley v. Kinnersley ■ v. McFarquhar . 526 454 . 170 59, 202, 259 49, 156 Dodson v. Martin . . 84 Doig, Dilly v 261 Donaldson v. Becket 7, 29, 32, 33, 35, 43, 85, 234, 277, 290 -, Hinton v. -, Miller v. . -, Osborne v. Dove, Benning v. Dowling v. Betjemann Driver, Rogers v. Drummond, Boydell v. Drury v. Ewing Du Bost v. Beresford Dudley v. Mayhew . Dugdale, Lord Byron v. Duncombe, Colburn v. , Lowndes v. . 30 . 235 . 235 604, 605 . 256 . 440 . 579 . 100 . 375 7 . 240 156, 159, 165, 235, 263 . 240 Dunkin, Earl of Granard v. 45, 50 Dunstan v. Patterson . 264 Dupuy v. Dilkes . . 395 Durell v. Pritchard . 256 Dyer, Roberts v. . 7 E. East Indian Co. v. Sandys. . 234 Eaton, Anon, u, 50 PAGE Eckhardt, Jovvitt v. . 165, 431 Edelsten v. Edelsten . . 272 Edmonds v. Benbow . . 73 Edwards v. Spraight . . 269 Egan, Boucicault v. . 299 , Johnson v. . 259 Elliston, Murray v. 33, 298 Elvery, Riego de la Branchardiere v 415 Emerson v. Davies 39, 42, 172, 198-200 Emperor (The) of Austria v. Day and Kossuth . . 375 Enoch, Dixon v. . 454 Evans, Brooke v. . 285 , Marchant «. . 458 Ewing, Drury v. . 100 Eyre, Grierson v. 268 v. Higbie . . 45, 50 and Strahan v. Carnan . 277 v. Walker . . 27 Faden, Cary v. . . 39, 40, 237 Fairlie, Boosey v. 301, 324, 326, 342, 476 Falkner, Motte v. . . 27, 39 Farmer v. Calvert ... 65 Ferguson, Harvey v. . . 272 Fernie v. Young . . 255, 256 Ferrett, Atwill v. . 39, 127, 264, 342 Field, Bonner v. . . 358, 378 Firman, The Queen v. . 434 Fisher, Seely v 94, 240, 247 Fitzball v. Brook . 302 Fleet, Rex v. . . . 285 Flockton, Montague v. . 583 Folsom v. Marsh 43,50,53,133,172 Forbes v. Johnes . 84, 375 Ford, Norton v. . . 414 Forrester's Case . 9 Forrester, Tennyson v. . . 218 v. Walker . . . 7, 43 Foss, Ex parte . 459, 465, 467 Foster, Bentley v. . . . 116 Fowle, Pierpoint v. 127, 354, 571 Fox, Boucicault v. . 77, 573 , Millington v. ■ . 272 Foxwell v. Webster . 262 Fradella v. Weller 271, 272, 446 Francis, Weft v. . . 367, 368 XXX TABLE OF CASES. PAQE Freeman, Clarke v. . . 240, 590 Fullarton, Lewis v. 39, 179, 196, 200, 246, 249, 267, 759 Gaby v. The Wilts Canal Co. Gahagan v. Cooper Gale v. Abbott . v. Leekie . Gambart v. Ball v. Sumner and Berks . 223 . 381 . 259 84, 580, 605 . 370-372 . 172, 367 . 605 270 . 398, 403 43,59 . 612 261, 271, 272 . 44, 48, 84 18, 110, 111, 294 126 76,77 642 . 578 . 263, 265 Gardner v. Childs Garth v. Cotton Garton, Hearne v. Gathercole, Palin v. Gatty v. Pawson Geary v. Norton Gee v. Pritchard Geroch, White v. Gibbons, Marzials v. Gilbert, Richardson Gibbs v. Pike . Gillett v. Macoman Gilliver v. Snaggs Gladding, Stevens v. 157, 261, 266, 270 Glossop, Barnett v. . . . 170 Goode, Collette v. . 137, 232 Goubard v. Wallace . . . 146 Gould v. Banks . 159, 599 , Little v. 128 Goulding, Clementi v. 92, 110, 294 Gounod v. Hutchings . 247, 248 v. Wood . . 247, 248 Grace v. Newman . . 97 Graham, Strahan v, 144, 165, 392, 398, 463 Granard (Earl of) v. Dunkin 45, 50 Grantham v. Hawley . . 381 Graves, Ex parte . . . 404 v. Ashford . 353, 358, 370 & Co. v. Logan 231, 375 v. Mercer , Walker v. Graves's Case Gray v. Bussell Grierson v. Byre v. Jackson 377, 404 . 141, 395 140, 396, 400, 404 . 61, 64, 191, 285 . 268 29, 234, 277 Griffin, Bishop of Hereford v. 76,77, 78 , Hedderwich v . 102,112 PAGE Griffith, Collender v. . 97 Griffiths, Corns v. . . 73 Guichard v. Mori . 112, 113, 472 Gnnn, Cooper v. 157 , Howard v. . 43, 44, 50, 52 Gurney v. Longman 29, 235, 257, 284, 287 Gyles v. Wilcox . . 60, 204 H. Hague, Losh v. 271 Halcomb, Bramwell v. 61, 182, 185, 187, 200, 238, 241, 312, 338 Hall i). Barrons , Howitt v. , Little v. Hamel, Suzarin v. Hamilton, Midwinter v, Hansard, Stockdale v. Harford, Neilson v. . Harmer v. Plane Harper, Blackwell v. , Monck v. Harris, Keene v. , Morris v. Harrison v. Hogg , Stannard v. ■ v. Taylor 73 165, 170, 606 7 263, 429 . 30 . 284 . 227 . 29, 235 354, 358, 369 266 67, 156 . 295 . 358 128, 150, 355, 356, 361, 363, 367 248, 412, 427, 433, 434 Harrod, Mathieson v. . 137, 460 Hart, Boucicault v. . . . 573 Harvey v. Ferguson . . . 272 Hately, Burgess v. . . 272, 273 Hatten v. Arthur 40, 181, 204, 237, 264 Hatton v. Kean 127, 129, 130, 311, 320 Hawkins v. Blackford . . 262 Hawley, Grantham v. . . 382 Haycock v. The North of England Co-operative Printing Society . 228 Hayes, Buttermere v. . . 170 Hazlitt v. Templeman 128, 160, 593 Head, Powell v. 303 Hearne v. Garton . . 398, 403 Heath, Murray v. 374 Hedderwich v. Griffin . 102,112 Heine v. Appleton . . . 127 Henderson v. Maxwell 75, 142, 145 Hensman v. Maxwell . . 145 Herbert, Wallenstein v. 80, 130 TABLE OF CASES. XXXI PAGE Hereford (Bishop of) v. Griffin 76, 77, 78 Hesae v. Stevenson Hey wood, Jarrold v. v. Potter Higbey, Mayall v. Higbie, Eyre v. Highley, Woods v. Hill, Blanchard v. , Burgess v. , Mayo v. . v. University of Oxford . 432 200, 213, 229 414, 439 . 375 45,50 . 360 . 234 272, 273 . 276 29, 234 Hime v. Dale . 84, 92, 110, 239, 240 Hinton v. Donaldson Hitchcock, Bovill v. . Hodge, Kelly v. Hodges, Read v. v. Welsh Hogg, Clowes v. , Harrison v. — v. Kirby . 30 . 255 . 270 60, 202 60, 171, 194, 236 67, 586 . 358 29, 39, 40, 67, 73. 235, 268, 470, 586, 594 v. Maxwell . 66, 67, 142, 143 v. Scott 97, 177, 178, 181, 229, 267 Holcombe's Exors., Story v. 173, 202, 207, 209, 243 Holdsworth, McCrea v. 226, 257, 420, 423, 434, 437, 445 v. McEea . 417, 418 . 255 . 598 7, 29, 33, 145 . 272 . 256 175,178, 183,200, 243, 260, 267, 268, 271, 272 , Planches. . . .230 Hopkinson v. Burghley . . 43 Hotten v. Arthur 40, 181, 204, 237, 264 . Bradbury v. . . 188, 191 Househill Co. (The) v. Neilson . 411 Houlston, Bogue v. , Jarrold v. Holliday, Simpson v. Holl v. Bradbury Hood, Beekford v. , Eemnant v. Hooper, In re . , Kelly v. Howard v. Gunn Howe v. McKernan Howitt v. Hall , Mallett v. Hoyt v. Mackenzie . 358, 360 39, 65, 176, 178, 181, 237, 267 43, 44, 50, 52 . 271 165, 170, 606 435, 436 . 45 Hudson v. Bennett . v. Maddison . Hulme, Parker v. Hutching, Gounod v. : v. Eomer, Ex parte Hutchinson, Abernethy v. 6 : Hutton, Kelly v. 67, 69, 70 ; Ibbetson, Nicholls v. Ingram v. Stiff . . 67, 69, PAGE . 272 . 261 . 172 247, 248 232, 300, 316 , 7, 18, 55 459, 465, 466, 469 . 269 239, 586 Jackson, Grierson v. . James, Buxton v. . , Novell o v. Jamieson v. Teague Jaques, Jollie v. Jarrold v. Heywood v. Houlston Jarvie, Dalglish v. . Jefftrys v. Baldwin . 29, 234, 277 117, 248, 249 . 261 . 272 65, 75 200, 213, 22» 9, 65, 176, 178, 181, 237, 267 18, 411, 413 234, 354, 358 v. Boosey 1, 4, 6, 8, 18, 29, 31, 34, 35, 115, 118, 119, 120, 121, 122, 161, 164, 166, 168, 170 , Boosey v. . 43, 121, 170 v. Bowles . . 237, 245 v. Kyle . 160, 164, 166 Jersey (Earl of), Williams v. . 264 Johnes, Forbes v. . . 84, 375 Johnson, Bateman v. . . 234 v. Dodgson . . . 170 v. Egan . . .259 , Ex parte, In re Johnson 404 , Smith v. . 78, 80, 245, 260 . 273 96, 247 . 41 65, 75 239, 249, 259 . 411 7 . 165, 431 7, 45, 47, 50 v. Wyatt Johnston, Lord Byron v. , Walford v. Jollie v. Jaques . Jones, Bacon v. v. Berger v. Thome Jowitt v. Eckhardt . Judd, Woolsey v. K Kay, Smith v. . . . 264 Kcan, Hatton v. 127, 129, 130,311, 320 XXXII TABLE OF CASES. PAGE Kean, Kemble v. 247 Kearsley, Bathurst v. . . 284 , Cary v. 173, 178, 183 Keating, Stevens v. . . . 239 Keen v. Clark . . 297 , Cornish v. . . 411 ■ v. Harris . . 67, 156 B.Kimball . . 57 Keene v. Wheatley . 7, 568, 574 Kelly, Barfield v. . . .264 *. Byles ... 68, 75 ■ D.Hodge . . .270 v. Hooper 175, 178, 183, 200, 243, 260, 267, 268, 271, 272 v. Hutton 67, 69, 70, 459, 465, 466, 469 , Morris v. 161, 176, 177, 184, 264, 295, 321 - v. Morris . . 200, 246 , Kooney v. 171, 200, 223, 231, 592 v. Wyman . . . 266 Kemble v. Kean . . 2.47 Kennet v. Thompson . . 572 Key, "Ward v 259 Kimball, Keene v. . .57 Kinoaid, Midwinter v. . . 261 King v. Beed .... 39 , Kochdale Canal Co. v. . Ill King's Printer v. Bell . . 276 Kinnersley, Dodsley v. 59, 202, 259 Kirby, Hogg ». 29, 39, 40, 67, 73, 235, 268, 586, 594 Knaplock v. Curie . . 9 Knowles, Lyon v. . . 306, 307 Kyle, Jeffreys v. . 160, 164, 166 Laclero, Denis v. ■ .50 Lacy, Eeade v. . 172, 181, 339, 349 r- v. Khys . . . .317 Tinsley v. 60, 61, 186, 191, 200, 209, 248, 260, 273, 337 . „. Toole . 161, 165, 318 Lance, Brandreth v. . . .48 Land (The) and Water Co., Cox v. 135, 144, 176, 177, 184, 196, 273, 459 Latour v. Bland ■ ■ 159 Law, Clark v -69 Lawrence v. Dana v. Smith Lawson, Pasani v. Lazarus, Kock v. Leadbetter, Anon. v. Leader v. Cocks v. Purday • v. Strange PAGE 39, 128, 159, 191 84, 88, 240 . 117 . 358 237, 245 346 39, 159, 161, 227, 318, 342, 345 224, 225 Leather Cloth Co. v. American Leather Cloth Co. . . . 69 Leckie, Gale v. . 84, 580, 605 Lee v. Alston .... 270 , Dickens v. 207, 237, 238, 239, 267 v. Simpson . 299, 310, 349, 350 , Hammond v. 147, 150, 360, 361, 362, 363, 364, 365 , Stationers' Co. v. . . 287 , Sweet v. . . . 578 Lefranc v. Paul de Brusset . 337 Lennie v. Pillans ... 46 Leonard, Cook v. 228 Lester, Pollock v. . . .261 Levy, Potts v. ... 271 v. Eutley . 130, 165, 321 Lewis v. Chapman . 248, 249, 252 v. Fullarton 39, 179, 196, 200, 246, 249, 267, 759 Leyland v. Stewart . . . 165 Little v. Gould . 128 v. Hall ... 7 Lloyd v. Whitby . . .269 Locke, Bell v. . 67, 75, 470 Logan, Graves & Co. v. . 231, 275 London and South- Western Bail- way Co., Smith v. . . 249 Longman, Bach ». . 116, 117, 293 , Cary v. 39, 1F3, 243 , Gurney v. 29, 235, 257, 284, 287 v. Oxberry . . . 265 — , Storace v. . . 294, 322 v. Tripp 157, 432, 465, 466, 467 v. Winchester . 183 LoBh «. Hague .... 271 Lover v. Davidson . . 139, 158 Low, Boutleilge v. 113, 114, 115, 119, 121, 122, 123, 125, 151, 167, 505 v. Routledge 119, 122, 137 TABLE OF CASES. XXXU1 PAGE Low v. Ward . . 125, 167 Lowndes v. Browne . 412, 416, 446 d. Dunoorabe . 240 Lucas v. Cooke . . 392, 395 Ludlow, Novello v. . Ill, 216, 223 Lunn v. Thornton . . . 382 Lye, Crutwell v. . . 67, 156 Lyne •«. Sampson Low & Mar- ston 580 Lyon v. Kuowles . . 306, 307 M. M' Andrew v. Bassett . . 272 McFargilhar, Murray v. . 174 McFarquhar, Dudsley v. . 49, 156 McKernan, Howe v. . . . 271 McNeill v. Williams 183, 184, 238, 239 McCrea v. Holdsworth 226, 257, 420, 423, 434, 437, 445 , Holdsworth v. . 417,418 Mack v. Petter . 68, 73, 246 Mackenzie, Alexander v. 41, 64, 111, 216 , Hoyt v. 45 Macklin v. Richardson 7,9,43,110, 259, 295 Maclean v. Moody . . 41, 130 Macmurdo v. Smith . . 358 Maddick, Clement v. 68, 69. 172, 173, 367 Maddison, Hudson v. . . 261 Maguire, Martinetti v. . . 327 Mallet v. Howitt . 435, 436 Manley v. Owen . 7, 284 Manners v. Blair , 278 Marchant v. Evans . . . 458 Margetson ». Wright . . 439 Marsh v. Conquest 307, 316, 317, 318 , Folsom v. 43, 50, 53, 133, 172 Marshall, Davies v. . . 259 Martin, Dodson v. . .84 v. Wright . 42, 370, 374 Martinetti v. Maguire . 327 Marryat, Sims v. 159, 165, 236, 593 Mason v. Murray . 39, 261 Matliieson v. Harrod 137, 460 Matthewson v. Stockdale 41, 42, 183, 259 Maugham, Sweet r. 200, 260, 264, 265 Mawman, Gillett v. . . . 578 PAGE Mawman v. Tegg 42, 61, 157, 176, 185, 187, 191, 200, 235, 244, 24S Maxwell, Henderson v. , Hen9man v. v. Hogg , Hogg v. , Mayhew v. , Murray v. , Somerton v. 75, 142, 145 . 145 66, 67, 69, 142 66, 67, 142, 143 79, 80, 144, 463 110 193, 194, 196, 254 375 7 79, 80, 144, 463 . 276 . 126 . 284 377, 404 73, 246 249 30 . 261 88, 580 Mayall v. Higbey Mayhew, Dudley v. v. Maxwell Mayo v. Hill Marzials v. Gibbons . Melville (Lord), Rex v. Mercer, Graves v. Metzler v. Wood Mexborough v. Bower Midwinter v. Hamilton v. Kincaid Milbourn, Cowan v. . Millar ». Taylor 6, 7 10, 27, 29, 30, 33, 34, 43, 83, 234, 280, 284, 287, 289 Miller, Davis v. 51 v. Donaldson . . 235 Millett v. Snowden . 172, 173 Milliken, Brooke v. . 224, 400 Milliugen v. Pieken 440, 449 Millington v. Fox . 272 Mitchell, Bancroft v. . . 404 Moat, Morison v. 6 Meet „. Conston . 272 Monck v. Harper 266 Montague v. Hockton . 583 Moody, Maclean v. 41,130 Moore v. Clark . . 368 , Sayre v.. . . 39, 42, 368 , Tallcot v. . 75 v. Walker . . . 170 Moreton v. Copeland . 302, 303 Mori, Guichard v. 112, 113, 472 Morison v. Moat 6 Morrell v. Pearson . . 259 Morris v. Ashbee 176, 177, 253 v. Colman . . 582, 583 , Duke of Beaufort v. 259 v. Harris . . 295 v. Kellv 161, 176, 177, 184, 264, 295, 321 xxxi v TABLE OF CASES. Morris, Kelly v. — v. Wright PA(!E 200, 246 . 177 . 117 . 67, 73, 144 . 284 27, 39 . 358, 489 . 433 Morrison, Tuerloote v. Mortimer, Prowett v. Mostyn, Tichbome v. Motte v. Falkner Mudie, Avanzo v. Mulloney v. Stevens . Murray v. Benbow . 84, 89, 90, 240 , Black v. 102, 104, 191, 215 v. Bogue 82, 142, 146, 147, 172, 183, 184, 213, 234 v. Elliston . 33, 298 v. Heath . 374 v. McFargilhar 174 , Mason v. . 39, 261 v. Maxwell . . . 110 Eundell v. 41, 132, 133, 252, 253, 572 , Trusler o. . . 198, 243 Myddleton, Eedfield v. 234, 236, 264 Myers, Bex «... . 404 . Eoberts v. . .110, 573 N. Neilson v. Harford . , The Househill Oo. v. Nesbett v. Berridge Neville, Taylor v. Newbery's case . Newman, Grace v. Newton v. Cowie Nicholas, Pike v. 227 411 272 350 59 97 . 41, 358, 370, 381 173, 177, 184, 237, 261, 270, 273 Nicholes v. Ibbetson . . 269 Nicholls, Norton v. 239, 259, 412, 414, 434, 435, 437 Nichols v. Buggies Nicholson, Blake v. , Barfieldu, . 173 . 578, 594 39, 41, 320, 584 236, 245, 289 75, 470 . 269 Nicol v. Stockdale Noah, Snowden v. Normanville v. Stanning . North of England Co-operative Print Society, Haycock v. . 228 Norton v. Ford . . . . 414 , Geary v. . 261, 271, 272 v. Nicholls 239, 259, 412, 414, 434, 435, 437 Norway v. Bowe . 263 PAGE Novello v. James . . 261 v. Ludlow . Ill, 216, 223 Nowill, Bodgers v. . 259, 427 Nunn v. D'Albriquerque . 272 O. Oliver «. Oliver . . 43, 44 Ollendorf v. Black . . .117 Onwhyn, Stockdale v. . 84, 88, 92 Osborne v. Donaldson . . 235 Osgood v. Allen ... 75 Owen, Manley v. 7, 284 Oxberry, Longman v. . . 265 P. Page v. Townsend 112, 116, 374 v. Wisden. . 100,139 Paley's (Dr.) CaBe . . Ill Palin v. Gathercole . . 43, 59 Palmer, Daly v. . . 327 v. Dewitt . 7, 11, 17, 296 , Parrott v. . . 248 Parker v. Hulme . 172 Parrott v. Palmer . 248 Parsons v. Chapman . . 307, 399 Parton v. Prang . 7, 8 • v. Williams . 228 Partridge, Stationers' Co. v. 287, 289 Paten, Blunt v. .41 Patent Type Foundry Company v. Walter . . . 259 Patterson, Dunstan v. 264 Paul de Brusset, Lefranc v. 337 Pawson, Gatty v. 612 Payne v. Anderson . . 31 British Museum v. 110, 159 Pearce v. Wycomb Eailway Co. 217 Pearson, Morrell v. . . 259 Peltzer, Bees v. . i]i Perceval v, Phipps 43, 45, 46, 48, 50 Peters, Wheatonu. 7,29,61,85,195,285 Petter, Crookes v. , Mack v. . Phipps, Perceval v. Picken, Millingen v. Pierce v. Worth Pierpoint v. Fowle Pike, Gibbs v. . v. Nicholas Pillans, Lennie v. 588, 594 68, 73, 246 43, 45, 46, 48, 50 • 440, 449 . 383, 429 127, 354, 571 . 642 173, 177, 184, 237, 261, 270, 273 . 46 TABLE OP CASES. XXXV Pillow, Barnard v. — ■ , Taylor v. Pinnock v. Eoee Pinto Leite, Carter v. Pisani v. Lawson PAGE 75,95 170, 608 . 202 . 269 . 117 Planche" v. Braham 308, 312, 326, 348 v. Colbum . . . 580 , Cumberland v. . . 319 — — — v. Hooper . . .230 Plane, Harmer v. . . 29, 235 Piatt v. Button 133, 159, 233, 237, 252, 263 , Curtis v. . . . . 255 v. Walker . . 66, 459 Polhill, De Pinna v. . . 170 Pollock v. Lester . . .261 Ponder v. Bradyl ... 23 Pope v. Curl ... 7, 43, 44 Poplettu. Stookdale 84, 88, 92, 580 Potter, Heywood v. . . 414, 439 Potts v.Levy . . . .271 Powell v. Aikin . . .270 v. Head . . .303 ■, Keg. v. 355 Power v. Walter 161, 163, 164 Powers, Webb v. . . 172, 174 Prang, Parton v. . . . 7, 8 Price, Clarke v. . 580, 581, 583 Price's Patent Candle Co. v. Bau- wen's Candle Co, . . . 270 Priestley's (Dr.) Case . 87, 89 Prince, In re . . . .404 Pritchard, Durell v . . . 256 , Gee v. . . 44, 48, 84 Proprietors of Covent Garden v. Vandermere .... 296 Prowett v. Mortimer . 67, 73, 144 Pulte v. Derby . 159, 591, 596 Purday, Boosey v. . . 118, 227 , Chappell v. 113, 116, 117, 141, 144,228,235,236,241,396 , Cocks v. 113, 117, 160, 165, 167, 170, 227 , Leader v. 39, 159, 161, 229, 318, 342, 345 Q. Queen (The) v. Closs . . 402 , v. Firman . . 433 Queensbury (Duke of) v. Sheb- beare ... 8, 43, 48, 111 B. PAGE Bankin, Shook v. 573 Bead v. Hodges . . 60, 202 Eeade v. Bentley 171, 592, 603, 605, 606, 749 v. Conquest 32, 216, 326, 336, 337 v. Lacy 172, 181, 339, 349 Bedfield v. Myddleton 234, 236, 264 Beed v. Carusi , King v. . Bees v. Peltzer Beg. v. Bessell . v. Clement v. Cohen . v. Powell . v. Sleap Bemnant v. Hood Bex v. Biers — v. Fleet v. Lord Melville . ■ v. Myers . v. Stokes . - — v. Wakefield Khys, Lacy v. . Bichardson v. Gilbert , Macklin v. . 39 . 39 . Ill . 439 . 284 398, 403 . 355 398, 403 . 272 . 642 . 285 . 284 . 404 . 404 . 404 . 317 76,77 7, 9, 43, 110, 259, 295 , Universities of Ox- ford and Cambridge v. 29, 235, 241, 268, 278 Biego de la Branchardiere v- Elvery 515 Boberts v. Dyer ... 7 v. Myers . . 110, 573 Bobertson, Cadell & Davies v. . 30 Kobinson (Assignees of) v. Wil- kins 29 , Butterworth v. 59, 61, 63 207, 285 , Turner v. 7, 10, 18, 34, 383, 399 Bobinson, Woodman v. . . 272 Eobinson's Trustees, Constable & Co. v 156,581 Bochdale Canal Co. v. King . 272 Bock v. Lazarus . . . 258 Bogers v. NowiU . 259, 427 17. Driver . . . 440 Bomer, Hutchins v, (Ex parte) 230, 300, 316 XXXVI TABLE OP CASES. Booney v. Kelly 171, 200, 223, Eoper v. Streater Hose, Pinuook v. , Webb v. . Boss, Shelley v. Boutledge, Low v. . 119, „. Low 113, 1 14, 121, 122, 123, 125, 151, , Warne v. Bowe, Norway v. Boworth v. Wilkes 172, 191, Buggies, Nichols v. . Bussell v. Briant , Gray v. . 61, 64, v. Smith 147, 201, Bundell v. Murray 41, 133, Butley, Levy v. . 130, PAGE 231, 592 281 . 202 7,43 133, 321 122, 137 115, 119, 167, 505 . 592 . 263 358, 368 . 173 305, 306 191, 285 304, 309, 310, 381 134, 259, 253, 572 165, 321 Sampson Low & Marston, Syne v. 580 Sandys, East Indian Co. v. . 234 Saunders, Correspondent News- paper Co. v. . . . 69, 70, 142 v. Smith 61, 187, 194, 195, 233, 238, 252, 253, 285 Sayer v. Dicey .... 357 Sayers' Case .... 284 Sayre v. Moore . . 39, 42, 368 Scott, Campbell v. 172, 191, 200, 243, 248, 252, 254, 260, 338 , Hogg v. 97, 177, 178, 181, 229, 267 v. Stanford 173, 176, 177, 200, 267 Shelley v. Boss Shepherd v. Conquest Scoville v. Toland , Wetmore v. Sedon v. Serrati Seeley v. Fisher Seman v. Copeland . Serrati, Sedon v. Seymour, Co. of Stationers' Shaw, Delondre v. . v. Shaw . , Smith v. , Sweet v. 61, 156, 159, 195, 237, 238 Sheard, ChappeU v. . 73, 330, 346 Shebbeare, Duke of Queensbury «, 8, 43, 48, 111 100, 110 . 45 . 586 94, 240, 247 . 298 . 586 . 286 112, 116 . 235 . 228 PAGE . 133, 321 162, 302, 318, 321, 593 Sherriff v. Coates . 235,268,446 Sherwood, Southey v. 7, 10, 84, 86, 87, 240 Shook v. Bawkin . . 573 Siebert's Case . . . .127 Simms, Colburn v. 171, 225, 226, 247, 261, 265, 268, 270, 271, 272, 392 Sims v. Marryat 159, 165, 236, 593 Simpson v. Holliday . . . 255 , Lee v. 299, 340, 349, 350 Singer Sewing Machine Co. v. Wilson . . .269 Sleap, Beg. v. . . . 398, 403 Smee, Day v. . . . . 259 Smiles v. Belford . . .502 Smith, Carpenter v. . . 411 v. Chatto . 191, 238, 273 v. Johnson . 78, 80, 245, 260 v. Kay . . .264 , Lawrence v. . 84, 88, 240 v. London & South Western Eailway Co 249 , Macmurdo v. . . 358 , Bussell v. 147, 211, 304, 309, 310, 381 , Saunders v. 61, 187, 194, 195, 233, 238, 252, 253, 285 v. Shaw , Windover v. v. Wiltshire Snaggs, Gilliver v. Snowden, Millett v. ■ v. Noah Somerton, Maxwell v, . 228 . 433, 440 . 228 . 263, 265 172, 173 75, 470 193, 194, 196, 254 10, 84, 86, 87, 240 173, 181, 182, 237 68, 238, 242, 246, 258 Spraight, Edwards v. . . 269 Stanford, Scott v. 173, 176, 177, 200, 267 Stanhope, Thompson v. . 44, 48, 156 Stannard v. Harrison 128, 150, 355, 356, 361, 363, 367 «■ Lee 147, 150, 360, 361, 362, 363, 364, 365 Southey v. Sherwood 7 Spiers v. Brown Spottiswoode v. Clarke TABLE OF CASES. XXXV11 Stanning, Normanville v. . Stationers' Co. v. Oarnan . v. Lee . v. Partridge v. Seymour . ■ v. Wright l'AGE . 269 . 287 . 287 287, 289 . 286 286, 287 . 411 . 75 . 612 Stead v. Williams Stephens v. De Cento Stevens, Barry v. v, Benning 596, 597, 591, 600, 601, 602, 605, 749 v. Brett . . 267,271 v. Cady . .157, 266 v. Gladding 157, 261, 266, 270 v. Keating . . . 239 , Mulloney v. . . 433 v. Wildy . 200, 246, 265, 266 Stevenson, Hesse v. . . . 432 Stewart v. Black . . 229, 591 , Cadell ». . .43 , Cadell & Davies v. 45, 49 , Leyland v. . . . 165 Stiff, Cassell v. 136, 142, 488, 489, 612 , Ingram v. . 67, 69, 239, 586 Stockdale v. Hansard . . 284 , Matthewson v. 41, 42, 183, 259 , Niool v. . 236, 245, 289 v. Onwhyn . 84, 88, 92 , Popletts. .84,88,92,580 Stokes, Bex v. . . . . 404 Stone, Clayton v. .7, 110, 294 Storaoe v. Longman . 294, 322 Story v. Holcombe 173 202, 207, 209, 225, 248 Stowe v. Thomas 7, 82, 4, 176, 214 Strahan v. Graham 144, 165, 392, 398, 463 Strange, Leader v. . . 224, 225 — , Prince Albert v. 7, 10, 11, 18, 35, 83, 111, 247, 411 . 281 172, 367 263, 429 . 584 . 588 63, 77, 127, 144, 191, 208, 227, 463 175, 200, 236, 237, 595, 597, 600, 602, 605, 750 ■ v. Lee . . 578 Streater, Roper v. Sumner, Gambart v. Surazin v. Hamel Sweet v. Archbold , Archbold v. v. Benning v. Cater PAGE Sweet v. Maugliam 200, 260, 264, 265 v. Shaw 61, 156, 159, 195, 237, 238 , Vesey v. . 285 Sweetman v. Bentley 9 Syddall, Thorn v. . 418 Sykes v. Sykes . 346 , Sykes v. . 346 Symonds, Thompson v. 358, 375 T. Talcott v. Moore . 75 Tallis, Wright v. 92, 247 Taylor, Bailey v. 43 183, 241, 248, 268, 270 v. Bayne . 41 , Harrison v. 248,412 427, 433, 434 , Millar v. 6, 7, 10,27,29,30, 33, 34, 43, 83, 234, 280, 284, 287, 289 v. Neville . . .350 v. Pillow . . 170, 608 Teague, Jamieson v. . . 272 Tegg, Mawman v. 42; 61, 157, 176, 185, 187, 191, 200, 235, 244, 248 Templeman, Hazlitt v. 128, 160, 593 Tennyson v. Forrester Theobald v. Crichmore Thorn v. Syddall Thomas, Stowe v. 7, 82, , Williams v. . Thombleson v. Black Thompson, Kennet v. v. Stanhope v. Symonds Thorne, Jones v. Thornton, Lunn v. . Tichbome v. Mostyn v. Tichborne . 218 . 228 . 318 84, 176, 214 . 272 581, 584 . 572 44, 48, 156 358, 375 7 . 382 . 284 . 285 Tinsley v. Lacy 60, 61, 186, 191, 200, 209, 248, 260, 273, 337 Tipping v. Clarke . . 247, 266 Toland, Scoville v. . , 100, 110 Tonson v. Clifton . . . 145 v. Collins . . 39, 116 v. Walker 27, 28, 39, 60, 238, 259, 759 Toole, Lacy v. . 161, 165, 318 v. Voung . . 216, 340 Townsend, Page v. 1 12, 1 1 6, 374 Tripp, Longman». 157,432,465,466,467 TABLE OF CASES. Trusler v. Comyns - v. Murray PAGE . 237 198, 243 . 117 Tuerloote v. Morrison Turner v. Kobinson 7, 10, 18, 34, 385, 399 U. United Kingdom Telegraph Co., Att.-Gen. v. . . .256 University of Cambridge, Baskett v. 282 v. Bryer 29, 110 of Oxford, Hill v. 29, 234 Universities of Oxford and Cam- bridge v. Richardson 29, 235, 241, 268, 278 Upton, Cornish v. . . 182, 257 V. Vandermere, Proprietors of Covent Gardenw 296 Venables v. "Wood . . . 605 Verdi v. The Directors of Le Theatre de la Monnaie . . 526 Vernon, Atcherley v. . . .157 Vesey v. Sweet .... 285 W. Walcot v. Walker Walford, Barley v: v. Johnston Walker, Bell v. , Clementi v. , Collins & Co, , Byre v. , Forrester v. v. Graves , Moore v. , Power n. , Tonson v. 84, 88, 246, 254 . 427 . 41 59, 60, 204, 208 112, 113, 161 . 259 27 . 7,43 141, 395 . 170 161, 163, 164 27, 28, 39, 60, 235, 259, 759 84, 88, 240, 254 . 28 , Walcot v. — , Walthoe v. . Wallace, Goulard v. . Wallenstein v. Herbert Walmerley, Ainsworth v. . Walter, Patent Type Foundry . 146 80, 130 . 272 Co. v. . -; , Piatt V. Walthoe v. Walker . 259 66, 459 . 28 PAKE Ward v. Beeton 247, 759 , Colnaghi v. . 358 v. Kav . 259 , Low v. 125, 167 Warne v. Boutledge . 592 Wathen, Coleman v. . 110, 296 Webb's Case . 9 Webb v. Powers 172, 174 Tj . 7,43 Webster, Foxwell v. . 262 Welch, Hodges v, 60, 170 194, 236 Weldon v. Dicks 70 133, 139 Weller, Fradella v. 271 272, 446 Wentworth, Brook v. 580 584, 591 West's Case . 416 West v. Francis 367, 368 West Hartlepool Railway, Col- man v. . . 285 Wetmore v. Scoville ... 45 Wheatley, Keene v. . .7, 568, 574 Wheaton v. Peters 7, 29, 61, 85, 195, 285 Wheble, De Berenger v. . 369 Wheelton, Wightman v. . . 269 White v. Geroch 18, 110, 111, 294 Whitehead, Bell v . . , Wilson v. Whittingham, Cooper v. v. Wooler 61, 192, 241 . 605 . 218 191, 193, 241, 243, 259 269 . 269 60, 204 200, 246, 265, 266 172, 191, 358, 368 Whitty, Lloyd v. Wightman v. Wheelton Wilcox, Gyles v. Wildy, Stevens v. Wilkes, Rowortli v. Wilkins v. Aiken 42, 182, 185, 187, 200, 254 , Robinson (Assignees of) v 29 Williams v, Earl of Jersey . . 264 .M'Nielu. 183,184,238,239 -, Parton v. -, Stead v. - v. Thomas Wilson, Singer's Sewing Machine Co. v. . v. Whitehead Wilts (The) and Berks Canal Co., Gaby v. Wiltshire, Smith u. . 228 411 272 269 605 228 228 TABLE OF OASES. XXXIX PAGE Winchester, Longman v. . 39, 183 Windover v. Smith . . 433, 440 Wintle v. Bristol and South Wales Union Railway Co. . . 249 Wisden, Page v. . . . 100, 139 Woodfl. Boosey 137,140,318,342, 476, 477 , Boueicault v. 7, 327, 568, 569, 573 v. Chart . . . .481 , Gounod v. . 247, 248 , Metzler v. 73, 246 , Venables v. . . 605 Woodman v. Bobinson . . 272 Woodruff, Bitms v. 127, 354, 356 Woods v. Highley . . .360 Woodward, Cobbett v. 98, 191, 200, 243 Wooler, Whittingham v. 191, 193, 241, 243, 259 PAGE Woolsey v. Judd . 7, 45, 47, 50 Worrall's Case . . . .402 Worth, Pierce v. . 383, 429 Wright, Margetson v. . . 439 , Martin v. . 42, 370, 374 , Morris v. . 177 , Stationers' Company v. 286, 287 v. Tallis . . 92,247 Wroe v. Clayton . . .260 Wyatt v. Barnard . . 82, 213 , Johnson v. . . 273 Wycombe Railway Co., Pearce v. 272 Wyman, Kelly v. . . 266 Y. Yates, Clay ». Young, Fernie v. , Toole v. 578, 580 255, 256 216, 340 THE LAW OF COPYRIGHT. CHAPTEE I. HISTORICAL VIEW OF THE COPYRIGHT LAWS. Copteight may be defined as the sole and exclusive Definition and liberty of multiplying copies of an original work or™py'f g £ f t composition (a). The right of an author to the productions of his mental exertions may be classed among the species of property acquired by occupancy; being founded on labour and invention (b). A literary composition, so long as it lies dormant in the author's mind, is absolutely in his own possession. Ideas drawn from external objects may be communicated by external signs, but words demonstrate the genuine opera- tions of the intellect. The former are so identical with himself, that when by the author resolved into the latter, they lose not their original characteristic ; and whether (a) II M. & W. 316. The term " copyright " may be understood in two different senses. The author of a literary composition, which he commits to paper belonging to himself, has an undoubted right at common law to the piece of paper on which his composition is written, and to the copies which he chooses to make of it for himself, or for others. If he lends a copy to another his right is not gone ; if he sends it to another under an implied undertaking that he is not to part with it, or publish it, he has a right to enforce that undertaking. The other sense of that word is, the exclusive right of multiplying copies ; the right of preventing all others from copying, by printing or otherwise, a literary work which the author has published. This must be carefully distinguished from the other sense of the word. (Per Baron Parke, in Jefferys v. Boosey, 4 H. L. 0. 920.) (6) Hoffman's ' Legal Outlines,' sect. iii. ; Locke on Gov. pt. 2, c. 5. THE LAW OF COPYRIGHT. Cap. i. or not they be regarded as of pecuniary value in the way of recital or sale, he ought to be the sole arbiter to authorize or to prohibit their publication, and have full control over them, before they are actually submitted to public inspection. In ancient times orations, plays, poems, and even philosophical discourses, were usually orally communicated, and all ages have allotted to the composers the profits which arose from this mode of pub- lication. They were rewarded by the contributions of the audience or by the patronage of those illustrious persons in whose houses they recited their works. A recompense of some sort was regarded as a natural right, and any one contravening it, was esteemed little better than a robber. Terence sold his ' Eunuchus ' to the sediles, and was after- wards charged with stealing his fable from Npevius and Plautus. " Exelamat fwrem, non poetam, fabulam de- disse " (a). He sold his ' Hecyra ' to Eoscius, the player. Statius would have starved had he not sold his tragedy of ' Agave ' to Paris, another player : " Esurit, intactam Paridi nisi vendat Agaven " (6). These sales Were founded upon natural justice. No man could possibly have a right to make a profit by the publi- cation of the works of another, without the author's con- sent. It would be converting to one's own emolument the fruits of another's labour. In later times the method of publication was usually by writing, or describing in characters those words in which an author had clothed his ideas. Characters are but the signs of words, and words the vehicle of sentiments. Here the value which distinguishes the writing arises merely from the matter it conveys. The sentiment is, therefore, (a) Prologus ad ' Eunuchum ' : " Exelamat, furem, non poetam, fabulam DedisBe, et nihil dedisse verborum tamen ; Colacem esse Nsevi, et Plauti veterem fabulam, Parasiti personam inde ablatam et niilitis." (6) Juvenal, Sat. vii. 87. HISTORICAL VIEW OF THE COPYRIGHT LAWS. the thing of value from which the profit must arise. No Cap. I. man has a right to give another's thoughts to the world, or to propagate their publication beyond the point to which the author has given consent. His reputation is concerned and he has a right to defend it. This is natural justice, and dictated by reason ; consequently, as Lex est ratio , surnma, quse jubet quse sunt utilia et necessaria et contraria prohibet (a), we may obviously assume that though copy- right, as a species of property, was in a strictly accurate sense unknown to, or at least was not by precedent established at common law, yet, "the novelty of the question did not bar it of the common law remedy and protection" Q>). Distinct properties were not adjusted at the same time and by one single act, but by successive degrees, accord- ing as either the condition of things or the number and genius of men seemed to require. When once estab- lished, the same law which pointed out and settled the line of demarcation commands the observance of every- thing that may be conducive to the end for which these various boundaries were erected. " Nequaquam autem omnes res," says Puffendorf (e), " statim ab initio humani generis, aut ubique locorum ex definito aliquo prmeepto juris naturalis debuerunt proprietatem subire; sed hsec est introdueta, prout pax mortalium id requirere visa fait." The necessary consequence of being a distinguishable Property in property was its having a determinate owner. As property compositions, must precede the violation of property, so the rights must be instituted before the remedies for their violation ; and the seeking for the law of the right of property in the law of procedure relating to the remedies is a mistake similar to supposing that the mark on the ear of an animal is the cause, instead of the consequence, of property therein. (a) Co. Lit. 319 b. Jenk. Cent. 117. (o) 4 Burr. 2345. . Nihil quod est contra rationem est licitum : Co. Lit. 97 b. Sou le ley done chose, la ceo done remedie a vener.a ceo : 2 Roll. R, 17. In novo casu, novum remedium apponendum est : 2 Inst. 3. (c) De Jure Nat. et Gen. lib. iv. o. iv. s. 14. Vide ibid. s. 6. B 2 THE LAW OF COPYKIGHT. Cap, l If the essential principle for one source of property be production, the mode of production is unimportant ; the essential principle is applicable alike to the steam and gas appropriated in the nineteenth century, and the printing introduced in the fifteenth, and the farmers' produce of the earlier ages. The importance of the interest dependent on words advances with the advance of civilization. If the growth of the law be traced with respect to the words that make and unmake a simple contract, and with respect to the words that are actionable or justifiable as defamation, and with respect to the words that are indictable as sedi- tious or blasphemous, it will be thought reasonable that there should be the same growth of the law in respect of the interest connected with the investment of capital in words. In the other matters the law has been adapted to the progress of society according to justice and conveni- ence, and by analogy it should be the same for literary works, and they would become property with all its inci- dents, on the most elementary principles of securing to industry its fruits and to capital its profits (a). In the vast complications of human affairs, requiring new applications of old principles continually to be made ; in the measureless range of human thought, bringing new doctrines out of the mass of new and old events ; in the immense fields of human exploration, luminous with the light of every species of science, over which the race of man is always travelling; in the unlimited expansibility of human society, developing new aspects, new relations, new wants ; in the fact that, although the reported deci- sions of the courts are numerically great, they embrace but comparatively few even of the questions which have arisen heretofore ; in the known fact, also, that evermore the surges of time are driving the shores of human capa- bility farther towards the infinite, — we read the truth, pervading every system of jurisprudence, that whenever a matter comes before the courts, it is really a call for a new enunciation of legal doctrines, and that from the past we (a) Per Mr. Justice Erie in Jeffenp v. Boosey,4 H. L. C. 870. HISTORICAL VIEW OP THE COPYRIGHT LAWS. U only gather a few rules to guide us in the future. We Cap. I. learn that both the olden and the new light point to the way of principle for the settlement of all new cases, when particular precedents fail (a). What property could be more emphatically a man's own than his literary works ? Is the property in any article or substance accruing to him by reason of his own me- chanical labour denied him ? Is the labour of his mind less arduous, less worthy of the protection of the law? When the right could not be combated on the ground of common sense or simple reason, the lawyers were forced to fly to what Lord Coke styles " summa ratio," or the legal reason, and they contended that from the very nature of literary productions no property in them could exist. For, said they, to claim a property in anything it is necessary that it should have certain qualities; it should be of a corporeal substance, be capable of occupancy or possession, it should have distinguishable proprietary marks, and be a subject of sole and exclusive enjoyment. Now, none of these indispensable characteristics were possessed by a literary production. To this it was replied, that such definition of property was too narrow and confined ; (for the rules attending property must ever keep pace with its increase and ex- pansibility, and must be adapted to every particular, condition ;) that a distinguishable existence in the thing claimed as property, and an actual value in such thing to the true owner, are its essentials; and that the best rule of reason and justice seemed to be, to assign to everything capable of possession a legal and determinate owner. Ideas, being neither capable of a visible possession nor No copyright of sustaining any one of the qualities or incidents of property, inasmuch as they have no bounds whatever, cannot be the subject of property. Their whole existence is in the mind alone ; incapable of any other mode of acquisition or enjoyment than by mental- possession or (a) Bishop's ' Criminal Law.' 6 THE LAW OF COPYRIGHT. Cap. I. apprehension, safe and invulnerable from their own imma- teriality, no trespass can reach, no tort affect, no fraud or violence diminish or damage them (a). They are of a nature too unsubstantial, too evanescent, to be the subject of proprietary rights. Copyright When, however, any material has embodied those ideas, material that then the ideas, through that corporiety, can be recognised th S ? mbodied as a species of property by the common law. The claim is not to ideas, but to the order of words, and this order has a marked identity and a permanent endurance. The order of each man's words is as singular as his countenance, and although, if two authors composed originally with the same order of words, each would have a property therein, still the probability of such an occurrence is less than that there should be two countenances that could not be dis- criminated. The permanent endurance of words is obvious by comparing the words of ancient authors with other works of their day ; the vigour of the words is unabated, though other works have mostly perished (6). It is true that property in the order of words is a mental abstrac- tion, but so also are many other kinds of property ; for instance, the property in a stream of water, which is not in any of the atoms of the water, but only in the flow of the stream. The right to the stream is not the less a right of property, either because it generally belongs to the riparian proprietor, or because the remedy for a violation of the right is by action on the case, instead of detinue or trover (c). Author's right " Ideas," says Mr. Justice Yates, " are free. But while publication of ^e autnor confines them to his study, they are like birds his own in a cage, which none but he can have a right to let fly ; manuscript. (a) Yates, J., in Millar v. Taylor, i Burr. 2362 ; Abernethy v. Hutchinson, 1 Hall & Tw. 28 ; S. C. in 3 L. J. (Ch.) 209, 2 13, 21 9 : and see Sir G. Turner, V.C., in Morison v. Moat, 9 Hare, 257. (6) The intellectual creations of the ancient Greeks and Romans have come to us through many centurieB in better preservation than their great works of art ; and while many of their stupendous monuments of stone and brass can no longer be distinguished, the identity of their intellectual labours remain unaffected by time. (c) Mr. Justice Erie, in Jefferys v. Boosey, 4 H. L. C. 869. HISTORICAL VIEW OP THE COPYRIGHT LAWS. for, till he thinks proper to emancipate them, they are Cap. I. under his own dominion. It is certain every man has a right to keep his own sentiments, if he pleases ; he has cer- tainly a right to judge whether he will make them public, or commit them only to the sight of his friends. In that state, the manuscript is, in every sense, his peculiar pro- perty ; and no man can take it from him or make any use of it which he has not authorized, without being guilty of a violation of his property. And as every author or proprietor of a manuscript has a right to determine whether he will publish it or not, he has a right to the first publication ; and whoever deprives him of that priority is guilty of a manifest wrong, and the court have a right to stop it " (a). Thus we see that every man has the right at common law to the first publication of bis own manuscript, it can-c/ not without his consent be even seized by his creditors as property (b). He has in fact, supreme control over his own productions, and may either exclude others from their enjoyment, or may dispose of them as he pleases. He may limit the number of persons to whom they shall be im- parted, and impose such restrictions as he pleases upon their use. He may annex conditions, and proceed to enforce them, and for their breach he may claim compensation (c). (a) Yates, J., in Millar v. Taylor, 4 Burr. 2378 ; 1 Mac. & Gor. 36 ; Forrester v. Walker, cited 2 Bro. P. C. 138 ; Manley v. Owen, 4 Burr. 2329 ; Webb v. Rose, 4 Burr. 2330 ; Southey v. Sherwood, 2 Mer. 435 ; Wheaton v. Peters, 8 Peters, S. C. R. (Amer ) 591 ; Eden on Injunc. 285 ; 2 Storv, Eq. Jur. s. 943; Curtis on Copy, 84, 150, 159 ; Woolsey v. Judd, 4 Duer (Amer.) 385. (o) See Little v. Sail, 18 How. (Amer.) 170 ; Bartlette v. Crittenden, 4 McLean (Amer.) 300 ; S. C. 5 ibid. 32 ; Webb v. Hose, supra ; Pope v. Curl, 2 Atk. 342 ; Manley v. Owen, supra ; Macldin v. Richardson, Amb. 694 ; Donaldson v. Becket, 4 Burr. 2408 ; Abernethy v. Hutchinson, 1 Hall & Tw. 28 ; Prince Albert v. Strange, 2 De G. & Sm. 652 : 1 Mac. & G. 25 ; Turner v. Robinson, 10 Ir. Ch. 121, 510 ; Wheaton v. Peters, supra. See Dudley v. Mayhew, 3 Corns. (Amer.) 12 ; Clayton v. Stone, 2 Paine (Amer.) 383 ; Jones v. Thorne, 1 N. Y. Leg. Obs. 409 ; Parton v. Prang, 3 Cliff. (Amer.) 537 ; Carter v. Bailey, 64 Me. (Amer.) 458 : Boucicault v. Wood, 16 Amer. Law Reg. 529; Keener. Wheatley, 23 Law Eep. 440; Roberts v. Dyer, ibid. 396 ; Stone v. Thomas, 2 Amer. Law Reg. 228 ; Woolsey v. Judd, supra; Beckford v. Hood, 7 T. R. 616 ; Palmer v. Dewitt, 23 L. T. N. S. 823. (e) Lord Mansfield described his right as " an incorporeal right to print a set of intellectual ideas, or modes of thinking, communicated in a set of words, or sentences, and modes of expression. It is equally detached from the manuscript, or aDy other physical existence whatsoever," 4 Burr. 2396. O THE LAW OP COPYEIGHT. Cap. I. Suppose therefore, that a man, with or without leave to peruse a manuscript work, transcribes and publishes it, the offence would not be within the Copyright Acts ; it would not be larceny, nor trespass, nor a crime indictable (the physical property of the author, the original manu- script, remains), but it would be a gross violation of a valuable right. Again, suppose the original or a transcript be given or lent for a man to read, and he were to publish it, such publication would be a violation of the author's common law right to the copy (a). Lord Claren- In the case of the Duke of Queensbu/ry v. Shebbeare, ' Hiatorv.' before Lord Henley, an injunction was granted against printing the second part of Lord Clarendon's ' History,' Lord Clarendon lent to a person of the name of Gwynne a copy of his ' History ;' his son and representatives insisted that he had a right to print and publish this ' History,' but the court were of opinion that Gwynne might make every use of it except the profit of multiplying in print. The presumption was that Lord Clarendon never intended that when he gave him the copy. The injunction was acquiesced under (6) ; and Dr. Shebbeare recovered, before Lord Mansfield, a large sum against Gwynne for repre- (o) " The nature of a right of an author in his works is analogous to the rights of ownership in other personal property, and is far more extensive than the control of copying after publication in print, which is the limited meaning of copyright in its common acceptation, and which is the right of an author, to which the statute of Anne relates. Thus, if after composition the author chooses to keep his writings private, he has the remedies for wrongful abstraction of copies analogous to those of an owner of personalty in the like case. He may prevent publication ; he may require back the copies wrongfully made ; he may sue for damages if any are sustained ; also if the wrongful copies were published abroad, and the books were imported for sale without knowledge of the wrong, still the author's right to his composition would be recognised against the importer, and such sale would be stopped. . . . Again, if an author choses to impart his manuscript to others without general publication, he has all the right for disposing of it incidental to personalty. He may make an assignment either absolute or qualified in any degree. He may lend, or let, or give, or sell any copy of his composition, with or without liberty to transcribe, and if with liberty of transcribing, he may fix the number of transcripts which he permits. If he prints for private circulation only, he still has the same rights, and all these rights he may pass to his assignee. About the rights of the author before publication at common law, all are agreed." Erie J., Jeffreys v. Boosey, 4 H. L. C. 867; see Parton v. Prang, 3 Cliff. (Amer.) 548. (?>) 2 Eden, 329 ; Kitaploch v. Curie, 4 "Viu. Abr. 278. HISTORICAL VIEW OF THE COPYRIGHT LAWS, senting " that he had a right to print." But where the cap. I. plaintiff, as residuary legatee under the will of Miss Mitford, claimed to be entitled to an account against the defendant Bentley for the profits of the publication of the letters and papers of the testatrix, without the plaintiffs authority ; and it appeared that after the date of her will, Miss Mitford had addressed an unattested letter to her executor, W. Harness, saying, that in case anybody should print her letters or life, she wished that a part at least of the produce should go to the plaintiff; and some years afterwards Harness arranged with one of the defendants to edit the said letters and papers, and requested him to pay £20 to the plaintiff, in compliance with Miss Mitford's wish, and the editor entered into an agreement with Bentley for the publication of a work containing the letters and papers which he had edited, and offered the plaintiff the sum of £20, which was not accepted, the Master of the Bolls held that the letter of Miss Mitford to Harness was tantamount to a gift to him of her letters and papers, and that on Bentley offering and undertak- ing to pay to the plaintiff the sum of £20, before offered by the editor, the bill must be dismissed, but without costs (a). In the cases of Webb and Forrester (b), the Court of ' Precedents of Chancery again interposed by injunction. It appears that 4 °£, Te y ano_ the plaintiff in the former case had his ' Precedents of .Conveyancing' stolen out of his chambers and printed; and in the latter he had his notes copied by a clerk of a gentleman to whom he had lent them, and printed. In Macklin v. Richardson (c) the defendant had employed a short-hand writer to take down the farce of ' Love a la ■ Love a la mode,' upon its performance at the theatre, and inserted mode -' one act in a magazine, giving notice that the second act would be published in the magazine of the following month. Upon an application to Lord Camden for an (a) Sweetman v. Bentley, W. N. (1871) 162. (6) Cited Ambl. 695 (c) Ibid. 10 THE LAW OF COPYRIGHT. Cap. I. The statutes do not affect right before publication. injunction, he directed the case to stand over until that of Millar v. Taylor, which was then pending, should be determined ; and after the decision had been given in that case the injunction was granted by the Lords Com- missioners Smythe and Bathurst. The former, referring to the play, saying, " it has been argued to be a publica- tion by being acted, and therefore the printing is no injury to the plaintiff ; but that is a mistake ; for, besides the advantage of the performance, the author has another source of profit from the printing and publishing, and there is as much reason that he should be protected in that right as any other." Bathurst adding, " The printing it before the author is doing him a great injury." This was the opinion also of Lord Cottenham in a case subsequently referred to (a). "The property," said he, " of an author or composer of any work, whether of literature, art, or science, in such work unpublished, and kept for his private use or pleasure, cannot be disputed after the many decisions upon which that proposition has been affirmed or assumed. I say 'assumed,' because in most cases which have been decided, the question was not as to the original right of the author, but whether what had taken place did not amount to a waiver of such right ; as, in the case of letters how far the sending of the letter, in the case of dramatic composition how far the permitting performance, and in the case of Mr. Abernethy's lectures how far the oral delivery of the lecture, had deprived the author of any part of his original right and property ; — a question which could not have arisen if there had not been such original right or property." The statutes with reference to copyright do not in any manner affect the common law ownership of literary com- positions before publication, and therefore until publication (a) Prince Albert v. Strange, 18 L. J. (N. S.) Ch. 120 ; 1 Hall & Tw. 1 ; 1 Mac. & Gor. 25 ; Turner v. Robinson, 10 Ir. Ch. Rep. 121, 510 ; Southey v. Sherwood, 2 Mer. 435 ; Gee v. Pritcliard, 2 Swans. 402. HISTORICAL VIEW OF THE COPYRIGHT LAWS. 11 an author and his assignees have a proprietary right in cap. I. his production, of which he is not deprived by the statute, ~ and which the court will protect against invasion (a). The ^copyright laws are merely ancillary to the common law lights of authors (6). They continue them after publi- cation in print, but in no way impair such rights, so long as the literary composition remains in manuscript, or is not printed. These principles were clearly developed in Prince Prince Albert's case (c), a case possessed of peculiar interest from Albert s caae - the high position of the parties. It appeared that the Queen and the plaintiff had occasionally, for their amusement, made drawings and etchings, being principally of subjects of private and domestic interest to themselves, and that they had made impressions of those etchings for their own use, and not for publication; that, for greater privacy, such impressions had been, for the most part, made by means of a private press kept for that purpose, and the plates themselves had been ordinarily kept by her Majesty under lock, and the impressions had been placed in some of the private apartments of her Majesty at Windsor, and in such apartments only ; that the defendants Strange and Judge had in some manner obtained some of such impressions, which had been surreptitiously taken from some of such plates, and had thereby been enabled to form, and had formed, a gallery or collection of such etchings, of which they intended to make a public exhibition without the permission of her Majesty and the plaintiff, or either of them, and against their will ; that the defendants had compiled and prepared a work, which had been printed and published by the defendant Strange, of which the title page or cover was as follows : — " A Descriptive Catalogue of the Eoyal Victoria and Albert Gallery of Etchings." (a) Palmer v. Dewitt (American case), 23 L. T. (N. S.) 823. (6) Mr. Edward Jenkins, M.P., in his separate report as a member of the copyright commission says, " The statute law creates, it does not recognise copyright," but it is conceived that this is a position which could not be supported. (o) Prince Albert v. Strange, 1 Hall & Tw. 1 ; 1 Mao. & Gor. 25, 18 L. J. (N. S.) Ch. 120; 13 Jur. 45, 109, 507. 12 THE LAW OF COPYKIGHT. Cap, i. "Every purchaser of this catalogue will be presented (by- permission) with a facsimile of the autograph of either her Majesty or of the Prince Consort engraved from the original, the selection being left to the purchaser, price sixpence ; " that this work had been compiled, printed, and published without the consent of her Majesty and the plaintiff, or either of them, and against their will ; that, in fact, among the etchings were portraits of the plaintiff, the Prince of Wales, the Princess Boyal, and other members of the Koyal Family, and personal friends of her Majesty, from life, and afterwards transferred to copper and etched by her Majesty and the plaintiff, and among such etchings were portraits of their favourite dogs, taken by them from life, and etchings from old and rare engravings in the possession of her Majesty, and several from such original designs as in the catalogue mentioned ; and among such etchings there were several portraits of the Princess Eoyal, and such scenes in the Eoyal nursery as in the said catalogue mentioned ; and that the said de- scriptive catalogue comprised sixty-three several etchings ; that the catalogue could not have been made except from impressions surreptitiously obtained ; that the impressions were intended for private use, and not for publication, and very few had been given away, and those only to private friends. The bill then, as amended, charged that certain of the plates were given to Brown, a printer, at "Windsor, for the purpose of printing off certain impressions thereof for her Majesty and the plaintiff, and that Brown employed therein a person of the name of Middleton, who, without Brown's consent or knowledge, and in violation of the confidence reposed in him, took impressions thereof for himself; and that Judge had bought or in some manner obtained the same from Middleton. It was then praved that the defendants might be ordered to deliver up to the plaintiff all impressions and copies of the several etchings respectively made by the plaintiff; and that they, their servants, &c, might be restrained by injunction from ex- hibiting the said gallery or collection of etchings, or from HISTORICAL VIEW OP THE COPYRIGHT LAWS. 13 making engravings or copies of them, or in any manner pub- Cap. I. lishing them, or from parting with or disposing of them, and also from selling, publishing, or printing, the descriptive catalogue in the bill mentioned or any work being or pur- porting to be a catalogue of the said etchings, and that the copies of the catalogue in the possession of the defen- dants might be given up to the plaintiff. An injunction was immediately granted against Strange until he had answered the bill, or the court should make order to the contrary, which injunction was afterwards extended to the other defendants. Strange subsequently put in an answer denying that he had in any manner, either surreptitiously or otherwise, obtained any impressions of the etchings or copies of them. He stated that he believed that Judge purchased certain impressions of the etchings from Middleton ; that Judge had proposed to him to exhibit them if her Majesty and the Prince did not object ; and that he then believed that the impressions had not been improperly obtained; that Judge afterwards wrote the catalogue, which Strange printed, but struck off fifty-one copies only, and then broke up the type ; that this catalogue had never been exposed for sale, and that as soon as he learnt that the exhibition was disapproved of by the Queen and the Prince, he determined to abandon the scheme, and had offered to give up all copies of the catalogue in his posses- sion if the bill were dismissed against him and his costs paid, bat that the solicitor for the plaintiff refused to pay the defendant's costs. He insisted by his answer that, as a matter of strict right, he was entitled to publish the catalogue ; and so far as the injunction related to the publication of the catalogue he moved to dissolve it before Vice-Chancellor Knight Bruce. It was contended by the defendants that a man acquiring knowledge of another man's property without his consent, is not by any rule or principle which a Court of Justice can apply — however secretly that other man may have kept or endeavoured to keep his property — forbidden, 14 THE LAW OF COPYKIGHT. Cap, i. without consent, to communicate or publish that know- ledge to the world, to inform the world what the property- is, or to describe it publicly, whether orally or in print or writing. That there were distinct properties, independent of each other, in the owner of portraits ; first, there was the right of property in the canvas ; secondly, in the face that adorned the canvas ; thirdly, the knowledge of the existence of what he possessed. That supposing that the owner of a collection of pictures allowed the public on certain days to view his collection, and by this means one of the visitors acquired a knowledge of the paintings, the same as the owner, that such person had in the absence of contract to the contrary a right to make use of that knowledge. It was admitted that he might be restrained from using the form, but contended that he could not be restrained from describing the attributes created by the form. That there was no greater right of property in the knowledge, in the owner of the collection, than in any stranger who might have had access to them. But both the Vice-Chancellor Knight Bruce in the first instance, and Lord Cottenham on appeal, refused to give effect to this argument. The former saying (a), " The author of the manuscripts, whether he is famous or obscure, high or low, has a right to say of them, whether light or heavy, saleable or unsaleable, that they shall not, without his consent, be published ; and I think to use a dishonest knowledge of them, for the purpose of composing and publishing, and so to compose and publish a catalogue of them, amounts to a publication of them within the principle and the rule. Assuming the law to be so, what is its foundation in this respect ? It has not reference to any considerations peculiarly literary. Those with whom our common law originated, had not, probably, among their many merits, that of being patrons of letters, but they knew the duty and necessity of protecting property, and, with that general object, laid down rules providently expansive — rules capable of adapting them- selves to the various forms and modes of property that (a) 13 Jur. 57. HISTORICAL VIEW OF THE COPYRIGHT LAWS. 15 peace or cultivation might discover or introduce. The pro- cap. I. duce of mental labour, thoughts, and sentiments recorded and preserved by writing, became, as knowledge went onwards and the culture of man's understanding advanced, a kind of property which it was impossible to disregard. . . . Upon the principle, therefore, of protecting property, it is that the common law, in cases not aided nor prejudiced by the statute, shelters the privacy of thoughts and senti- ments committed to writing, designed by the author to remain not generally known. This has been, in effect, judicially declared, not by any judge more distinctly than by Lord Eldon, on several occasions, particularly in Mr. Southey's case. He says, 'It is to protect the ex- clusive property of the writer that injunctions are granted.' And again : ' I have examined the cases I have been able to meet with containing precedents for injunctions and I find that they all proceed upon the ground of title to property in the plaintiff.' Such being, as I believe, the nature and foundation of the common law as to manuscripts, independently of Parliamentary additions and subtractions, its operation cannot, of necessity, be confined to literary subjects ; that would be to limit the rule by the example. Wherever the produce of labour is liable to invasion in an analogous manner, there must be, I suppose, a title to analogous protection or redress. Such I consider the case of mechanical works or works of art executed by a man for his private use. Whatever protection those, or some of those, may have by the Act of Parliament, they are not, I apprehend, deserted by the common law. The principles and rules which it applies to literary compositions and manuscripts must, to a con- siderable extent, be applicable to these also." And the latter, assuming the right of property, says (a) : ' If, then, such right and property exist in the author of such works, it must so exist exclusively of all other persons. Can any stranger have any right or title to, or interest in, that which belongs exclusively to another? — and yet (a) 13 Jur. 112. 16 THE LAW OF COPYRIGHT. Cap. I. this is precisely what the defendant claims, although, by a strange inconsistency, he does not dispute the general proposition as to the plaintiff's right and property ; for he contends that, admitting the plaintiff's right and property in the etchings in question, and, as incident to it, the right to prevent publication or exhibition of copies of them, yet he insists that some persons having had access to certain copies, and having, from such copies, composed a description and list of the originals, he, the defendant, is entitled to publish such list and description — that is, that he is entitled, against the will of the owner, to make such use of his exclusive property. It being admitted that the defendant could not publish a copy — that is, an impression — of the etchings, how, in principle, does the case of a catalogue, list, or descrip- tion differ? A copy or impression of the etchings could only be a means of communicating knowledge and infor- mation of the original ; and does not a list and description do the same? The means are different, but the object and effect are similar : it is to make known to the public, more or less, the unpublished works and compositions of the author, which he is entitled to keep wholly for hi& private use and pleasure, and to withhold altogether, or so far as he may please, from the knowledge of others. Cases of abridgments, translations, extracts, and criticisms of published works, have no reference whatever to the present question. They all depend on the extent and right under the Acts with respect to copyright, and have no analogy to the exclusive right of the author in unpublished compositions, which depend entirely on the common law right of property .... Upon the first question, therefore — that of property — I am clearly of opinion that the exclusive right and interest of the plaintiff in the compositions and works in question being established, and there being no right or inte- rest whatever in the defendant, the plaintiff is en- titled to the injunction of this Court to protect him against the invasion of such right and interest by the HISTORICAL VIEW OP THE COPYEIGHT LAWS. 17 defendant, which the publication of any catalogue would Cap. I. undoubtedly be." What amounts to publication sufficient to defeat the What amounts common law right is a question of some nicety. The *j common ° n property which a composer of a piece of music ordinarily law. has in his composition is the pecuniary value which it has to him, and not merely the amount of fame he may acquire ; and such pecuniary value is necessarily and wholly de- pendent upon the means which he may lawfully employ to bring his production before the public, and the approval of the public of his work ; and there is no other property in that description of literary composition. " When a right of property in the invention or creation of an author is recognised as an inherent right by the common law," says Mr. Judge Monell in a late American case (a), "it assumes that the thing to be secured and protected is of value to the owner. The law does not regard as property a thing entirely worthless. If a literary composition, therefore, derives its value from, and becomes property because of, the use which can be made of it before the public, and such value is increased or diminished in proportion to the extent of its use, then it becomes very important to know where and when the author's literary property in it terminates. To give it value, or to make it property, recognised by the common law, the author must be allowed to use it before the public ; and if, having submitted it once to a public hearing, it is to be deemed a publication, so as to take away the proprietary right, and to deprive the author of the benefit of copyright laws, then, obviously, the common law means nothing, and there is no such thing as property in literary work. Can it be said that once delivering a lecture upon a scientific or literary subject, before a public audience, will for ever thereafter deprive the author of his property in the ideas invented or created, and which represent, by a combination of words his meaning? If so, then any one who can obtain the (a) Palmer v. Dewitt 23 L. T. (N.S.), 823, 825. C 18 THE LAW OF COPYRIGHT. Cap. I. manuscript, or access to it, or who, by employing the art of stenography, or by the exercise of memory, can carry it out of a public lecture-room, may, without the consent or knowledge of the author, appropriate and use, for his own emolument, the literary production of another person. I cannot believe there is so little foundation for, or so narrow a limit to, the proprietary rights of an author in his literary labours. I believe the law intended to secure to him the beneficial results of his labours, and to protect him from any piratical invasion of his rights, until he has done some act inconsistent with an exclusive ownership, and which shall amount, in judgment of law, to a publication. There can be no fixed rule determining when an author has surrendered his literary property." What does not The publication of a work for private purposes and private a ubiication circulation is not a publication sufficient to defeat the common law right of an author (a). Accordingly, it has been determined that a copyright in a piece of music is not lost, although it had been published in manuscript a year before being printed. The words "printed and pub- lished," used in the statutes, have reference only to the time at which the author's exercise of the right is to be dated ; and therefore, the circumstance of an author having previously published in manuscript any composi- tion which is afterwards printed, only varies the period of time from which the term of protection is to be calculated. The delivery of a lecture to an audience of persons admitted on payment of a fee, is not deemed a publication (b); neither is the exhibition of a picture at a public exhibition or gallery, where copying is ex- pressly or impliedly forbidden, nor the exhibition of a picture for the purpose of obtaining subscribers to an engraving (e). (a) White v. Oeroch, 1 Chitt. 26, 2 B. & Aid. 298 ; Prince Albert v. Strange, 2 De G. & Sm. 686 ; 1 Mac & Gor. 42 ; 1 Hall & Tw. 1 ; Jefferys v. Boosey, 4 H. L. C. 816. (6) Abernethy v. Hutchinson, 3 L. J. (Ch.) 209. (c) Turner v. Robinson, 10 Ir. Ch. 510. But see Dalglish v. Jarvie, 2 Mac. & Gor. 231, 2 H. & T. 437, cited Kerr on Injunc. 184, and 25 & 26 Vict. c. 68. HISTORICAL VIEW OF THE COPYRIGHT LAWS. On publication, no more passes to the public than an Oap. I. unlimited use of every advantage that the purchaser can The effect of reap from the doctrines and sentiments which the work pu contains. The property in the composition does not pass ; for those things which are peculiarly and appropriately his, must remain his until he agrees or consents to part with them by compact or donation ; " because no man can deprive him of them without his approbation ; but the depriver must use them as his when they are not his, in contradiction to truth." For " to have the property " in any thing, and "to have the sole right of using and disposing of it," is the same thing. They are equipollent expressions (a). It was only since the introduction of printing that any Primary re- question of the extent and duration of copyright could be copyright ° f expected to occur in a court of justice. For the period of about a century from the time of this discovery we have no evidence of the recognition in any public form of the copyright of authors, or of the remedies by which its infraction might be redressed (6). The earliest evidence which occurs is to be found in the charter of the Stationers' Company and the decrees of the Star Chamber. The original charter of the Stationers' Company was The original granted by Philip and Mary in 1556. It was the declared ^^^ object of the Crown at that time to prevent the propagation Company. of the reformed religion, and it seems to have been thought that this could most effectually be brought about by im- posing the severest restrictions on the press. About this period there are several decrees and ordinances of the Star Chamber regulating the manner of printing, the number of presses throughout the kingdom, and prohibit- ing all printing against the force and meaning of any of the statutes or laws of the realm. Until the year 1640 the Crown through the instrumentality of the Star Chamber, exercised this restrictive jurisdiction without limit, enforcing by the summary powers of search, confis- (a) Author of ' The Religion of Nature Delineated,' p. 136. (6) Maugham, Lit. Prop. c 2 20 THE LAW OF COPYRIGHT. Cap. I. cation, and imprisonment, its decrees, without the least ~ obstruction from Westminster Hall or the Parliament in any instance. In 1556, by a decree of the Star Chamber, it was for- bidden, among other things, to print contrary to any ordinance, prohibition, or commandment in any of the statutes or laws of the realm, or in any injunction, letters- patent, or ordinances set forth, or to be set forth by the queen's grant, commission, or authority. By another decree, dated June 23rd, 1585, every book was required to be licensed, and all persons were prohibited from printing "any book, work, or copy against the form or meaning of any restraint contained in any statute or laws of this realm, or in any injunction made by her Majesty, or her Privy Council ; or against the true intent and meaning of any letters-patent, com- missions or prohibitions under the great seal, or contrary to any allowed ordinance set down for the good govern- ment of the Stationers' Company." In 1623, a proclamation was issued to enforce this decree; reciting that it had been evaded, among other ways " by printing beyond sea such allowed books, works, or writings as have been imprinted within the realm, by such to whom the sole printing thereof by letters-patent or lawful ordinance or authority doth appertain." In 1637, the Star Chamber again decreed that "no person is to print or import (printed abroad) any book or copy which the Company of Stationers, or any other person, hath or shall, by any letters-patent, order or en- trance in their register book, or otherwise, have the right, privilege, authority, or allowance, solely to print " (a). (a) i Burr. 2312. "It is natural to suppose," says Mr. Hallam (1 Const. History, 238), " that a government thus arbitrary and vigilant must have looked with extreme jealousy on the diffusion of free inquiry through the press. The trades of printing and bookselling, in fact, though not absolutely licensed, were always subject to a sort of peculiar super- intendence. Besides protecting the copyright of authors, the council fre- quently issued proclamations to restrain the importation of books, or to regulate their sale. It was penal to utter, or so much as to possess, even the most learned works on the Catholic side ; or, if some connivance was usual in favour of educated men, the utmost strictness was used in sup- HISTORICAL VIEW OF THE COPYEIGHT LAWS. 21 In 1640, however, the Star Chamber was abolished ; Cap. I. the King's authority was set at nought ; all the regulations On abolition of the press, and restraints previously imposed upon Chamber all unlicensed printers by proclamations, decrees of the Star p3ntw S ° n Chamber, and charter powers given to the Stationers' deemed Company, were deemed and certainly were illegal. The ega ' licentiousness of libels induced Parliament to make an ordinance which prohibited printing unless the book was first licensed. The ordinance prohibited printing without the consent of the owner, or importing (if printed abroad), upon pain of forfeiting the same to the owner or owners of the copies of the said books, &c. This pro- vision necessarily presupposed the property to exist; it would have been nugatory if there had been no admitted owner. An owner could not at that time have existed otherwise than by common law. In 1649 the Long Par- The Licensing liament made another ordinance ; and in 1662 was passed Act of Car - 2 - pressing that light infantry of literature — the smart and vigorous pamphlets with which the two parties arrayed against the Church assaulted her opposite flanks. Stow, the well-known chronicler of England, who lay under a suspicion of an attachment to popery, had his library searched by warrant, and his unlawful books taken away ; several of which were but materials for his history. Whitgift, in this as in every other respect, aggra- vated the rigour of preceding times. At his instigation, the Star Chamber in 1585, published ordinances for the regulation of the press. The preface to these recites ' enormities, and abuses of disorderly persons professing the art of printing and selling books,' to have more and more increased, in spite of the ordinances made against them, which it attributes to the inadequacy of the penalties hitherto inflicted. Every printer, therefore, is enjoined to certify his presses to the Stationers' Company, on pain of having them defaced, and suffering a year's imprisonment. None to print at all, under similar penalties, except in London, and one in each of the two universi- ties. No printer who has only set up his trade within six months to ex- ercise it any longer, nor any to begin it in future until the excessive multitudes of printers be diminished and brought to such a number as the Archbishop of Canterbury and Bishop of London for the time being shall think convenient ; but whenever any addition to the number of master printers shall be required, the Stationers' Company shall select proper persons to uBe that calling, with the approbation of the ecclesiastical com- missioners. None to print any book, matter, or thing whatsoever, until it shall have been first seen, perused, and allowed by the Archbishop of Canterbury or Bishop of London, except the Queen's printers, who shall require the license only of the chief justices. Every one selling books printed contrary to the intent of this ordinance, to suffer three months' imprisonment. The Stationers' Company empowered to search houses and shops of printers and booksellers, and to seize all books printed in contra- vention of this ordinance, to destroy and deface the presses, and to arrest and bring before the council those who shall have offended therein." 22 THE LAW OP COPYRIGHT. Cap. I. the Licensing Act (13 & 14 Car. 2, c. 33), which inter- dicted the printing of any book unless first licensed and entered in the registry of the Stationers' Company.' It ordered that no person should presume to print "any heretical, seditious, schismatical or offensive books or pamphlets, wherein any doctrine or opinion shall be as- serted or maintained which is contrary to the Christian faith, or the doctrine or discipline of the Church of England, or which shall, or may tend or be to the scandal of religion or the church, or the government or governors of the church, state, or commonwealth, or of any corporation or parti- cular person or persons whatever." It further prohibited the publication of unlicensed books, prescribed regulations as to printing, and empowered the King's messengers, and the master and wardens of the Stationers' Company, to seize books suspected of containing matters hostile to the Church or Government. It was necessary to print in the beginning of every licensed book the certificate of the licenser to the effect that the books contained nothing " contrary to the Christian faith, or the doctrine or discipline of the Church of England, or against the state and government of this realm, or contrary to good life or good manners, or otherwise, as the nature and subject of the work shall require." To prevent fraudulent changes in a book after it had been licensed, a copy was required to be deposited with the licenser when application was made for a license. The Act further prohibited any person from printing or importing without the consent of the owner, any book which any person had the sole right to print by virtue of letters-patent, or " by force or virtue of any entry or entries thereof duly made or to be made, in the register book of the said Company of Stationers, or in the register book of either of the universities." The penalty of piracy was forfeiture of the book and six shillings and eightpence for each copy : half to go to the king, and half to the owner." The sole property of the owner is here acknowledged in express terms as a common law right ; and the legislature HISTORICAL VIEW OF THE COPYRIGHT LAWS. 23 which passed that Act could never have entertained the Cap. t. most distant idea " that the productions of the brain were not a subject matter of property." To support an action on this statute ownership had to be proved or the plaintiff could not have recovered, because the action was to be brought by the owner, who was to have a moiety of the penalty. The various provisions of this Act effectually prevented piracies, without actions at law or bills in equity. But cases arose of disputed property. Some of them were between different patentees of the Crown ; some, whether the property "belonged to the author, from his invention and labour, or the king, from the subject- matter." The ordinance of 1643 prohibited the printing or im- porting of any book that had been lawfully licensed and entered in the register of the Stationers' Company, " for any particular member thereof, without the license and consent of the owner.'' The penalty prescribed was for- feiture of the book to the owner, "and such further punishment as shall be thought fit." This clause was repeated in the ordinances of 1647, 1649, and 1652. It has been questioned whether these clauses were applicable to any than members of the Stationers' Com- pany — in fact bylaws for the regulation of the members inter se, but it is doubtful whether any such restriction can be put upon their scope. The Licensing Act of Car. 2 was continued by several Acts of Parliament, but expired May, 1679 ; soon after which there is a case in Lilly's ' Entries of Hilary Term,' 31 Car. 2, B. R. (a). In this case an action was brought for printing 4000 copies of the 'Pilgrim's Progress,' of which the plaintiff was the true proprietor, whereby he lost the profit and benefit of his copy. There is no account, however, of the case having been proceeded with. In 1681, all legislative protection having ceased, the Ordinance of (a) Ponder v. Bradyl, Lilly's ' Entries,' 67 ; see Carter, 89 ; 4 Burr. 2317 ; Skinner, 234; 1 Mod. 257. 24 THE LAW OF COPYKIGHT. Cap. I. Stationers' Company adopted an ordinance or bylaw, the Stationers' which recited that several members of the company had l68i Pany la 9 reat P art °f their estaies in copies, that by ancient usage of the company, when any book or copy was duly entered in their register to any member, such person had always been reputed and taken to be the proprietor of such book or copy, and ought to have the sole printing thereof. The ordinance further recited that this privilege and in- terest had of late been often violated and abused ; and it then provided a penalty against such violation by any member or members of the company, where the copy had been duly entered in their register. The true view of this ordinance would seem to be, that the members of the Stationers' Company, finding their estates in copies, which belonged to them by the common law, no longer under the protection of the Licensing Act (the repeal of which had incidentally withdrawn the protection that had always been inserted in it, though it had necessarily no connection with the system of licensing), undertook to provide for the failure of legislation, as far as they could, by an ordinance applicable of course to their own members only. The ordinance is not to be cited as any other proof of what the common law right was than that it shows, in connection with other historical proof, what it was then supposed to be. It was much the same as if an association of persons were to agree that any one of their number should pay a penalty for violating the acknowledged rights of property of any other person in the association, provided such rights were duly entered in their common records. It would not be an attempt to create the right, but it would justly be regarded as an acknowledgment of the existence of such a right (a). A bylaw of I n another bylaw, passed in 1694 (i), it was stated that the stationers' copies were constantly bargained and sold amongst the Company in r , . , ° 1694. members of the company as their property, and devised to (a) Curtis on Copy, p. 38. (b) In this year expired finally the Licensing Act of 13 & 14 Car. 2„ which had been revived by 1 Jac. c. 7, and continued by 4 W. & M. c. 24. HISTORICAL VIEW OP THE COPYRIGHT LAWS. 25 their children and others for legacies and to their widows Cap. I. for maintenance ; and it was ordained, that if any member should, without the consent of the member by whom the entry was made, print or sell the same, he should forfeit for every copy twelve-pence. For many years successively attempts were made to obtain a new Licensing Act. Such a bill once passed the upper house, but the attempt miscarried upon constitu- tional objections to a licence. Proprietors of copyright had so long been protected by summary measures, that they regarded an action at law as an inadequate remedy. A bill in equity was never even thought of : no hope of its success appears at that time to have been entertained. In one of the petitions presented to the House in support A petition of applications to Parliament in 1709, for a bill to protect £™H°^nt°in copyright, the last clause or paragraph was as follows : 1709 for pro- " The liberty now set on foot of breaking through this copyright, ancient and reasonable usage is no way to be effectually restrained but by an Act of Parliament. For by common law, a bookseller can recover no more costs than he can prove damage ; but it is impossible for him to prove the tenth, nay, perhaps, the hundredth part of the damage he suffers ; because a thousand counterfeit copies may be dis- persed into as many hands all over the kingdom, and he not be able to prove the sale of them. Besides, the de- fendant is always a pauper, and so the plaintiff must lose his costs of suit. (No man of substance has been known to offend in this particular, nor will any ever appear in it.) Therefore, the only remedy by the common law is to con- fine a beggar to the rules of the King's Bench or Fleet, and there he will continue the evil practice with im- punity. We therefore pray that confiscation of counter- feit copies be one of the penalties to *be inflicted on offenders" (a). In response to these applications the Act 8 Anne, c. 19, The first was passed. It recites that printers, booksellers, and other ^ct^Ann persons had of late frequently taken the liberty of printing, c. 19. (a) i Burr. 2318. 2<> THE LAW OP COPYRIGHT. Cap. I. reprinting, and publishing books and other writings with- out the consent of the authors or proprietors, to their very great detriment, and too often to the ruin of them and their families. For preventing, therefore, such practices for the future, and for the encouragement of learned men to compose and write useful books, it was enacted, that the authors of books already printed who had not transferred their rights, and the booksellers or other persons who had purchased or acquired the copy of any books in order to print or reprint the same, should have the sole right and liberty of printing them for a term of twenty-one years from the 10th of April, 1710, and no longer; and that authors of books not then printed, should have the sole right of printing for fourteen years and no longer. It also provided that any person who should publish, import, or sell piratical copies should forfeit such copies to the owner of the copyright, to be by him destroyed, and pay one penny for every sheet found in his possession. One half of this penalty was to go to the Queen and the remainder to any person who should sue for it. There was a proviso, however, which permitted the importation and sale of " any books in Greek, Latin, or any other foreign language, printed beyond the seas." That no person might offend against the Act through ignorance, it was provided that no book should be entitled to protection unless the title to the copy had been entered before publication in the register book of the Stationers' Com- pany, which book should be kept open for inspection at any time without fee. The Act further required that nine copies of each book should be delivered to the warehouse- keeper of the said company for the use of the royal library in London, the Universities of Oxford and Cambridge, the four Universities in Scotland, Sion College in London, and the library of the Faculty of Advocates in Edinburgh, inflicting a penalty in default of such delivery, besides the value of the said printed copies, of the sum of £5 for every copy not so delivered (a). If any bookseller or (a) The number was extended to eleven copies by 41 Geo. 3, c. 107, HISTOKICAL VIEW OF THE COPYRIGHT LAWS. 27 printer should offer for sale a book at such a price or rate Cap. I. as should be conceived by any person to be too high or unreasonable, the price might be reduced and fixed at a reasonable figure by the Archbishop of Canterbury, the Chancellor or Lord Keeper of the Great Seal, the Bishop of London, the Chief Justices of the Queen's Bench and Common Pleas, or other designated officials (a). The Act prohibited any one from importing a book which had been printed without the written consent of the owner of the copyright. And lastly it provided, that after the expiration of the said term of fourteen years the sole right of printing or disposing of copies should return to the authors thereof, if they were then living, for another term of fourteen years Thus by the Act of Anne two classes of books were protected, first, those already pub- lished, in which copyright was acknowledged for twenty- one years ; second, those not then published, for which a term of fourteen years was secured, with a further term of fourteen years in the event'of the author being then living. The general question upon the common law right to The common old copies of works could not arise until the expiration of law "S? 1 * to Old COD108 the full term conferred by the Act of Anne, that is, until twenty-one years from the 10th of April, 1710. Shortly after the expiration of this period, in 1735, in the case of injunctions Eyre v. Walker (b), Sir Joseph Jekyll granted an injunc- issued j n . tion to restrain the defendant from printing the ' Whole right. Duty of Man,' the first publication of which had been made in December, 1657 ; and this was acquiesced under. In the same year, in the case of Hotte v. Falkner (c), an injunction was granted for printing Pope's and Swift's 'Miscellanies.' Many of the pieces had been published in 1701, 1702, and 1703, and the counsel strongly pressed the objection as to these pieces. Lord Talbot, however, s. 6 ; amended by 54 Geo. 3, c. 156, 8. 2, and the number was limited to five by the 6 & 7 Will. 4, c. 110. (a) This provision was repealed by the 12 Geo. 2, c. 36. (6) Cited 4 Burr. 2325 ; 3 Swans. 673 ; 1 W. Bl. 331 ; see 2 Eden, 328. (c) Cited in Millar v. Taylor, 4 Burr, 2325 ; Tonson v. Walker, 3 Swans. 672. 28 THE LAW OF COPYRIGHT. Cap. I. Principle on which the injunctions were issued. continued the injunction as to the whole, and it was acquiesced under. In the following year, in the case of Walthoe v. Walker, an injunction was granted for printing Nelson's 'Festivals and Fasts,' though the bill set forth that the original work was printed in the lifetime of Kobert Nelson, the author, and that he died in 1714. This also was acquiesced under. In 1739 Lord Hardwicke granted a fourth injunction to restrain the defendant from printing Milton's ' Paradise Lost.' The plaintiffs derived their title under an assign- ment of the copy from the author in 1667. This injunc- tion was also acquiesced under (a). In 1751 Milton's poem again came before Lord Hardwicke, in the form of an application for an injunction to restrain the defendants printing the same with the notes of Dr. Newton and other commentators, all of which belonged to the plaintiff. The bill, as in the former appli'cation, derived a title to the poem from the author's assignment in 1667, and a title to the life by Fenton, published in 1727, to Bentley's notes, published in 1732, and to Dr. Newton's notes, published in 1749. The defendants put in an answer, and set up notes of their own, of which it appeared there were twenty-eight, while the notes of the other commentators, belonging to the plaintiffs, and included in the defendants' edition, numbered 1500. Lord Hardwicke gave judgment in 1752, and held that the plaintiffs' notes were within the protection of the statute ; and as to the poem, although he said that the general question had never been deter- mined, and there was a doubt, yet he granted the injunc- tion until the hearing (a). All these injunctions were issued and acquiesced in under the presumption that at common law copyright was perpetual and that such common law right remained unaffected by the statute of Anne; had there been a reasonable doubt in the minds of the judges the injunc- (a) Tonson v. Walker, 3 Swans. 672 ; 4 Burr. 2325, 2327, 2379, 2380 • 1 W. Bl. 345 ; 2 Eden, 328 ; 1 Cox. 285. HISTORICAL VIEW OP THE COPYRIGHT LAWS. 29 tions would have been improper (a), for no reparation cap. I. could be afforded to the defendants for the damage sus- tained thereby, in the case of their being unimpeachable in respect of the piracies complained of. Speaking of these injunctions, Lord Mansfield said, " I look upon them as equal to any final decree " (6). The common law right was at length disputed and fully The celebrated discussed in the celebrated case of Millar v. Taylor (e). ^J * flfar The work in controversy was Thomson's ' Seasons,' and the Donaldson v. copyright secured by the statute of Anne had expired. The action was brought in 1766, and was decided by the Court of King's Bench 1769, judgment being given for the plaintiff on the ground that the common law right to copyright was unaffected by the statute of Anne. How- ever, in a case (d) determined on the authority of the last mentioned, the defendant appealed to the House of Lords, on which occasion the following questions were propounded to the judges : 1st. Whether, at common law, an author of any book or literary composition had the sole right of first printing and publishing the same for sale, and might bring an action against any person who printed, published, and sold the same without his consent ? 2nd. If the author had such right originally, did the law take it away upon his printing and pub- • lishing such book or literary composition ? And might any person afterwards reprint and sell, (a) Hill v. The University of Oxford, 1 Vern. 275 ; Grierson v. Jackson, Ir. Term K. 304 ; Univers. of Oxf. and Cam. v. Richardson, 6 Ves. 689 ; Bruce v. Bruce, cited 13 Ves. 505 ; Marmer v. Plane, 14 Ves. 130 ; Hogg v. Kirby, 8 Ves. 224. And see Lord Erskine in Gumey v. Longman, 13 Ves. 505 ; The Assignees of Bobinson v. Wilhins, cited 8 Ves. 224. (6) Millar v. Taylor, 4 Burr. 2399. (c) 4 Burr. 2303. (d) Donaldson v. Becket, 4 Burr. 2408; 2 Bro. Pari. Cas. 129. Lord Kenyon expressed a decided opinion that no such right existed : Beckford v. Hood, 7 T. E. 620. Lord Ellenborough inclined to the same view : Cambridge Univ. v. Bryer, 16 East, 317 ; and a majority of the judges in Wheaton v. Peters, 8 Peters (Amer.) 591, arrived at the same conclusion. See Jefferys v. Boosey, 4 H. L. O. 815. 30 THE LAW OF COPYRIGHT. Cap, i. for his own benefit, such book or literary com- position, against the will of the author ? 3rd. 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 ? 4th. 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 ? 5th. Whether this right • is in any way impeached, restrained, or taken away by the statute, 8th Anne. Eleven judges delivered their opinions seriatim; ten to one for the affirmative on the first question ; eight to three for the negative on the second question ; six to five for the affirmative on the third question; seven to four for the affirmative on the fourth question ; and six to five for the affirmative on the fifth question ; so that it was declared that, although an author had by common law an exclusive right to print his works, and does not lose it by the mere act of publication, yet the statute of Anne had completely deprived him of the right. It was notorious that Lord Mansfield concurred with the ten upon the first question, with the eight upon the second, with the five upon the third, with the seven on the fourth, and with the five on the fifth ; but it being very unusual (from reasons of delicacy) for a peer to support his own judgment upon an appeal to the House of Lords, he did not speak (a). (a) In Scotland this question bad been tried as early as 1748, and de- cided against the author's right : Midwinter v. Hamilton, June 7, 1748 ; Mor. Diet, of Dec. 19, 20, 8305. On appeal the case went off upon informality in the original summons: Feb. 11, 1751; 1 Cr. & St. 48S. The same decision was pronounced in Hinton v. Donaldson, July 28, 1773, Mor. Diet, of Dec. 19, 20, 8307 ; 5 Brown's Sup. 508 ; and in Cadell & Davies v. Robertson, Dec. 18, 1804, Mor. Diet, of Dec, App., Lit. Prop. 5, as delivered in the House of Lords, July, 16, 1811 (5 Paton, 493), the HISTORICAL VIEW OF THE COPYRIGHT LAWS. 31 The more general opinion is certainly now against the Cap. I. common law right after publication. For though in the The case of case of Jefferys v. Boosey (a), the decision of the question ^~^. s v ' was not necessary to the point at issue, yet it being some- what implicated, many of the judges pronounced their opinion with reference to the right. Of the ten common law judges who delivered their opinions, Erie, J, believed in the existence of the common law right; but Parke, B., Pollock, C.B., and Jervis, C.J., announced the contrary opinion ; while Crompton, Williams, Wightman, Maule, Coleridge, and Alderson, expressed no opinion on the point. Lords Cranworth, Brougham, and St. Leonards were unanimous against the right, the last saying : " Upon the claim of common law right, I confess I never have, at least for many years, been able to entertain any doubt. It is a question which I have often, in my professional life, had occasion to consider, and upon which I have arrived, long since, at the conclusion, that no common law right exists after publication. I never could, in my own mind, distinguish between the right to an invention after the publication of that invention, and the right to the description of that invention after the publication of that description. If a mechanical genius should invent a machine of the greatest importance to mankind, it is admitted, nobody attempts to insist or to argue otherwise, and it has always been considered as settled, that after he has disposed of even a single copy of it, it may, so far as the common law is concerned, be copied and made use of without restriction by the purchaser, or by any person who properly obtains possession of it. Now, I do not see how you are to estimate differently different kinds of genius ; or how you can say that a man who invents a machine of the greatest importance to the State, shall not have any right the moment he disposes of a single copy of that article, author's right was held to depend entirely on the Act of Queen Anne : Bell's Com. See Payne v. Anderson, Mor. Diet, of Deo. vols. 19, 20, p. 8316 ; and Cadell v. Anderson, Mor. Diet, of Deo. 19, 20, 834, cited Philips on Copy, 43. (a) 4 H. L. C. 815. 32 THE LAW OF COPYEIGHT. Cap. I. but that a man whose mind brings forth a certain collec- tion of words, shall be entitled to an absolute property in it in all time, even after he has published it, and let the world at large have it. It appears to me, therefore, and always has so appeared, that there is no such common law right either in the one case or in the other ; and I agree with my noble and learned friend who has last addressed your lordships, that the patent law is decidedly against the common law right in this particular instance, because it shows that the inventor had not the right. . . . Now, when we are talking of the right of an author, we must distinguish (as has been already very accurately done) between the mere right to his manuscript, and to any copy which he may choose to make of it, as his property, just like any other personal chattel, and the right to multiply copies to the exclusion of every other person. Nothing can be more distinct than these two things. The common law does give a man who has composed a work, a right to that composition, just as he has a right to any other part of his personal property ; but the question of the right of excluding all the world from copying, and of himself claiming the exclusive right of for ever copying his own composition, after he has published it to the world, is a totally different thing." Notwithstanding the admission that the general current of opinion is against the common law right, there can be no doubt that until 1774 when the case of Donaldson v. Becket was decided, the universal opinion was the other way, and it has the support of some of the ablest judges who ever adorned the bench. The point came before the court in a subsequent case (a) in which Dr. Eeade claimed damages for the infringe- ment of his novel, " It is Never too Late to Mend." Mr. Justice Williams in delivering the judgment of the court, said: "The main reliance of the plaintiff was placed on the general ground that even if his statutable right had not been infringed, yet that as an author, he (a) Eeade v. Conquest, 9 C. B. N. S. 7G8 ; 9 W. E. 434. HISTORICAL VIEW OP THE COPYRIGHT LAWS. 33 had a copyright at common law, concurrently with, but Ca.t. I. more extensive than, his right under that statute, and that such common law right had been invaded by the act of the defendant. " Now, it is not necessary, in order to decide the present case, to consider the question upon which so much learn- ing has been exhausted; viz. whether anterior to the statute of Anne there existed a copyright at common law in published books, more extensive in its nature and dura- tion than the right conferred or expressed by that statute. There can, we think, be no doubt that the weight of authority in the time of Lord Mansfield was in favour of the existence of such a right, although the doctrine has found less favour in modern times ; but the continued existence of any such right, after the passing of the statute of Anne, was distinctly denied by the majority of the judges in Donaldson v. Becket (a), and the case itself expressly decides that no such right exists after the expi- ration of the period prescribed by the Act. " The question therefore seems to us narrowed to this, viz. whether the statute of Anne having expressly put an end to such a right if it ever existed after the period it prescribes, has yet preserved it during the currency of such period. That it has done so is a proposition which we think it difficult for the plaintiff to maintain. That a common law right of action attaches upon the invasion of the copyright created by statute, was decided in the case of Beekford v. Hood (b), and followed in several other cases, but we are not aware of any case since Millar v. Taylor (e) was overruled by the House of Lords, which decides and recognises that an author of a published work has any other than the statutable copyright therein. " In the case of Murray v. EUiston (d), (before the 3 & 4 Will. 4, c. 15) Lord Byron's tragedy of ' Marino Faliero,' the copyright of which belonged to the plaintiff, had been (a) 4 Burr. 2408 ; 2 Bro. P. C. 129. (6) 7 T. R. 620. (c) 4 Burr. 2303. (d) 5 Barn. & Aid. 657. 34 THE LAW OF COPYRIGHT. Cap. I. abridged by curtailing the dialogues and soliloquies, and publicly represented in that form by the defendant at Drury Lane Theatre for profit, the advertisements de- scribing it as Lord Byron's tragedy. A bill for an injunc- tion having been filed, a case was sent for the opinion of the Court of Queen's Bench, whether the plaintiff could maintain an action against the defendant under the cir- cumstances. The argument for the plaintiff there was put upon the same ground as in the present case, but the court certified that no action would lie, a decision which appears in point against the plaintiff upon this record. " That much might be urged in favour of the common law right if the question were res Integra cannot be doubted by any one who has read the learned judgments of the majority of the court in Millar v. Taylor, and (on the part of my brother Keating and myself, I must be allowed to add) of Mr. Justice Erie in the case of Jeffreys v. Boosey (a). But it was the opinion of a large majority of the judges and law lords in that case, that the time was passed when the question was open to discussion, and that it must now be considered to be settled, that copyright in a published work only exists by statute. " The learned counsel for the plaintiff in his argument cited a case of Turner v. Bobinson (6), in which it was supposed that the Master of the Bolls in Ireland had taken a view favourable to the plaintiff's claim in the present case. Upon looking to the report, however, it will be found that the opinion of that learned judge is directly opposed to such a claim. In that case the plaintiff had applied for an injunction to prevent the de- fendant from pirating an original picture of ' The Death of Chatterton,' of which the plaintiff was proprietor, by means of stereoscopic apparatus. The Master of the Bolls being of opinion upon the facts that there had been no publication of the picture, and that the imitation was a piracy, granted the injunction, but his opinion upon the (a) 4 H. of Lords Cas. 876. (t) 10 It. Ch. Bep. 121 ; on appeal 510. HISTORICAL VIEW OF THE COPYEIGHT LAWS. 35 point involved in the claim of the plaintiff upon this Cap. I. record was thus expressed : — ' It is not necessary,' said that learned judge, 'to go through the authorities col- lected in the cases to which I have referred (a), as I apprehend it is clear that by the common law copyright or protection exists in favour of works of literary art or science to this limited extent only, that while they remain unpublished no person can pirate them, but that after publication they are by common law unprotected. There has been much difference of opinion on the subject among the judges in England, but the law is now considered to be as I have stated it.' The opinion of the Master of the Eolls in Ireland, may therefore be added to the weight of authority in this country in favour of the position, that copyright or protection to the works of literature after they have been published, exists only by statute." The universities, alarmed at the consequence of the The univer- decision in Bonaldson v. Beoket, applied for and obtained an'^ot for "the an Act of Parliament (15 Geo. 3, c. 53) establishing in protection of n • ii tneir c °py" perpetuity their right to all the copies given or bequeathed rights. them theretofore or which might thereafter be giveji to or acquired by them (&). The period for which copyright was capable of existing was somewhat varied by the 54 Geo. 3, c. 156, s. 4, which enacted that instead of enduring for fourteen years, and contingently for fourteen more, authors should have the sole liberty of printing and reprinting their works for the term of twenty-eight years, to commence from the day of the first publication of the same; and further, if the author should be living at the expiration of that period, for the residue of his natural life (e). All these Acts have been repealed by an Act of Par- The present liament of the present reign— the 5 & 6 Vict. c. 45, on Cop-JSit which the law of literary copyright now depends. To Act, 1842. (a) Prince Albert v. Strange, 1 McN. & Gor. 25 ; 1 Hall & Twells 1 ; Jefferys v. Boosey, 4 H. of Lords Cas. 815. (6) Vide post. (c) An author whose works had been published more than twenty-eight , years before the- passing of this statute was held not to be entitled to the copyright for life : Brooke v. Clarke, 1 B. & Aid. 396. D 2 36 THE LAW OF COPYRIGHT. Cap. I. Mr. Serjeant Talfourd is due the honour of obtaining this piece of legislative justice. From 1837 to 1842 he used his best endeavours and expended his most eloquent strains to accomplish its passing. In contending for an extension of the period during which protection was afforded to literary works, he bursts forth : — " There is something peculiarly unjust in bounding the term of an author's property by his natural life, if he should survive so short a period as twenty-eight years. It denies to age and experience the probable reward it permits to youth — to youth, sufficiently full of hope and joys to slight its promises. It gives a bounty to haste, and informs the laborious student, who would wear away his strength to complete some work which ' the world will not willingly let die,' that the more of his life he devotes to its perfec- tion, the more limited shall be his interest in its fruits. It stops the progress of remuneration at the moment it is most needed ; and when the benignity of nature would extract from her last calamity a means of support and comfort to the survivors — at the moment when his name is invested with the solemn interest of the grave — when his eccentricities or frailties excite a smile or a shrug no longer — when the last seal is set upon his earthly course, and his works assume their place among the classics of his country — your law declares that his works shall become your property, and you requite him by seizing the patrimony of his children." ( 37 ) CHAPTER II. WHAT MAY BE THE SUBJECT OF COPYRIGHT. There can be no copyright in an intellectual creation The subject of however denned in the author's mind, unless embodied in co ^ ns written or spoken language, then only can it possess the attributes of property. The copyright is not in the form of words which are expressive of the intellectual creation, but in the intellec- tual conception which is so expressed. In order to acquire a copyright in a work it is necessary Work must be that it should be original. If any part of the composition on s ma1 ' is copied or adopted by the writer from a prior-existing work, of course the title fails quoad hoc, as the writer cannot have been the author of what he has borrowed from another. "It is difficult," says Mr. Curtis (a), " to lay down any legal definition of originality in a lite- rary composition that may be resorted to as a universal test. Many intellectual productions present no more difficulty upon the question of their originality than some inventions, or discoveries. The poems of the great masters in every language, and a vast body of other writings, how- ever freely their authors may have used the thoughts of others, are at once seen to be just as original in a legal as they are in a critical sense. But in every species of com- position, in all literatures, there is of necessity a constant reproduction of what is old, mixed with more or less that is new, peculiar, and original. There are also large classes of works the materials of which are common to all (a) ' Copyright,' chap. 5. 38 THE LAW OF COPYRIGHT. Cap. II. writers, existing in nature, art, science, philosophy, history, statistics, &c, where there must be considerable resem- blances, however independently of each other the different authors may have written. Over this vast field it is impossible to erect an unvarying general rule, which can be fitted to all cases and capable of determining whether a particular work exhibits the degree of originality necessary to a valid copyright. The laws which protect literary property are designed for every species of composition, from the great productions of genius that are to delight and instruct mankind for ages, to the humble compilation that is to teach children the art of numbers for a few years and then to disappear for ever. " Hence these laws must be so administered that every literary labourer shall find in them an adequate protection to whatever he can show to be the product of his own labour. Something he must show to have been produced by himself; whether it be a purely original thought or principle unpublished before, or a new combination of old thoughts, and ideas, and sentiments, or a new application or use of known and common materials, or a collection, the result of his industry and skill. In whatever way he claims the exclusive privilege accorded by these laws, he must show something which the law can fix upon as the product of his, and not another's, labour. But in order that the law should do this ample justice, in the great variety of claimants, it is necessary that its rules should be capable of adaptation to the objects of their labours. They must include in their range everything that can be justly claimed as the peculiar product of individual efforts ; otherwise they would exclude from the benefit of literary property objects which are as clearly the product of indi- vidual labour as the most original thoughts ever written, namely, new and important combinations and arrange- ments or collections of materials known and common to all mankind." Copyright The law does not require that the subject of a book may exist in a should be new> but that the met h d f treating should WHAT MAY BE THE SUBJECT OF COPYRIGHT. 39 have some degree of originality about it (a). Copyright Cap. II. may be claimed by an author of a book who has taken new arrange- existing materials, from sources common to all writers, and ment or in arranged and combined them in a new form, and given additions. them an application unknown before. For in making the selection, arrangement, and combination, he has exercised skill and discretion, and in producing thereby something that is new and useful he is entitled to the exclusive enjoy- ment of his production. Books made and composed in this manner are there- fore the proper subjects of copyright ; and the author of such a book has as much right in his plan, arrangement, and combination of the materials collected and presented, as he has in his thoughts, sentiments, reflections and opinions, or in the modes in which they are therein expressed and illustrated ; but he cannot prevent others from using the old material employed in such combination for a different purpose (b). In the case of ' Gray's Poems,' which had been for • Gray's many years published and were afterwards collected by a Poems -' Mr. Mason, and reprinted with the addition of several new poems, the Lord Chancellor granted an injunction against a defendant who had copied the whole, though the plaintiff had but a copyright in the additions (c). But where the plaintiff had published a book of roads ' Patterson's of Great Britain, comprising Patterson's book, to the copy- oa °° ' right of which the plaintiff was not entitled, with im- provements and additions obtained by actual survey and otherwise, the court refused an injunction to restrain a publication of an edition of Patterson comprising the plaintiff's improvements and additions. The Lord Chan- fa) Gary v. Longman, 1 Bast, 358 ; Sayre v. Moore, ibid. 361 ; Tonson v. Walker, 3 Swans. 672 ; Tonson v. Collins, 1 W. Bl. 321 ; Gary v. Faden. 5 Ves. 24 ; Motte v. FalJcner, cited 1 W. Bl. 331 ; King v. Seed, 8 Ves. 223, n. ; Hogg v. Kirby, 8 Ves. 215 ; Longman v. Winchester, 16 Ves. 269 ; Lewis v. Fullarton, 2 Beav. 6 ; Leader v. Purday, 7 C. B. 4 ; Barfield v. Nicholson, 2 Sim. & Stu. 1 ; Jarrold v. Houlston, 3 K. & J. 708 ; Emerson v. Davies, 3 Story (Amer.) 768 ; Atwill v. Ferrett, 2 Blatch. (Anier.) 46 ; Bartlett v. Crittenden, 5 McLean (Amer.) 32. As to musical compositions see Reed v. Carusi, 8 Law Eep. O.S. (Amer.) 411. (6) Clifford, J., Lawrence v. Dana 2 Am. L. T. E. (N.S.) 423. (c) Mason v. Murray, cited 1 East, 360. 40 THE LAW OF COPYRIGHT. Cap. II. Accounts of natural curiosities, &c. cellor asked what right had the plaintiff to the original work, and said that if he were to do strict justice he should order the defendants to take out of their book all they had taken from the plaintiff, and, reciprocally, the plaintiff to take out of his all he had taken from Patterson (a). If a person compiles an account of natural curiosities or of works of art, or of mere matters of statistical or geographical information, his own description may be the subject of copyright (6). It is equally competent, however, for any person to compile and publish a similar work ; but it must be made substantially new and original, like the first work, by resort to the original sources, and must not be simply a copy or adaptation from the other, under the impression that the subject is common (e). (a) Cary v. Faden, 5 Ves. 24. (6) In like manner, the Court of Cassation, in France, decided that a compilation may be the subject of copyright, under the law of July 19, 1793. The book was a devotional work, consisting of extracts from the devotional writings of eminent churchmen, arranged in a particular manner, with reference to the festivals of the Church. The correctional tribunal at Lyons decided that the law of July 19, 1793, extended the privileges of authorship only to those who can strictly be called authors — to those who could claim the first conception of a work of literature or art — and not to one who had only copied from the works of others. They held that the compiler of this book, had only copied passages from the works of others, with slight verbal alterations and additions, and that neither these nor the plan and arrangement of the book gave it the character of a new work, because the greater part of it, which was copied, and was therefore publici juris, drew to itself the lesser part, which was really new, and attached to it the same condition of publicity. From this decree the proprietor appealed to the Court of Cassation : and M. Merlin, arguing against the decree, contended that the law applied not merely to works the fruit of the conceptions of genius, but also to the productions of intelligence ; and that the decree confounded a compilation which is the fruit of taste, intelligence, and exquisite and ingenious combination and arrangement, with a compilation which implied nothing but an expenditure of time and research, and an indefatigable patience in copying word for word. He maintained that under this decree the Pandects of Pothier would be no subject of property, but would be open to the first occupant. The court held that the law extends to selections, compilations, and other works of that nature, when they require in their execution, discernment, taste, learning, and intelligent labour ; when, in short, instead of being simply copies from one or more other books, they are at the same time the pro- duct of conceptions foreign and of conceptions peculiar to the author, in the union of which the matter receives a new form and a new character. The work in question possessed these characteristics, and the decree of the court of first instance was therefore annulled: Merlin, Rep. de Jurisp. tit. Contrefacon, torn 3, pp. 701, 708, cited Curtis on Copyright, p. 184. (c) Eogg v. Kirby, 8 Ves. 215 ; ■Eotten v. Arthur, 1 H. & M. 603 ; 32 L. J. (Ch.) 771 ; 11 W. JR. 931 ; 9 L. T. (N.S.) 199 ; and in a Scotch case it was WHAT MAY BE THE SUBJECT OF COPYRIGHT. 41 If a man makes an actual survey of certain roads, and Cap. II. depicts such roads on a map, though his map might, and probably would, correspond with many which had pre- viously been published, it would be hard to say that it was not a new work. In such a case it is not a question of the mind, like the 'Essay on the Human Under- standing ;' it lies in medio ; every man with eyes can trace it, and the whole merit depends upon the accuracy of the observation ; every description will therefore be in a great measure original (a). If this be so, every edition will be a new work if it differs as much from the last edition as it does from the last precedent work ; either all are original works or none of them. It is an extremely difficult thing to establish identity in a map or a mere list of distances ; but there may be originality in casting an index, or pointing out a ready method of finding a place in a map (b). The composing receipts or arranging them in a book Receipt books, will give a copyright to the compiler; but the mere col- lecting them and handing them over to a publisher will not (e) ; nor will the mere copying that which is public property, for there is nothing in such case to represent authorship on the part of the editor. However, if there be some new arrangement or classification of the subject, or the copy be at all varied, then a copyright may exist in it (d), provided the variation be not merely colourable (e). Thus, where the defendant had used four charts pub- Similitude be- tween maps. held that the directors of the Customs Annuity and Benevolent Fund have a copyright or right of property in the publication •' The Clyde Bill of Entry and Sbipping List,' entitling them to protection against piracy : Walford v. Johnston, 3rd June, 1846; 20 Sess. Cass. 1160. See Maclean v. Moody, 23 June, 1858, 20 Sess. Cas. 1154. (a) See Lord Jeffrey's observations in Alexander v. Mackenzie, 9 Sess. Cass. (N.S.) 758 ; Blunt v. Patten, 2 Paine (Amer.) 393. (6) Carnan v. Howies, 2 Bro. C. C. 80 ; Taylor v. Bayne, Mor. Diet, of Dec. in Ct. Sess. vols. 19, 20, 8308 ; ibid. App. pt. I, 7 ; Alexander v. Mackenzie, supra. (c) Bundal v. Murray, Jac. 314, per Lord Eldon; Matthewson v. Stock- dale, 12 Ves. 270. (eZ) Newton v. Cowrie, 4 Bing. 234. (e) Matthewson v. Stockdale, supra ; Barjield v. Niclwlson, 2 Sim. & Stu. 1. 42 THE LAW OF COPYRIGHT. Cap. II. lished by the plaintiff in making one large map, but there were very important differences between them, much in favour of the defendant's, and the evidence showed the plaintiff's charts to be founded on a wrong principle, Lord Mansfield left it to the jury to say whether the alteration was colourable or not. " There must be such a similitude," said he, "as to make it probable and reason- able to suppose that one is a transcript of the other, and nothing more than a transcript. So in the case of different prints ; no doubt different men may take engravings from the same picture. The same principle holds with regard to charts ; whoever has it in his intention to publish a chart may take advantage of all prior publications." " You are told, that there are various and very material altera- tions — the chart of the plaintiff is upon a wrong principle, inapplicable to navigation — the defendant, therefore, has been correcting errors, and not servilely copying. If you think so, you will find for the defendant ; if you think it is a mere servile imitation, and pirated from the other, you will find for the plaintiff" (a). And in Matthewson v. Stockdale (b) Lord Eldon said, " I admit that no man can monopolize such subjects as the English Channel, the Island of St. Domingo, or the events of the world ; and every man may take what is useful from the original work, improve, add, and give to the public the whole, comprising the original work, with the additions and improvements " (c). Component Protection is not given to the component parts of a corn- compilation pilation independently of their arrangement and combina- not protected t j on- Of the component parts the compiler is not the author, apart from x . .... the arrange- and he could not acquire an exclusive right to that which is common to all, neither can the arrangement or com- bination apart from the materials arranged or combined be the subject of protection (d). The copyright vests in (a) Sayre v. Moore, 1 East, 361, n. (b) 12 Ves. 275 ; Wilkins v. Aikins, 17 Ves. 422. (o) And see Sir L. Shadwell in Martin v. Wright, 6 Sim. 298. This case can scarcely be reconciled with subsequent decisions, see Mawman v. Tegg. 4 Kuss. 3S5, and Mr. Justice Story in Mmerson v. Davies, 2 Story, 768, 797. (d) Thus a subsequent writer cannot be held to have infringed a book ment. WHAT MAY BE THE SUBJECT OF COPYRIGHT. 43 the materials as arranged and combined, not in the form cap. ii. or the substance apart the one from the other, but in the union of the two. It follows from what has been said above, that a person Mathematical may have copyright in mathematical tables actually calcu- tables - lated by himself, although on a fresh calculation the same tables would result from the same data and the same principles, and although they may have previously been published before his appeared (a). Selections of poems or prose compositions, and collections Selections of of proverbs, maxims, quotations, hymns, &c, may be the poerns ' c - subjects of copyright. The copyright of private letters forming literary com- Copyright in positions is in the composer, and not in the receiver, who prlva e e has only a special property in them ; " possibly the pro- perty of the paper may belong to him, but this does not give a licence to any person whatever to publish them to the world, for at most the receiver has but a joint property with the writer " (6). The right of the writer of the letter to prevent its publication is not founded on con- siderations of policy or social ethics, but on the principle of property. " The question will be," said Lord Eldon, " whether the bill has stated facts of which the court can take notice as a case of civil property which it is bound to protect. The injunction cannot be maintained on any principle of this sort, that if a letter has been written in the way of friendship, either the continuance or the dis- continuance of that friendship affords a reason for the where he has not borrowed any of the materials of which his book is com- posed, but has simply adopted the same arrangement. (a) Bailey v. Taylor, 3 L. J. 66 ; 1 Euss. & My. 73. (6) Per Lord Hardwicke, Pope v. Carl, 2 Atk. 342 ; Perceval v. Phipps, 2 V. & B. 19 ; Forrester v. Walker, 4 Burr. 2331 ; Webb v. Rose, ibid. 2330 ; Macklin v. Richardson, Amb. 694 ; Duke of Queensbury v. Shebbeare, 2 Eden, 329 ; Millar v. Taylor, 4 Burr. 2303 ; Donaldson v. Becket, 2 Bro. P. C. 129; Oliver v. Oliver, 11 C. B. (N. S.)139; Gadell v. Stewart, Mor. Diet, of Dec. vols. 19, 20, App., Lit. Prop. 13 ; Palin v. Gathercole, 1 Coll. 565 ; Folsom v. Marsh, 2 Story (Amer.) 100 ; Boosey v. Jeffreys, 6 Exch. 583, per Lord Campbell. See Hoplcinson v. Lord Burghley, L. B. 2 Ch. 447. If the solicitor of a company writes a letter apparently on behalf of the company, he is not entitled to prevent its publication, although he swears it was written in his private capacity : Howard v. Gunn, 32 Beav. 462. 44 THE LAW OF COPYRIGHT. Cap, ii. interference of the court (a)." If a letter by any means gets back into the hands of the sender the receiver is entitled to recover it from him by action. In Oliver v. Oliver the facts were as follows. The plaintiff and defendant were brothers. The letters for the recovery of which the action was brought, related to family affairs. They were written and sent by the defendant to the plaintiff, — had been given back by the plaintiff to the defendant, and proof was given of a demand and refusal to restore them. There was contradictory evidence as to whether the letters had been given by the plaintiff to the defendant to be kept by him as his own property, or whether they had been merely handed to the defendant as custodian, to be re-delivered to the plaintiff on request. The learned judge told the jury that the receiver of a letter had such a property in the paper as to entitle him to maintain an action against the sender, if, by any means, it got back into his hands ; and that it was for them to say whether the letters in question had been given to the defendant that he might retain them as his own property, in which case the defendant would be entitled to their verdict, or whether they were merely deposited with him to take care of them for the plaintiff, in which case the latter would be entitled to the verdict. Erie, C. J., in refusing a rule for a new trial, upheld this direction, and said : " In the case of letters, the paper at least becomes the property of the persons receiving them. Of course it is necessary to dis- tinguish between the property in the paper and the copy- right. The former is in the receiver, the latter is in the writer" (b). The letters of Pope (c), Swift, and others, and the letters of Lord Chesterfield (d), were prevented from a surreptitious and unauthorized publication by injunction, on the ground of copyright in their authors. Lord Hard- wicke, in Pope's Case, thought it would be extremely (a) Gee v. Pritchard, 2 Swans. 413. (6) See Howard v. Gunn, 32 Beav. 4(32 ; 2 N. R. 256. (c) 2 Atk. 342. (d) Thompson v. Stanhope, Amb. 737. WHAT MAY BE THE SUBJECT OP COPYRIGHT. 45 mischievous to draw a distinction between a book of Cap. II. letters, which, came out into the world either by the permission of the writer or the receiver of them, and any other learned work. The same objection would, he thought, hold good against sermons which the author may never have intended to be published, but have been obtained from loose papers and brought out after his death. In the case of the Harl of Granard v. Dunhin (a) the executors of Lady Tyrawley obtained an injunction in the first instance against the defendant publishing letters to Lady Tyrawley from different correspondents, and which he had got possession of by being permitted to reside in her house, and continuing to do so after her death. In 1804 the Court of Session in Scotland interdicted, at the instance of the children, the publication of the manuscript letters of the poet Burns (&). In the case of Perceval v. Phipps, though the Vice- Distinction Chancellor, Sir Thomas Plumer, held that private letters merciaTor " 1 " having the character of literary compositions were within friendly letters the spirit of the Act protecting literary property, and that compositions. by sending a letter the writer did not give the receiver the right to publish it, yet the court would not interfere to restrain the publication of commercial or friendly letters, except under circumstances (e) ; " for," said he, " though the form of familiar letters might not prevent their ap- proaching the character of literary works, every private letter, upon any subject, to any person, is not to be described as a literary work, to be protected upon the principle of copyright. The ordinary use of correspond- ence by letters is to carry on the intercourse of life between persons at a distance from each other in the prosecution of commercial or other business, which it would be very (a) 1 Ball & Beattie, 207. (&) Cadell & Dames v. Stewart, cited 1 Bell's Com. 116, n., cited 2 Kent's Com. 381. (o) 2 V. & B. 19 ; see Wetmore v. Scoville, 3 Edw. Ch. (Amer.) 515 ; Boyt v. Mackenzie, 3 Barb. Ch. (Amer.) 320 ; but see Woolsey v. Jitdd, 4 Duer (N. York) 379 ; and Eyre v. Higbie, 35 Barb. (N. York) 502. 46 THE LAW OF COPYRIGHT. Cap. II. extraordinary to describe as a literary work in which the writers have a copyright (a). No such dia- Non nostrum est tantas eomjoonere lites ; yet this distinc- preseirt time tion appears to us to have but little foundation, and seems admitted. to have existed merely in the imagination of Sir Thomas Plumer. It is true that a court of equity cannot interfere to prevent the publication of private letters simply on the ground that such a publication, without the consent of the writer, as a breach of confidence, and social duty, is injurious to the interests of society; but solely on the ground that the writer has an exclusive property which remains in him, even where the letters have been trans- mitted to the person to whom they were addressed. A court of equity is not the general guardian of the morals of society. It has not an unlimited authority to enforce the performance or prevent the violation of every moral duty. It would be extravagant to say that it may restrain by an injunction the perpetration of every act which it may judge to be corrupt in its motives or demoralising or dangerous in its tendency. An injunction can never be granted unless it is apparent to the court that the personal legal rights of the party who seeks its aid are in danger of violation, and, as a general rule, that the injury to result to him from such violation, if not prevented, will be irreparable. Motives why The sole foundation is the right which every man has shouhfbe 10n to tne exclusive possession and control of the product of drawn. his own labour. Why should a writing of inferior com- position be precluded from being a subject of property (b) ? (a) •' Another class is the correspondence between friends or relations, upon their private concerns ; and it is not necessary here to determine how far such letters falling into the hands of executors, assignees of bankrupts, &e., could be made public in a way that must frequently be very injurious to the feelings of individuals. I do not mean to say that would afford a ground for a Court of Equity to interpose to prevent a breach of that sort of confidence independent of contract and property." Perceval v. Phipps, 2 V. & B. 19. (b) School books for teaching children are entitled to protection. See Lennie v. Pillans, 5 Sess. Cas. 2nd series, 416 ; Constable & Co. v. Brewster, 3 S. 215 (N. B. 152). So are abstracts and indices of title to land, so long as the compiler retains the ownership of the unpublished manuscript: Banker v. Caldwell, 3 Min. (Amer.) 94. WHAT MAY BE THE SUBJECT OF COPYRIGHT. 47 To establish a rule that the quality of a composition must Oaf. II. be weighed previous to investing it with the title of property, would be forming a very dangerous precedent. What reason can be assigned why the illiterate and badly spelt letters of an uneducated person should not be as much the subject of property as the elegant and learned epistles of a well-known author ? The essence of the existence of the property is the labour used in the concoc- tion of the composition, and the reduction of ideas into a tangible and substantial form ; and can it be contended that the labour is less in the former than the latter case ? Every letter is, in the general and proper acceptation of the term, a literary composition. It is that, and nothing else ; and it is so, however defective it may be in sense, grammar, or orthography. Every writing in which words are so arranged as to convey the thoughts of the writer to the mind of the reader is a literary composition ; and the definition applies just as certainly to a trivial letter as to an elaborate treatise or a finished poem. Literary com- positions differ widely in their merits and value, but not at all in the facts from which they derive their common sense (a). Printing and publishing cannot make a book " literary " which was not so in manuscript ; and consequently, the author of a book (for the same doctrine would apply to a book as to a private letter) which may be of a private nature, and not considered as " a literary composition," ought to be excluded from the benefit of the Acts confer- ring copyright. But surely it is not contended that the copyright of an author should be liable to impeachment and frustration by reason of an inquiry into the merits or value of his work as published. The exclusive right which alone a court of equity is The author's bound to protect, and which, from its nature can only be "^ ^lrae" protected by an injunction, is the author's right of pro- protected by perty in the words, thoughts, and sentiments which, in their connection, form the written composition — which his (a) 2 Story's Rep., cited Woolsey v. Judd, 4 Duer (N. York) 379. 48 THE LAW OF COPYRIGHT. Cap, II. manuscript embodies and preserves. This composition — whether, as such, it has any value or not, is immaterial — is his work, the product of his own labour, of his hand, and his mind ; and it is this fact which gives him the right to say that, without his consent, it shall not be pub- lished, and makes it the duty of a court of equity to pro- tect him in the assertion of that right by a permanent injunction. Of this it is a conclusive proof that the right to control the publication of a manuscript remains in the author and his representatives, even when the material property has, with his own consent, been vested in an- other. The gift of the manuscript, it is settled, unless by an express agreement, carries with it no licence to publish (a). Lord Eldon's Lord Eldon intimates in Gee v. Pritchard (b) that he case of* ° 6 does no * understand the Vice-Chancellor, in the case of Perceval v. Perceval v. Phipps, as denying the property of the writer in the letters, but that he appears to have inferred, from the particular circumstances of that case, that the plaintiff had authorized, and for that reason could not complain of, the publication. "I will not say," he adds, "that there may not be a case of exception, but if there is, the exception must be established on examination of the letters ; and I think that it will be extremely difficult to say where that distinction is to be found between private letters of one nature and private letters of another nature." Mr. Justice Story strongly asserts the propriety of the jurisdiction by injunction for the purpose of restraining the publication of private letters. He thinks the doctrine but sound and just, that a court of equity ought to inter- fere where a letter, from its very nature, as in the case of matters of business, or friendship, or advice, or family or private confidence, imports the implied or necessary inten- tion and duty of privacy and secrecy ; or where the publi- (a) Duke of Queensbury v. Shebbeare, 2 Eden, 329 ; Thompson v. Stan- hope, Arab. 737. (b) 2 Swans. 418, 426, 427. See Brandrcth v. Lnnce, 8 Paige's R, (Araer.) 24, 26. Mr. Story's opinion. WHAT MAY BE THE SUBJECT OF COPYRIGHT. 49 cation would be a violation of trust or confidence founded cap. II, in contract, or implied from circumstances (a). Cicero has with great force thus spoken of the grossness of such offences against common decency : " Quis enim imquam, qui paulum modo honorum consuetudinem nosset, litems, ad se ah amico missas, offensione aliqua interpositd, in medium protulit, palamque recitavit? Quid est aliud tollere e vita vitse soeietatem, tollere amicorum colloquia absentium ? Quam multajoca solent esse in epistolis, quee, prolata si sint, inepta videantur ! Quam multa seria, neque tamen ullo modo divulganda ! " (b) With these natural feelings on the broach of epistolary Principles on confidence the determinations of the Court of Session determina- in Scotland have accorded (e) ; but it must be borne tions of the in mind that that court is held to have jurisdiction s ess i n have by interdict to protect, not property only, but reputa- proceeded, tion from injury, and private feelings from outrage and invasion (d). Courts of equity will, notwithstanding what we have Ground on already intimated, sometimes interfere to stay the publi- ^ equitywill cation of letters, on the ground that the publication is frequently a breach of contract or confidence; and a fortiori, when they are intended to be made a source of profit ; for then it is not a mere breach of confidence or contract, but it is a violation of the exclusive copyright of the writer. Thus, upon the principle of breach of contract, an injunc- tion was granted to prevent the publication of letters written by an old lady to a young man, to whom she had been foolishly attached, there being an agreement not to (o) Story's Com. on Eq. Jur. ss. 947-949. (b) Cic. Orat. Philipp.u. c. 4. See Sir S. Eomilly, 2 Swans. 419. (e) So it was held in VodsUy v. HPFarquhar, Feb. 27, 1775, relative to the publication of Lord Chesterfield's Letters : Mor. Diet, of Dec., Lit. Prop., App. 1, 5 ; Br. Sup. 509 ; and again more solemnly in Cadell and Davies v. Stewart, June 1, 1804, Mor. Diet, of Dec, Lit. Prop., App. 4. Ibid. But see, 5 Pat. 493. Here letters written by Burns to a lady whom he distinguished by the name of Clarinda, had been by her given to Stewart, a, bookseller, who published them. The family of Burns, as interested in his literary reputation, were found entitled to an interdict : Bell's Com. (d) Bell's Com. b. 2, pt. 2, c. 4. E 50 THE LAW OF COPYEIGHT. Cap. II. publish the letters, but to deliver them up for a valuable consideration (a). Were the court to interfere on any other principle than that already stated, individuals would be deprived of their defence in proving agency, orders for goods, the truth of an assertion, or some other fact, merely because the testimony establishing the true and genuine circum- stances was contained in letters in which a pretended copyright was claimed (V). Instances in Accordingly an injunction obtained on account of agency publication of and confidence was dissolved by the court when the answer private letters denied confidence, and avowed that the defendant's ob- nas been permitted. ject in publishing them in a newspaper, of which he was the proprietor, was not to obtain profit, but to vindicate his own character from the imputation of having pub- lished false intelligence publicly cast on him by the plaintiff; for defective and injurious indeed would be the effect of a law permitting not the publication or pro- duction of business letters when necessary for one's own defence (c). Not permis- The receiver of a letter, however, will not be permitted pmpoaeof e to publish it for the purpose of representing to the public representing as true that which he has, in legal proceedings upon that which has very question, admitted to be false. The case of Palm v. tobe feise tted ® ai hercole (d) elucidated this point. The circumstances of that case were these : Palin, the plaintiff, had written to Gathercole, the defendant, who was the editor of a newspaper, certain letters containing information respect- ing one Noakes, and Gathercole from these letters drew up an article which he published in his newspaper. Noakes brought an action against him for libel, and he compro- mised the action, paying Noakes' costs, and apologizing. (a) Anon. v. Eaton, cited 2 V. & B. 27 ; Perceval v. Phipps, 2 V. & B. 27 ; Earl of Qranard v. Durildn, 1 Ball. & B. 247 ; Story's J£q. Jur. vol. 2, as. 944-950; Denis v. Laclerc, 1 Martin (Amer.), 297; Woolsey v Judd 4 Duer. (N. Y,.rk) 379 ; Eyre v. Higbie, 35 Barb. (N. York) 502. (6) See Godson on Copy. p. 330. (c) Folsom v. Marsh, 2 Story (Amer.) 100 ; see Howard v . Gunn, 32 Beav. 462. (d) 1 Coll. 565. WHAT MAY BE THE SUBJECT OF COPYRIGHT. 51 Gatliercole then claimed of Palin half the costs that he, Cap. II. Gathercole, had so incurred, and Palin refusing to pay them, Gathercole published in his newspaper a statement that the libel upon Noakes was communicated to him, Gathercole, by Palin. Palin thereupon brought an action against Gathercole ; and Gathercole pleaded that the matter, however libellous as between Noakes and Gather- cole, was matter of which, as between Palin and Gather- cole, Palin was the author ; but before trial Gathercole submitted to what was, in effect, a general verdict, esta- blishing in substance, as Vice-Chancellor Knight Bruce expressed it in his judgment, that the libel published by Gathercole on Noakes was not a libel which Palin had communicated to Gathercole. Gathercole then proceeded to shew Palin's letters to third persons, upon which Palin filed his bill for an injunction to restrain Gathercole from publishing or showing the letters, and obtained an em parte injunction. The use which Gathercole desired to make of the letters was, it will be observed, to esta- blish the fact that Palin was the author of the libel upon Noakes, the very fact which he had, by submitting to the general verdict in Palin's action, admitted not to exist. Under those circumstances, the court refused to dis- solve the injunction, permitting, however, the defendant to exhibit the letters to his solicitors and counsel in the cause. Communications received from correspondents by editors Communiea- or proprietors of periodical publications (if sent impliedly edltorsTof 4 ° or expressly for the purpose of publication) become the periodicals, property of the person to whom they are directed, and cannot be published by any other person obtaining pos- session of them (a). The editor or proprietor, however, of any such periodical may not publish them if, previous to publication, the writer expresses his desire to withdraw them (b) ; but though the editor may not publish them (a) 8 Ves. 215. (6) Davis v. Miller, July 28, 1855 ; 17 Dec. of Ct. of Scss. 2nd Series, 1 166. See 1 Jur. (N.S.) pt 2, 523. E 2 52 THE LAW OF COPYEIGHT. Cap. II. What is a publication of private letters ? Letters writ- ten by one person for or on behalf of another. he is not bound to preserve them for the benefit of the writers, but may destroy them. To make any public use of the production is to publish it. Hence a letter may be published not only by printing it, but also by reading it in public, or by circulating copies of it, though such copies be in manuscript. Any such public use of the letter, without the consent of the writer, is a violation of his rights. But the receiver may, if he wish, destroy the letter as soon as received, and there is nothing to prevent him giving them to another, or reading them to others, or lending them to others to be read, pro- vided such reading or lending does not amount to a publication. Letters written by one person employed by another, and relating to the business affairs of the latter, will rightly be considered as the property of the employer who pays the writer for his services. Thus it has been held that the letters which an officer of an insurance company had written in the discharge of his official duties became the property of the company (a). " If the solicitor of an assurance company, established in London," said the Master of the Rolls in the case cited ; " by the direction of the directors, wrote a letter to one of the shareholders in the country, it is clear that such letter is not the property of the solicitor, and that he cannot say that the company have not a right to publish it. Take it a step further, and assume that the solicitor wrote a letter, but not by the direction or on behalf of the directors, though it had all the appearance of being written on their behalf, and by their direction. Thus, if it were written to a person who proposed to take shares in the company, and it related to the affairs of the company, and contained authoritative information on behalf of the company in answer to an ap- plication for shares, and the person who receives it treats it as such, and sends back to the company, objecting to its contents, shall the solicitor be allowed to complain of its publication, and to insist that it is a private letter, though (a) Howard v. Gunn, 32 Beav. 462. "WHAT MAY BE THE SUBJECT OF COPYRIGHT. 53 it appears to be written on behalf of the directors ? The Cap. II. answer is, if that be so, it ought not to have been written. It has all the appearance of having been written by the plaintiff on their behalf, and Jamieson [the person to whom it was written] so treats it, for he writes to the manager in answer to it. Can the plaintiff be allowed to say that the company have no right to publish it ? and if they have, is not the defendant entitled, as regards the plaintiff, to bring it forward ? It is obvious that this was not a private letter, and was not intended to be a private letter." The government has, moreover, a right to publish or to Power of withhold all letters addressed to the public offices (a), f^^Tor This exception in favour of the government is not supposed withhold to make such communications common property, to be published by any person who may see fit, without the sanction of the government, nor to take away the property of the writers or their representatives. "In respect to official letters addressed to government," observed Mr. Justice Story in Folsom v. Marsh (6), "or any of its de- partments, by public officers, so far as the right of the government extends from principles of public policy to withhold them from publication, or to give them publicity, there may be a just ground of distinction. It may be doubtful whether any public officer is at liberty to publish them, at least in the same age, when secrecy may be required by the public exigencies, without the sanction of the government. On the other hand, from the nature of the public service, or the character of the documents, embracing historical, military, or diplomatic information, it may be the right, and even the duty, of the government, to give them publicity, even against the will of the writers. But this is an exception in favour of the govern- ment, and stands upon principles allied to, or nearly similar to the right of private individuals, to whom letters are addressed by their agents, to use them, and publish (a) Curtis on Copy. 98. (V) 2 Story (Amer.) 100. 54 THE LAW OF COPYRIGHT. Cap. ii. them, upon fit and justifiable occasions. But assuming the right of the government to publish such official letters and papers, under its own sanction, and for public purposes, I am not prepared to admit that any private persons have a right to publish the same letters and papers without the sanction of the government for their own private profit and advantage. Kecently the Duke of Wellington's despatches have, I believe, been published by an able editor, with the consent of the noble duke and under the sanction of the government. It would be a strange thing to say, that a compilation involving so much expense and so much labour to the editor in collecting and arranging the materials, might be pirated and republished by another bookseller, perhaps to the ruin of the original publisher and editor. Before my mind arrives at such a conclusion, I must have clear and positive lights to guide my judg- ment, or to bind me in point of authority." Copyright ia Copyright may be had in lectures. Lectures are gene- rally more or less literary productions — frequently the result of much thought and research. They are con- tinually being published in the form of books and pamphlets — such publications being in many cases of great value, and it would be unjust and impolitic to deprive lecturers or other persons of the power of securing an exclusive right to their addresses, scarcely less so than to deprive authors generally of copyright in their pro- ductions. If a lecture has been reduced wholly or partially into writing, the author has a right of property in it; but when a court of equity is called upon to restrain the publication of such a lecture, the writing must be produced, that the court may compare the original composition with the piracy. The admission of persons to hear such a lecture affords no presumption that the speaker intends to give them a right to publish the information they may acquire. When the lecture is orally delivered it is difficult to say that an injunction can be granted upon the same principle as that upon which an injunction is issued in the case of a literary WHAT MAY BE THE SUBJECT OF COPYKIGHT. 55 composition ; because the court must be satisfied that the Cap. II. publication complained of is an invasion of the written work, and this can only be done by comparing the com- position with the piracy. It does not, however, follow that because the information communicated by the lecturer is not committed to writing, but orally delivered, it is therefore within the power of the person who hears it to publish it (a). On the contrary, Lord Eldon, in Aberneihy v. Hutchinson, observed that he was clearly of opinion that, whatever else might be done with it, the lecture could not be published for profit. When persons are admitted as pupils or otherwise to listen to lectures orally delivered, although they may go to the extent, if desirous and capable, of taking down the whole by means of shorthand, yet they can do that only for the purpose of their own information ; they may not publish. The right of property in lectures, whether written or The Lecture oral, has now been confirmed by statute. The Lecture- Act's 1 !; 6 Copyright Act is the 5 & 6 Will. 4, c. 65. It provides Will, i, c. 65. that, from and after the 1st of September, 1835, the author of any lecture, or the person to whom he has sold or otherwise conveyed the copy in order to deliver the same in any school, seminary, institution, or other place, or for any other purpose, shall have the sole right and liberty of printing and publishing such lecture ; and that if any person shall, by taking down the same in shorthand, or otherwise in writing, or in any other way, obtain or make a copy of such lecture, and shall print or lithograph or otherwise copy and publish the same, or cause the same to be printed, lithographed, or otherwise copied arid pub- lished, without leave of the author thereof, or of the person to whom the author has sold or otherwise conveyed the same, and every person who knowing the same to have been printed or copied and published without such consent, shall sell, publish, or expose to sale, or cause to be sold, published, or exposed to sale, any such lecture, shall forfeit such printed or otherwise copied lecture or (o) Per Lord Eldon, in Abernethy v. Hutchinson, 3 L. J. (Ch.) 209. 56 THE LAW OF COPTEIGHT. Cap. II. parts thereof, together with one penny for every sheet thereof which shall be found in his custody, either printed, lithographed, or copied, or printing, lithographing, or copying, published, or exposed to sale, contrary to the true intent and meaning; of the Act, the one moiety thereof to His Majesty, his heirs or successors, and the other moiety thereof to any person who shall sue for the same. The 2nd section provides that any printer or publisher of any newspaper who shall without such leave as aforesaid print and publish in such newspaper any lecture shall be deemed to be a person printing and publishing without leave within the provisions of the Act, and liable to the aforesaid forfeitures and penalties in respect of such printing and publishing. The 3rd section declares that no person, allowed for a certain fee and reward or otherwise to attend and be present at any lecture delivered at any place, shall be deemed and taken to be licensed, or to have leave to print, copy, and publish such lecture on account merely of having permission to attend the delivery. Lectures not Lectures published by authority, since the publication meaning of °f which the period of copyright therein given by 8 Anne, the Act. Cp i9 ( an( j 54 Q- e0- 3 > c _ i5g ? l^ag expired, and lectures printed and published before September, 1835, are ex- cluded from the protection afforded by the above Act; likewise lectures of the delivery of which notice in writing shall not have been given two days previously to two justices living within five miles of the place of delivery (a) ; and those 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. In consequence of these provisions few lectures are protected by this Act, for seldom is the requisite notice given. And, under this latter clause, it would appear (a) The notice must be given every time such lecture is delivered, and therefore the omission in any one instance to give the requisite notice would render any person at liberty to obtain a copy, which the lecturer would be unable to prevent his publishing. WHAT MAY BE THE SUBJECT OF COPYRIGHT. 57 that sermons delivered by clergymen of the Established Cap. II. Church, in endowed places of public worship, are deemed public property. It is questionable whether copyright applies under this Act to lectures merely orally delivered even when reduced previously into writing ; but with regard to speeches properly so called, or speeches not reduced into writing, there can be no doubt (a). There is nothing in this statute to prevent any person from delivering in public an unpublished lecture without the consent of the author, it only prohibits the printing, copying, publishing, and exposing for sale, though the delivery would seem to be an infringement of the author's common law rights in the manuscript (6). In France, the cour royale of Paris had before it in 1828 the interesting question whether, when a course of oral lectures is merely the reproduction of a work pre- viously published by the professor, a person who publishes the lectures from notes taken by a stenographer, can be made responsible for a piracy to the publisher of the work thus reproduced, the decision of the question was given in the affirmative (c). The alterations in the law suggested by the recent Alterations report of the Eoyal Commissioners on Copyright are set c"|fright by forth in the 84th and three following paragraphs. Commia- They are of opinion that the author's copyright should extend to prevent re-delivery of a lecture without leave as well as publication by printing, though this prohibition as to re-delivery they consider should not extend to (a) See ' Edinburgh Eeview,' October, 1854. (6) In an American case, Keene v. Kimball, 16 Gray (82 Mass.) 55i. Hoar, J., said : " The student who attends a medical lecture may have a perfect right to remember as much as he can, and afterwards to use the information thus acquired in his own medical practice, or to communicate it to students or classes of his own, without involving the right to commit the lecture to writing, for the purpose of subsequent publication in print or by oral delivery. So any one of the audience at a concert or opera may play a tune which his ears have enabled him to catch, or sing a song which he may carry away in his memory, for his own entertainment or that of others, for compensation or gratuitously, while he would have uo right to copy or publish the musical composition." (o) See Renouard, torn. 2, p. 146, cited Curtis on Copy. 103. 58 THE LAW OP COPYEIGHT. Cap. II. lectures which have been printed and published. They also recommended that the term of copyright in lectures should be the same as in books, namely, the life of the author and thirty years after his death. "In the course of our inquiry," they report, "it has been remarked that, in the case of popular lectures, it is the practice of newspaper proprietors to send reporters to take notes of the lectures for publication in their newspapers, and that, unless this practice is protected, it will become unlawful. It does not seem to us desirable that this practice should be prevented, but on the other hand the author's copyright should not in any way be prejudiced by his lectures being reported in a newspaper. The author should have some sort of control, so as to prevent such publication if he wishes to do so ; and we, therefore, suggest that though the author should have the sole right of publication, he should be presumed to give permission to newspaper proprietors to take notes and repprt his lecture, unless, before or at the time when the lecture is delivered, he gives notice that he prohibits reporting. " By the present law, a condition is imposed of giving notice to two justices. Without entering into the origin of this provision we find that it is little known, and probably never or very seldom acted upon ; so that the statutory copyright is practically never or seldom acquired. We therefore suggest that this provision should be omitted from any future law. " We do not suggest any interference with the excep- tion made in the Act as to lectures delivered in universities and elsewhere, wherein no statutory copyright can be acquired." The commissioners also thought that in case of piracy either by publication or re-delivery without the author's consent, there should be penalties recoverable by summary process, and that the author should be capable of recover- ing damages by action in case of serious injury, and of obtaining an injunction to prevent printed publication WHAT MAY BE THE SUBJECT OP COPYRIGHT. 59 or re-delivery. If the piracy were committed by printed cap. ii. publication they were of opinion that the author should also have power to seize copies (a). Copyright may likewise exist in a genuine and just Copyright in abridgment, for it is said that an abridgment may with a ri gmen s ' great propriety be called a new book (6). To constitute a true and equitable abridgment the What oonsti- entire work must be preserved in its precise import and abridgment. exact meaning, and then the act of abridgment is an exertion of the understanding, employed in moulding and transfusing a large work into a small compass, thus rendering it less expensive, and more convenient both to the time and use of the reader. Independent labour must be apparent, and the reduction of the size of a work by copying some of its parts and omitting others, confers no title to authorship ; and the result will not be an abridg- ment entitled to protection. To shorten a work by leaving out the unimportant parts is not to abridge it in a legal sense. To abridge in the legal sense of the word is to preserve the substance, the essence of the work, in language suited to such a purpose ; language substantially different from that of the original. To make such an abridgment requires the exercise of the mind; labour, skill, and judgment are brought into play, and the result is not merely copying. In the case known as Newherys (e), Lord Chancellor Apsley, having spent some hours in consultation with Mr. Justice Blackstone, decided that an abridgment, where the understanding is employed in retrenching un- necessary and uninteresting circumstances which rather deaden the narration, is not an act of plagiarism upon the original work, nor against any property of the author in it, but an allowable and meritorious work. It requires both invention and judgment, and displays frequently a deal (o) Para. 181. (b) Bell v. Wallcer, 1 Bro. C. C. 451. An abstract also was held no piracy : Dodsley v. Kinnersley, Arab. 403 ; 4 Esp. 168 ; 1 Camp. 94. (c) Lofft. 775 ; Dodsley v. Kinnersley, supra ; Butterworth v. Robinson, 5 Ves. 709. 60 THE LAW OF COPYRIGHT. Cap. II. of learning. Lord Hardwicke thus states the rule (a) : — "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 in- vention, learning, and' judgment of the author is shewn in them, and in many cases are extremely useful (b), though in some instances, prejudicial, by mistaking and curtailing the sense of an author." On these considerations the Master of the Bolls refused an injunction to restrain the publication of an abridgment of Dr. Johnson's 'Easselas,' it appearing that not one- tenth part of the first volume had been abstracted, and that the injury alleged to be sustained by the author arose from the abridgment containing the narrative of the tale, and not the moral reflections (c). Considera- The question in such a case must be compounded of criminating a various ingredients: whether it be a bona fide abridgment, londfide or on iy an evasion by the omission of some important abridgment ,,,.,,.. from a piracy, parts, whether it will m its present form prejudice or supersede the original work, whether it will be adapted to the same class of readers, and many other considerations of the same sort, which may enter as elements, in ascer- taining whether there has been a piracy or not. Although the doctrine is often laid down in the books, that an abridgment is not piracy of the original copyright, yet this proposition must be received with many qualifications. Impropriety of The rule appears very unreasonable, and has been the pecting 6 Ie " subject of much criticism by late writers. Why should an abridgments, abridgment, tending to injure the reputation, and to lessen the profits of the author, not be considered an invasion (a) Gyles v. Wilcox, 2 Atk. 141. See also the case of Bead v. Hodges, re- ferred to in Tomon v. Walker, 3 Swans. 672, per Lord Eldon ; Bell v Walker 1 Bro. C. C. 451 ; Tinsley v. Lacy, 11 W. R. 877 ;1E4M. 747. (fc) See Hodges v. Walsh, 2 Ir. Eq. Bep. 266. (c) Amb. 403. WHAT MAY BE THE SUBJECT OF COPYRIGHT. 61 of his property ? (a). In many cases the question may cap. II. naturally turn upon the point, not so much of the quantity ~~ as of the value of the selected materials. As was signifi- cantly said on one occasion : Non nwmerantur ; ponde- rantur. The quintessence of a work may be practically extracted so as to leave a mere caput mortuum, by a selection of all the important passages in a comparatively moderate space. In a late case (&), the Vice-Chancellor, Sir W. P. Wood, considered that the court had gone far enough in the sanction it had given to abridgments, and that it was difficult to acquiesce in the reason sometimes given, that a compiler of an abridgment is a benefactor to mankind, by assisting in the diffusion of knowledge. In the case of Bramwett v. Halcomb (e) it was held that Quantum but the question whether one author has made a piratical use of^^y 6 " 011 of another's work does not necessarily depend upon the quantity of that work which he has quoted, or introduced into his own book. On that occasion Lord Cottenham said, " When it comes to a question of quantity, it must be very vague. One writer might take all the vital part of another's book, though it might be but a small propor- tion of the book in quantity. It is not only quantity, but value, which is looked at. It is useless to look to any particular case about quantity." The general principle is, that the proper object of the copyright is the peculiar expression of the author's ideas, meaning by this, the structure of the work, the sequence of his remarks, and, above all, his language; and that this peculiarity is always distinguishable, as, by a law of nature, every human production is stamped with the idio- syncrasy of the author's mind. If these views be correct, it follows that any abridgment of the work, in the original author's language, is an infringement of his right ; and (a) Lord Campbell's ' Lives of the Chancellors,' vol. 5, chap. 131. (b) Tinsley v. Lacy, 1 H. & M. 747, 754. (c) 3 My. & Cr. 737 ; Bell v. Whitehead, 3 Jur. 68 ; Sweet v. Shaw, 3 Jur. 217 ; Saunders v. Smith, 3 My. & Cr. 711, 728 ; Wheaton v. Peters, 8 Peters. (Amer.) 591 ; Gray v. Russell, 1 Story (Amer.) 11 : Mawman v. Tegg, 2 Euss. 385 ; Butterworth v. Robinson, 5 Ves. 709. 62 THE LAW OF COPYRIGHT. Cap. II, indeed any quotation will be, fro tanto, a violation, unless excused on the ground of its inconsiderable extent, or on the presumed assent of the author, which, in works of criticism, might be justly implied (a). Copyright in Copyright may also be had in a digest. A digest, or a compilation differs from an abridgment. A digest or a compilation consists of selected extracts from different authors ; an abridgment is a condensation of the views of the author. The former cannot be extended so as to con- vey the same knowledge as the original work ; the latter contains an epitome of the work abridged, and conse- quently conveys substantially the same knowledge. The former cannot adopt the arrangement of the works cited; the latter must adopt the arrangement of the work abridged to be a faithful abridgment. The former infringes the copyright if the matter transcribed when published im- pairs the value of the original book, while a fair abridg- ment, though it may injure the original, is, as we have seen, lawful. Head-notes of The digest of a report, usually included in and known repor s. ag ^ e head-note, is a species of property which will re- ceive protection. " The head-note, or the side or marginal note of a report," said Mr. Justice Crowder, in Sweet v. (a) 2 Kent's Com. 382, note ; Curtis on Copy. 252. On the subject of abridgments the Royal Commissioners on Copyright in their recent report say : " Questions frequently arise, with regard to literary works, as to what is a fair use of the works of" other authors in the compilation of books. In the majority of cases these are questions that can only be decided, when they arise, by the proper legal tribunals, and no principle which we can lay down, or which could be defined by the legislature, could govern all cases that occur. There is one form of user of the works of others, how- ever, to which we wiBh specially to draw attention as being capable of some legislative control in a direction we think desirable. We refer to abridg- ments. " At present an abridgment may or may not be an infringement of copy- right, according to the use made of the original work and the extent to which the latter is merely copied into the abridgment ; but even though an abridgment may be so framed as to escape being a piracy, still it is capable of doing great harm to the author of the original work by inter- fering with his market ; and it is the more likely to interfere with that market and injure the sale of the original work if, as is frequently the case, it bears in its title the name of the original author. " We think this should be prevented, and upon the whole we recommend, that no abridgments of copyright works should be allowed during the term of copyright, without the consent of the owner of the copyright." Par . 67-69. WHAT MAY BE THE SUBJECT OF COPYRIGHT. 63 Berming (a), " is a thing upon which much skill and Cap. II. exercise of thought is required, to express in clear and concise language the principles 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 the same principle or rule of law or of practice." It may indeed be considered, perhaps, as in itself a species of brief and condensed report, the reporter furnishing in each case two reports, in one of which he gives the facts, the arguments, and the judgment at length ; and in the other, an abstract of the decision, conveying the principle upon which it is founded and the pith and substance of the case. But whether thus regarded, or viewed in the manner adopted by Mr. Justice Maule, in the above cited case, namely, in the nature of an independent deduction from the report, and a succinct statement of the legal principles involved, or of the doctrine of law established by the decision, there is a sufficient exertion of mental power in the formation to render it substantially a subject of copyright. The right of selecting passages from books of reports Selections (including entire judgments) in treatises upon particular a^jucik- 1 S subjects is not disputed. Had it been otherwise decided, merits, the greater part of our law libraries would be much thinned and attenuated, and we should be deprived of many valuable works ; for a considerable portion consists of mere transcripts from books of report (b). What would become of the elaborate commentaries of modern scholars upon the classics, which, for the most part, consist of selections from the works and criticisms of various former authors, arranged in a new form, and combined together by new illustrations? What would become of the modern treatises upon astronomy, mathe- matics, natural philosophy and chemistry ? What would (a) 16 C. B. 491 ; 1 Jur. (N.S.) 543. Vide JD'Almaine v. Boosey, 1 Y. & C. 288, 301 ; 4 L. J. (N.S.) Ch. 21 ; but there Lord Lyndhurst referred to digests such as Viner's ' Abridgment ' and Comyns' ' Digest.' (jj) See Butterworth v. Robinson, 5 Ves. 709 ; Evans' ' Statutes,' 2nd ed. vol. 2, p. 25. 64 THE LAW OF COPYRIGHT. Cap. II. become of the treatises in our own profession, the mate- rials of which, if the work be of any real value, must essentially depend upon faithful abstracts from the reports, and from juridical treatises, with illustrations of their bearing. ' Blackstone's Commentaries ' is but a compila- tion of the Laws of England drawn from authentic sources, open to the whole profession ; and yet it was never deemed that it was not a work which, in the highest sense, might be considered an original work, since never before were the same materials so admirably combined and exquisitely wrought out, with a judgment, skill and taste absolutely unrivalled (a). Copyright in In a Scotch case the validity of the complainant's copy- forms or right in a collection of legal forms or "styles'' was questioned, on the ground that in preparing them he had simply followed the directions prescribed by the statute ; and that under the circumstances the forms prepared by two or more persons must be substantially the same. The Court held that if the statute had con- tained the forms themselves and the complainant had simply copied them, his copyright would have failed through want of originality. But, as the statute gave simply directions, it was an act of authorship to prepare the forms pursuant to such directions (b). Lord Fuller-ton in the case referred to observed : " It is said that owing to the particular nature of the styles they cannot be the subject of copyright, because they are drawn up precisely after the form prescribed in the statute, and because any styles relating to the same subjects as those given by the complainer must, if the directions of the statutes and phraseology of conveyancers were used, be expressed in the same manner exactly as those proposed by the com- plainer. Now it may be quite true that if the statute had supplied certain forms by which the operations in-, tended to be thereby regulated were to be done, if the statute had contained, as such statutes sometimes do, an (a) Story, J., in Gray v. Russell, 1 Story (Amer.) 17. (b) Alexander v. Mackenzie, 9 So. Sess. Cas. 2nd Ser. 748. WHAT MAY BE THE SUBJECT OE COPYKIGHT. 65 appendix exhibiting certain schedules of forms which it cap. n. was only necessary for any one to copy in order to avail himself of the provisions of the Act, then I hold that the reprinting of such forms in a separate publication would not give him a copyright in these forms. But the case here is different, for the statute only gives very general directions and descriptions of the styles that are to be used. The schedules are very general in their terms, and it is no doubt of great practical importance to suit these general directions to each case falling under the statute as it may arise. The preparing and adjusting of such writings require much care and exertion of mind. As to invention, that is a different thing : it does not require the exercise of original or creative genius, but it requires industry and knowledge." The question has been raised whether there can be Aa to whether copyright in a work not claiming originality in the doc- ex?stni a work trines contained therein (a). And this argument was put no ? Riming forth in the case of Jarrold v. Boulston (b) respecting the doctrines Dr. Brewer's ' Guide to Science,' in which work the author ^^ A does not profess to have made any discovery in science, or to do more than to provide for the young and other persons who have not been in the habit of making ob- servations for themselves, information by which some of the ordinary phenomena of common life may be explained to them on scientific principles, and that they may them- selves be led to observe and to reflect upon those wonder- ful laws of nature, by which the most ordinary phenomena are governed. And it was determined that, 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 those ques- (a) As to the amount of originality required in a musical composition in America, see Jollie v. Jaques, 1 Blatch. (Amer.) 626. It has been there held that a good title to copyright is acquired by representing on a map boundaries of townships which are fixed by statute : Farmer v. Calvert Lithographic Engraving and Map Publishing Co., 5 Am. L. T. K. 168. (6) 3 K. &. J. 708 ; 3 Jur. (N.S.) 1051. 66 THE LAW OF COPYRIGHT. Cap. II. tions, and explanations of those phenomena, whether such explanations and answers are furnished by his own re- collection of his former general reading, or out 'of works consulted by him for the express purpose, the reduction of the 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. No copyright Copyright can only exist in respect of some already has no present published or some composed and not yet published literary existence. production. Therefore there can be no copyright in the prospective series of a newspaper. Copyright may attach upon each successive publication ; but that which has no present existence as a composition cannot be the subject of this species of property (a). The mere declaration of the intention to publish any articles bearing a particular name or mark, even though made public by registration at Stationers' Hall, cannot create a right to the exclusive use of such name or mark. So in the cases of Maxwell v. Hogg, and Hogg v. Maxwell. Messrs. Hogg, in 1863, registered an intended new maga- zine to be called ' Belgravia.' In 1866, such magazine not having appeared, Mr. Maxwell, in ignorance of what Messrs. Hogg had done, projected a magazine with the same name, and incurred considerable expense in pre- paring it, and extensively advertising it in August and September as about to appear in October. Messrs. Hogg knowing of this, made hasty preparations for bringing out their own magazine before that of Mr. Maxwell could appear, and in the meantime accepted an order from Mr. Maxwell for advertising his (Mr. Maxwell's) magazine on the covers of their own publications, and the first day on which they informed Mr. Maxwell that they objected to his publishing a magazine under that name was the 25th of September, on which day the first number of Messrs. Hogg's magazine appeared. Mr. Maxwell's magazine appeared in October. Under these circum- (o) Piatt v. Walter, 17 L. T. (N.S.) 157. WHAT MAY BE THE SUBJECT OF COPYEIGHT. 67 stances, on a bill filed by Mr. Maxwell, it was held, that Cap. II. Mr. Maxwell's advertisements and expenditure did not give him any exclusive right to the use of the name ' Belgravia,' and that he could not restrain Messrs. Hogg from pub- lishing a magazine under the same name, the first number of which appeared before Mr. Maxwell had published his ; and on a bill filed by Messrs. Hogg, that the registration by them of the title of an intended publication could not confer upon them a copyright in that name, and that, in the circumstances of the case, they had not acquired any right to restrain Mr. Maxwell from using the name as being Messrs. Hogg's trade-mark (a). In Maxwell v. Hogg, Lord Cairns seemed to think that there could not be what is termed copyright in a single word, although the word were used as a fitting title for a book. He considered that the copyright contemplated by the Act must be not in a single word, but in some words in the shape of a volume or part of a volume, which is com- municated to the public, by which the public are benefited, and in return for which a certain protection is given to the author of the work (6). But his lordship was dealing with a case in which the defendant had nothing but the name, publication not having been effected. The title of a periodical or newspaper was held under Copyright in the former statutes to be a proper subject of copyright, as characterising the particular publication (c) ; that it cannot therefore be assumed by another with impunity although a similar title distinguishable may be assumed (d). Even if innocently assumed, and unconsciously made use (a) Maxwell v. Hogg ; Hogg v. Maxwell, 15 L. T. 204 ; 15 W. E. 84, 464; 36 L. J. (Ch.) 433; Law Rep. 2 Ch. Ap. 307, 12 Jur. (N.S.) 916. (6) See Maxwell v. Hogg, L. E. 2 Ch. 307. (o) Hogg v. Kirby, 8 Ves. 215 ; Keene v. Harris, cited 17 Ves. 338 ; Con- stable & Co. v. Brewster, 3 Sess. Cas. 215 (N. B. 152). Prowett v. Mor- timer, 2 Jur. (N.S.) 414 ; Ingram v. Stiff, 5 Jur. (N.S.) 947 ; see Bradbury v. Dickens, 27 Beav. 53 ; Correspondent Newspaper Co. v. Saunders, 11 Jur. (N.S.) 540 ; 13 W. E. 804 ; KeUy v. Hutton, L. E. 3 Ch. Ap. 703 ; Clowes v. Hogg, W. N. (1870) 268 ; and see Bradbury v. Beeton, W. N. (1869) 221 ; 18 W. E. 33. (d) 8 Ves. 222. Where assumed for the purpose of deceiving the public, see Bell v. Locke, 8 Paige E. (Amer.) 75 ; and see Cruttwell y. lye, 17 Ves. 335. P 2 68 THE LAW OF COPYEIGHT. Cap. II. of, to the injury of another, the owner is entitled to pro- tection (a). On the point nothing is said in the Copyright Act, 1842, unless the words " sheet of letterpress " or " part of a volume," be held to include a title ; yet there is, at least, nothing to sanction any alteration of the grounds upon which the former judgments stood (b). The titles to books, newspapers, and periodicals, though often coming before the courts on the question of copyright therein, seem not to be in themselves the proper subjects of this right. A title is no doubt, in one sense, a part of the work itself, for one cannot read a book or turn over the title page without rinding that the title is at the commencement of the work and sometimes on every page, yet it is rather the index to the whole than part thereof — and certainly when registered before the publication, or perhaps even before the creation of the work whereof it is intended to be the title, could hardly be deemed to be part of the same ; and if it were, then as copyright could not subsist in that which has no actual existence, the right to the title would fail on this ground, except it could be argued that the title being part of the work, and the only part in existence, could be registered as having an intrinsic value of its own. However intimately connected with the copyright in the work to which it is prefixed, the title is more properly a trade-mark (e). It is not protected on the ground of any intrinsic merit or value possessed by itself, but, like other trade-marks, is protected for the purpose of insuring the genuineness of the article to which it is attached. There can be no doubt that there is in a title a right (a) Clement v. Maddick, 1 Giff. (Ch.) 98 : 5 Jur. (N.S.) 592. (fc) Bell's Com. 6th ed. 549. (c) Lord Cottenham in Spottiswoode v. Clarke, 2 Ph. 154, seems to have thought that the title-page of an almanack was quite a different thing from a trade-mark, but his reasoning is not convincing, and hardly capable of being sustained in view of subsequent decisions. And in Mack v. Petter, L E. 14 Bq. 431, 20 W. E. 964, Lord Eomilly used the word " copyright " as applied to the title of a book ; " but it is impossible," says V.-O. Bacon in Kelly v. Byles, 40 L. T. (N.S.) 633, "to read his judgment and to doubt that the injunction hegranted was to restrain the defendant's colourable imitation of the actual book which the plaintiff had first sent into the world." WHAT MAY BE THE SUBJECT OP COPYRIGHT. 69 capable of protection, and in the case of ' Bell's Life ' this cap. II. right was asserted by Vice-Chancellor Stuart to be a right of property (a). The registered proprietors of ' Bell's Life in London Titles in- and Sporting Chronicle,' published weekly, at the price frm & ed - of 5d., filed a bill against the proprietors and publishers of a new newspaper, called 'The Penny Bell's Life and Sporting News,' which was published at the price of a penny. The evidence produced shewed that from the similarity of the two names mistakes had occurred, and were likely to occur, on the part of the public, and that inquiries had been made at the office of 'Bell's Life in London,' for ' The Penny Bell's Life.' On motion on behalf of the plaintiffs, the Court granted an injunction to restrain the defendants from the use of the words ' Bell's Life ' in the title of their newspaper (&). So also in Ingram v. Stiff (o) an injunction was granted by Sir W. P. Wood, V.C., to restrain the defendant from printing, publishing, or selling any newspaper or other periodical under the name of ' The Daily London Journal,' or under any other name or style of which the words 'London Journal ' should form part, and from doing or committing any act or default which might tend to lessen or diminish the sale or circulation of the plaintiff's periodical called ' The London Journal.' The facts of the case were these : In October 1857, A., being the proprietor of a weekly publi- cation called ' The London Journal,' the price of which was a penny, assigned his copyright and interest therein to B. for value, and entered into a covenant with B. not to publish, either alone, or in partnership with any other person, any weekly periodical of a nature similar to 'The 1 London Journal.' In May 1859, A. issued an advertisement announcing the publication by him on June 1st following of a daily newspaper, to be called 'The Daily London (o) See Clement v. Maddich, 1 Giff. 98 ; Kelly v. Button, L. E. 3 Gh. 703 ; 16 W. It. 1182 ; Leather Cloth Company v. American Leather Cloth Company, 12 W. K. 289 ; 4 De G. J. & S. 137 ; Maxwell v. Hogg, L. R. 2 Oh. 307, 15 W. B. 467. (b) Clement v. Maddick, 1 Giff. (Ch.) 98 ; 5 Jur. (N-S.) 592. (c) 5 Jur. (N.S.) 917. 70 THE LAW OF COPYRIGHT. Cap. II. Journal,' which he intended should be sold at a penny. B. thereupon filed a bill against A. for an injunction to restrain A. from publishing, which was granted by the Vice-Chancellor in the terms before referred to. Upon appeal Sir J. L. Knight Bruce, L.J. (dissentiente Sir G. J. Turner, L.J.) confirmed the order for an injunction, upon B. undertaking to abide by any order the Court might make as to damages, and to bring an action against B. within one week. In the case of the Correspondent Newspaper Company v. Saunders (a), where the publishers of ' The Correspon- dent' newspaper sought to restrain the defendant from publishing another paper under the name of ' The Public Correspondent,' Lord Hatherley, when Vice-Chancellor, after holding that registration of a newspaper was of no avail without actual publication, went on to express a doubt whether in any case registration would protect the title of the paper as being included in the copyright. And in a later case (J) the same judge, when Lord Justice, said that there appeared to him to be nothing analogous to copyright in the name of a newspaper ; but that the proprietor had a right to prevent any other person from adopting the same name for any other similar publication. Where the In the more recent case of Weldon v. Dicks (e) the HtuTtaken™ 6 question as to whether there could be copyright in a title, again came before the court. In the year 1874, the plaintiff, Mr. Weldon, bought the copyright of a portion of a work called 'The Parlour Library,' which was a series of volumes consisting partly of original works, and partly of works which had been previously published. The particular novel, ' Trial and Triumph,' was originally published in 1854, in a separate form in three volumes. It was not an unsuccessful publication, and Mr. Darton, the proprietor of the ' Parlour Library ' at that time, arranged (a) 13 W. R. 804 ; 11 Jur. (N.S.) 540. (b) Kelly v. Hutton, L. R. 3 Ch. 703 ; 16 W. R 1182 (c) 10 Ch. D. 247 ; 27 W. R. 369. WHAT MA? BE THE SUBJECT OP COPYRIGHT. 71 with the publishers to make it part of that work, and it Cap. II. was published about the year 1860 in the 196th number. In 1876 the copyright in the ' Parlour Library ' series was assigned to the plaintiff, and an entry made accordingly at Stationers' Hall. The plaintiff immediately after the assignment to him of the copyright commenced to re-issue the series, and had published a new edition of eleven of the books in such series, and was preparing for publication a new edition of Trial and Triumph,' which would shortly be published by him at the price of two shillings. The defendant had recently commenced to issue a series of books and novels under the general title of ' Dick's English Novels,' and he had since the date of the assignment to the plaintiff, published in such series a novel under the title of ' Trial and Triumph,' at the price of sixpence. And the plaintiff claimed an injunction to restrain the defendant from publishing or selling any book or publica- tion under the title ' Trial and Triumph.' It was stated by the defendant that in the year 1873 the Eev. Henry V. Palmer offered him the manuscript of an entirely original work in the form of a novel with the proposed title of ' True to the Core,' but before purchasing the work the defendant discovered that the title ' True to the Core ' had already been used as a title of a drama, and he therefore requested the author to choose another title, and ' Trial and Triumph ' was then proposed and adopted by the defendant in entire ignorance that it had ever been used by any other person or applied to any other work. The defendant's work was entirely distinct in its plot and subject matter from the plaintiff's book. It also appeared that both before and after the date of the first publication by the plaintiff of his books, more than one book was published by other persons under the same title or one substantially the same. Vice-Chancellor Malins held that the plaintiff was entitled to an injunction. But when the exact title is not copied, an injunction Where exact will not be granted unless the title and appearance of the i a ^° defendant's publication are designed to deceive persons 72 THE LAW OF COPYRIGHT. Cap. II. who are ordinarily intelligent and careful. Thus in a case where the well-known title of ' Punch ' was taken, with the addition thereto of ' Judy,' although the court held that the defendant would not be at liberty to use ' Punch ' or ' Judy ' singly as a title, yet it refused to restrain the use of a title made up of the two words, on the ground that in combination they did not form such a title as to deceive persons of ordinary intelligence. "The defendants," said Vice-Chancellor Malins, " clearly have no right to use a name which is calculated to mislead or deceive the public in purchasing ; and if I thought, on the whole, that their journal was calculated to mislead persons of ordinary intelligence (for these are the persons I must consider) I should grant the injunction. Now ' Punch ' is well known both in name and appearance, and its price is threepence. Could any one be misled into buying this other paper instead, which has the words 'Punch and Judy,' printed on it in distinct letters with a different frontis- piece, and its price a penny ? I am clearly of opinion that the mass of mankind would not be so misled "(a). So where the proprietor of the ' Era ' newspaper sought to restrain the use of his title with the addition of ' New,' by a rival publication, the Lord Justices reversed the decision of Vice-Chancellor Bacon, and held that there was no ground for granting any injunction. They consi- dered that the real question was this, " Is what appears on the front of the paper calculated to deceive an ordinary purchaser into the belief that the article sold to him is other than what it is, and what it seeks to imitate ? " The law on this subject cannot be considered to be in a satisfactory state, for it is perfectly clear that a publication may be seriously injured by the similarity of name of a rival publication, without the wrappers or general style or appearance being in any way copied. Thousands of copies are purchased through advertisements, and without the purchaser until delivery seeing the subject of his purchase. It is usually considered that as the injury caused by (a) Bradbury v. Beeton, 18 W. R. 33. WHAT MAY BE THE SUBJECT OF COPYRIGHT. 73 the infringement is an injury to property, the fraudulent Cap. ii. intent is not necessary to prove. This is true so far as it where ne _ goes, but at the same time it must be remembered that cessary to unless fraud in a sense is proved, or at least a probability of deception or imposition on the public is established (a), a plaintiff cannot well succeed. Where there is a close resemblance in general style and arrangement of the contents of the book itself (&), or a claim of certain attributes which are known to belong to the original work (e), or a sudden change from an unobjectionable title, style of publication, and arrangement of contents to a style more closely resembling the plaintiff's (d), an inten- tion to deceive may be established. Thus in Hogg v. Kirby (e) the proprietor of ' The Won- derful Magazine ' succeeded in stopping the publication of ' The Wonderful Magazine, New Series, Improved.' So in Chappell v. Sheard (/), and Chappell v. Davidson (g), where the plaintiff's song was entitled ' Minnie,' and those of the respective defendants 'Minnie Dale,' and ' Minnie, Dear Minnie ; ' and where the purchaser of ' The Britannia' newspaper incorporated it with the -John Bull,' under the name of ' The John Bull and Britannia,' and the former publisher of 'The Britannia' began to publish 'The True Britannia' (h), injunctions were issued. But, as already stated, the taking of part of the title of a Taking a part registered work without fraud, and without any circum- ^'fraud. stances from which an animus furandi could be inferred, and where no deception is to be apprehended, will not be deemed an offence, and this is clearly shown in a (a) See Hall v. Bartons, 4 De G. J. & S. 150 ; 12 W. E. 322 ; Chappell v. Davidson, 2 K. & J. 123. (b) Mack v. Fetter, L. E. 14 Eq. 431 : 20 "W. K. 964 : Corns v. Griffiths, W. N. (1873) 93. (c) Chappell v. Sheard, 2 K. & J. 177. Id) Corns v. Griffiths, supra. Metzler v. Wood, 8 Ch. D. 606 ; 26 W. E. 577. (e) 8 Ves. 215. (/) 2 K. & J. 117 ; 3 W. E. 646. ( ? ) 2 K. & J. 123. (h) Prowett v. Mortimer, 4 W. E. 419; see Edmonds v. Benbow, Seton on Decrees, 3rd ed. 905. 74 THE LAW OF COPYRIGHT. Cap. II. recent case. It was an action by the proprietor of a book entitled ' Post Office Directory of West Eiding of York- shire,' which included the town of Bradford, to restrain the intended publication by the defendants of a directory of Bradford with the words 'Post Office' forming part of the title. It appeared that many years ago an officer of the London Post Office published, with the assistance of the letter carriers, a directory which he called 'Post Office ' Directory. Subsequently a brother of the plain- tiff became the publisher and proprietor of the work, which was carried on by him till 1846, with the assistance of the letter carriers as before. After 1846 the plaintiff's brother was prohibited by the Post Office authorities from employing the letter carriers, and he thereupon employed a large staff of private agents to obtain the information necessary for the continuance of his directory, which was still called the 'Post Office' Directory. In 1852 the plaintiff began publishing country directories, making use of his brother's staff of agents, and, with his brother's consent, called his directories 'Post Office' Directories. The plaintiff alleged that his directories were distin- guished and known in the trade and to the public as ' Post Office Directories,' and that the term ' Post Office ' was a very valuable trade distinction. The defendants had received assistance of the post-master at Bradford, and it was not alleged that there had been any copying or colourable imitation of any part of the text of the plaintiff's work, neither was there any similarity in price or appear- ance between the two directories, and the only question was as to the plaintiff's exclusive right to the use of the word ' Post Office ' as applied to directories. Vice-Chan- cellor Bacon was of opinion that to support a claim to restrain the use by another of a name on the ground of it being a quasi trade-mark, it was necessary to shew that the wares offered for sale were so nearly identical that the use of the particular trade-mark or name might mislead unwary purchasers. He considered that the defendants were clearly entitled to publish a directory of Bradford, and as WHAT MAY BE THE SUBJECT OF COPYRIGHT. 75 no person wishing to possess the plaintiff's ' Post Office oap. II. Directory for the West Kiding of Yorkshire ' could be misled or deceived into buying the defendant's ' Post Office Bradford Directory,' judgment must be given for the defendants (a), and on appeal the court affirmed the judgment of the Vice-Chancellor (b). Should a periodical change its name for another, there Assuming a would be no ground for preventing another periodical baleen 10 assuming the name which has been thus cast off, after a disused. reasonable lapse of time, provided the latter periodical did not hold itself out to the world as a continuation of the periodical whose title it had adopted (e). With regard to encyclopaedias, periodicals, and works Copyright in published in series, reviews, or magazines (d), it is provided a^period- by the Copyright Act, 1842, that the copyright in every icals. article shall belong to the proprietor of the work for the same term as is given by the Act to authors of books, whenever any such article shall have been or shall be (a) Kelly v- Byles, 46 L. T. (ST.S.) 623, on appeal 13 Ch. Div. 682 ; see Barnard v. Pillow, W. N. (1868) 94 ; Snowden v. Noah, Hopk. (Amer.) 347 ; Bell v. Loclce, 8 Paige (Amer.) 75 ; Stephens v. Be Cento, 30 N. Y. Sup. Ct. 343 ; Talleot v. Moore, 13 N. Y. Sup. Ct. 106. (6) Jollie v. Jaques, 1 Bl. C. C. (Amer.) 618, was a suit to restrain an imitation of a musical composition entitled ' The Serious Family Polka ' ; it having been decided that the plaintiff's claim to copyright could not be supported, it was held that the plaintiff not being entitled to the copyright in the composition, he was not entitled to protection in respect of the title. Nelson, J., said, " The title or name is an appendage to the book or piece of music for which the copyright is taken out, and if the latter fails to be protected, the title goes with it, as certainly as the principal carries with it the incident." So in another American case, where the plaintiffs w ere the proprietors and publishers of a monthly magazine for the young, published at Boston, Mass., under the title ' Our Young Folks ; an Illustrated Magazine for Boys and Girls,' and the defendant began to advertise and publish, and sell at Augusta, Maine, a fortnightly illustrated paper for the young, under the title ' Our Young Folks' Illustrated Paper.' A suit being instituted for an injunction to restrain the defendant from using the words ' Our Young Folks ' as the title of the publication, the Court held that the title of a copyrighted publication was not capable of protection as copyright, except in conjunction with the publication which it was used to designate, and that the copyright in the paper not having been infringed, that in the title had not been : Osgood v. Allen, 1 Holmes (Amer.) 185 ; 6 Am. L. T. 20. (c) The Cour Boyale at Paris in 1834 sanctioned the publication of a journal under the title of Gazette de Sante, which another journal had formerly borne, but which it had for seven months abandoned for the title Gazette Medicale de Paris. Eenouard, torn. 2, p. 128, cited Curtis on Copy. 297. (d) See Henderson v. Maxwell, 4 Ch. Div. 163. 76 THE LAW OF COPYRIGHT. Cap. II. Reservation by author of right to separate publication. composed on the terms that the copyright therein shall belong to such proprietor and be paid for by him ; but payment must be actually made by the proprietor before the copyright can vest in him (a). There is a special proviso in the case of essays, articles, or portions form- ing part of, and first published in reviews, magazines, or other periodical works of a like nature, to the effect that after the term of twenty-eight years from the first publi- cation of any such article the right of publishing the same in a separate form shall revert to the author for the remainder of the term given by the Act ; and during such term of twenty-eight years the proprietor shall not publish any such article separately, without the previous consent of the author or his assigns, unless the article was written on the express terms that the copyright therein should belong to the proprietor, for all purposes (&). But any author may reserve to himself the right to publish any such composition in a separate form, and he will then be entitled to the copyright in such composition, when pub- lished separately, without prejudice to the right of the proprietor of the encyclopaedia, review, or other periodical in which it may have first appeared (c). In order to give the proprietor of a periodical a copy- right in articles composed for him by others, it is not necessary that there should be an express contract that he should have the property in the copyright. The fact of the author being paid by the proprietor for articles supplied expressly for the periodical, raises the presumption that the copyright is intended to be the property of the pro- prietor (d). Otherwise, the articles might be published by (a) A contract for payment is not sufficient : Richardson v. Gilbert, 1 Sim. (N.S.) 336 ; 20 L. J. (Oh.) 553 ; 15 Jur. 389. See Brown v. Cooke, 11 Jur. 77; 16 L. J. (N.S.) Ch. 140. (6) Hereford {Bishop of) v. Griffin, 16 Sim. 190 ; 17 L. J. (Ch.) 210. See 1 J. & H. 112 ; 3 L. T. (N.S.) 466. As to the course to be adopted on dissolution of partnership, and the 'withdrawal of one partner from the periodical publication by the firm, see Bradbury v. Dickens, 27 Beav. 53 ; 28 L. J. (Ch ) 667, cited Philips on Copy. 181, note. (c) 5 & 6 Vict. c. 45, s. 18. (d) Where the publishers of a magazine employ and pay an editor, and the editor employs and pays persons for writing articles in the magazine, semble, the copyright in such articles is not vested in the publishers : Brown WHAT MAY BE THE SUBJECT OF COPYRIGHT. 77 the writers thereof simultaneously, or shortly afterwards; Cap. II. possibly to the detriment and injury of the purchasers of the articles for particular periodicals. Consent that the proprietor of a periodical should have the copyright for all purposes may be implied from the attending circumstances. Thus, in Sweet v. Benning (a) the plaintiffs were the publishers of ' The Jurist,' and had employed various lawyers to prepare reports of cases for that periodical. Nothing was said as to the copyright. The Court of Common Pleas held that there must be presumed an implied agreement that the copyright was to be the property of the employers. " It was urged," said Maule,- J., " that these reports were not written on the terms that the copyright therein should belong to the proprietors of ' The Jurist,' because there were no express words in the contract under which they were written conferring upon them the right to the copyright. But, though no express words to that effect are stated in this special case, 1 think that where 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 under- stood that the writing or other thing is produced upon the terms that the copyright therein shall belong to the employer, subject of course, to the limitation pointed out in the 18th section of the Act." This case was decided by reason of the particular cir- cumstances attending it, amounting in the opinion of the court to an implied consent on the part of the author to relinquish his copyright. And it is clear that where no consent is expressed, and no consent from the surrounding circumstances can be implied, the copyright continues in the author. Thus, in the Bishop of Hereford v. Griffin (b), where it v. Cooke, 16 L. J. (N.S.) Oh. 140; 11 Jur. 77; Richardson v. Gilbert, 1 Sim. (N.S.) 336. (a) 16 C. B. 459. Q>) 16 Sim. 190 ; Boucieault v. Fox, 5 Blatchf. (Amer.) 87. 78 THE LAW OF COPYRIGHT. Cap. II. Eight of separate publication, in whom vested. appeared that the plaintiff, at the request of the publishers, had written an article on Thomas Aquinas for the ' Encyclopaedia Metropolitana,' and no special agreement had been made as to the copyright, Vice-Chancellor Shad well held that the publishers had acquired merely the right to publish the article in the encyclopaedia. He said: "Then the defendants say that they believe that the ordinary terms of contract were adopted between the plaintiff and the publishers of the encyclopaedia, and that no special agreement was entered into with respect to the reservation of any right of publication by the plaintiff. But it must be observed that, according to the law, the copyright was in the plaintiff, except so far as he parted with it ; therefore no reservation was necessary to consti- tute a right in him." If the absolute copyright vests in the owner of the periodical, he alone is entitled to publish the production in a separate form. If he has acquired merely the right of publication in a specified work, the ownership of the copyright continues in the author, and the owner is a mere licensee without authority to publish the production in a separate form. In the case of Smith v. Johnson, where the plaintiff had composed certain tales, under the common title of ' The Chronicles of Stanfield Hall,' for the defendant to publish in the ' London Journal,' of which he was the proprietor, it was held that the subsequent publication of such tales in a weekly supplementary number, for sale with or with- out the current number, was " a publication separately," within the meaning of the 18th section of the Copyright Act. And Vice- Chancellor Stuart then adopted the same view as did the Vice-Chancellor of England, in the Bishop of Hereford v. Griffin, and also that subsequently taken by Vice-Chancellor Wood, who considered that the meaning of the proviso in the 18th section, taken with the whole clause, was, not to vest a copyright in the proprietors or publishers of a periodical work, but simply to give them a licence to use the matter for a particular purpose. " Keep- WHAT MAY BE THE SUBJECT OF COPYRIGHT. 79 ing in view," says the Vice-Chancellor, " this principle of Cap. II. construction — that the Act of Parliament was intended to give a licence only to the proprietors of periodical works purchasing and paying for a literary composition to be published as a part or portion of a periodical work — the construction of the words in the proviso which prohibit them from publishing these parts or portions which ' alone ' are the property of the author — from publishing these por- tions 'separately and singly,' seems reasonably plain. ' Publishing separately ' must mean publishing separately from something. What is that ' publishing ' which the Act of Parliament says shall not be separately made ? It must be the publishing of the part or portion separately from that which has been before published. That is the view which has been previously taken, and the language in the case of Mayhem v. Maxwell was to the effect that the defendant should be prohibited from publishing the literary work then in question, otherwise than as part of the Christmas number of the ' Welcome Guest.' Now, that Christmas number was a thing called ' a part ' in the Act of Parliament, which describes these periodical works as being published in a series of parts and numbers. The Christmas number is part or portion of the other composi- tion. The order of this court peremptorily prohibited the defendant Maxwell from publishing it separately from the other part or number. What has the defendant in this case done? He has acquired, under the first clause of the Act of Parliament, an actual property in this literary composition, which is called ' The Stanfield Hall Tales,' published in portions or parts of a certain periodical work. The Act of Parliament says the publishers shall not publish these portions separately from those parts for the publica- tion of which they have obtained a licence already. What they have done is to print the portions already published of these antecedent parts in what is called a supplemen- tary number, and which may be purchased with or without the number in which the ' portions ' were originally pub- 80 THE LAW OF COPYRIGHT. Cap. II. Proprietors of periodicals may acquire copyright by contract of employment. Suggestions of Copyright Commis- sioners as to periodicals, &c. lished. That is a separate publication ; separate from the ' parts ' in which it was originally published. To reprint in numbers, which may be had with or without the concur- rent number of the work, is an act not permitted by the legislature" (a). The proprietor of a review, magazine, or like periodical, as well as the proprietor of any other publication em- braced within the 18th section, as a cyclopaedia or a work published in a series of books or parts may acquire by virtue of the contract of employment the copyright in an article, and in such case his rights will not be re- stricted to the use of the article in the periodical only for which it was written. ,But the copyright in the case of a magazine, or like periodical, will revert to the author at the end of twenty-eight years ; whereas in the case of any work not included in the proviso above quoted the copyright will continue in the proprietor during the entire term given by the statute. The report of the Eoyal Commissioners on Copyrights thus deals with this subject : " It has been provided that in the case of encyclopaedias, reviews, magazines, periodical works, and works published in a series of books or parts, for which various persons are employed by the proprietor to write articles — if the articles are written and paid for on the terms that the copyright therein shall belong to the proprietor of the work, the same rights shall belong to him as to the author of a book, except in one particular, in which particular a difference is made between essays, articles, or portions of reviews, magazines, or other peri- odical works of a like nature, and articles in encyclo- paedias. In the case of the former (but not of encyclo- paedias) a right of separate publication of the articles reverts to the author after twenty-eight years for the remainder of the period of copyright, and during the (a) Yice-Chancellor Stuart, Smith v. Johnson, 4 Giff. 637 ; 33 L. J. (Ch.) 137; 9 Jur. (N.S.) 1223; 12 W.R. 122; 9 L.T.(N.S.) 437; Mayhew v. Maxwell, 1 J. & H. 312. See Wallenstein v. Herbert, 15 W. B. 838 ; 1G L. T. (N.S.) 453. WHAT MAY BE THE SUBJECT OP COPYRIGHT. 8 twenty-eight years the proprietor of the work cannot Cap. II. publish the articles separately without the consent of the author or his assigns. Authors can, however, by contract reserve to themselves, during the twenty-eight years, a right of separate publication of the articles they write, in which case the copyright in the separate publication belongs to them, but without prejudice to the rights of the proprietor of the magazine or other periodical. We think some modification in this provision is required as regards the time when the right of separate publication should revert to the authors of the articles, and that three years should be substituted for twenty-eight. As we have reason to believe that proprietors of periodicals have not, as a rule, insisted on the right given them by the existing law, we think there would be no objection to making this provision retrospective. " It has been pointed out to us that, under the existing law, the author of an article in a magazine or periodical cannot, until the right of separate publication reverts to him, take proceedings to prevent piracy of his work ; so that, unless the proprietor of the magazine or periodical be willing to take such proceedings (which may very likely not be the case when the right of the author is about to revive), the result would practically be to deprive the author of the benefit of the right reserved to him. We recommend, therefore, that during the period before the right of separate publication reverts to the author, he should be entitled, as well as the proprietor of the magazine or periodical, to prevent an unauthorized separate publication." The 19th section of the Copyright Act, 1845, provides Registration that the proprietor of the copyright in any encyclopaedia, ° peno lcaIs " review, magazine, periodical work, or a work published in a series of books or parts, shall be entitled to all the benefits of the registration at Stationers' Hall under the Act, on entering in the registry the title of such encyclo- paedia, review, periodical work, or other work published in a series of books or parts, the time of the first publication of translations. 82 THE LAW OF COPYEIGHT. Cap. II. the first volume, number, or part thereof, or of the first number or volume first published after the passing of this Act in any such work which shall have been published before the passing of the Act, and the name and place of abode of the proprietor thereof, and of the publisher thereof when he is not also the proprietor. Under this section it is clear that as each part of a periodical is a book within the meaning of the Act, and copyright runs from the date of publication of any book, that the copy- right in each part accrues from the publication of each part, so that if a subsequent part be published twelve years after the publication and registration of the first part all the benefit of registration will accrue for forty-two years from the publication of the subsequent part, not- withstanding that registration has only been effected of the first part. Copyright in Copyright may exist in a translation, whether it be the result of personal application and expense, or donation (a). In the case of Wyatt v. Barnard (b), Lord Eldon states this to be the law : The plaintiff was the proprietor of a periodical called ' The Eepository of Arts, Manufacture, and Agriculture.' He claimed the sole copyright of the work, containing, amongst other articles, translations from foreign languages. The defendants were publishers of another periodical which contained various articles, being translations irom foreign languages, copied or taken from the plaintiff's work without his consent. The defendants, by their affidavit, stated that it was the usual practice among publishers of magazines, &c, to take from each other articles translated from foreign languages, or become public property by reason of their having appeared in other works. They relied on the custom of the trade, and contended that neither of the works was original, both being mere compilations ; that it had never been decided (a) Wyatt v. Barnard, 3 V. & B. 77. If a foreigner translates an English work, and then an Englishman re-translates the foreign work into English, that is an infringement of the original copyright : Murray v. Boque, 17 Jur. 219 ; 1 Drew. 353 ; 22 L. J. (Ch.) 457. (6) 3 V. & B. 78. Vide Stonv v. Tlimuas, 2 Amer. L. Reg. 231. WHAT MAY BE THE SUBJECT OF COPYEIGHT. 83 that a translator might have a copyright in a translation, Cap. II. supposing, what was not proved, that these translations were made by the plaintiff himself. The Lord Chancellor said that the custom among booksellers could not control the law ; and upon an affidavit stating that all the articles were translated by a person employed and paid by the plaintiff, and were translated from foreign books imported by the plaintiff at considerable expense, his Lordship granted an injunction. The work from which the translation was taken in the present case was, of course, unprotected by the copyright law in existence here, and the cases which have treated translations from foreign works, having no copyright in this country, as original, would not necessarily form a pre- cedent in the case of a translation of an English copyright work. But in the case above cited, Lord Eldon drew no Every fair distinction between translations of works unprotected and ^^^x°^ ^ those protected in this country, indeed it was not neces- sary to do so for the decision of the point involved in the case before him. This case is sometimes cited for the purpose of shewing that every translation is an original work and entitled to protection, whether made from an unprotected or a protected work. But it does not go to this extent, and notwithstanding the dicta of Mr. Justice Yates, in Millar v. Taylor (a), and Lord Macclesfield, in Burnett v. Chetwood (b), and of the late Lord Justice Knight Bruce, when Vice-Chancellor (c), it appears to be the better opinion that a work in which copyright is still subsisting cannot be translated without the consent of the proprietor of the copyright. Lord Justice Knight Bruce, in the well-known case of Prince Albert v. Strangle (d), thought that a work lawfully published, in the popular sense of the term, stood in this respect dif- ferently from a work which had never been in that situa- tion. The former was liable to be translated, abridged, (a) 4 Burr. 2348. (6) 2 Mer. 441. (c) Prince Albert v. Strange, 2 De G. & Sm. 693. (d) 2 De G. & Sm. 693. G 2 84 THE LAW OF COPYKIGHT. Cap. II. analyzed, exhibited in morsels, complimented, and other- wise treated in a manner that the latter was not. There has been a decision in America in accordance with the opinion of Lord Justice Knight Bruce (a), but it is not likely to be followed in this country. It is unsupported by authority and opposed to the principles of the copy- right law. The Queen may now direct that the authors of books published after a specified day in any foreign country, their executors, administrators, or assigns, shall have the power (subject to the provisions of the 15 & 16 Vict. c. 12) to prevent the publication in the British dominions of any translations of such books as are not authorized by them, for a period (to be specified by her Majesty) not exceeding five years from the first publication of an authorized trans- lation ; and in the case of books published in parts, for a period not exceeding, as to each part, five years from the first publication of an authorized translation of that part (b). No copyright Copyright cannot exist in a work of libellous, immoral, in a libellous, , .... , , /\i • i immoral, or obscene, or irreligious tendency (c) ; because in order to obscene work. es t a blish such a claim the author must, in the first place, shew a right to sell ; and this he cannot possibly do, he himself not being able to acquire a property therein. Nemo plus juris ad alium transferre potest quam ipse haberet (d). The property here referred to is that consisting in the right to take the profits of the work when published. But in Southey v. Sherwood (e) Lord Eldon seems to have carried the rule still further, and refused to admit a right in the author of a work of a non-innocent nature to the (a) Stowe v. Thomas, 2 Wall. Ir. 547 ; 2 Am. Law Eeg. 210. (b) 15 & 16 Vict. c. 12, s. 2. (c) Stockdale v. Onwhyn, 5 B. & C. 173 ; 7 D. & K. 625 ; Hime v. Dale, 2 Camp. 28 ; Walcot v. Walker, 7 Ves. 1 ; Poplett v. Stochdale, 1 K. & M. 337 ; Gee v. Pritchard, 2 Swans. 413 ; Southey v. Sherwood, 2 Mer. 435 ; Murray t. Benbow, 1 Jac. 474 ; Lawrence v. Smith, ibid, ill ; Forbes v. Johnes, 4 Esp. 97 ; Gale v. Leckie, 2 Stark. N. P. C. 107 ; and see an article in ' Quarterly Review ' for April, 1822, and ' Blackwood's Magazine ' for July, 1822 ; Dodson v. Martin, Sol. Journ. 29th of May, 1880. (d) Ulpian : Nemo potest plus juris ad alium transferre quam ipsehabet; Co. Lit. 309 ; Wing. 56. (e) 2 Mer. 435. WHAT MAY BE THE SUBJECT OF COPYRIGHT. 85 possession and control of his manuscript. He appears to Cap. II. have overlooked the fact that the law recognised two kinds or degrees of property in a literary work. There is a right of property which consists in the right to take the profits of a book when published : and there is also a right to the exclusive possession and control of a manu- script, or the right to publish or to withhold from publica- tion altogether (a). " The first of these rights," says Mr. Curtis, in his examination of Lord Eldon's judgment in the last-men- tioned case (b), " depends now in England and in America upon statute. The other is a right at common law, inde- pendent of the property created or recognised by statute. The law of England has never said that an author has no property in his manuscript qua manuscript, or in the ideas and sentiments written upon it before publication. If it had, it would only be necessary to steal a manuscript in order to be able to print it with impunity ; and the author could only take the profits, or obtain an injunction, by shewing that he himself intended to publish and to take the profits. It has long been settled, however, that the author and proprietor of a manuscript has the sole dominion over it, and may obtain an injunction to pre- vent its publication by another: and in no case has it been considered that his right depends on his intention to publish and to make a profit. But the cases proceed upon the ground of a right of property : and what seems to be intended by this is a right to the possession and control of the manuscript, and to publish or to withhold from publication. In the great case of Donaldson v. Bechet, in the House of Lords, in which the perpetual right of authors after publication was held to have been taken away by the Act of Anne, eleven of the judges (including those who decided against some of the claims of authors) affirmed the sole right and dominion of an author over his own manuscript, as a right at common (a) See Wheaton v. Peters, 8 Peters, S. C. E. (Amer.) 591 : cited Curtis Copy. 158. (6) Copyright, p. 158. 86 THE LAW OF COPYRIGHT. Cap. II. law. When, therefore, an author has not published, or does not intend to publish a work existing in manuscript, but on the contrary desires and intends to withhold it from publication, the question as to its innocence cannot arise, because' that question, according to principle and the decisions, affects only so much of his right of property as consists in the right to take the profits of the publica- tion. It is in this sense that the law declares there can be no property in an immoral, irreligious, or seditious publication; and not that there can be no right to the exclusive possession and control of whatever a man writes, before publication, unless it be innocent/' Lord Eldon's decision in Souihey v. Sherwood has been severely criticised by Lord Campbell, who states that in consequence of the refusal of the injunction asked for, hundreds of thousands of copies of Wat Tyler, the poem the publication of which was sought to be restrained, at the price of one penny were circulated over the kingdom (a). Not to protect such works, it has been argued, is to increase the circulation by allowing the publication of pirated editions ; but it is an open question whether the circulation is not more effectually restrained by holding that there can be no property in such a work, than by protecting it ; for the inducement to the publisher will be less if other persons may copy and publish ad infinitum. In answer to the remark, that by refusing to interfere in cases where the work is of an evil tendency, the court virtually promotes, in some instances, the multiplication of mischievous productions, it must be borne in mind, that a court of equity professes to decide only upon ques- tions of property, concerning itself merely with the civil interests of the parties, and disclaiming interference to prevent or to punish injuries of a criminal nature ; and it therefore leaves the offending person to be dealt with at law (6). And adopting such a course is not merely to act in conformity with its own general principles, but (a) ' Lives of Chancellors,' vol. 10. (6) Vide 7 Ves. 2; 2 Mer. 438; 2 Swans. 413; 1 Jac. 473. WHAT MAY BE THE SUBJECT OF COPYRIGHT. 87 also with the constitution of the country ; for, to assist Cap. II. a person who has exerted himself to the prejudice of national or of individual welfare, by deciding upon ques- tions of a criminal character, the court would be assuming a power of adjudication in instances which, according to our notions of political freedom, ought not to be deter- mined without the intervention of a jury. And it is also observable, that although interposition is refused in cases of this kind, except upon the plaintiffs right receiving the sanction of a court of law, the court of equity does not thereby bereave the party applying, of any redress which he might otherwise obtain, or of the means of seeking it, but merely withholds that extraordinary relief which is adapted to other cases (a). The first case establishing the doctrine that there could Dr. Priestley's not be property in a work of the above description, is that case ' known as Dr. Priestley's. The plaintiff brought an action against the hundred to recover damages for injury sus- tained by him in consequence of the riotous proceedings of a mob at Birmingham, and, among other property alleged to have been destroyed, claimed compensation for the loss of certain unpublished manuscripts, offering to produce book- sellers as witnesses to prove that they would have given considerable sums for them. On behalf of the hundred it was alleged that the plaintiff was in the habit of pub- lishing works injurious to the government of the State ; but no evidence was produced to that effect. Upon this the Lord Chief Justice Eyre remarked, that if any such evidence had been produced, he should have held it was fit to be received as against the claim made by the plaintiff. Several passages were read from the work itself in support of the charge as to its tendency. Though Lord Eldon appears to base his decision in Souihey v. Sherwood upon this case before Lord Chief Justice Eyre, yet it will be at once perceived that there is a material difference betweea them, for in the case before Lord Eldon, Southey claimed the right to prevent («) Jer. Bq. Jur. bk. 3, ch. 2. 88 THE LAW OF COPYEIGHT. Cap. II. publication, whereas in the case before Lord Chief Justice Eyre, Dr. Priestley sued for the loss of profits, which he alleged he might have realised by publication — a point to which he never could have lawfully proceeded. No oopyright The above cases were followed in Walcot {Peter Pindar) an irreligious T ' talker (a), and in Lawrence v. Smith (b). In the latter tendency. case the doctrine was carried very far. The plaintiff having published a work under the title of ' Lectures on Physiology, Zoology, and the Natural History of Man,' filed a bill to restrain the defendant from selling a pirated edition, and obtained an injunction upon motion made ex parte. The defendants then moved to dissolve the injunc- tion, and argued that the nature and general tendency of the work in question was such that it could not be the subject of copyright, and in support of this argument several passages in it were referred to, which, it was con- tended, were hostile to natural and revealed religion, and impugned the doctrines of the immateriality and immortality of the soul. Lord Eldon, in dissolving the injunction, said : " I take it for granted that when the motion for the injunction was made, it was opened as quite of course ; nothing probably was said as to the general nature of the work, or of any part of it ; for we must look not only to the general tenor, but at the different parts ; and the question is to be decided, not merely by seeing what is said of materialism, of the immortality of the soul, and of the Scriptures, but, by looking at the different parts, and inquiring whether there be any which deny, or which appear to deny, the truth of Scripture ; or which raise a fair question for a court of law to determine whether they do or do not deny. Looking at the general tenor of the work, and at many particular parts of it, recollecting that the immortality of the soul is one of the doctrines of the Scripture, considering that the law does not give protection to those who contradict Scripture (c), (a) 7 Ves. 1. See Stockdale v. Onhwyn, 5 B. & C. 173; Poplett v. Stoch- dale, Ky. & M. 337. (6) 1 Jae. 471. (c) " Christianity is part and parcel of the law of the land :" Kelly , C.B., in Cowan v. Milbourn, L. R. 2 Ex. Div. 230. WHAT MAY BE THE SUBJECT OF COPYEIGHT. 89 and entertaining a doubt, I think a rational doubt, whether cap. II. this book does not violate the law, I cannot continue the injunction. The plaintiff may bring an action, and when that is decided, he may apply again." From a note by the editor, we learn that in 1822, in Murray v. Benhow, Mr. Shad well, on the part of the plaintiff, moved for an injunc- tion to restrain the defendants from publishing a pirated edition of Lord Byron's poem of ' Cain.' The Lord Chan- cellor, after reading the work, refused the motion, on grounds similar to those stated in the above judgment. He said "that the Court of Chancery, like other courts of justice in this country, acknowledged Christianity as part of the law of the land ; that the jurisdiction of the court in protecting literary property was founded on this : that, where an action would lie for pirating a work, then the court, attending to the imperfection of that remedy, granted its injunction, because there might be publication after publication, which one might never be able to hunt down by. proceeding in other courts. But where such an action did not lie, he did not apprehend that it was ac- cording to the course of the court to grant an injunction to protect the copyright. That the publication, if it were one intended to vilify and bring into discredit that portion of Scripture history to which it related, was a publication with reference to which, if the principles on which that case at Warwick (Dr. Priestley's) was decided were just principles of law, the party could not recover damages in respect of a piracy of it. That the court had no criminal jurisdiction ; it could not look on anything as an offence ; but in those cases it only administered justice for the pro- tection of the civil rights of those who possessed them, in consequence of being able to maintain an action. Milton's immortal work had been alluded to; it so happened that in the course of the previous long vacation, amongst the solicitse jucunda dblivia vitse, he had read that work from beginning to end; it was therefore quite fresh in his memory, and it appeared to him that the great object of its author was to promote the cause of Christianity ; there 90 THE LAW OF COPYKIGHT. Cap. II. were, undoubtedly, a great many passages in it of which, if that were not its object, it would be very improper by law to vindicate the publication ; but, taking it altogether, it was clear that the object and effect were not to bring into disrepute, but to promote, the reverence of our religion. That the real question was, looking at the work before him, its preface, the poem, its manner of treating the subject, particularly with reference to the Fall and the Atonement, whether its intent was as innocent as that of the other with which it had been compared ; or whether it was to traduce and bring into discredit that part of sacred history. This question he had no right to try, because it had been settled, after great difference of opinion among the learned, that it was for a jury to determine that point ; and where, therefore, a reasonable doubt was entertained as to the character of the work (and it was impossible for him to say he had not a doubt, he hoped it was a reason- able one), another course should be taken for determining what was its true nature and character " (a). "Don Juan." In a case which came before the Vice-Chancellor in 1823, an injunction which had been obtained to restrain the publication of a pirated edition of a portion of the poem of ' Don Juan,' was dissolved on a similar principle. His Honour ordered that the defendant should keep an account. Referring to Lord Eldon's decisions in the above cases, Mr. Justice Story says : " The soundness of the general principle can hardly admit of question. The chief em- barrassment and difficulty lie in the application of it to particular cases. If a court of equity, under colour of its general authority, is to enter upon all the moral, theo- logical, metaphysical and political inquiries, which in the past times have given rise to so many controversies, and in the future may well be supposed to provoke many heated discussions, and if it is to decide dogmatically upon the character and bearing of such discussions, and the rights of authors growing out of them ; it is obvious ■ (a) Murray v. Benbow, in Oh. 1822, MS., cited 6 Peters. Abr. 558. WHAT MAY BE THE SUBJECT OF COPYRIGHT. 91 that an absolute power is conferred over the subject of cap. II. literary property, which may sap the very foundations on which it rests, and retard, if not entirely suppress, the means of arriving at physical as well as at metaphysical truths. Thus, for example, a judge who should happen to believe that the immateriality of the soul, as well as its im- mortality, was a doctrine clearly revealed in the Scriptures (a point upon which very learned and pious minds have been greatly divided), would deem any work anti-christian which should profess to deny that point, and would refuse an injunction to protect it. So, a judge who should be a Trinitarian might most conscientiously decide against granting an injunction in favour of an author enforcing Unitarian views ; when another judge, of opposite opinions, might not hesitate to grant it " (a). The very case surmised by Mr. Justice Story arose 'Life of Jesus.' a short time since (February, 1874) in the Scotch Courts. A work entitled ' The Life of Jesus re-written for Young Disciples,' by Mr. Page Hopps, Unitarian minister, Glasgow, was published by Messrs. Triibner & Co., London, at Is. a copy. The defendant Harry Alfred Long, Pro- testant missionary, about a year after its appearance, issued a review containing the whole of Mr. Hopps's book, with notes and criticisms attached to each chapter, and this publication was sold at Qd. Hopps applied for an interim interdict, which being granted, he subsequently sought to have it declared perpetual. The plea put for- ward by the defendant was that the pursuer could not claim the protection of the law for the book, as it was blasphemous and heretical, denying tacitly or expressly the divinity of Christ. To this the pursuer replied that apart from the fact that it was written by a Unitarian, and set forth the Unitarian view of the Saviour's life, a more unobjectionable book did not exist. Mr. Sheriff Buntine, of the Sheriff's Court of Lanarkshire, declared the interdict perpetual, and found Long liable in expenses, holding that, though the doctrine that Jesus Christ is (a) 2 Story's Eq. Jur., p. 938. 92 THE LAW OP COPYEIGHT. Cap, ii. the second person of the Trinity is statute law, yet the public are entitled to criticise and controvert any part of the statute law, provided they do it in such a way as not to endanger the public peace, safety, or morality. Mr. Hopps, the sheriff considered, violated none of these conditions, and was entitled to the protection of the law. No copyright In the case of Hime v. Dale, referred to in Clemenii v. scandalous Goulding (a), counsel called attention to the libellous nature. nature of the publication, and contended that it was of such a description that it could not receive the protection of the law. It professed to be a panegyric upon money, but was in reality a gross and nefarious libel upon the solemn administration of British justice. The mischievous tendency of the production would sufficiently appear from the following stanza : " The world is inclined To think Justice blind, — . Yet what of all that ? She will blink like a bat At the sight of friend Abraham Newland ! Oh ! Abraham Newland I magical Abraham Newland ! Tho' Justice, 'tis known, Can see through a milestone, She can't see through Abraham Newland." Lord Ellenborough, however, stated that though if the composition had appeared on the face of it to be a libel so gross as to affect the public morals, he should advise the jury to give no damages, as he knew the Court of Chancery on such an occasion would grant no injunction, yet he thought the above ought not to be considered one of that kind. But in another case (b) where an action was brought for the purpose of recovering compensation in damages for the loss alleged to have been sustained by the publication of a copy of a book which had been first published by the plaintiff ; and at the trial it was proved (a) 2 Camp. 30. (b) Stockdale v. Onhwyn, 5 B. & C. 173 ; see Poplett v. Stockdale, Ky. & M. 337, where it was held that the printer of the work, the subject of the last case, could not maintain an aotion for his bill against the publisher who employed him, Best, C.J., Baid the defendant was equally guilty with the plaintiff, but that he would not, as Lord Kenyon once said, sit to take an account between two robbers on Hounslow Heath. WHAT MAY BE THE SUBJECT OP COPYRIGHT. 93 that the work was the memoir of Harriette Wilson, which Cap. II. professed to be a history of the amours of a courtezan, that it contained in some parts matter highly indecent, and in others matter of a slanderous nature upon persons named in the book, Abbott, C.J., directed a nonsuit, and in refusing a rule nisi for a new trial said : " In order to establish such a claim (i.e. to compensation for infringement of his copyright), he must, in the first place, shew a right to sell, for if he has not that right, he cannot sustain any loss by an injury to the sale. Now I am certain no lawyer can say that the sale of each copy of this work is not an offence against the law. How then can we hold that by the first publication of such a work a right of action can be given against any person who afterwards publishes it ? It is said that there is no decision of a court of law against the plaintiff's claim. But upon the plainest principles of the common law, founded as it is, where there are no authorities, upon common sense and justice, this action cannot be maintained. It would be a disgrace to the common law could a doubt be entertained upon the subject, but I think that no doubt can be entertained, and I want no authority for pronouncing such a judicial opinion." Neither can there be copyright in works intended to No copyright deceive purchasers, and therefore, in an action for pirating |° t Q„ded to a work of a devotional character, falsely professing to be a deceive the translation from the German, of an author who had a high reputation for writings of this kind, the object being to deceive purchasers, and give the work a value which it would not otherwise have possessed, judgment was given for the defendants. Chief Justice Tindal, in the case re- ferred to (a), drew a distinction between such a work and books of instruction or amusement which have been pub- lished as translations, whilst they have, in fact, been original works, or which have been published under an assumed instead of a true name. Such, for instance, as ' The Castle of Otranto,' professing to be translated from (a) Wright v. Tallis, 1 C. B. 893 ; H L. J. (C.P.) 283 ; 9 Jur. 94G. 94 THE LAW OF COPYEIGHT. Cap. II. the Italian, and such the case of innumerable works pub- lished under assumed names — voyages, travels, biogra- phies, works of fiction or romance, and even works of science and instruction; for, in all these instances the misrepresentation is innocent and harmless. But the facts stated in the pleas in the case uhder consideration imported a serious design on the part of the plaintiff to impose on the credulity of each purchaser, by fixing on the name of an author who had a real existence, and who possessed a large share of weight and estimation in the opinion of the public. The object of the plaintiff was, not merely to conceal the name of the genuine author, and to publish opinions to the world under an innocent disguise; but it was to practise upon some of the best feelings of the public, namely, their religious feelings ; and thus to induce them to believe that the work was the original work of the author whom he named, when he knew it not to be so. The transaction, therefore, ranged itself under the head of crimen falsi. It was a species of obtaining money under false pretences; and as the very act of publishing the work, and the sale of the copies to each individual pur- chaser, were each liable to the objection above stated, the chief justice thought the plaintiff could not be considered as having a valid and subsisting copyright in the work, the sale of which produced such consequences, or that he was capable of maintaining an action in respect of its infringe- ment. Cases in which a copyright has been held not to subsist, where the work is one which is subversive of good order, morality, or religion, did not bear, he thought, on the case before him, but they had so far analogy, that the rule which denied the existence of copyright in those cases, was the rule established for the benefit and pro- tection of the public. So decided on This decision proceeded more on the ground of fraud fraud r0Und ° f tnan invasion °f literary property, and to the principle of this decision may also be referred the case of Seeley v. Fisher (a), where an injunction was granted to restrain A. (a) 11 Rim. 581. WHAT MAT BE THE SUBJECT OF COPYKIGHT. 95 from putting forth his work under advertisements which Cap, II, the court helow thought tended to produce the impression, contrary to the truth, that it contained matter which was in fact the property of B. But if there be no such fraudu- lent misrepresentation, but only statements which, whether true or false, tend merely to encourage a belief that the matter contained in A.'s work is truly valuable matter, and that contained in B.'s is spurious and of no value, an injunction will not be granted to restrain such representa- tions ; and on the ground that such was the true effect of the advertisements, in the last cited case, the Lord Chan- cellor dissolved the injunction. But where the plaintiff was the well-known writer and composer of songs and music called ' Claribel,' the defen- dants were the music publishers carrying on business under the name of " Sinclair & Co." and it appeared that four songs named respectively 'Under the Willows,' ' Spinning by her Cottage Door,' ' I'll cast my Rose on the Waters,' and " Spring Carol,' the words only of which were written by ' Claribel,' had been published and sold by the defendants, with the name of ' Claribel ' appearing on them thus, " 'Under the Willows,' song written by Claribel," no mention being made of the name of the composer of the music of the song ; and it was contended by the plaintiff that the above mode of publication was intended to deceive, and had deceived, people into the belief that not merely the words, but also the music of these songs was by 'Claribel,' and he prayed that the defendant might be restrained from so publishing ; the Master of the Eolls held that the injunction must be refused, as he was of opinion that the words " written by " referred only to the words of the songs, and did not mean " written and com- posed," and that ordinary purchasers using ordinary caution could not be deceived into thinking that the music was composed by ' Claribel ' (a). Where a publisher advertised for sale certain poems, which he represented to be the work of Lord Byron, who (a) Barnard v. PUloiv, W. N. (1868) 94. 96 THE LAW OF COPYRIGHT. No copyright in a dry oatalogue of names. Wood, V.C., opinion on copyright in descriptive catalogues. Cap, ii. was abroad, an injunction was granted until answer or further order to restrain the publication, Lord Byron's agents deposing to their belief that the poems were not Lord Byron's work, and to circumstances rendering it highly improbable that they were so, and the defendant refusing to swear to his belief that they were written by Lord Byron (a). There can be no copyright in specifications of patents (I), nor in a catalogue consisting of a mere dry list of names. But where a bookseller's catalogue contained a description of the books offered for sale, with short anecdotes relating to them, protection was afforded (e). And in the case referred to, Sir W. Page Wood, V.C., said that he could not conceive on what principle it was supposed that there was no copyright in a catalogue such as the one in the case before him. It was not a mere dry list of names, like a Postal Directory, Court Guide, or anything of that sort, which must be substantially the same by whatever number of persons issued and however independently compiled. It was a case of a bookseller who issues an account of his stock, containing short descriptions of the contents of the books, calculated to interest either the general public or the persons who might take an interest in the questions treated of by particular books. "For example," continues the learned judge, "suppose one of the books to be a History of Cheshire ; then he gives you a slight account of it, from which it appears that it contains a number of anecdotes respecting county families and other things of that nature, it might well be that a person who did not previously know anything of the work, would be guided by the description and induced to purchase the work. There is another point of view in which this case appears to me to be even clearer. Suppose the case of a professional (a) Lord Byron v. Johnston, 2 Meriv. 29. (5) Wyalt v. Barnard, 3 V. & B. 77. (c) Hotten v. Arthur, 1 H. & M. 603; 32 L. J. (Ch.) 771; 11 W. K. 934 ; 9 L. T. (N.S.) 199. So there may be copyright in a descriptive catalogue of tricks and magical apparatus : Bland v. Hiam, ' Times,' 15th Jan. 1873. WHAT MAY BE THE SUBJECT OP COPYRIGHT. 97 writer (there may well be such), whose peculiar depart- cap. II. ment it is, to make out " Catalogues Kaisonnes " of this Catalogues kind, and to write such abstracts of the noticeable raisoime 's- points in the various books of the catalogue as we have here. A man who is an author for this purpose would naturally expect that the very fact that he had printed such notes for one publisher would lead to his employ- ment for a similar purpose by another. Suppose now this other to say to him, ' I have no occasion for your services, paste and scissors work will give me all I want,' would it be denied that he would have a right to come here to prevent this unremunerative use of his labour ? In this case the plaintiff is both author and publisher ; but I do not see any reason for putting him in any worse position on that account. True, the principal value may be in the books themselves, but I cannot therefore refuse to recognise the property which this gentleman has in the product of his mental exertion ; mental exertion used for this particular purpose, and in print. So soon as these notes are printed, I consider them completely protected by the Copyright Acts." This case was followed by Sir Charles Hall, V.C., in Tradesmen's Grace v. Newman (a). The plaintiff there was a " cemetery ^kg™ 3 - stone and marble mason," and had published a book con- taining, with some letterpress, lithographic sketches of monumental designs taken from tombstones in cemeteries. The publication was intended to serve as an advertisement of the plaintiff's business, and to enable customers to whom it was given to select designs to be executed by the plaintiff, yet the court held it to be a proper subject of copyright. But an advertisement which has no other use or value No copyright than to make known the place and kind of business of the ™ent ofp'lace advertiser is not within the scope of the copyright law. and kind of The point to be determined is whether the advertisement usmess on y- is merely such, useful for no other purpose than to make (a) L. R. 19 Eq. 623 ; see also Hogg v. Scott, 18 Id. 444 ; Collender v. Griffith, 11 Blatchf. (Amer.) 212. H 98 THE LAW OF COPTEIGHT. Cap. II. known the business of the advertiser, or if it has any ~ value as a contribution to knowledge. The matter came Illustrated before the court in the case of Gobbett v. Woodward (a) furniture rp^ plaintiff, an extensive dealer in upholstery and guide, copy- r ■ . , ,., right in. house furniture, had published and registered an illus- trated guide for furnishing houses, and circulated it as an advertisement of his business. The defendant, who was engaged in the same line of business, copied fifty-five of the illustrations and a large portion of the text. In defence it was contended that the plaintiff's book was a mere advertisement, and was, therefore, not within the Copyright Act. The court held that the drawings in the plaintiff's book were not entitled to protection, on the ground that they were mere advertisements. With regard to the text, a distinction was drawn between that part " which bears the trace of original composition," and that which " simply describes the contents of a warehouse, the exertions of the proprietors, or the common mode of using familiar articles." The court held that matter of the latter kind was not entitled to protection : but that the plaintiff was entitled to an injunction restraining the defendant from publishing about sixty words of " original composition " which had been copied. In. the case referred to, Lord Eomilly considered that the distinction between directories, concordances, dictionaries, &c. and the work then in question was, that such works were compiled and published for the information and use of the public, and were bought by the public without any reference to individual benefit — nothing in the shape of advertisements of articles specified in the work forming a part of the work, whereas in the case before him the work was a mere advertisement for the sale of particular articles which any one might advertise for sale. " If a man," said he, " not being a vendor of any of the articles in question, were to publish a work for the purpose of informing the public of what was the most convenient species of articles of house furniture, or the most graceful (a) L. K. 14 Eq. 407. WHAT MAY BE THE SUBJECT OF COPYBIGHT. 9!) species of decorations for articles of house furniture, what Cap. II. they ought to cost, and where they might be bought, and were to illustrate his work with designs and with drawings of each article he described — such a work as this could not be pirated with impunity, and the attempt to do so would be stopped by the injunction of the Court of Chancery ; yet, if it were done with no such object, but solely for the purpose of advertising particular articles for sale, and promoting the private trade of the publisher by the sale of articles which any other person might sell as well as the first advertiser, and if in fact it contained little more than an illustrated inventory of the contents of a warehouse, I know of no law which, while it would not prevent the second advertiser from selling the same articles, would prevent him from using the same advertise- ment, provided he did not in such advertisement by any device suggest that he was selling the works and designs of the first advertiser. At the same time, I am bound to say that where it is shewn that the second advertiser has been making use literally of the drawings of the first advertiser and copying them precisely, I think that the court, though it could not stop him from taking that course, must feel that a use has been made of the works of the first advertiser which would not be considered fair amongst gentlemen, nor (for the rules are the same as regards the usual intercourse of life) amongst fair traders, and would not give costs to the man who deliberately endeavoured to profit by the exertions of his fellow- tradesmen. " But at the last it always comes to this, that in fact there is no copyright in an advertisement. If you copy the advertisement of another, you do him no wrong, unless in so doing you lead the public to believe that you sell the articles of the person whose advertisement you copy. A different rule applies to the letterpress which is said to be copied. Wherever this letterpress bears the trace of original composition it is entitled to protection, but not where it simply describes the contents of a warehouse, the H 2 100 THE LAW OF COPYKIGHT. Cap. ii. exertions of the proprietor, or the common mode of using familiar articles." Principles on The principles to be extracted from this decision are right in an n °t very obvious, but the only consistent view which can advertising ]^ e d rawn f r0 m it seems to be that there may be copy- medium de- . . . , . pends. right in matter, whether pictorial or literary, designed or used as an advertisement, provided it be original, and have a value apart from its use as a mere advertising medium. It is submitted that the distinction drawn in the above decision between the different sources from which the work may emanate is not sound. The question whether an author of a work is entitled to copyright therein, depends neither upon the vocation of the author or the purpose for which he has designed or may use it, but on the character, the inherent qualities of the production itself. Copyright in a It has been held in America that a diagram with lagram. directions for cutting garments, printed on a single sheet, is a book within the meaning of the statute, and the author entitled accordingly to copyright (a), but that a mere label, capable of no other use than to be pasted on a bottle, is not a book and does not entitle the author to copyright (b) ; and in this country it has been held that a Scoring- scoring sheet or " tablet," used in the game of cricket, is tablet. no ^. a } )00 ^ ) an( j tn e author thereof is not entitled to copyright therein (c). No copyright There can be no copyright in the mere plan of a work ; San" 1616 nor an y exclusive property in a general subject or in the particular method of treating it. Any number of persons may use the same common materials, in a like manner and for a similar purpose. Their productions may contain the same thoughts and ideas ; and resemblance to each other is immaterial so long as there is no unlawful copying. Copyright in There can of course be copyright in newspaper newspaper telegrams. (a) Drury v. Ewing, 1 Bond (Amer.) 540. (6) Scoville v. Toland, 6 West. Law Jour. 84. (c) Page v. Wisden, 20 L. T. (N.S.) 435. "WHAT MAY BE THE SUBJECT OF COPYRIGHT. 101 telegrams. A case not long since came before the Cap. II. Supreme Court in Melbourne. It appeared that the pro- ~~ prietors of the ' Melbourne Argus ' pay a large sum for the purpose of obtaining the latest telegrams from Europe, and any newspaper proprietors who may wish to publish the telegrams so obtained can do so by paying a con- tribution towards the expenses incurred. The proprietor of the ' Gipps' Land Mercury ' made an agreement to pay for the right of republishing the telegrams, but after carrying out the arrangement for some months cancelled the agreement. The European telegrams received by the 'Argus' were, however, re-published in another form, as from a Melbourne correspondent of the 'Mercury,' with the preliminary words " It is reported," or " The news about town is." This was considered a breach of the copyright which the proprietors of the 'Argus ' possessed in the telegrams, and a suit was instituted in the Equity Court to restrain the proprietor of the ' Mercury' from re- publishing the telegrams. It was argued for the de- fendant that, as the telegrams were matters of news, any one could re-publish them without breach of the Copy- right Act ; but Mr. Justice Molesworth held that the plaintiff had a property in the telegrams, and that no one could re-publish them without the permission of the person to whom they had been sent in the first instance. An injunction was, therefore, granted to restrain the defendant from publishing the telegrams. Questions of great nicety and difficulty may arise as to How far new . . ,.,. „ i " i . , » editions the how far a new edition of a work is a proper subject tor object of copyright. A new edition of a book may be a reprint of copyright. the original edition, which does not entitle the author to a new term of copyright running from the new edition ; or it may be so enlarged and improved as to constitute in reality a new work ; for example, a scientific work twenty or thirty years old may be comparatively worthless, owing to the progress of science in the interval: but a new edition, particularly if it be the production of the original author, would be as valuable at a later period as 102 THE LAW OF COPYRIGHT. Cap. II. the original edition of the book was at the time it was published. There are many courses which lay between the two extremes, and the difficulty would be to lay down any general rule as to what amount of additions, altera- tions, or new matter would entitle the second or new edition of a book to the privilege of copyright, or whether the copyright extends to the book as amended or improved, or is confined to the additions and improve- ments themselves as distinguished from the rest of the book (a). The general rule is, that each successive edition, which is substantially different from the preceding ones, or which contains new matter of substantial amount or value, becomes entitled to copyright as a new work, and it is immaterial whether the new edition is produced by condensing, expanding, correcting, re-writing, or otherwise altering the original work ; or by introducing notes, citations, or other additions. Nor is it essential that the new edition should be an improvement on the old, the sole question is whether it is substantially different. A few mere colourable alterations in the text or the addition of a few unimportant notes will not be enough to sustain copyright as in a new work. As Lord Kinloch said in Black v. Murray (a), to create a copyright by altera- tions of the text, these must be extensive and sub- stantial, practically making a new book. With regard to notes, in like manner, they must exhibit an addition to the work which is not superficial or colourable, but imparts to the book a true and real value, over and above that belonging to the text. This value may perhaps be rightly expressed by saying that the book will procure purchasers in the market on special account of these notes. There is involved in such annotation, and often in a very eminent degree, an exercise of intellect and an application of learning which place the annotator in the position and character of author in the proper sense of the (a) 9 So. Sess. Cas. 3rd Ser. 341 ; Hedderuich v. Griffin, 3 So. Sess. Cas. 2nd Ser. 383. WHAT MAY BE THE SUBJECT OF COPYRIGHT. 103 word. It will still of course remain open to publish the Cap. II. text, which ex hypothesi is the same as in the original edition. But to take and publish the notes will be a clear infringement of copyright. An action was raised in the Scotch Court of Session at the instance of Messrs. Black against Messrs. Murray & Son for a breach of copyright, and the infringement was said to be contained in a book published by the defenders in 1869, which purported to be an edition of the ' Minstrelsy of the Scottish Border,' collected by Sir Walter Scott, and it was stated in the title page to be a reprint of the original edition. The peculiarity of the case was that the original edition of the ' Minstrelsy of the Scottish Border' was no longer protected by copyright; and therefore, if the book was what its title represented it to be, a mere reprint of the original edition, the complaint of the pursuers could not be maintained. But they alleged that this was a false pretence on the face of the title page, and that while all the poems and ballads contained in the original edition of the ' Minstrelsy ' were reproduced in this volume, there was a considerable amount of other matter borrowed from works the copy- right of which had not expired. The Lord President said that in the first complaint the pursuers alleged that the defenders had illegally copied and pirated from the copy- right edition of the ' Minstrelsy of the Scottish Border ' the advertisement, or part thereof, prepared by Mr. John Gibson Lockhart, and that they had printed the same, or part thereof, as a preface to their volume, and, further, that they had copied from the ' Minstrelsy ' the notes, quotations, illustrations, and references, or the essential parts thereof. The defenders could have no excuse, if this were the case, for it was distinctly stated in that advertisement that this copyright edition contained matter which was not to be found in the original edition. That there might be a copyright of notes, even when the text was not copyright, was a fixed principle in law, and 104 THE LAW OF COPYRIGHT. Cap. II. most deservedly so ; for there was do doubt that the addition of good notes to a standard work was a task worthy of the highest literary talent and reputation ; and it must he remembered that Mr. Lockhart stood in a position of peculiar advantage as the editor and annotator of Sir Walter Scott's works, being his son-in-law and literary executor, and having opportunities during the lifetime of Sir Walter Scott to collect materials for the performance of such a task. His lordship, after quoting numerous passages, said there was no doubt that the editor of the defenders' book of 1869 had copied these notes of Mr. Lockhart in the most slavish manner, without even verifying or attempting to make them more accurate than Mr. Lockhart's. It was quite clear to his mind that there had been an appropriation of original matter and quotations, and therefore he held that this part of the pursuers' case had been completely made out. In the said complaint it was alleged that the defender had used notes from ' Old Mortality ' with reference to the skirmish of Drumclog, and a letter written by Claver- house to the Earl of Linlithgow, and also a description of the Battle of Diumclog on Loudon-hill. He was of opinion that the note with the reference to the Battle of Drumclog stood in the same position as the notes to the ' Minstrelsy,' and there again he held that piracy had been committed. In regard to the next complaint — that the defender had copied from volume 8 of the poetical works, containing the ' Lady of the Lake ' and other poems, and an account of the ' Massacre of Glencoe ' — he was of opinion that there had been the same kind of piracy as in the notes to the ' Minstrelsy.' The Court granted costs to the plaintiffs '(a). Copyright in The copyright in each edition will extend from the date of that edition, and will be wholly independent of the copyright in any preceding one. Copyright may be obtained for any number of editions and it is immaterial (a) Black v. Murray, Sol. Jouru. Deo. 31, 1870. each edition. WHAT MAT BE THE SUBJECT OF COPYRIGHT. 105 whether copyright has existed or not in any previous one. ° AP - TI - And though no person but the proprietor of the copyright may bring out a new edition of the work, supposing the copyright to be subsisting, without his consent ; yet if the work be not protected there is nothing to prevent any person from bringing out a new edition of the work and obtaining a valid copyright therein. 10G THE LAW OP COPYKIGHT. CHAPTER III. TEEM OF COPYRIGHT, AND IN WHOM VESTED. Term of copy- Many have agitated for the establishment of a perpetual " s " copyright, together with the bestowal upon authors of the exclusive power of abridging, dramatizing, and metamor- phosing their own works at will, turning prose into poetry, romances into plays, and vice versa. The claim of authors resulting from the principles of natural right involves the perpetual duration of the property. But in order that such property should be of value, it is necessary that society should interfere actively for its protection. Society will not ordinarily be willing to apply penal remedies in favour of an exclusive right, further than it finds such a course beneficial to its own interests, in the broadest sense of the term. It is argued, however, that the concessionary allowance of a perpetuity in copyright would encourage publication, and tend greatly to the pro- motion and furtherance of science and literature. But, admitting that learning and science should be encouraged, that everything tending or conducible to the advancement of knowledge, and consequently to the happiness of the community, should be favoured and tenderly cherished by the legislature, and that the labour of every individual should be properly recompensed, it does not follow that the same or a similar end might not be obtained by different and less objectionable means. If the individual is a gainer by the existence of perpetual copyright, society is a loser. The absurdity of the asser- tion that authors are alone inclined to make known their TEEM OF COPYRIGHT, AND IN WHOM VESTED. 107 works from the specific benefit arising from an absolute cap. III. perpetual monopoly, is manifest. What a studied indignity Considera . to those who have devoted their lives to the advancement tions respect- of every science that adorns the annals of literature ! p^f^tyTa Ambition cannot be deemed a cipher ; benevolence will copyright, ever exist in the heart of man, and they at least act as powerfully by way of conducives to the communication of knowledge between man and man, as avaricious or mercenary motives. A perpetuity in copyright would have the effect of The effect of impeding the progress of literature and science, and f n P copyrigirt. among other serious inconveniences we will mention one. The text of an author, after two or three generations, if the property be retained so long by his descendants, would belong to so many claimants, that endless disputes would arise as to the right to publish, which in all pro- bability might prevent the publication altogether. The Emperor Napoleon is reported to have stated this ob- jection in council with his characteristic practical wisdom as follows : — " Napoleon dit que la perpetuite de la propriete dans les The Emperor families des auteurs aurait des inconvenients. TJne pro- p^ui on °of S a priete litteraire est ime propriete ineorporelle qui, se trouvant perpetuity. dans la suite des temps et par le cours des successions divisee entre une multitude d'individus, finirait; en quelque sorte, par ne plus exister pour personne ; car, comment un grand nomhre de proprietaires, souvent eloignes les uns des autres, et qui, apres quelques generations, se connaissent a peine, pourraient-ils s entendre et contribuer pour reimprimer Vouvrage de lew auteur commun? Oependant, s'ils ny parviennent pas, et qu'eux seuls aient le droit de lepuhlier, les meilleurs livres disparaitront insensiblement de la circulation. "My aurait un autre inconvenient non moins grave. Le progres des lumieres serait arrete, puis quit ne serait plus permis ni de commenter, ni d'annoter les ouvrages; les gloses, les notes, les commentaires ne pourraient etre separes d'un texte qu'on n aurait pas la liberie d'imprimer. " D'ailleurs, un ouvrage a produit a V auteur et a ses of copyright. 108 THE LAW OF COPYRIGHT. Cap, hi. heritiers tout le benefice qu'ils peuvent naturellement en attendre, lorsque le premier a eu le droit exclusif de le vendre pendant toute sa vie, et les autres pendant les dix ans qui suivent sa mort. Cependant, si Ton veut favoriser davantage encore la veuve et les heritiers, qu'on porte leur propriete a vingt ans" (a). Though we could not, therefore, uphold a perpetual copyright, believing that its existence would by no means tend to the spread or encouragement of literature, we would willingly offer our support to the extension of the period during which literary copyright is at present protected. Present term The 3rd section of the 5 & 6 Vict. c. 45, enacts that the copyright in every book which shall after the passing of that Act be published in the lifetime of its author shall endure for the natural life of such author, and for the further term of seven years, commencing at the time of his death, and shall be the property of such author and his assigns ; provided always, that if the said term of seven years shall expire before the end of forty-two years from the first publication of such book, the copyright shall in that case endure for such period of forty -two years ; and that the copyright in every book which shall be published after the death of its author shall endure for the term of forty-two years from the first publication thereof, and shall be the property of the proprietor of the author's manuscript from which such book shall be first published* and his assigns. As to copy- In case of books published before the passing of the ingat thetime -^- ct an( ^ ^ n w hi°h copyright then subsisted, the 4th section of passing of provides that the copyright shall be extended and endure Act, 16*42. for the full term provided by the Act in cases of books thereafter published, and shall be the property of the person who at the time of the passing of the Act shall be the proprietor of such copyright. But it is further provided that in all cases in which such copyright shall belong in whole or in part to a publisher or other person who shall (a) Locre, Legislation civile de la France, tit. ix. pp. 17-19 ; Eenouard, Droits d'Aateurs, torn. 2, p. 387. TEEM OF COPYRIGHT, AND IN WHOM VESTED. 109 have acquired it for other consideration than that of cap. III. natural love and affection, such copyright shall not be ex- tended by the Act, but shall endure for the term which shall subsist therein at the time of the passing of the Act, and no longer, unless the author of such book if he shall be living, or his personal representative if he shall be dead, and the proprietor of such copyright, shall before the expiration of such term consent to accept the benefits of the Act in respect of such book, and shall cause a minute of such consent in the form in that behalf given in the schedule to the Act to be entered in the registry at Stationers' Hall, in which case such copyright shall endure for the full term pro- vided in cases of books published after the passing of the Act, and shall be the property of such person or persons as in such minute shall be expressed. The 5th section, in order to provide against the sup- Judicial Com- pression of books of importance to the public, provides council may y that the Judicial Committee of Her Majesty's Privy license re- Coimcil may, on complaint made to them that the pro- certain books. prietor of the copyright in any book after the death of its author has refused to republish or to allow the republication of the same, and that by reason of such refusal such book may be withheld from the public, grant a licence to such complainant to publish such book, in such manner and subject to such conditions as they may think fit (a). The Royal Commissioners in their recent report on copy- Suggestion of right recommend that the term shall be for life and thirtv Copyright ° J (jommis- years from his death in cases of books published in the sioners as author's lifetime and with his name ; and for thirty years ° { ®erm of " from the date of the deposit of the book for the use of copyright, the British Museum as to works published anonymously or after the death of their authors, and as to cyclopaedias ; but that if the author of an anonymous work publishes in his lifetime an edition bearing his name he should be entitled to copyright therein for his life and thirty years after his death. (a) This section seems to have been put in force with regard to Sir Kenelm Digby's ' Broadstone of Honour.' 110 •the law of copyright. Cap. Ill, Meaning of the word " book." What is a publication 1 The term " book " by virtue of the interpretation clause is to be construed to signify and include every volume, part, or division of a volume (a), a pamphlet, sheet of letterpress (b), sheet of music, map, chart, or plan separately published. But a separate article, advertised to form part of a periodical publication, is not a book within the meaning of the Act, and therefore does not require registration under the 24th section (c). The copyright is, we have seen, to run from the date of the publication of the work, consequently it will be necessary to inquire what, in the eye of the law, may be regarded as equivalent to publication (d). In Coleman v. Waihen (e), it was said that the acting of a dramatic composition on the stage was not a publication within the statute. The plaintiff, it appears, had purchased from O'Keefe the copyright of an entertainment called the ' Agreeable Surprise,' and the defendant represented this piece upon the stage. The mere act of repeating such a performance from memory was held to be no publication. On the other hand, to take down from the mouths of the actors the words of a dramatic composition, which the author had occasionally suffered to be performed, but never printed or published, and to publish it from the notes so taken down, was deemed a breach of right ; and the publication of the copy so taken down was restrained by injunction (/). By the 20th section of the Copyright Act, 1842, it is declared, that the first public representation or perform- ance of any dramatic piece or musical composition shall be deemed equivalent to the first publication of any book (g). (a) See the University of Cambridge v. Sryer, 16 East. 317 ; The British Museum v. Payne, 2 Y. & J. 166 ; Clayton v. Stone, 2 Paine (Amer.) 383 ; Scoville v. Toland, 6 West. L. J. (Amer.) 84. But a label used in the sale of an article is not a book : Coffeen v. Brunton, 4 McLean (Amer.) 517. (b) See Clementiv. Goulding, 2 Camp. 25; 11 East, 244- Mime v Dale 2 Camp. 27 a ; White v. Geroch, 2 B. & Aid. 298. (c) Murray v. Maxwell, 3 L. T. (N.S.) Ch. 466. (d) The use of letters as evidence in a court is not publication : 7 Bvth & Jarm., by Sweet, 628, note (a). (e) 5 T. E. 245 : see Roberts v. Myers, 13 Mo. Law. Rep. (Amer.) 397 ; Crowe v. Aihen, Amer. Law. Bep. L. Jour. vol. 5, No. 226. 1870. (/) Macklin v. Richardson, Amb. 694, cited 2 Kent's Com 378 ((/) Post. TEEM OF COPYRIGHT, AND IN WHOM VESTED. Ill A presentation of copies, on the part of the author, Cap. III. may not amount to a publication, but the gratuitous Gratuitous circulation generally would seem to be so (a), circulation Abbott, C.J., in White v. Geroch (6) considered that a sale publication, of copies of a work in manuscript amounted to a publication of the work from which the statutory period would com- mence to run, and, referring to this opinion, Mr. Sweet, in his notes to Bythewood and Jarman's Conveyancing (e), says "this construction, if well founded, would apply to the recent Act." He admits there is no direct authority on the point ; but he states that it seems clear that a gratuitous circulation of copies of a work among friends and acquaintances would not amount to a publication ; quoting in support of this proposition the Duke of Queensbury v. Shebbeare; and Dr. Paley's Case, where the bookseller was restrained from publishing manuscripts left by Dr. Paley for the use of his own parishioners only. The distinction is in the limit of the circulation, if limited to friends and acquaintances it would not be a publication, but if general, and not so limited, it would be. So the distribution of lithograph copies of music for Private dis- private use, and not for the purpose of sale or exportation, lithographic has been held to be a publication, but on the other hand it copies- is clear that a private circulation for a restricted purpose is not a publication. Thus, in Prince Albert v. Strange (d), it appeared that her Majesty and the late Prince Consort had given to their intimate friends lithographic copies of drawings and etchings which they had made for their own amusement. This was held to be a private circulation of copies, and hence not a publication. In an American case (e) it appeared that the plaintiff, Circulation who was a teacher of book-keeping, had written his of'a'sy^em of system of instruction on separate cards, for the convenience k°°k-keeping. (a) Vide Novello v. Ludlow, 12 C. B. 177; 16 Jur. 689 ; 21 L. J. (C.P.) 169 ; Dr. Paley's Case cited 2 V & B. 23 ; Alexander v. Macltenzie, 9 Seas. Cas. 2nd series, 748. (i) 2 B. & A. 998 ; S. 0. 1 Chit. Kep. 24. (c) Vol. 7, p. 626. (d) 2 De G. & Sm. 652 ; 1 Mac. & G. 25. (e) Bartlett v. Crittenden, 4 McLean, 300 ; 5 Id. 32 ; Kees v. Peltzer, 75 111. (Amer.) 475. 112 THE LAW OF COPYRIGHT. Cap, hi. of giving instruction to his pupils. He had permitted them to copy these cards for their own convenience, and to enable them to instruct others. The defendant published copies of the cards, which he had obtained while a pupil in the school, and maintained that the plaintiff, by permitting his manuscripts to be so copied, had abandoned them to the public. The court, however, held this to be a private circulation of copies, which did not prejudice' the owner's common law rights. " The students of Bartlett who made these copies," said Mr. Justice McLean, " have a right to them and their use as originally intended. But they have no right to a use which was not in the con- templation of the complainant and of themselves when the consent was first given .... The lecturer designed to instruct his hearers, and not the public at large. Any use, therefore, of the lectures which should operate injuriously to the lecturer would be a fraud upon him for which the law would give him redress." The question of publication does not depend on the number of copies sold or given away ; because a sale of one copy only is as clearly a publication as is the sale of ten thousand. Nor can it be essential that a single copy be disposed of before the work can be said to be published, for the work is published when it is publicly offered for sale. The act of publication is the act of the author, and cannot be dependent upon the act of a purchaser. Printing does not amount to publication, for it is obvious that it may be withheld from the public long after it is in print. To constitute publication it is necessary that the work shall be exposed for sale or offered gratuit- ously to the general public, so that any person may have an opportunity of enjoying that for which copyright is intended to be secured. Work must be The previous publication of a work abroad disqualifies fn 8 thi UbliSh6d i1; for copyright in this country (a). If, however, the pub- (a) See Clementi v. Walker, 2 B. & C. 861 ; Guichard v. Mori, 9 L. J.' (Ch.) 227 ; Delondre v. Shaw, 2 Sim. 237 ; Page v. Towmend, 5 Sim. 395 ; Boucimult v. Delafield, 1 H. & M. 597 ; 23 L. J. (N.S.) Oh. 38 ; Eeddenmek v. Griffin, 3 Sess. Cas., 2nd Series, 383. TERM OF COPYRIGHT, AND IN WHOM VESTED. 113 lication here and abroad be simultaneous, the publication cap. III. abroad will not stand in the way of copyright in this country, or country (a). The legislature contemplates publication f^-l^w 8 " here and here only, and it contemplates such publication in another, only when made by the author, or with such consent and authority from him as the statute requires ; and it con- templates publication of foreign books only when they are capable of advancing literature here, that is to say, before the work is published here by a person who has obtained it'fairly and lona fide under a previous assignment by the author in a foreign country (6). So where the work was composed before June, 1814, and in that month the author sanctioned a publication of it in France, and five copies of it were deposited in a musical depot at Paris ; in July, 1814, the author made a verbal ' arrangement with the plaintiff, and the latter published in the September following ; it was held, that the publica- tion was not such a publication by the author as to entitle him to the statutory privilege (c). That the publication must be in the United Kingdom Publication scarcely admits of a doubt. The words of the 3rd unrtedKtog- section are " every book which shall be published," with- dom. out saying where ; but it would be inconsistent with the usual practice of the Imperial Parliament to create a system of copyright law for all the colonies and depen- dencies of the empire, many of which have representative institutions of their own, without any consultation with those colonies or dependencies, and without any considera- tion whether a uniform and arbitrary system, such as that introduced by the Act, would be suitable to the varied circumstances, states of civilization, and systems of juris- prudence and judicature in these different colonies and possessions (d). In deciding this question Lord Cairns (o) Phillips on Copy. 52, citing Erie, J., in Gocks v. Purda'y, 2 Car. & Kirw. 269 ; Boutledge v. Low, L. E. 3 H. L. 100. (6) Per Bayley, J., dementi v. Walker, 2 B. & C. 861 ; Ghappell v. Pwday, 4 Y. & 0. 485 ; 14 M. & W. 303 ; Ouichard v. Mori, 9 L. J. (Oh.) 227. (c) dementi v. Walker, mpra. (d) Per Lord Caims, Boutledge t. Low, L. R. 3 H. L. 100. I 114 ' THE LAW OF COPYRIGHT. Cap. hi. said : " But there are, as it seems to me, still clearer in- dications in the Act of the intention of the legislature on this point. By the 8th. section copies of every book are to be delivered to various public libraries in the United Kingdom within one month after demand in writing ; an enactment which in the case of a publication at the antipodes could not be complied with. By the 10th section penalties for not delivering these copies are to be re- covered before two justices of the county or place where the publisher making default shall reside, or by action of debt in any court of record in the United Kingdom. By the 11th section the book of registry of copyrights and of assignments is to be kept at Stationers' Hall, in London, and no registry is provided for the colonies. By the 14th section a motion to expunge or vary any entry in this registry is to be made in the Court of Queen's Bench, Common Pleas, or Exchequer. These clauses are in- telligible if the publication is in the United Kingdom, but hardly so if it may be in India or Australia. Finally by the 17th section there is a provision against any person importing into any part of the United Kingdom, or any other part of the British dominions, for sale or hire, any copyright book first composed or written, or printed and published in any part of the United Kingdom, and reprinted in any country or place out of the British dominions ; a provision shewing clearly, as it appears to me, that publication in the United Kingdom is indis- pensable to copyright (a)." An English- A residence abroad by an English subject, or the fact man resident f t,i ie wor k having been composed abroad, either by an abroad may . F ■ in ™ « have a copy- Englishman or a foreigner, would not have the effect of nght " preventing the author from acquiring a copyright in this country. On this point there can be no doubt, for inde- pendent .of the peculiar wording of the copyright statute and under the old Act of Queen Anne this was decided, the reason assigned being, that an English subject, though resident abroad, does not by such residence throw off his («) Per Lord Cairns, Routlerlgc v. Lme, L. R. 3 H. L. 100. TEEM OF COPYEIGHT, AND IN WHOM VESTED. 115 natural allegiance ; he cannot be relieved from it, and Cap. hi. therefore carries with him the natural rights of a subject of England wherever he goes (a). That gives him, though resident abroad, the right of publishing and acquiring a copyright here, because he has always fulfilled the implied condition of being a subject of, and owing allegiance to, the crown of Great Britain. This of course could not be said of a foreigner who was not actually resident here (6). Nor could he (being resident abroad) under the Act of Queen Anne have acquired a copyright in this country ; though, as we shall presently see, there have been con- flicting opinions on the point. Copyright has no existence in the law of nations ; it Copyright no , . , , . . n , „ , existence in acquires a power simply by the municipal law ot each the law of particular community. "As soon," observes Mr. Curtis (e), natlonB ' "as a copy of a book is landed in any foreign country, all complaint of its republication is, in the absence of a treaty, fruitless, because no means of redress exist, except under the law of the author's own country. It becomes public property, not because the justice of the case is changed by the passage across the sea or a boundary, but because there are no means of enforcing the private right." The only persons who can claim the copyright in a Persons who book published before the 1st of July, 1842, are the pro- ZJyttht. prietor on that day of the copyright therein, or his assigns ; and in the case of a book since published, the author or his assigns. And as the word " author " is used with- out limitation or restriction, it is equally applicable to foreigners as to British subjects. There is nothing in any part of the Act to restrict the word " author " to British subjects (d). As to aliens, the following rules have been laid down at (a) Bat British subjects under certain circumstances may, under the Naturalization Act of 33 Vict. c. 13, free themselves from their allegiance, and may resume it again. (6) Per Lord St. Leonards in Jefferys v. Boosey. 4 II. L. C. 985 ; but see Routledge v. Low, L. E. 3 H. L. 100. (c) 'Copyright,' 22. (d) The case of Jefferys v. Boosey was a decision under the Statute of Anne. i 2 116 THE LAW OF COPYRIGHT. Cap. III. various times, though not without much discussion and dif- How aliens f erenc e of opinion : — That an alien may acquire copyright may acquire in this country on three conditions : first, publication must tMs^ountry. b e i n the United Kingdom ; secondly, there must have been no previous publication ; and, thirdly, the author must be at the time of publication within the British dominions (a). Whether a I n D'Almaine v. Boosey (b) the two principal questions dent abroad that arose were, whether the law would protect the assignee can obtain a f f ore jp- n copyright at all, and whether any protection copyright in a ° rJ ° ' J r workfirstpub- could exist where the work had been first published country! 1 *"* abroad. Alluding to Delondre v. Shaw, Lord Abinger said, " If the Vice-Chancellor had decided expressly that a foreigner, qua foreigner, had no protection in England in regard to copyright, I confess I should have doubted the correctness of that decision ; though, certainly, I should not have decided in opposition to him, but should have put this case to the course of further investigation, out of respect to his authority. But the case which has been cited upon the subject does not go that length ; it is in principle not quite intelligible ; but there was clear ground for an injunction independently of the question of copyright. Besides, that was a case where one of the parties resided abroad. Now, the Acts give no protection to foreigners resident abroad in respect of works published abroad; and all the Vice-Chancellor said was, that the publisher of a work at Paris could not protect himself in a court of justice in England, either by action or injunction." Again, in Bentley v. Foster (e), Yice-Chancellor Shadwell said, that if an alien friend wrote a book, whether abroad or in this country, and gave the British public the advan- tage of his industry and knowledge by first publishing the (a) The United Kingdom embraces England and Wales, Scotland and Ireland ; while the British dominions include " all parts of the United Kingdom of Great Britain and Ireland, the islands of Jersey and Guernsey, all parts of the Bast and West Indies, and all the colonies, settlements, and possessions of the Crown which now are or hereafter may be acquired." 5 & 6 Vict. c. 45, s. 2. (6) 1 Y. & C. 288. (c) 10 Sim. 329 : see also Page v. Townsend, 5 Sim. 395 ; Tonson v. Collins, 1 W. Bl. 301 ; Baeh v. Longman, 2 Cowp. 623 ; contra, Chappell v. Furriatj, 14 M. & W. 303. TEEM OF COPYRIGHT, AND IN WHOM VESTED. 117 work here, he was entitled to the protection of the laws cap. III. relating to copyright in this country. The question was fully discussed in Bach v. Longman (a). Bach was a musical composer, who had come into this country from Germany. He sued Longman for pirating a sonata, which the latter had published in England, and he was successful in his suit. In accordance with these decisions, in the year 1845, Chief Baron Pollock, in delivering the judgment of the Barons of the Exchequer in Chapp ell v. Purday (b), stated the result of the cases at that time decided on the subject to be that if a foreign author, not having published abroad, first publishes in England, he may have the benefit of the statutes ; and on the authority of these cases, and the general rule that an alien may acquire personal rights and maintain personal actions in respect of injuries to them (c), it was deter- mined in Cocks v. Purday (d), that an alien amy resident abroad, the author of a work of which he is also the first publisher in England, and which he has not made fublici juris by a previous publication elsewhere, has a copyright in that work, whether it be composed in this country or abroad. This determination was supported in Boosey v. Davidson (e), and subsequently considered by the Court (a) 2 Cowp. 623. (6) 14 M. & W. 303, 320. « (c) See Fisani v. Lawson, 8 Scott, 182; 6 Bing. (N.S.) 90; 8 Dowl. 57; Tuerloote v Morrison, 1 Bulst. 134 ; Yelv. 198 ; Dyer, 2 b. (d) 5 C. B. 860, since overruled. (e; 18 L. J. (Q.B.) 174 ; 13 Q. B. 257. In Buxton v. James (5 De G. & Sm. 80 ; 16 Jur. 15), an alien residing abroad composed three musical pieces in a foreign country, and sold the copyright in this country to the plaintiff, a British subject, who published the work in London. The work was published on the same day in Prussia. On motion in a suit instituted by the purchaser of the copyright against a person who had, without leave, published the musical compositions in this country, the Court o-ranted an injunction restraining the unauthorized publication. And mOllendorf v. Black (4 De G. & Sm. 209 ; 14 Jur. 1088 ; 20 L. J. (Ch.) 165), it was held that an alien resident abroad might himself have copyright in a work written by himself, and published for the first time in this country, at all events if he were resident here at the time of publica- tion. In this case an alien author had first published a work while resi- dent in this country, and an edition of the same work was published in Frankfort, and copies were imported into this country and sold by a London bookseller, and the alien filed a bill for an injunction to restrain the sale, and on motion the same was granted, the plaintiff undertaking to bring an action if the defendants desired it. 118 THE LAW OF COPYRIGHT. Cap. ill. °f Exchequer in Boosey v. Purday (a), when that court heldthat a foreigner had no such capacity. This last was the case of a foreigner domiciled abroad sending his work to Great Britain for first publication, and endeavouring to confer a valid title upon a British subject. Baron Pollock there said : " Our opinion is that the legis- lature must be considered prima facie to mean to legislate for its own subjects, or those who owe obedience to its laws ; and, consequently, that the Acts apply prima facie to British subjects only in some sense of that term, which would include subjects by birth or residence being authors ; and the context or subject matter of the statutes does not call upon us to put a different construction upon them. The object of the legislature clearly is not to encourage the importation of foreign books and their first publication in England as a benefit to this country ; but to promote the cultivation of the intellect of its own subjects." Case of In this unsettled state of the law arose the case of Jefferys v. Boosey, which was ultimately carried on appeal to the House of Lords. Bellini, a foreign musical composer, resident at that time in his own country, composed a certain work, in which, by the laws there in force, he had a copyright. He then assigned to Bicordi, another foreigner also resident there, according to the laws of their country, his right to the copyright in the composition of which he was the author, and which was then unpublished. The assignee brought the composition to this country, and, before pub- lication, assigned it, according to the forms required by the laws of this country, to an Englishman. The first publication took place in this country. The work was subsequently pirated, and proceedings instituted which ultimately reached the Upper House. The judges were called upon for their opinions, which they delivered seriatim, and judgment was finally pronounced by the House in favour of the defendant. The grounds of the decision were that an Act of Parliament of this country, (a) 4 Ex. 145. TERM OP COPYRIGHT, AND IN WHOM VESTED. 119 having within its view a municipal operation only, and Cap. III. being therefore limited to this kingdom, cannot be held to extend beyond our own subjects, except as both statutes and common law so provide for foreigners when they become resident here, and owe at least a temporary alle- giance to the sovereign, and thereby acquire rights just as other persons do; not because they are foreigners, but because being here, they are here entitled, in so far as they do not break in upon certain rules, to the general benefit of the law for the protection of their property, in the same way as if they were natural-born subjects. " Where an exclusive privilege," said Lord Cranworth (a), " 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 privi- leged 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 prima 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 pub- lished 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. This would be so if he had composed the work after his arrival in this ' country, and I do not think any question can be raised as to when and where he composed it. So long as a literary work remains unpublished at all, it has no existence, except in the mind of its author, or in the papers in which he, for his own convenience, may have (a) Jefferys v. Boosey, i H. L. C. 815 ; 1 Jur. (N.S) 615 ; 24 L. J. (Ex.) 81 ; Low v. Boutledge, 10 Jar. (N.S.) 922 ; 10 L. T. (N.S.) 838 ; 11 Jur. (N.S.) 939 ; Boutledge v. Low, Law Rep. 3 H. L. 100 ; 37 L. J. (Ch.) 454 ; 18 L. T. (N.S.) 874. 120 THE LAW OF COPYRIGHT. Cap. III. embodied it. Copyright, defined to mean the exclusive — right of multiplying copies, commences at the instant of publication ; and if the author is at that time in England, and while here he first prints and publishes his work, he is, I apprehend, an author within the meaning of the statute, even though he should hare come here solely with a view to the publication. The law does not require or permit any investigation on a subject which would obviously, for the most part, baffle all inquiry, namely, how far the actual composition of the work itself had, in the mind of its author, taken place here or abroad. If he comes here with his ideas already reduced into form in his own mind, still, if he first publishes after his arrival in this country, he must be treated as an author in this country. If publication, "which is (so to say) the overt act establishing authorship, takes place here, the author is then a British subject, wherever he may, in fact, have com- posed his work. But if at the time when copyright com- mences by publication, the foreign author is not in this country, he is not, in my opinion, a person whose interests the statute meant to protect." Extension of Copyright under the statute of Anne was confined to th^Act of y Great Britain. The case of Jefferys v. Boosey decided 1842 - that this statute gave the copyright in a work only to British subjects or to foreign authors who at the time of the first publication were in this country. But by the 29th section of the 5 & 6 Vict. c. 45, it is enacted " that the Act shall extend to the United Kingdom of Great Britain and Ireland, and to every part of the British dominions." This section of the Act requires for its full effect, that the area over which the copyright prevails should be limited, only by the extent of the British dominions. And then it follows that the term "author" must have a similar extension. For in the case of Jefferys v. Boosey it was not doubted that the term " author,'' though intended to express a British subject, would apply to a foreigner taking up residence within the limits to which copyright extended under the 8 Anne, and those limits being now TEEM OF COPYRIGHT, AND IN WHOM VESTED. 121 enlarged by the 5 & 6 Vict., the residence which confers cap. III. the rights of a British subject, as to copyright, upon a - foreigner, may be in any part of the Queen's dominions. It must be remembered that the case of Jeferys v. Boosey was decided under the old Copyright Act of Queen Anne, and not under the present Copyright Act, and though Lord Cranworth in a late case (a) said he could see no difference between the two statutes so far as relates to the subject of the residence of foreign authors ; yet in the same case Lord Cairns was inclined to a different opinion, and in the opinion of Lord Westbury the case of Boosey v. Jefferys was a decision attached to and dependent on the particular statute of which it was the exponent ; and that statute having been repealed, and replaced by another Act, with different enactments expressed in different language, could not be considered a binding authority on the exposition of this latter statute. "The Act," said his Lordship, " secures a special benefit to British subjects by promoting the advancement of learn- ing in this country, which the Act contemplates as the result of encouraging all authors to resort to the United Kingdom for the first publication of their works. The benefit of the foreign author is incidental only to the benefit of the British public. Certainly the obligation lies on those who would give the term ' author ' a restricted signification to find in the statute the reasons for so doing." " The Act," he remarks in another place, "appears to have been dictated by a wise and liberal spirit, and in the same spirit it should be interpreted, adhering of course to the settled rules of legal con- struction. The preamble is, in my opinion, quite in- consistent with the conclusion that the protection given by the statute was intended to be confined to the works of British authors. On the contrary, it seems to contain an invitation to men of learning in every country to make the United Kingdom the place of first publication of their works, and an extended term of copyright throughout the (a) Boutledge v. Low, L. E. 3 H. L. .114 ; and Lord Chelmsford was of the same opinion. 122 THE LAW OF COPYRIGHT. Cap. III. the whole of the British dominions is the reward of their so doing. So interpreted and applied, the Act is auxiliary to the advancement of learning in this country. The real condition of obtaining its advantages is the first publication by the author of his work in the United Kingdom. Nothing renders necessary his bodily presence here at the time, and 1 find it impossible to discover any reason why it should be required, or what it can add to the merit of the first publication. It was asked, in Jefferys v. Boosey, why should the Act (meaning the statute of Anne) be supposed to have been passed for the benefit of foreign authors ? But if the like question be repeated with reference to the present Act the answer is, in the language of the preamble, that the Act is intended ' to afford greater encouragement to the produc- tion of literary works of lasting benefit to the world; ' a purpose which has no limitation of person or place .... If the intrinsic merits of the reasoning on which Jefferys v. Boosey was decided be considered (and which we are, at liberty to do, for it does not apply to this case as a bind- ing authority), I must frankly admit that it by no means commands my assent." Necessity for It was admitted in Jefferys v. Boosey and expressly held alien to ire in j Q ^ 0U fi e ^g e v _ 2/ow that an alien author may acquire dominions, copyright by first publishing in the United Kingdom, lish in United provided he be within the British dominions at the time Kingdom, to f publication. It matters not where he has composed obtain copy- L . . right. the work, nor whether he goes into the realm with the sole purpose of being there at the time of publication, and leaves when publication has taken place. The presence of the author is not necessary for any definite period, it is only necessary that he be on British soil at the time of publication (a). Theaiithoajuust be there in person — the presence of his Soignee, publisher or agent is not sufficient. "Every /,. com ing inko a British colony," said Turner, L J/,, . « becomes temporarily a subject of the Crown — bo;' \ I subiect to,iind entitled (a, Suppose he W , ___ . , a British w,»*l? S3=3;--S3 Jlge, L. B TEEM OF COPYRIGHT, AND IN WHOM VESTED. 123 to the benefit of the laws which affect all British subjects. Cap. III. He has obligations and rights' both within and beyond the colony into which he comes. As to his rights within the colony he may well be bound by its laws, but as to his rights beyond the colony he cannot be affected by those laws ; for the laws of a colony cannot extend beyond its territorial limits." And on appeal in the case last cited to the House of Lords (a), two of the greatest law lords on the Bench — Lord Cairns and Lord West- Lord Cairna' bury — were of opinion that the Act of Parliament gives westbury'a a copyright to every author who first publishes his book opinions on in the United Kingdom, no matter where he lives, or tioa of the under what dynasty he serves. " Protection," said the A °^ yright former learned judge, " is given to every author who publishes in the United Kingdom, wheresoever that author may be resident, or of whatever state he may be the subject. The intention of the Act is to obtain a benefit for the people of this country by the publication to them of works of learning, of utility, of amusement. The benefit is obtained, in the opinion of the legislature, by offering a certain amount of protection to the author, thereby inducing him to publish his work here. This is, or may be, a benefit to the author, but it is a benefit given, not for the sake of the author of the work, but for the sake of those to whom the work is communicated. The aim of the legislature is to increase the common stock of the literature of the country ; and if that stock can be increased by the publication for the first time here of a new and valuable work, composed by an alien, who never has been in the country, I see nothing in the word- ing of the Act which prevents, nothing in the policy of the Act which should prevent, and everything in the professed object of the Act, and in its wide and general provisions, which should entitle such a person to the protection of the Act, in return and compensation for the addition he has made to the literature of the country. I (a) Boutledge v. Low, L. E. 3 H. L. 100 ; 37 L. J. (Oh.) 454 ; 18 L. T. (N.S.) 874. 124 THE LAW OF COPYRIGHT. Oaf, hi. " am glad to be able to entertain no doubt that a con- struction of the Act so consistent with a wise and liberal policy is . the proper construction to be placed upon it." To this view, however, Lord Cran worth objected, and Lord Chelmsford doubted whether.it was good inlaw. In this same case it was unanimously held by Lords Cairns, Chelmsford, Cran worth, Westbury, and Colonsay, that to acquire a copyright under the 5 & 6 Vict. c. 45, the work must be first published in the United Kingdom. The law now, therefore, is, that if a literary or musical work be first published in the United Kingdom, it may be protected from infringement in any part of the British dominions ; provided that at the time of such publica- tion, in the case of an alien friend, he is residing, however temporarily, in any part of tbe British dominions ; and this is so, although the temporary residence is in a British colony with an independent legislature, under the laws of which he would not be entitled to copyright ; but if, on the other hand, any such work be first published in India, Canada, Jamaica, or any other British possession, not included in the United Kingdom, no copyright can be acquired in that work, excepting only such (if any) as the local laws of the colony, &c, where it is first published, may afford (a). Such portion If only a portion of a work be first published in this is flrst°pub- 3 country, or within the scope of the British Copyright Act, lished in this it will be protected. A., a citizen of the United States, be protected, published a work of which he was the author, in monthly parts between January and December, 1867, of a magazine published in the United States. In October, 1867, A. went to reside in Canada for the purpose of acquiring a British copyright, and during such residence, when the work wanted six chapters for completion in the magazine, an edition of the whole was published in London under an (a) The 2nd section of the Naturalization Act, 1870 (33 Vict. c. 14), enacts that "real and personal property of every description maybe taken, acquired, held, and disposed of by an alien in the same manner in all respects as a natural-born British subject ; and a title to real and personal property of every description may be derived through, from, or in succession to an alien, in the same manner in all respects as through, from, or in succession to a natural-born British subject." TEEM OP COPYRIGHT, AND IN WHOM VESTED. 125 agreement between A. and the plaintiff, an English . Cat. III. publisher. A cheap reprint taken from the pages of the ' American Magazine ; haviDg been subsequently pub- lished in this country by the defendant, it was held that the copyright was divisible and could be claimed for a portion of the book only ; and accordingly the publication by the defendant of the last six chapters of the work was restrained by injunction (a). (a) Low v. Ward, L. E. 6 Eq. 415 ; 37 L. J. (Ch.) 841 ; but see Bout- ledge v. Low, 37 L. J. (Ch.) 454 ; 18 L. T. (N.S.) 874 ; L. E. 3 H. L. 100. On the subject-matter of these cases, the Royal Commissioners on Copy- right report as follows : — " We recommend, generally, that where a work has been first published in any one of your Majesty's possessions, the pro- prietor of such work shall be entitled to the same copyright, and to the same benefits, remedies, and privileges in respect of such work as he would have been entitled to under the existing Imperial Act, if the work - had been first published in the United Kingdom. "With regard to publication in foreign states, the law now is that, except under treaty, no copyright can be obtained if a book has been published in any foreign country before being published in the United Kingdom, but it is doubtful whether contemporaneous publication in this and a foreign country would prevent the acquisition of copyright here. " It is a grave question whether it is desirable that the condition requiring first publication in this country should continue, and whether the reason advanced for this condition, namely, that it is advantageous to this country that works should be first published here, outweighs the hardship that may be inflicted upon British authors by preventing them from availing themselves of arrangements which they might otherwise make with foreign or colonial publishers. "We have come to the conclusion that a British author who publishes a work out of the British dominions should not be prevented thereby from obtaining copyright within them by a subsequent publication therein. Yet we think that such republication ought to take place within three years of the first publication, and we may add that we think the law should be the same with reference to dramatic pieces and musical com- positions first performed out of your Majesty's dominions, even though they are not printed and published — in other words, that first performance in a foreign country should not injure the dramatic right in this country. It has been decided under the 19th section of the International Copyright Act, that the writer of a drama loses his -exclusive right to the perform- ance of his drama here in England, if it has been first performed abroad ; that is to say, representation has been held to be a publication. We see no reason why the rule which may be finally determined upon in reference to first publication of books should not apply to first representation of dramatic pieces. The evidence shews how hardly the present law presses upon British dramatic authors. " As to aliens, although we would give them the same rights as British Suggestion as subjects if they first publish their works in the British dominions, it is to aliens, obvious that the same reason does not exist for giving them copyright if they do not bring their books first to our market: and we therefore recommend that aliens, unless domiciled in your Majesty's dominions, should only be entitled to copyright for works first published in those dominions. It is to be borne in mind that, even though aliens may be deprived of British copyright by first publication abroad, they may still obtain it in many cases by means of treaties. "With regard to the persons who are capable of obtaining imperial 126 THE LAW OF COPYRIGHT. __ Cap. hi. " There are numerous cases," says Sir G. M. Giffard, V.C., There may be " shewing that where the parts of a work can be separated, partof 8 ^* "k there ma y " 3e a copyright in any distinct part of it. I may instance the cases of the last canto of Lord Byron's ' Childe Harold,' Croker's Notes to ' Boswell's Life of Johnson,' and of particular articles in cyclopsedias. There is no analogy in this respect between a patent and the case of copyright, as it matters not whether the copyright is for the entire work or for a part only .... I see nothing to deprive plaintiffs of their right to an injunction as to the last six chapters of the work." The Govern- A manuscript or a copyright may be owned by the ^copyright™ government or a corporation as well as by an individual, and the rights of the government or corporation are governed by the same principles as those of an individual owner (a). So statutes, judicial decisions, public documents, official reports, and productions which are the direct results of official labour, become the property of the government which pays for such services. But the government can have no proper claim to the literary property in a work produced by an officer independently of his official duties. Copyright in It is a well-known rule, that if a person be employed to foranothe^in produce anything for another, whether by writing or not, the employer, it is to be inferred (in the absence of any circumstances shewing the contrary) that the writing or thing produced Suggestions copyright in your Majesty's dominions, as distinguished from international as to persons copyright under treaty, we find that, according to the existing law the capable of author in order to obtain copyright must be either — holding copy- " (."■) -^ natural-born or naturalized subject of your Majesty, in which right case the place of residence at the time of publication of the book is immaterial ; or " (6) A person who, at the time of the publication of the book in which copyright is to be obtained, owes local or temporary allegiance to your Majesty, by residing at that time in some part of your Majesty's dominions. " Besides these, it is probable, but not certain, that an alien friend who first publishes a book in the United Kingdom, even though resident out of your Majesty's dominions, acquires copyright therein. We think this doubt should be set at rest, and that, subject to our previous recommenda- tion as to place of publication by aliens not domiciled in your Majesty's dominions, the benefit of the copyright laws should extend to all British subjects and aliens alike." Par. 58-64. (o) Martial* v. Gibbons, I,. E. Ch. 518. TERM OP COPYRIGHT, AND IN WHOM VESTED. 127 by the person so employed is produced upon the terms cap. III. that it shall be the property of the employer (a). Transactions of this kind between publishers and authors resemble contracts for so much work and labour towards a general undertaking — so many bricks towards the erection of an edifice — and are different from the sale of a copyright. When delivered by the author, his con- tribution appears to be the property of the owner of the general work, more especially as the several articles are wrought into their appropriate form by the literary agent of the proprietor. In this manner contributions seem after leaving the hands of their authors to lose their separate identity (b). In Shepherd v. Conquest (e) the Court of Common Not so, how- Pleas questioned whether under any circumstances the p™™ ^ei'ely copyright in a literary work, or the right of representa- suggest the tion of a dramatic one, could become vested ah initio in an employer other than the person who has actually composed or adapted the work; and they decided that no such effect could be produced where the employers merely suggest the subject and have no share or design in the execution of the work, the whole of which, so far as any character of originality belongs to it, flows from the mind of the person employed ; for it would be an abuse of terms to say that in such a case the employers were the authors of a work, to which their minds had not contributed an idea. Where, however, the employers do more than suggest the subject, and have a share in or solely design the execution of the work, the case is different. Thus in Barfield v. Nicholson (d) Sir John Leach said, " I am (a) Sweet v. Benning, 24 L. J. (O.P.) 175 ; 16 C. B. 459 ; Cox v. Cox, 11 Hare, 118 ; see Sattonv. Kean, 29 L. J. (O.P.) 20, post, and 2 Hill, ' Torts.' (6) Maugham on ' Copyright,' 171. (a) 17 C. B. 427, see 25 L. J. (N.S.) C.P. 127 ; 2 Jur. (N.S.) 236. See Pierpont v. Fowle, 2 Wood & Mm. (Amer.) 23 ; Atwill v. Ferrett, 2 Blateh. ibid. 36; De Witty.Broohs,M.S. Nelson, J., N. Y. 1861; Binnsv. Woodruff, Wash. (Amer.) 53. ( % Wood & M. (Amer.) 497-512 ; vide 2 Hilliards on Torts 49. (6)'l Camp. 97; 4 Esp. 168; 17 Ves. 422 ; Eden on Injune. 281; see Murray v. M'Fargilhar, June 25. 1785, Mor. Die. of Dee. 8309. Encyclope- dias may not outstrip the limits of fair quotation. INFRINGEMENT OF COPYRIGHT. 175 on one occasion, put the case in a simple aspect : " We all Cap. YI. know that there has been a very valuable Greek lexicon published by Mr. Liddell and another friend of his at Oxford ; no person who published this lexicon, omitting three or four words at the end of each letter of the alpha- bet, could have done a work of which it could be said, that it might be taken as a substitute, for nobody would take it as a substitute. But can it be doubted that it might have a very material effect in diminishing the price of the first book ? For, though nobody would take it as a substitute, many people might not care about so much, and might take it cheaply for what it really did contain, which might be more than ninety-nine hundredths of the whole, and yet it would in no manner be a substitute ; and, therefore, the language is not generally correct, so as to be capable of application to every case." Where a work entitled ' A Practical Treatise on the Law Relative to the Sale and Conveyance of Heal Pro- perty, &c.,' contained piratical extracts from an earlier standard work, which was entitled ' A Practical Treatise on the Law of Vendors and Purchasers of Estates,' the Vice- Chancellor Shadwell observed, "In cases of this nature, if the pirated matter is not considerable, that is, where the passages, which are neither numerous nor long, have been taken from different parts of the original work, this court will not interfere to restrain the publication of the work complained of, but will leave the plaintiff to seek his remedy at law. But in this case it is plain that the passages which have been pointed out have been taken from the plaintiff's book, and they are so considerable, both in number and length, as to make it right that this court should interfere (a)." The inquiry in most cases, is not, whether the defendant Principles by has used the thoughts, conceptions, information, and dis- ^ j^ 1 *£'""* coveries promulgated by the original, but whether his composition may be considered a new work, requiring invention, learning, and judgment, or only a mere tran- (a) Sweet, v. Cater, 11 Sim. 580. See Kelly v. Hooper, 4 Jur. 21. 176 THE LAW OF COPYRIGHT. Cap, vi. script of the whole or parts of the original, with mere colourable variations (a). In Scott v. Stanford (b), the plaintiff had published statistical returns of all coal imported into London, and the defendant, in giving the universal statistics of the United Kingdom, had copied from the plaintiff's work to the extent of one-third of the whole of the defendant's work, at the same time acknowledging the source from which his information was derived. "Vice-Chancellor Wood decided, that having regard to the quantity and matter of the information which had been republished without the exercise of any independent thought and labour, and the prejudice to the plaintiff in having the sale of his work superseded by this republication, the plaintiff was entitled to an injunction. If the defendant, after collecting the information for himself, had checked his results by the plaintiffs tables, that would have been a widely different thing from the wholesale extraction of the vital part of his work. But 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. This is consonant to the law as laid down in Kelly v. Morris (c), which was in the following terms: In the case of a dictionary, map, guide-book, or directory, where there are certain common objects of information which must, if described correctly, be described in the same words, a subsequent compiler is bound to set about doing for himself that which the first compiler has done. In the case of a road-book, he must count the milestones for himself, .... and the only use that he can legitimately make of a previous publication is to verify his own calculations and results when obtained. (a) Stowe v. Tlwmas, 9 Wall. 0. Ct. (Amer.) 547 ; S.C. 2 Amer. L. Eeg. 231. (6) L. E. 3 Eq. 718 ; Morris v. Ashbee, 19 L. T. (N.S.) 550 ; L. R. 7 Eq. 34 ; Mawman v. Tegg, 2 Russ. 398 ; Jarrold v. Houlston, 3 K. & J. 708 ; Cox v. The Land and Water Co., 18 W. K. 206. (r) L.R.I Eq. 697. . INFRINGEMENT OF COPYBIGHT. 177 From these observations it is not to be inferred that in Cap. VI. compiling a directory the compiler may not look into the previous directory of another for the purpose of ascer- taining where a particular person lives, and for the pur- pose of ascertaining from that book whether or not it is worth his while to call upon that person (a) ; they imply no further than that he may not take a passage from the directory, and go and see whether it happens to be accurate, and if it be accurate, bodily copy it into his directory. This latter is precisely what was done in Morris v. Ashlee (b). The defendant copied the plaintiff's book, and then sent out canvassers to see if the information so copied was correct. If the canvasser did not find the occupier of the house at home, or could get no answer from him, then the information copied from the plaintiff's book was repeated bodily, as if it were a question for the occupier of the house merely, and not for the compiler of the previous directory. The copying was as direct in the case of Kelly v. Morris, to which we have already referred. Not only were the slips for the purpose of canvassing copied, but the course pursued really was, that when a slip was presented to the person who was canvassed, and his permission received for the insertion of the particular entry, the slip was forthwith copied into the book. " Now it is plain," observed Lord Justice Giffard, " 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 then 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 In Pike v. Nicholas (c) we had this : Two rival books were published with reference to the same subject matter, and we thought certainly that the defendant had been guided (a) Morris v. Wright, 22 L. T. (N.S.) 78 ; 18 W. B. 327 ; L. E. 5 Ch. 279; Scott v. Stanford, L. E. 3 Eq. 718 ; Cox v. Land and Water Journal Co., 9 Id. 324 ; Pike v. Nicholas, L. E. 5 Ch. 251 ; Hogg v. Scott, L. E. 18 Eq. 444. (b) 19 L. T. (N.S.) 550 ; L. E. 7 Eq. 34. (c) 38 L. 3. (Oh.) 529. N 178 THE LAW OF COPYRIGHT. Cap. VI. by the plaintiffs book, more or less, to the authorities which the plaintiff had cited ; but it was a perfectly legiti- mate course for the defendant to refer to the plaintiff's book, and if he did, taking that book as his guide, himself go to the original authorities, and compile his book from the original authorities, he made no unfair or improper use of the plaintiff's book" (a). How far prior The question as to how far advantage may be reaped belled" 5 may fr° m the work of another, and what use may be legiti- mately made of it, is difficult of solution. Perhaps the strongest ease in favour of the adoption by a subsequent compiler of the work of a preceding one, is that of Gary v. Kearslet/ (b), where Lord Ellenborough thought that the former might fairly adopt part of the work of the latter, and might so make use of his labours for the pro- motion of science and the benefit of the public ; but having done so, he was of opinion that the question would be, was the matter so taken used fairly with that view, and with- out what he might term the animus furandi ? For while he considered himself bound to secure every man in the enjoyment of his copyright, he was fearful of putting manacles upon science. Sale of a sheet Where the defendant published a sheet almanac con- printedfrom a taining matter pirated from a distinct part of a directory directory published by the plaintiff, affording information with respect to the post office, compiled from public docu- ments, and the matter pirated formed an exceedingly small portion of the plaintiff's work, though they bore a great proportion to the other matters in the defendant's work ; the court granted and continued an injunction against him (c). In Jarrold v. Houlston (d), the publishers of Dr. Brewer's (a) "The true principle in all these cases," said Vice-Chancellor Hall, in Hogg v. Scott, L. E. 18 Bq. 458, " is that the defendant is not at liberty to use or avail himself of the labour which the plaintiff has been at for the purpose of producing his work ; that is, in fact, merely to take away the result of another man's labour, or, in other words, his property." (6) 4 Esp. 168. (c) Kelly v Hooper, 4 Jur. 2. (d) 3 K. & J. 70S ; 3 Jur. (N.S.) 1051. INFRINGEMENT OF COPYRIGHT. 179 ' Guide to Science ' obtained an injunction against the pub- Cai>, VI, lication of the ' Eeason Why.' The works in controversy The ' Guide to were written on the same plan, and presented, in the ^h"^^* form of question and answer, popular information on Why.' a variety of scientific subjects. The earlier book, Dr. Brewer's ' Guide to Science,' had evidently been used to a considerable extent in' the preparation of the later one, although copying was denied. The judge said: "The question I really have to try is, whether the use that in this case has been made of the plaintiffs' book has gone beyond a fair use. Now, for trying that question, several tests have been laid down. One, which was originally expressed, I think, by a common law judge, and was adopted by Lord Langdale in Lewis v. Fullarton, is, whether you find on the part of the defendant an animus furandi — an intention to take for the purpose of saving himself labour. I take the illegitimate use, as opposed to the legitimate use of another man's works on subject matters of this description to be this : if, knowing that a person whose work is protected by copyright has, with considerable labour, compiled from various sources a work in itself not original, but which he has digested and arranged, you, being minded to compile a work of a like description, instead of taking the pains of searching into all the common sources, and obtaining your subject matter from them, avail yourself of the labour of your predecessor, adopt his arrangements, adopt, moreover, the very ques- tions he has asked, or adopt them with but a slight degree of colourable variation, and thus save yourself pains and labour by availing yourself of the pains and labour which he has employed, that I take to be an illegi- timate use." But where the same plaintiffs filed a bill against the publishers of a work called ' Class Book of Modern Science ;' compiled by Messrs. Thomas and Francis Bullock, for a piracy of their ' Dr. Brewer's Guide,' and it was admitted by the defendant that he had referred to the plaintiffs' book in the course of compiling the ' Class Book ;' but he insisted that every fact or illustra- N 2 180 THE LAW OF COPYRIGHT. Cap. VI. tion referred to in the ' Class Boob,' was verified by the labour and research of the authors themselves, by means of actual observation, inquiry, or experiment where such was possible, and by reference to scientific authorities and standard works of which the plaintiffs' book did not affect to be one ; it was held by Vice-Chancellor James, that though if any part of a work complained of was a transcript of another work, or with only colourable additions and variations, and prepared without any real independent literary labour, such portion of the work complained of was piratical, yet it was impossible to establish a charge of piracy where it was necessary to track mere passages and lines through hundreds of pages, or where the authors of a work challenged as piratical had honestly applied their labours to various sources of information. The learned Vice-Chancellor saying, " The whole of the part about sound, fogs, winds, dew, and hoar-frost in the defendants' work has a striking similarity, almost identity of appearance, with parts of the plaintiffs' work. The defendants' authors, however, have both of them sworn positively that they did not copy from the plaintiffs' work, although that work was known to them, and had been used in tuition, in common with nearly fifty other books of the same character, and on the same topics. These authors have not been cross-examined. The de- fendants' counsel have gone through the works in question passage by passage, and have shewn that in nearly all the instances of alleged piracy, the defendant's production had been, in fact, taken from other works which were antecedent to both plaintiffs' and defendant's books. The plaintiff said, that the difference of language between the two, was part of the defendant's authors' fraud and artful dis- guise of what they had done. But the language thus com- plained of, is conclusively traced to other books. This fact recoils destructively on the plaintiffs' case, for it goes far to shew that the defendant's writers honestly applied their labours to various sources of information. 1 do not consider that the imitation of the questions in the plaintiffs' book is INFRINGEMENT OF COPYRIGHT. 181 a piracy, so long as the defendants' writers have gone to Cap. VI. independent sources in the preparation of their answers." (a) The rule appears now to be settled, that the compiler of A compiler a work in which absolute originality is of necessity ex- ^original 106 eluded, is entitled, without exposing himself to a charge result - of piracy, to make use of preceding works upon the sub- ject, where he bestows such mental labour upon what he has taken, and subjects it to such revision and correction as to produce an original result, provided that he does not deny the use made of such preceding works, and the alterations are not merely colourable (6) So in the case of a descriptive catalogue of fruit and trees, the court was of opinion that the later compiler might use the work of his predecessor as a guide or in- structor; but might not copy the descriptions from it, although he should verify and correct them from speci- mens of fruit before him. Though he could not be pre- vented from getting much aid in the way of information, suggestions, etc., from the protected work open before him, he must write his own descriptions from actual speci- mens, or common sources of information (c). To further illustrate the principle, take the case of a The case of a dictionary. There may be a certain degree of skill anaWzedf exhibited as to order and arrangement, and there may be a good deal of ingenuity exhibited in the selection of phrases and illustrations, which are the best exponents of the sense in which the word is to be used : and there may also be great labour in the logical deduction and arrange- ment of the word in its different- senses, when the sense of the word departs from its primary signification ; but there cannot be copyright in much of the information contained in the numerous dictionaries published, each necessarily having a large number of words identically similar. The great point to decide in such cases is, as we have already (a) Jarrold v. Heywood, 18 W. E. 279. (6) Spiers v. Brown, 6 W". E. 352 ; Beade v. Lacy, 1 J. & H. 524 ; and in the case of a catalogue, Eotten v. Arthur, 1 H. & M. 603 ; 32 I.. J. (Ch.) 771 ; 11 W. E. 934; 9 L. T. (N.S.) 199. (c) Hogg v. Scott, L. E. 18 Eq. 444. 182 THE LAW OF COPYRIGHT. Cap. VI. stated, whether in the particular case the work is a legitimate use of the plaintiffs publication in the fair exercise of a mental operation deserving the character of an original work (a). The case of Lord Hatherley, while Vice-Chancellor, in the case of Brown!' Bpiers v. Brown (b), thus summed-up the law in his pecu- liarly lucid style : All case3 of copyright were very simple when a work of an entirely original character was concerned, being a work of imagination or invention on the part of the author, or original in respect of its being a work treat- ing of a subject common to mankind, such as history, or other branches of knowledge varying much in their mode of treatment, and in which the hand of the artist would be readily discerned. But the difficulty that arose in cases of the class then before him was, that they not only related to a subject common to all mankind, but that the mode of expression and language was necessarily so common that two persons must, to a very great extent, express them- selves in identical terms in conveying the instruction or information to society which they were anxious to com- municate. The most obvious case was that of figures, such as the table of logarithms — the case before Sir John Leach — where it would be impossible to deviate in the calculations, or to vary the order, and the result must be identical. The same might be said of directories, calen- dars, court guides, and works of that description. Those were cases in which the only mode of arriving at the amount of labour bestowed was by the common test re- sorted to of discovering the copy of errors and misprints, indicating a servile copying. Copyright was considered, for the highest purposes of society in every country, as necessary to be secured to those who contributed to the civilization, refinement, or instruction of mankind, and extended, in this country, if not elsewhere, to every description of work, however humble it might be, even to (a) Vide Wilkins v. Aikin, 17 Ves. 422 ; Bramwell v. HaLcomh, 3 My. & Cr. 737; Cornish v. Upton, i L. T. (N.S.) 863. (6) 6 W. K. 352. INFRINGEMENT OF COPYRIGHT. 183 the mere collection of the abodes of persons, and to streets Cap. VI. and places; and labour having been employed upon sub- jects even of that class, no one had a right to avail himself of it. . . . The real question was, how far the Courts had decided that a certain amount of use of preceding works was legitimate in carrying out a second work of a similar description, calculated to afford instruction by means of a dictionary, vocabulary, or the like. In the case of Gary v. Kearsley (a), Lord Ellenborough laid down the law in a manner which had not been questioned. He said : " That part of the work of one author found in another is not of 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 labour 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 ? Look through the book, and find any part that is a transcript of the other ; if there is none such, if the subject of the book is that which is subject to every man's observation, such as the names of the places and their distances from each other, the places being the same, the distances being the same, if they are correct, one book must be a transcript of the other ; but when in the defendant's book there are additional observations, and in some parts of the book I find corrections of mis- printings, while I shall think myself bound to secure every man in the enjoyment of his copyright, one must not put manacles on science." Then there was the case of Longman v. Winchester (6), in which Lord Eldon said, "Take the instance of a map describing a particular county, and a map of the same county afterwards pub- lished by another person ; if the description is accurate in both they must be pretty much the same, but it is clear that the latter publisher cannot, on that account, be (a) 4 Esp. 168. (6) 16 Ves. 269 ; Gary v. Longman, 1 East, 358 ; Matthewson v. Stock- dah, 12 Vea. 270 ; Bailey v. Taylor, 3 L. J. (Ch.) 66 ; Kelly v. Hooper, 4 Jur. 21 ; M'Neill v. Williams, 11 Id. 344 ; Murray v. Bogue, 1 Drew. 353. 184 THE LAW OF COPYRIGHT. Cap. VI. justified in sparing himself the labour and expense of — actual suryey, by copying the map previously published by auother. So, as to Paterson's ' Road Book,' it is cer- tainly competent to any other man to publish a book of roads, and if the same skill, intelligence, and diligence are applied in the second instance, the public would receive nearly the same information from both works ; but there is no doubt that this court would interpose to prevent a mere republication of a work which the labour and skill of another person had supplied to the world. So, in the instance mentioned by Sir Samuel Eomilly, a work consist- ing of a selection from various authors, two men perhaps might make the same selection, but that must be by resorting to the original authors, not by taking advantage of the selection already made by another." And again : " The question before me is, whether it is not perfectly clear that in a vast proportion of the work of these defendants no other labour has been applied than copying the plaintiffs work. From the identity of the inaccuracies it is impossible to deny that the one was copied from the other verbatim et literatim (a). To the extent, therefore, in which the defendant's publication has been supplied from the other work the injunction must go ; but I have said nothing that has a tendency to prevent any person from giving to the public a work of this kind if it is the fair (a) This is one of the surest tests of copying, see Kelly v. Morris, L. B. 1 Eq. 697 ; Pike v. Nicholas, L. R. 5 Ch. 251 ; Cox v. Land and Water Journal Co., h. R. 9 Eq. 324. In Murray v. Bogue, 1 Drew. 353, 366, where instances were stated in the bill and at the bar in which the defendant had the plaintiff's errors, Vice-Chanoellor Kindersley said, " Now the use of shewing the same errors in both is, that where the defendant says he has got his information, not from the plaintiff, but from other sources, if the evidence is unsatisfactory on the question whether the defendant did use the plaintiff's work or not, to shew the same errors in the subsequent work that are contained in the original, is a strong argument to shew copying." It will be in the defendant's favour if he shews that the matter in his own book is free from many of the errors in the plaintiff's ; but still the errors may have been corrected in copying. In M'Neill v. Williams, 11 Jur. 344, it appeared that seven errors in the plaintiff's mathematical tables were also found in those of the defendant. The latter declared that this was accidental, and that the plaintiff's book contained seventy errors not to be found in his own. It does not appear what importance the Court attached to this circumstance; but the injunction was refused. INFRINGEMENT OF COrYKIGHT. 185 fruit of original labour, the subject being open to all the cap. "VI. world." Another case — which seemed to condense into one point the view taken by the courts in cases where actual use is avowed and the only question is, whether it is a fair use (a), — where Lord Eldon says this : " Upon inspec- tion of the different works, I observe a considerable pro- portion taken from the plaintiff's that is acknowledged, but also much that is not ; and in determining whether the former is within the doctrine upon this subject the case must be considered as also presenting the latter circum- stance. The question upon the whole is, whether this is a legitimate use of the plaintiffs publication in the fair exercise of a meutal operation deserving the character of an original work." These were the words which had been relied on by Lord Cottenham in Bramwell v. Halcomb (b), and it was with the view thus taken by those learned judges that he (the Vice- Chancellor) had gone through a very laborious investigation of the works then in question, there being, as it seemed to him, a considerable portion of the defendant's work which came within the doctrine of its being a legitimate use and a fair exercise of mental operation, and (adding the negative used by Lord Ellenborough) not being done colourably. . . . His Honour said, that the real issue which the court was called on to decide was one of the most difficult ever presented to him, namely, as to how far this very considerable use of the work of another might be taken to be legitimate. There was no concealment of some use having been made ; no colourable alteration proved, nor anything tending to shew a fraudulent design to make an unfair use of the work of another. The present case went as far as any previous, though not perhaps further than Maivman v. Tegg (c), where a very large and considerable portion of the plaintiff's work had been taken without any alteration or addition. Though a good deal had been taken from the plaintiff, yet a good deal of labour had been be- stowed upon what had been taken. . . . Upon the whole, he could not think that the defendant had gone beyond (a) Wilkim v. Aikin, 17 Ves. 422. Q>) 3 My. & Or. 737. (c) 2 Euss. 385. 186 THE LAW OF COPYRIGHT. Oaf, vi. what the court would allow, having produced that which in the result was, in fact, a different work from that of the plaintiff. Modes in Copyright may be invaded in several ways : — which copy- j s t_ j} v reprinting the whole work verbatim. infringed. 2nd. By reprinting verbatim a part of it. 3rd. By imitating the whole or a part, or by repro- ducing the whole or a part with colourable alterations. 4th. By reproducing the whole or a part under an abridged form. 5th. By reproducing the whole or a part under the form of a translation, i. By reprint- Piracies of the nature of the first division are seldom verbatim! ° & committed, on account of the ease with which they could be detected and punished. 2. By reprint- Piracies of the nature of the second division are far ing verbatim a more f re quent and more difficult of detection. The quan- tity of matter subtracted cannot in all cases be a true criterion of the extent of the piracy, for a work may be a piracy upon another, thougb tbe passages copied are stated to be quotations, and are not so extensive as to render the piratical work a substitution for the original work. In questions as to the extent of appropriation which is necessary to establish an infringement, extreme difficulty is usually experienced, for the quality of the piracy is frequently more important than the proportion which the borrowed passages might bear to the whole work (a). If so much is taken that the value of the original is sensibly diminished, or the labours of the original author are substantially, to an injurious extent, appropriated by another, that is sufficient, in point of law, to constitute a piracy pro tanto. The entirety of the copyright is the property of the author ; and it is no defence that another person has appropriated a part and not the whole of such property. (a) Vice-chancellor in Tinsley v. Lacy, 1 H. & M. 747 ; T.2 X,. J. (Cli.) 535. INFRINGEMENT OP COPYRIGHT. 187 Lord Cottenham, in the cases of Bramwell v. Halcomb (a), Cap, VI. and Saunders v. Smith (b), adverting to this point, said : Quantity but " When it comes to a question of quantity, it must be f ph-acy. very vague. One writer might take all the vital 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. It is useless to refer to any particular cases as to quantity." In short, we must often, in deciding questions of this sort, l6ok to the nature and objects of the selections made, the quantity and value of the materials used, and the degree in which the use may prejudice the sale, or diminish the profits, or supersede the objects of the original work. Many mixed ingredients enter into the discussion of such questions. In some cases a considerable portion of the materials of the original work may be fused into another work, so as to be dis- tinguishable in the mass of the latter, which has other professed and obvious objects, and cannot fairly be treated as a piracy ; or they may be inserted as a sort of distinct and mosaic work into the general texture of the second work, and constitute the peculiar excellence thereof, and then it may be a clear piracy. If a person should, under colour of publishing ' elegant extracts ' of poetry, include all the best pieces at large of a favourite poet, whose volume was secured by copyright, it would be difficult to say why it was not an invasion of that right, since it might constitute the entire value of the volume. The case of Mawman v. Tegg (c), is to this purpose. There was no pre- tence in that case that all the articles of the encyclopaedia of the plaintiffs had been copied into that of the defendants ; but large portions of the materials of the plaintiff's work had been copied. Lord Eldon, upon that occasion, held that there might be a piracy of a part of a work, which would entitle the plaintiffs to a full remedy and relief in equity. In prior cases he had affirmed the like doctrine. In Wilkins v. Aikin (d) he said, " There is no doubt that (a) 3 My. & Or. 737. (n) 2 Buss. 385. (b) 3 My. & Or. 711. (4) 17 Ves. 422. 188 1 THE LAW OF COPYRIGHT. Cap. VI. a man cannot, under the pretence of quotation, publish either the whole or a part of another's book, although he may use, what in all cases it is difficult to define, fair quotation." Selections Selections from various writers are frequently made writers. and issued in one volume. Where the selections are made from works in which copyright subsists, questions have arisen as to whether the limits of lawful quotation have been exceeded. And in one case where it appeared to the court that the chief value of the compilation con- sisted in the selections, and not in the original matter, it held the work to be piratical. In the case referred to the defendant had published a ' Book of the Poets,' with the object of illustrating the characteristics of various poets, and the progress of English poetry during the nineteenth century. He had made 425 selections and extracts, from forty-three poets, and they were employed to illustrate an original essay of thirty -four pages on English poetry of the period covered, twenty-three biographical sketches of one page each, and twenty shorter notices of authors. Besides extracts, six poems were taken in their entirety from Campbell's works. "If," said Vice-Chancel lor Shad- well (a), ; " there were critical notes appended to each separate passage, or to several of the passages in succession which might illustrate them, and shew from whence Mr. Campbell had borrowed an idea, or what idea he had communicated to others, I could understand that to be a fair criticism. But there is, first of all, a general essay ; then there follows a mass of pirated matters, which in fact constitutes the value of the volume." " The Man of In the case of Bradbury v. Sotten (6), the publication to'iUuTrate com P lained of was " The Man of his Time," the object of career of per-, which was to illustrate the career of Napoleon III. by caricatures taken from leading English and foreign illustrated papers. Nine caricatures, with their original headings and references, but much reduced in size, were copied from nine numbers of ' Punch,' comprised within .(a) 11 Sim. 31. ! (6) L. E. S Exch. 1. INFRINGEMENT OF COPYRIGHT. 189 the period extending from 1849 to 1867. It was declared Cap. vr. that the selections had been taken for the sole purpose of illustrating the career of Napoleon. While admitting that limited extracts might be taken from copyright . works for a fair purpose of this kind, the court found that the defendant had republished the caricatures in ' Punch ' for the same purpose as they were originally published, namely, to excite the amusement of his readers. It was held that the defendant had gone beyond the privilege of fair quotation, and therefore a case of piracy was made out (a). (a) Kelly, C.B., said, " The questions raised are of interest and im- portance, but it is difficult to lay down any fixed principle with regard to them. No doubt the matter is, to a great extent, one of degree. It may well be that an author might copy into his book a portion of some books previously published, and yet that a jury might be justified in finding there had been no infringement of copyright ; whilst on the other hand, the copying might take place under such circumstances as clearly to amount to an infringement. . . Nine of these pictures the defendant has copied, in some instances alone, in others with the addition of the printed words underneath them. If they have been bo copied as to amount to a copy of a material part of the plaintiffs' publication, and the defendant has thus obtained a profit which would or might otherwise have been the plaintiffs', then there has been a piracy, for which the defendant is responsible. It is said that to copy a single picture, at all events, could not be au infringement of the plaintiffs' copyright ; but it is impossible to lay that down as a general rule. I can easily conceive a case where such an act would not be piracy. For example, where a picture is reproduced amongst a large collection, published for an entirely different object from that which the first publisher had in view. We must consider in such a case the intent of the copyist and the nature of his work. To turn for a moment from pictures to printed matter, the illustration put during the argument by my Brother Bramwell will explain my meaning. " A traveller publishes a book of travels about some distant country like China. Amongst other things, he describes some mode of preparing food in use there. Then the compiler of a cookery book re-publishes the description. ' No one would say that that was 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. Yet, on the other hand, the copying of a single picture may, under some circum- stances, be an infringement. For example, take the case of a work illustrated by one engraving of the likeness of some distinguished man, where no other likeness is extant. No one would have a right to copy that into a book upon any subject whatever, and a jury would in such a case rightly find that there had been an infringement of the copyright. " To return to the facts of the present case : the defendant has introduced nine pictures of the plaintiffs into what I may call his comic life of Napoleon III. Is he by so doing applying to his own use and for his own profit what otherwise the plaintiffs might have turned, and possibly still may turn, to a profitable account ? The pictures are of great merit, and no doubt were largely paid for, and by inserting these copies the defendant has unquestionably added to the value of his publication. Why should graphy. 190 THE LAW OF COPYEIGHT. Cap. vr. A similar case to the last cited was that concerning the ' Thackeray- book entitled ' Thackerayana, Notes and Anecdotes, illus- A^2tofci ?nd trated h J nearl . v Six Hundred Sketches, by William For Bio- Makepeace Thackeray.' It purported to be a kind of biography of Thackeray, based on the assumption that his own experiences were narrated in certain of his novels. Besides some previously unpublished sketches and caricatures by Thackeray, the work contained extensive selections from his published works, the copyright of which belonged to the plaintiff. The extracts were prepared by, and interspersed with original comments by the compiler. The court -found that the effect of the book was to supersede to a damaging extent the works this not be an infringement ? It was said by my brother Parry, in his able argument, that the plaintiffs will never make such a use of these pictures as the defendant has made. But suppose, as my brother Pigott suggested, that after the catastrophe which ended in the fall of Napoleon III., the proprietors of ' Punch ' had chosen to re-publish all their caricatures of him, or that even now they should choose to do so. One cannot help seeing that the defendant's publication might cause many who would otherwise have bought to refrain from buying such a work. I need not refer at length to the authorities cited. The principle of them is, that where 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 a piracy upon which a jury should act." Bramwell, B., said : " I am of the same opinion, though not without some doubt — doubt which it is natural to feel in a case like this, which is on the borderland between piracy and no piracy. But I think the plaintiffs are entitled to succeed. They are the proprietors of a sheet of letterpress within the meaning of the Act of Parliament. Now it is quite true that when a man publishes anything, he professes to add to the common stock of knowledge, and everybody may avail himself of what is published. This may be illustrated by the case put, of the compiler of a cookery-book taking from some traveller's account of his travels a receipt for a new dish. But, applying that principle here, it does not exonerate the defendant. If he had said, ' I propose to illustrate my history by extracts from the satirists of the day,' and had then gone on to quote to a reasonable extent the opinions, or even the very words of satirical writers, no one would call that piracy. Suppose, for instance, he had said, ' At this period of his career Napoleon was unpopular and the subject of ridicule in Bnglaud. This may be seen by examining the sort of piotures of him which appeared in ' Punch.' Later on he became more popular, and the pictures published represented him more favourably.' That could not have been complained of. Then the defendant would simply have been using the knowledge acquired from ' Punch ' for his benefit, as he would have a right to do. But here he has done more. He has not availed himself of the knowledge acquired from ' Punch,' but he has actually reproduced the very pictures published in ' Punch,' and for the same purpose as they were originally published, namely, to excite the amuse- ment of his readers." INFRINGEMENT OF COPYRIGHT. 191 from which the selections had been made, and accordingly o AP yj. held it to be a case of piracy (a). Many cases of extracts for criticism have come before Extracts for the court. It is obvious that quotations to some extent critlclsm - must in such cases be made from the work reviewed, and this abstract right of the reviewer has never been im- peached. To deny this privilege would be, as Lord Kinloch once said, " to sentence to death all our reviews, and the greater part of our works in philosophy." The reviewer may make extracts sufficient to shew the merits or demerits of the work, but not to such an extent as that the review may serve as a substitute tor the book reviewed. Sufficient may be taken to give a correct view of the whole, but the privilege of making extracts is limited to these objects, and no person will be allowed to republish in the form of quotations a valuable part of the protected work and thus to an injurious extent to supersede the original (b). Whether the limits of lawful quotation have been exceeded is a question to be governed by the particular circumstances of each case. In a case in which the work alleged to be pirated was a, Reviews or play extending over forty pages, and the defendant had crltl013ms - published a journal of theatrical criticism in which, as illustrative of his critical remarks, he had introduced broken and detached fragments of the piece in question, amounting in the whole to six or seven pages, some weight appears to have been allowed by the court to the fact of the extent of the extracts being so inconsiderable, as affording ground for doubt whether the defendant had transgressed the limits of fair quotation (c). (a) Smith v. Chatto, 31 L. T. (N.S.) 775. (b) Boworth v. Wilkes, 1 Camp. 94 ; Mawman v. Tegg, 2 Rues. 385 ; Campbell v. Scott, 11 Sim. 31; Bohn v. Bogue, 10 Jur. 420; Blaclc v. Murray, 9 Se. Seas. Cae. 3rd ser. 341 ; Smith v. Chatto, supra ; Lawrence v. Dana, 2 Am. L. T. R. (N.S.) 402. (c) Whittingham v. Wooler, 2 Swans. 428. In Cobbett v. Woodward L. R. 14 Eq. 407, the Court was willing to grant an injunction against about eight lines copied from the plaintiff's publication. In Stveet v. Benning, 16 C. B. 459, copied matter forming about one-twentieth part of defendant's work was held to amount to piracy. See Bradbury v. Hotteu, L. R. 8 Exch. 1 ; Chatterton v. Cave, L.R. 10 0. B. 572 ; 1st app. 2 C. P. D. 42 ; 2nd app. 3 App. Cas. 483 ; Gray v. Russell, 1 Story (Amer.) 20 ; Tinsley v. Lacy, 1 H. & M. 752. 192 THE LAW OF COPYRIGHT. — C ap. VI. j n £ e ij y Whitehead (a) the plaintiffs had published in Western Kail tlie ' Monthlv Chronicle ' an article entitled ' The Great ■way inquiry. Western Eailway Inquiry,' occupying nineteen pages ; the defendant had extracted four pages and a half from this, and published it in the ' Eailway Times,' a weekly paper, with animadversions. Lord Cottenham, C, in dissolving an injunction which had been obtained, made these observa- tions : " It is difficult to prescribe the legitimate mode of extracting what is published in other publications, and to lay down the rule of quantity ; but it is necessary for a party to be able to substantiate the value of the matter extracted before he comes for an injunction. It appears to me that the subject of the injunction comes within all the rules which are prescribed for trying what is a fair extract or not. The first is, that they are allowed for the purposes of criticism. Now, it is well known that there is a con- troversy going on as to the principles upon which a railway should be constructed, and on one side is Mr. Brunei, and on the other Dr. Lardner, and what they each contend for is found stated in the reports of the railway company. The ' Eailway Times ' is the medium of intelligence, and contributes information on the subject of railways ; and in publishing the reports of the railway company, it is admitted that they have done that which they had a right to do ; but they take the side contrary to Dr. Lardner. They then print so much of the article from the ' Monthly Chronicle ' as is complained of, and call it Dr. Lardner's further report, and they comment on the controversy between Mr. Brunei and Dr. Lardner. The controversy is also taken up by the editor. They say that they intended to give the whole of the article; but they state that they are unable to do so, and mean to give the remainder in the ensuing number; and there is an advertisement, saying, the next number will con- tain the whole. It is certainly not a report, but an article on the controversy which the respective engineers had engaged in. In the number of the 8th of January, (a) 17 L. J. (Ch.) 141 ; 3 Jur. 68. INFRINGEMENT OP COPYRIGHT. 193 they state that Dr. Lardner was to superintend Mr. Wood's Cap. VI. experiments, and that they should only extract that por- tion of the article which relates to the ' opposition of the air to railway trains at high velocities,' and they say they do not mean to publish the whole. . . . On Tuesday they state that they have given the substance of the report. It is not holding out a threat that they will publish more. They make uncourteous observations upon Dr. Lardner ; and it is a pity that scientific gentlemen cannot discuss questions of science with more temper. It is fair that no strictures should be made on a work contrary to the spirit of prior decisions ; but it would be injurious to the public to limit the right of discussing questions of this kind, and for that purpose to make necessary extracts. And the question is, whether this was inserted for purposes of criticism, and for the purpose of supporting such observations as the editor thinks proper to make. This was the ground proceeded on in Whittingham v. Wooler, and is acted on in such publications as the ' Edinburgh ' and 'Quarterly' Reviews, and when fairly acted on, the result most probably is, that the sale is extended by the notice, when not given for the purpose of superseding the work itself. And, if 1 were to entertain this application, how could I exclude the similar application of one newspaper seeking to restrain the sale of an article taken from another. It is impossible to say there is any value in the nature of property in what is here inserted. The question is too minute, as a question of property or value, how far, in point of value, it interferes with the sale of the ' Monthly Chronicle.' The injunction is not to depend altogether on a question of account; but to what value the question, in point of utility, is to be carried. If no other danger were to arise from granting this application than what would be consequent in encouraging the litigation of such minute inquiries, it would be a sufficient ground to refuse it, that the court should not be so occupied to the exclusion of other matters which press upon it. The injunction is dissolved, each party paying their own costs." o 194 THE LAW OF COPYRIGHT. Cap. VI. But where, in a recent case (a), the publisher, Mr. Copying short Maxwell, applied for an injunction against the proprietor of stones tor the ' Bristol Mercury ' restraining him from publishing two stories, * A Troubled Life,' and ' How I Lost the County,' which he had taken verbatim from ' Belgravia ' and the ' Belgravian Annual '; and it appeared that the magazines were sent to the defendants for review, and that it was the custom, and had been so for many years, to extract short stories in the way defendants had done, Vice-Chan- cellor Bacon decided that the defendants had no right to publish articles from publications sent to them for criticism ; but in granting the injunction asked, made no order as to costs, being of opinion that the defendants had acted unwittingly in making use of thearticles in question. Law Reports. It is manifest, also, from what fell from Lord Chancellor Cottenham in Saunders v. Smith (b), that he entertained no doubt (although he did not decide the point) that there might be a violation of the copyright of volumes of reports, by copying verbatim a part only of the cases reported. It is questionable, how far and to what extent certain cases in Law Beports may be reprinted at length in a treatise on the particular subject to which they relate ; but it is clearly piracy to collect together, and reprint from the reports all the cases upon a particular subject, though the collection and classification may be new, and the publication be adorned with the addition of several unpublished decisions and notes (c). In the case last cited, however, the substance and value of the book con- sisted mainly of the cases pirated ; and a case presenting greater difficulty was that of the well-known book en- titled ' Smith's Leading Cases,' where the annotations really form the substance and essence of the work. In regard to the legal right in the last-mentioned case (d) Lord Cottenham said: "In this case I find the publi- cation complained of to be of a character which, whether (a) Maxwell v. Somerton, 30 L. T. (N.S.) 11 ; 22 W. R. 313. (b) 3 My. & Cr. 711 ; see Hodges v. Welsh, 2 Ir. Eq. Rep. 266. (c) Hodges v. Welsh, supra. {d) Saunders v. Smith, 3 My. & Cr. 711, 728. INFRINGEMENT OP COPYEIGHT. 195 it be or be not an infringement of the copyright of the Cap. VI. plaintiffs, is a course of proceeding which has been pretty largely admitted, and pretty generally adopted. Several cases occurred to me, and several were mentioned to me at the bar, in which a gentleman at the bar, desirous of publishing a work upon a particular subject, has collected the cases upon that subject, and has taken these cases, generally speaking verbatim, from reports which are covered by copyright. No instance has been represented to me in which those entitled to the copyright have interfered ; no judgment, therefore, has been pronounced upon that subject. I am not stating whether the owner of the copyright is entitled to interfere in such a case, or whether the use of published reports is or is not to be permitted. That is a question of legal right upon which I find at present no reason for coming to an adjudication." But in a subsequent case, where eleven cases only had been copied verbatim, and a considerable number of what were called abridged cases were mere copies of the plaintiff's with slight variation, Sir L. Shadwell, V.O., granted an injunction (a). He distinguished the case from Saunders v. Smith. " In that case," said he, " there was no question but some parts of the plaintiff's work had been copied in the defendant's work. But there the publication of the defendant appeared to me to be altogether distinguished from that in which the cases originally appeared, and one which could never be substituted for the other. In this case, from the class of persons who are held out as likely to be purchasers of the defendant's publication, I think it may be materially injurious to the sale of the plaintiff's work." This was the true criterion of the infringement, and it may be said generally that in, cases where the work in which the copying or extract is introduced, is a new and distinct work, and not a work with merely colourable variations, the test which the court will apply is the capability of the new work being taken as a substitute (a) Sweet v. Shaw, 3 Jur. 217 ; 8 L. J. (N.S.) Ch. 216 ; see Wheaton v. Peters, 8 Peters (Amer.) 591. o 2 196 THE LAW OF COPYRIGHT. Cap. VI. for the old work. In Lewis v. Fullarton (a), the case of a typographical dictionary, Lord Langdale held that largely copying from a work, in another book having a similar object, was a violation of that copyright, although the same information might have been (but, in fact, was not) obtained from common sources, open to all persons; and accordingly in that case he granted an injunction as to the parts pirated, notwithstanding the fact that there was much which was original in the new work (6). The custom of The copying into a newspaper whole articles taken excuse. 6 D ° f rom another periodical — as a monthly magazine — pro- fessedly for the purpose of reviewing, is an unlawful use for reviewing, and a Court of Equity will restrain the publication of the work containing these articles, not- withstanding an allegation that it is the custom of the trade (c). ?,. Byimitat- 3rd. Copyright may be infringed by imitating the or'pait by ° e whole or a part, or by reproducing the whole or a part reproduction w jth colourable alterations. with colour- , . . , . . . , . . , , able altera- A copy is one thing, an imitation or resemblance hone. another. It is indeed certain, that whoever attempts any betweena" common topic will find unexpected coincidences of his copy and an thoughts with those of other writers ; nor can the nicest imitation. . ° . . . . - ,..,.,„ judgment always distinguish, accidental similitude irom artful imitation. " There is likewise," says Dr. Johnson, " a common stock of images, a settled mode of arrange- ment, and a beaten track of transition, which all authors suppose themselves at liberty to use, and which produce the resemblance generally observable among contem- poraries. So that in books which best deserve the name of originals there is little new beyond the disposition of materials already provided ; the same ideas and com- binations of ideas have been long in the possession of other hands ; and by restoring to every man his own, as (a) 2 Beav. 6. (ft) See Cox v. The Land and Water Co., 18 W. R. 206. (c) Maxuell v. Somerton, 30 L. T. (N.S.) 11 ; 22 W. R. 313. INFRINGEMENT OF COPYRIGHT. 197 the Eomans must have returned to their cots from the Cap. VI. possession of the world, so the most inventive and fertile genius would reduce his folios to a few pages. Yet the author who imitates his predecessors only by furnishing himself with thoughts and elegancies out of the same general magazine of literature, can with little more pro- priety be reproached as a plagiary, than the architect can be censured as a mean copier of Angelo or Wren because he digs his marble from the same quarry, squares his stones by the same art, and unites them to columns of the same order." There are many imitations of Homer in the ' fflneid ' ; but no one would say that the one was a copy of the other. So also can similar ■ passages be found in Virgil and Horace : " Bse tibi erunt artes— Parcere subjeetis, et debellare superbog.'' Virgil. " Imperet, bellante prior, jacentem Lenis in hostem." Hokaoe. And Cicero observes of Achilles, that had not Homer written, his valour had been without praise : Nisi Bias ilia extitisset, idem tumulus qui corpus ejus contexerat, nomen ejus obruisset ; while Horace remarks that there were brave men before the wars of Troy, but they were lost in oblivion for the want of a poet : " Vixere fortes ante Agamemnona Multi ; sed omnes illacrymabiles Urgentur, ignotigue longd Nocte, carent quia vote sacro.'" There may be a strong likeness without an identity. The question is, therefore, in many cases a very delicate one : what degree of imitation constitutes an infringement of the copyright in a particular composition ? Certainly not such a similitude as the instances from the classics given above. It is very evident that any use of materials, whether they are figures or drawings, or other things which are 198 ' THE LAW OF COPYRIGHT. Cap. VI. well known and in common use, is not the subject of a copyright, unless there be some new arrangement thereof. Still, even here, it may not always follow that any person has a right to copy the figures, drawings or other things, made by another, availing himself solely of his skill and industry, without any resort to such common source. In all cases the question of fact to come to the jury is, whether the alterations be colourable or not. There must be a similitude, so as to make it probable and rea- sonable to suppose that one is a transcript of the other, and nothing more than a transcript ; so with regard to charts, there is no monopoly in that subject; but upon a question of the above nature the jury must decide whether the latter work be a servile imitation of the former or not. In Truster v. Murray (a) Lord Kenyon put the point in the same light, and said, " The main question here is, whether, in substance, the one work is a copy and imitation of the other; for undoubtedly, in a chronological work (such was the character of the work before the court) the same facts must be related." And Mr. Justice Story, in his elaborate and learned judgment in Emerson v. Davies (b), laid it down as the clear result of the anthorU ties in cases of this nature, that the true test of piracy or not, is to ascertain whether the defendant has, in fact, used the plan, arrangements, and illustrations of the plaintiff as the model of his own book, with colourable alterations and variations only to disguise the use thereof: or whether his work is the result of his own labour, skill, and use of common materials and common sources of knowledge, open to all men, and the resemblances are either accidental or arising from the nature of the subject. In other words, whether the defendant's book is, quoad hoc, a servile or evasive imitation of the plaintiff's work, or a bona fide original compilation from other common or independent sources. An American court, in speaking of a case in which ((c) 1 East. 363, note. (b) 3 Story (Amcr.), 768, 793. INFRINGEMENT OF COPYRIGHT. 199 the defendant had pirated a portion of an arithmetic Cap. VI. belonging to the plaintiff, observed that the real question on the point was not whether certain resemblances existed, but whether these resemblances were purely accidental and undesigned, and unborrowed, because arising from common sources accessible to both the authors, and the use of materials equally open to both — whether, in fact, the defendant used the plaintiff's work as his model, and imitated or copied that, and did not draw from such common sources or common materials. Then again, it had been said that, to amount to piracy, the work must be a copy and not an imitation. This, as a general proposi- tion, could not be admitted. It was true the imitation might be very slight and shadowy. But, on the other hand, it might be very close, and so close as to be a mere evasion of the copyright, although not an exact and literal copy. "It falls within that class of cases," said Mr. Justice Story, " where the differences between different works are of such a nature, that one is somewhat at a loss to say whether the differences are formal or substantial • whether they indicate a resort to the same common sources to compile and compose them, or one is (as it were) uno fiatu borrowed from the other, without the employment of any research or skill, with the disguised but still apparent intention to appropriate to one what in truth belongs exclusively to the other, and with no other labour than that of mere transcription, with some omissions or additions as may serve merely to veil the piracy. It is like the case of patented inventions in art or machinery, where the resemblances or diversities between the known and the unknown, and between invention and imitation, are so various or complicated, or minute or shadowy, that it is exceedingly difficult to say what is new or not, or what has been pirated and what is substantially different. The approaches on either side may be almost infinitely varied, and the identity or diversity sometimes becomes almost evanescent. In many cases, the mere inspection of a work may at once betray the fact that it is borrowed from another 200 THE LAW OF COPYKIGHT. Cap. VI. author, with merely formal or colourable omissions or alterations. In others, again, we cannot affirm that identity in the appearance or use of the materials is a sufficient and conclusive test of piracy, or that the one has been fraudu- lently or designedly borrowed from the other. Take the case, for example, of two maps of a city, a county or a country. We cannot predicate that the one is a piracy from the other, simply because their external appearance is in nearly all respects the same, with or without some additions or alterations or omissions. Take the case of two engravings copied from the same picture, or two pic- tures of natural objects by different artists ; it would not be practicable, in many cases, from the mere inspection of them and their apparent identity, to say, that the one was a transcript of the other. It would be necessary to resort to auxiliary and supplementary evidence to establish the fact either way (a)." One test. Cases such as those referred to, namely, those where identity. there is a resemblance between the substance and the general scheme of the two works in question, while at the same time the language of each is by no means similar, occasion great difficulty. The inquiry usually resolves itself into a matter of fact which rests with the court to determine — Is there such a resemblance between the two works in controversy as to constitute an infringement of copyright. The most general test is that of substantial identity. Is the similarity between the two works such as to make the one substantially identical with the other ? Has the second author produced what is substantially an indepen- dent work, or has he appropriated merely the fruits of another's labour ? (b) Each case must depend on its own (a) Emerson v. Davies et al., 3 Story (Amer.), 768-784. (6) Wilkins v. Ailcin, 17 Ves. 422 ; Mawman v. Tegg, 2 Euss. 385 ; Bramwell v. Ralcomb, 3 My. & Cr. 737 ; Lewis v. Fullarton, 2 Beav. 6 ; Kelly v. Hooper, 4 Jur. 21; Sweet v. Maugham, 11 Sim. 51; Sweet v. Cater, lb. 572 ; Campbell v. Scott, lb. 31 ; Stevens v. Wildy, 19 L. J. (N.S.) Ch. 190; Booney v. Kelly, 14 Ir. Law Eep. (N.S.) 158; Tinsley v. Lacy, 1 H. & M. 747 ; Kelly v. Morris, L. E. 1 Eq. 697 ; Scott v. Stanford, 3 Id. 718; Jarrold v. Heywood, 18 W. K. 279; Cobbett v. Woodward, L. E. 11 Eq. 407. INFRINGEMENT OF COPYRIGHT. 201 peculiar circumstances, and different judges may upon the C AF - VI - very same evidence arrive at different conclusions. "As not every instance of similitude," observes Dr. John- Not every , . . , ..... imitation a son, "can be considered as a prooi ot imitation, so not proof of every imitation ought to be stigmatized as plagiarism. P la g luJ isiu. The adoption of a noble sentiment, or the insertion of a borrowed ornament, may sometimes display so much judg- ment as will almost compensate for invention ; and an inferior genius may, without any imputation of servility, pursue the path of the ancients, provided he declines to tread in their footsteps." 4th. Copyright may be infringed by reproducing the *• Bv repro- whole or a part under an abridged form. au abridged A fair abridgment, when the understanding is employed form - in retrenching unnecessary circumstances, is not a piracy of the original work. Such an abridgment is allowable, and is regarded in the light of a new work. The law with reference to abridgments might, we think, with justice re- ceive some modification (a). The decisions on the subject are somewhat inconsistent. The fundamental principle on which is based the protection afforded to authors from piracies, appears to be the injury or damage caused to them by the depreciation in the value of their original works. It seems a very unsatisfactory answer to an author, who has been injured by an abridgment, to say, that because the wrongful taker has exhibited talent and ingenuity, both in the taking and in the use. which he has made of it, the original author has no remedy, " The form," says Mr. Curtis (b), "under which the original matter reappears should be treated as a disguise ; and the extent of the transformation shews only the extent to which the disguise has been carried, as long as anything remains which the original author can shew to be justly and exclu- sively his own." Now, few abridgments do not affect in some way the original work. By the selection of all the important pas- (a) See the suggestions of the Copyright Commissioners on the subject, ante, p. 62, note (a). (6) 'Copyright,' 272. 202 THE LAW OF COPYRIGHT. Cap. VI. sages in a comparatively moderate space, the quintessence of a work may be piratically extracted, so as to leave a mere caput mortuum. These considerations have been relied upon by the judges in coming to a determination upon the subject, and the proposition, that an abridgment is not a piracy of the original copyright, must be received with many qualifications. To constitute a proper abridgment, the arrangement of the book abridged must be preserved, the ideas must also be taken, and expressed in language not copied but con- densed. To copy certain passages and omit others, so as to reduce the volume in bulk, is not sucli an abridging as the court would recognise as sufficiently original to protect the author. The judgment of the abridger must be called into play in condensing the views of the author. There is a clear distinction between an abridg- ment and a compilation. As an American judge (a) well observed: " A compilation consists of selected extracts from different authors ; an abridgment is a condensation of the views of the author. The former cannot be extended so as to convey the same knowledge as the original work ; the latter contains an epitome of the work abridged, and consequently conveys substantially the same knowledge- The former cannot adopt the arrangements of the works cited ; the latter must adopt the arrangement of the work abridged. The former infringes the copyright, if matter transcribed, when published, shall impair the value of the original book ; a fair abridgment though it may injure the original is lawful." The first case is that of Dodsley v. Kinnersley (b), where (a) Leavitt, in Story's Executors v. Holcombe, 4 McLean (Amer.), 314. (6) Amb. 403. Bead v. Hodges, 2 Atk. 141. See Pinnock v. Rose, 2 Bro. C. C. 85, note. Mr. Curtis, the learned author of an American work on copyright, thus states, in his lucid style, the injustice of the law respect- ing abridgments : " When the author of a book,'' says he, " of whatever kind, possessing the legal attributes of originality, has secured his copy- right according to the prevailing law of his country, he has seoured tue exclusive right to print and publish his own book. In the jurisprudence with which we are concerned, this right includes the whole book and every part of it ; for we have seen that there may be a piratical taking of extracts and passages, and that the quantity thus taken may be immaterial. It includes also, or may include, the style, or language and INFRINGEMENT OP COPYRIGHT. 203 an injunction was applied for, to restrain the publication of Cap. VI. an abridgment of Dr. Johnson's ' Rasselas.' It appeared that not one-tenth part of the first volume had been abstracted, and that the injury alleged to have been sustained by the author arose from the abridgment containing the narrative expression ; the learning, the facts, or the narrative ; the sentiment and ideas, as far as their identity can be traced ; and the form, arrangement, and combination which the author has given to his materials. These are, or may be, all distinct objects of the right of property ; and in every work of originality, likely to be abridged or capable of being abridged, they are all important objects of that right. However imperfectly the subject may have been regarded in former times, it is now, I think, to be regarded as settled, that whatever is metaphysically part or parcel of the intellectual contents of a book, if in a just sense original, is protected and included under the right of property vested by law in, the author ; and it is very material to observe, that the arrangement, the method, the plan, the course of reasoning, or course of narrative, the exhibition of the subject, or the learning of the book, may be, according to its character, as much objects of the right of property as the language and the ideas. " "What then does the maker of an abridgment print, publish, and sell, after he has made it ? He has been employed, according to the definition above quoted, ' in retrenching unnecessary and uninteresting circumstances, which rather deaden the narration ;' that is to say, he has rejected what in his judgment are redundancies. Does this make him the author or pro- prietor of what remains ? If the work be a history, did he, the person abridging it, compile the materials into their present shape, and describe the course of events, and embody the whole of what constitutes the intel- lectual contents of the book, or are these things the product of another's labour, research and faculty of writing? If it be a flotitious narrative, whose genius created the characters, and animated them with the sentiments which they utter, and invented the pleasing incidents of their mock existences, and wove the whole into the novel or the poem ; which exists as an intellectual whole, after as well as before the process by which ' the unnecessary and uninteresting circumstances ' are ' retrenched ' ? Or, if it be a work of science, or a treatise in any branch of knowledge, whose are the ideas, the oourse of reasoning and illustration, the plan and analysis of the subject, and the collection and arrangement of materials whioh con- stitute the identity of the book ? These questions can have but one answer ; and if the abridgment, in any given case, consists solely in the reduction of the bulk of the volume by the rejeotion of redundancies, it is a mere re- publication of aconneoted series of extracts, in a different juxtaposition from the original author's to which the party had no title whatever. On the other hand, if the abridgment not only rejects redundancies, but also clothes the sentiments and ideas which may be left, in different phraseology, then it falls under the predicament of a colourable alteration, which cannot escape the censure of justice." And in a note he takes the above case of Dr. John- son's ' Basselas,' and adds, " The moral reflections are left out, the narrative goes into the ' Gentleman's Magazine.' Whose genius produced that stately and immortal fiction ? "Who described and created the characters of Imlac, and the Princess, and the Prinoe of Abyssinia, and placed them in the Happy Valley, and sent them forth in a series of gentle trials and pleasing and sad perplexities, in the world beyond its walls ? Who wrote that narrative ? Not, certainly, the Grub Street hack, who was employed to ' leave out the reflections.' What he took and his employers published, was the literary property of another, the profits of which the law had not vested in them."— Page 273. 204 THE LAW OF COPYRIGHT. Cap. vi. of the tale, and not the moral reflection?. The Master of the Eolls, Sir Thomas Clarke, refused the injunction, saying, "I cannot enter into the goodness or badness of the abstract. It may serve the end of an advertisement (a). In general it tends to the advantage of an author, if the composition be good ; if it be not, it cannot be libelled. What I mate- rially rely upon is, that it could not tend to prejudice the plaintiffs, when they had before published an abstract of the work in the ' London Chronicle.' If I were to deter- mine this to be elusory, I must hold every abridgment to be so." Chancellor Kent, in referring to this case, says, " This latitudinarian right of abridgment is liable to abuse, and to trench upon the copyright of the author. The question as to a bona fide abridgment may turn, not so much upon the quantity as the value of the selected materials " (6). But an injunction will be granted where the facts and the terms in which the facts are related are merely the same in both books. Thus where an injunction was moved for to restrain the publication of a book entitled ' Memoirs of the Life of Mrs. Bellamy,' which was alleged to have been pirated from a book called ' An Apology for the Life of George Anne Bellamy,' and it appeared in evidence that Mrs. Bellamy was author of the latter work ; and that she sold the copyright to the plaintiff, who printed it in five volumes at a selling price of fifteen shillings ; and that the work against which the injunction was prayed was in one volume, which sold for two shillings and sixpence ; upon passages being read from each to shew that the facts, and even the terms in which they were related in the latter work, were frequently taken verbatim from the original one, an injunction was immediately granted (c). The question as to how far an abridger may go without (a) It is no defence to say that the pirated work is not offered for sale itself, but merely used to promote the sale of the books mentioned in it : Hotten v. Arthur, 1 H. & M. 603 ; 32 L. J. (Ch.) 771 ; 11 W. E. 931 ; 9 L. T. (N.8.) 199. (6) 2 Kent's Com. 382, note ; Gyles v. Wilcox, 2 Atk. 141. See Camp- bell's ' Lives of the Chancellors,' vol. v. p. 56 ; 2 Story, Eq. Jur. s. 939. (c) Bell v. Walker, 1 Bro. C. C. 451. INFRINGEMENT OF COPYRIGHT. 205 infringing the rights of the author was exhaustively Cap. VI. considered in an American case which arose respecting Mr. Story's ' Commentaries on Equity Jurisprudence.' It appeared that the chapters and the subjects were the same in Mr. Story's work and the work complained of; the former book contained 1,856 octavo pages, including notes, the latter 348 octavo pages, including notes ; a page in the latter contained a little more than one in the former ; reduced to the same sized page, the ratio in the amount of matter in the latter book to that in the former was about two to nine. In the entire work of Story there were 226 pages, constituting nearly an eighth part, on which there was some matter which had been extracted in the same language, or very nearly so, into the defendant's book, this matter comprising 879 lines, or about 24 pages of his book, and 30 pages of Story, which made one fifteenth part of the defendant's book and one-sixtieth of Story ; this matter being found in scattered paragraphs in the first third of the defendant's book; all the other portions of Story's book were abridged without any tran- scription of his common language, the part so abridged comprising two-thirds of the defendant's book. The defence was set up that the defendant's book was a lond fide abridgment of the plaintiff's. The Master reported that Story's work had been fairly abridged, and hence that there was no infringement. Against this conclusion, the court found that the first third of the defendant's book, including one hundred pages, was not a fair abridgment, and granted an injunction against that part. The rest was regarded as an abridgment, and its publication was not enjoined. Mr. Justice McLean thus states the principles upon which the decision was arrived at : " This contro- versy has caused me great anxiety and embarrassment. On the subject of copyright, there is a painful uncertainty in the authorities ; and indeed, there is an inconsistency in some of them. That the complainants are entitled to the copyright which they assert in their bill is not contro- verted by the defendants. The decision must turn on the 206 THE LAW OF COPYRIGHT. Cap. VI. question of abridgment. If this were an open question, I should feel little difficulty in determining it. An abridg- ment should contain an epitome of the work abridged — the principles, in a condensed form, of the original book. Now it would be difficult to maintain that such a work did not affect the sale of the book abridged. The argument that the abridgment is suited to a different class of readers, by its cheapness, and will be purchased on that account by persons unable and unwilling to purchase the work at large, is not satisfactory. This, to some extent, may be true ; but are there not many who are able to buy the original work, that will be satisfied with the abridgment ? What law library does not contain abridgments and digests, from Viner's and Comyn's down to the latest pub- lications ? The multiplication of law reports and ele- mentary treatises creates a demand for abridgments and digests : and these being obtained, if they do not generally they do frequently, prevent the purchase of the works at large. The reasoning on which the right to abridge is founded, therefore seems to me to be false in fact. It does, to some extent in all cases, and not unfrequently to a great extent, impair the rights of the author, a right secured by law. "The same rule of decision should be applied to a copyright as to a patent for a machine. The construction of any other machine which acts upon the same principle, however its structure may be varied, is an infringement on the patent. The second machine may be recommended by its simplicity and cheapness ; still, if it act upon the same principle of the first patented, the patent is violated. Now, an abridgment, if fairly made, contains the principle of the original work ; and this constitutes its value. Why, then, in reason and justice, should not the same principle be applied in a case of copyright as in that of a patented machine ? With the assent of the patentee, a machine acting upon the same principle, but of less expensive structure than the one patented, may be built ; and so a book may be abridged by the author, or with his consent, INFRINGEMENT OF COPYEIGHT. 207 should a cheaper work be wanted by the public. This, Cap. "VI. in my judgment, is the ground on which the rights of the author should be considered. " But a contrary doctrine has long been established in England, under the Statute of Anne, which in this respect is similar to our own statute ; and in this country the same doctrine has prevailed. I am therefore bound by pre- cedent, and I yield to it in this instance more as a principle of law, than a rule of reason or justice" (a). In Dickens v. Lee (b), the plaintiff's work was an imaginative tale ; the defendant had taken the fable, the characters, the incidents, the names, and even the style of language. It is to be gathered from the report, that thus using all the plaintiff's materials, he had told the story in a shorter manner, and he relied upon abridgment as his defence ; but the court held that such an abridgment was not an exercise of mental labour deserving the character of an original work, and granted an injunction, putting the plaintiff to establish his right at law, if the defendant desired it. In this case, Vice-Chancellor Knight Bruce is reported to have said, that he was not aware that one man had the right to abridge the works of another ; on the other hand, he did not mean to say that there might not be an abridgment which might be lawful, which might be protected ; but, to say that one man had the right to abridge, and so publish in an abridged form, the work of another, without more, was going much beyond his notion of what the law of this country was. In the case of Butterworth v. Bobinson (c), a motion was made upon certificate of the bill, for an injunction to restrain the defendant from selling a work, entitled, ' An Abridgment of Cases argued and determined in the Courts of Law, &c.,' until answer or further order. A copy of the work was handed to the Lord Chancellor. In support of the motion it was stated, that this work was by no means a (a) Story's Executors v. Holcombe, i McLean (Amer.), 308. (b) 8 Jur. 183. (c) 5 Ves. 709. 208 THE LAW OF COPYRIGHT. Cap. VI. fair abridgment ; that, except in colourably leaving out some parts of the cases, such as the arguments of counsel, it was a mere copy verbatim of several of the reports of cases in the courts of law, and among them of the ' Term Eeports,' of which the plaintiff was proprietor ; comprising not a few cases only, but all the cases published in that work ; the chronological order of the original work being artfully changed to an alphabetical arrangement under heads and titles, to give it the appearance of a new work. In support of the motion, Bell v. Walker (a) was cited. The Lord Chancellor said, " I have looked at one or two cases, with which I am pretty well acquainted, and it appears to me an extremely illiberal publication. Take the injunction upon the certificate of the bill filed, to give them an opportunity of stating what they can upon it." Pirncy by way The leading case on the subject of piracy, by way of digest, is that of Sweet v. Benning (b), where it was held by a majority of the judges that parties who take verbatim portions of reports (as the head-notes), the copyright of which belongs to others, and put them together, merely arranged in a different manner (as in an alphabetical order), so as to form a different work, of which they make any considerable proportion, will be guilty of piracy. The court were divided, and accordingly the judges delivered their judgments seriatim. Jervis, C.J., on the question of piracy, said : " The head-nates of the ' Jurist ' reports may indeed be considered, perhaps, as in themselves a species of brief and condensed reports, the reporter furnishing in each case two reports, in one of which he gives the facte, the arguments, and the judgments at length, and in the other an abstract of the decision, conveying the principle upon which it is founded, and the pith and substance of the case. The defendants have, for the purposes of their digest, copied verbatim the head-notes, the shorter species of reports. But if they were allowed to take the head- note, it is plain that they might equally have taken the (a) 1 Bio. 0. C. 451. (6) 16 C. B. 459 ; Com. Law Kep. vol. ii. pt. ii. 1452- INFRINGEMENT OP COPYRIGHT. 209 report. And if they might take either, they might take Cap. VI. both, and might republish the entire of the reports, merely altering their arrangement by putting them in alphabetical order. The question is, whether, by this arrangement of matter, which is taken verbatim from the plaintiffs' periodical, they acquire a right so to use it. I think not. I admit that a digest may be made from a copyright work without piracy upon it, but that is a work in which a man applies his mind to the labour of extracting the principles of the original work, and by his labour really produces a new work. It is not so where he merely reduces extracts or passages of another man's work to an alphabetical order, which is a work a clerk might accomplish, and requires neither learning nor study, but may be little more than a merely mechanical operation of cutting out and classifying under certain letters of the alphabet. In one of the cases cited, the ' Term Eeports ' were so dealt with, and it was held to be a piracy. I think that case is decisive of the present, and therefore that the plaintiffs are entitled to our judgment." Lord Hatherley, when Vice-Chancellor, in the case of Tinsley v. Lacy (a), spoke very unfavourably in regard to the rights of an abridger ; he said : He must confess that did not agree in the reasons for upholding such a work given by some, learned judges, viz : that an abridger was a benefactor. He should have himself regarded him rather as a sort of jackal to the public, to point out the beauties of authors. In D'Almaine v. Boosey (6) the question arose as to what use of what imitation or use of a musical composition constituted j^™^ com . a piracy. In this case the plaintiffs published, first, the position conr overture to Auber's opera of 'Lestocq,' and then a number p^y. of airs, and all the melodies. It was admitted that the defendant had published portions of the opera containing the melodious parts of it ; that he had also published (a) 1 H. &M. 747; 11 W. R. 877; see Story's Executors v. Hdkombe, 4 McLean (Amer.), 308. (6) 1 Y. & 0. 288. P 210 THE LAW OF COPYRIGHT. Cap. VI. entire airs ; and that in one of his waltzes he had intro- duced seventeen hars in succession, containing the whole of the original air, although he had added fifteen other bars which were not to be found in it. It was nevertheless contended that this was not a piracy, because the whole of the air had not been taken ; and because the latter publica- tion was adapted for dancing only, and that some degree of art was needed for the purpose of so adapting the piece ; and, moreover, but a small part of the merit belonged to the original composer. Lord Lyndhurst, then Lord Chief Baron, observed that it was a nice question, what should be deemed such a modification of an original work as should absorb the merit of the • original in the new composition. " No doubt," said he, " such a modi- fication may be allowed in some cases, as in that of an abridgment or a digest. Such publications are in their nature original. Their compiler intends to make of them a new 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 bond 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. Now it will be said that one author may treat the same subject very differently from another who wrote before him. That observation is true in many- cases. A man may write upon morals in a manner quite distinct from that of others who preceded him ; but the subject of music is to be regarded upon very different principles. It is the air or melody which is the invention of the author, and which may in such case . be the subject of piracy ; and you commit a piracy if, by taking, not a single bar, but several, you incorporate in the new work that in which the whole meritorious part of the invention consists. " I remember, in a case of copyright, at nisi prius, a question arising as to how many bars were necessary for the constitution of a subject or phrase. Sir George Smart, INFRINGEMENT OF COPYRIGHT. 211 who was a witness in the case, said, that a mere bar did not Cap. VI. constitute a phrase, though three or four bars might do so. Now it appears to me that if you take from the composi- tion of an author all those bars consecutively which form the entire air or melody, without any material alteration, it is a piracy ; though, on the other hand, you might take them in a different order, or broken by the intersection of others, like words, in such a manner as should not be a piracy. It must depend on whether the air taken is sub- stantially the same with the original. Now the most unlettered in music can distinguish one song from another, and the mere adaptation of the air, either by changing it to a dance, or by transferring it from one instrument to another, does not, even to common apprehensions, alter the original subject. The ear tells you that it is the same. The original air requires the aid of genius for its construc- tion, but a mere mechanic in music can make the adapta- tion or accompaniment. Substantially, the piracy is, where the appropriated music, though adapted to a different purpose from that of the original, may still be recognised by the ear. The adding variations makes no difference in the principle." Where only eight consecutive bars, taken from an opera, were inserted in a song and constituted but a small pro- portion of the eleven pages of the song, the court on application to dissolve would not continue the injunction. 5th. Copyright may be infringed by reproducing the 5. By transla- whole or part under the form of a translation. Transla- tlon- tions are protected in this country, and an unauthorized copy of a translation, though the original be not entitled to copyright here, but is open to any number of persons to translate, is a piracy. Though it does not appear, if the original work be a foreign work, not entitled to protection in this country and a translation of it be made and published first by A., and a translation be subsequently made and published by B., that this latter would be necessarily a piracy of A.'s translation or an infringement of his right ; yet, a p 2 212 THE LAW OF COPYRIGHT. Cap. VI. retranslation without the consent of the author of the original work is a piracy whenever that original work is entitled to copyright. Translation of It is clear that an unauthorized translation of a pro- Tpiracy. W ° r tected work is a violation of the copyright therein, for a translation cannot be made without appropriating the entire substance of the protected composition. It has been argued that the translator by his own labour and skill reproduces in a new and useful form what is practically a new work, and that having exercised inde- pendent labour in its production he is entitled to publish. But the same reasoning would lead to the conclusion that a person might republish any protected work, if he did so with notes which required the exercise of independent labour. A translation of an unprotected work is certainly a work deserving of copyright, and in respect of which copyright may be obtained, but the allowing of a transla- tion to be issued of a protected work without the consent of the author is a very different thing. Principle on The principle on which the position rests, that an un- ^Jg 1S authorized translation of a protected work is piratical, is that the property of the author consists not in the language alone ; but in the matter of which the language is but the expression and means of communication. It is in the substance of the composition and not in the form only. And the matter is as much taken possession of by the transla- tion into a different language, as it would be by a transcript of its language only. The point has only once come before the court, and then the case was decided on other grounds. The case referred to came before Lord Chancellor Macclesfield 160 years ago, when he granted an injunction against an English translation of Thomas Burnett's ' Archaeologia Philosophical a work which had been published in Latin and registered by the author. The unauthorized publication of the book in England was enjoined, on the ground that it " contained strange notions, intended by the author to be concealed from the vulgar ill the Latin language, in which language it INFRINGEMENT OP COPYRIGHT. 213 could not do much harm." The Chancellor there remarks cap. vi. that "a translation might not be the same with the original, on account that the translator has bestowed his care and pains upon it, and so not within the prohibition of the Act " (a). In Mwrray v. Bogue (b), a case respecting an alleged Translation of infringement of the copyright in a guidebook, the question ^frinjIngT of translations was again considered. The plaintiff com- protected plained that his ' Handbook for Travellers in Switzerland ' had been infringed by a guidebook published by the defendant. The latter had been made up from various sources, and in part was an abridged translation of Baedeker's German work, the copyright of which appears not to have been secured in this country. It was claimed, however, on this point that Baedeker's book was a transla- tion of Murray's, and that its retranslation into English by Bogue was a violation of Murray's copyright. The Vice-Chancellor put the following case: If Baedeker's were a translation of Murray's into German, and the other defendant had retranslated Baedeker's work into English, even if he did not know that Baedeker's was taken from Murray, the plaintiff's book could not be thus indirectly pirated. But it was found that Baedeker's was substan- tially an original work, and not a reproduction in German of Murray's : and therefore its translation in English could not infringe the copyright in Murray's book (c). Notwithstanding what has been already said, it must Opinion of be admitted that there are many who are of the opinion s< ?^ *at that any work, whether the copyright therein be subsisting committed by or not, may be translated with impunity, and indeed this has p ro tected been held in America to be the law. The book in question work - was Mrs. Stowe's celebrated ' Uncle Tom's Cabin.' She first published it in America and secured the copyright there, subsequently causing it to be translated into German and securing copyright for such translation. Afterwards (a) Burnett *. Chetwood, 2 Meriv. 441 ; Wyatt v. Barnard, 3 Ves. & B. 77. (fc) 1 Drew. 353, 368. (c) See the argument in Jarruld v. Hei/wood, 18 W. K. 279. 214 THE LAW OF COPYRIGHT. Cap. VI. Compiling for various objects. the defendant Thomas made a translation into German,' and this was the piracy complained of. Mr. Justice Grier decided that Mrs, Stowe was not entitled to the protection sought. He considered that by the publication of her book, the creations of the genius and imagination of the author had become as much public property as those of Homer or Cervantes. That Uncle Tom and Topsy were as much publiei juris as Don Quixote and Sancho Panza. That all her conceptions and inventions might be used and abused by imitators, playwrights, and poetasters. They were no longer her own ; those who had purchased her book might clothe them in English doggerel, in Ger- man or Chinese prose. Her absolute dominion and pro- perty in the creations of her genius and imagination had been voluntarily relinquished, and all that remained was the copyright of her book, the exclusive right to print, reprint, and vend it; and those only could be called infringers of her rights or pirates of her property who were guilty of printing, publishing, importing or vending without her license " copies of her book." In tropical but not very precise phraseology, a translation might be called a transcript or copy of her thoughts or conceptions, but in no correct sense could it be called a copy of her book (a). This is a decision the principle of which we trust will never be followed in this country, but that, when the question shall come before the court, it will find itself, as it is practically at present, unfettered by precedent, and able to take that view which will at once afford protection to literary men and be in accord with the spirit of the copyright laws. By the International Copyright Act, translations, en- titled under that Act to protection in this country, are prohibited (b). It will be seen from what has been already said that there is nothing to prevent a person from copying common materials from an existing compilation, and arranging and (a) Stmoe v. Thomas, 2 Am. Law Reg. 231. (6) See post, chapter on International Copyright. INFRINGEMENT OF COPYRIGHT. 215 combining them in a new form, or using them for a cap. VI. different purpose. The first compiler had no copyright in tbe common materials, but only in his own arrangement of those materials, and if this be not infringed, though the subse- quent compiler may have considerably profited by his compilation, yet there would be no remedy. There would be a difference, however, if the first compiler had so worked upon the common materials, whether by transla- tion, paraphrase, or abridgment, as to have practically elaborated a new work. Thus would he have placed the stamp of authorship upon the same, and have acquired a title thereto accordingly. Where the arrangement or general plan has been copied, Copying there may or may not be an infringement of the rights of frrangement. the first compiler. The principle would seem to be this : that where the arrangement or general plan only is copied, the materials used being different, there is no infringe- ment, but that where the arrangement or general plan and also the materials (though they may be taken directly from the original sources) are copied, then the rights of the first compiler are infringed. The first compiler's rights consisted not in the materials, for they were common to all, and not in the arrangement apart from the materials, for in such, copyright could not exist, but in the combined result of the common materials as arranged ; and if the arrangement and materials together were taken, then the second compilation would be substantially the same work, it would be practically identical. Though there has been no express decision on the above point, yet the principle has been frequently admitted. Thus, in the case of Black v. Murray, where Lockhart's annotated edition of Scott's 'Minstrelsy of the Scottish Border ' was in question, and it appeared that of the two hundred notes added by the editor, all but fifteen were quotations from common sources, and the ballads them- selves were common property, Lord Kinloch said : " To a considerable extent the notes borrowed (to use a euphe- 216 THE LAW OF COPYRIGHT. pp. vi. mism) from Messrs. Black's edition consist of quotations from various authors, employed by Mr. Lockhart to illustrate ballads in the ' Minstrelsy.' It was perhaps thought that to repeat quotations from well-known authors was not piracy. If so, I think a great mistake was committed. In the adaptation of the quotation to the ballad which it illustrates, the literary research which discovered it, the critical skill which applied it, there was, I think, an act of authorship performed, of which no one was entitled to take the benefit for his own publica- tion and thereby to save the labour, the learning, and the expenditure necessary even for this part of the anno- tation" (a). Dramatizing The unauthorized dramatization of a work for public work. performance is not an infringement of the author's rights in that work, nor in a drama adapted from it made by the author himself after publication of the original work ; but when the author's drama has preceded the publication of the novel, the latter cannot be dramatized without violating the author's rights in his play, except with his consent (&). This subject is more fully dealt with under the head Dramatic Copyright. Gratuitous The gratuitous distribution of copies of a copyright eopVi s b an° a0f work of another is an infringement. And an injunction infringement will be granted to restrain the publication of lithographic rights. r copies of music intended for private use and not for sale or exportation. The members of the Liverpool Philhar- monic Society, who perform gratuitously, made impres- sions of a musical composition called 'Benedict's part song, The Wreath,' and distributed them solely among themselves ; this was held to be an infringement of the author's " sole and exclusive right and liberty of printing, or otherwise multiplying copies," of any subject to which the word " copyright" is applied (c). (a) 9 Sc. Sess. Cas. 3rd Ser. 355. (b) Eeade v. Conquest, 9 0. B. (N.S.) 755 ; 11 Id. 479 ; Toole v. Youm, L. E. 9 Q. B. 523. * (c) Novello v. Ludlow, 12 0. B. 177 ; 21 L. J. (C.P.) 169. INFRINGEMENT OF COPYRIGHT. 217 The same view has been taken by the Scotch Court of cap. vi. Session in the case of a gratuitous circulation (a). Copyright may also be infringed by the importation for infringement sale or hire into any part of the British dominions of ^ mporta " copies printed abroad. The 17th section of the Copyright Act provides that after the passing of the Act it shall not be lawful for any person not being the proprietor of the copyright, or some person authorized by him, to import into any part of the United Kingdom, or into any other part of the British dominions, for sale or hire, any printed book first com- posed or written or printed and published in any part of the United Kingdom, wherein there shall be copyright, and reprinted in any country or place whatsoever out of the British dominions ; and if any person, not being such proprietor or person authorized as aforesaid, shall import or bring, or cause to be imported or brought, for sale or hire, any such printed book into any part of the British dominions, contrary to the true intent and meaning of the Act, or shall knowingly sell, publish, or expose to sale, or let to hire, or have in his possession for sale or hire any such book, then every such book shall be forfeited, and shall be seized by any officer of customs or excise, and the same shall be destroyed by such officer : and every person so offending, being duly convicted thereof before two justices of the peace for the county or place in which such book shall be found, shall also for every such offence forfeit the sum of ten pounds, and double the value of every copy of such book which he shall so import or cause to be imported into any part of the British dominions, or shall knowingly sell, publish, or expose to sale or let to hire, or shall cause to be sold, published, or exposed to sale, or let to hire, or shall have in his posses- sion for sale or hire, contrary to the true intent and meaning of the Act, five pounds to the use of such officer of customs or excise, and the remainder of the (a) Alexander v. Maclcenzie, 9 So. Sess. Oas. 2nd Ser. 748. 218 THE LAW OF COPYRIGHT. Oaf. VI. penalty to the use of the proprietor of the copyright in such book (a). Offence com- It is under this section an offence to import copyright no copy solcf matter f° r sale or hire, and the defendant who has imported or let out on snc } 1 ma tter must pay the costs of an action, even if he has not done so knowingly, and though he may not have sold or let out on hire a single copy (b). In Scotland it was held by Lord Gifford (c), that where a bookseller had sold copies of a copyright work which had been pirated and printed in America, an action of damages lay against him at the instance of the proprietors of the copyright in this country, though no such remedy is prescribed in sect. 17 of the Copyright Amendment Act, his Lordship being of opinion that copyright is not the mere creature of a statute, but a natural and civil right, entitled to protection at common law. The pursuer A. Tennyson, D.C.L., who is the proprietor of the copyright of the whole of his poetical works, had con- veyed to the other pursuers, A. Strahan & Co., publishers, London and Edinburgh, the exclusive right to print and publish his poetical works within the British dominions for five years, from and after 1 January, 1869. Messrs. S. & Co. alleged that defender, who is a bookseller at Glasgow, sold, published, exposed for sale, or had in his possession for sale, reprints of Mr. Tennyson's works printed or published in the United States of America, and that within the period referred to and without their consent. They accordingly raised a suspension and interdict against defender, and on 20th April, 1870, that interdict was declared perpetual. Messrs. Strahan & Co. then raised the present action for damages averred by them to have been incurred in consequence of the sale of said copies. Damages laid at £500. (a) This section would exclude books reprinted out of the British Dominions only, and not books reprinted in a colony ; but see the 39 & 40 Vict. c. 36, a. 42, post. (6) Cooper v. Whittingham, 28 "W. R. 720. (c) Tennyson v. Forrester, 43 Scottish Jurist, 278. INFRINGEMENT OF COPYRIGHT. 219 ' The Lord Ordinary refused to give effect to the defender's Cap. VI. argument for the following reason: He thought that the right of copyright, although protected and favoured, and regulated by statute, was not the mere creature of statute, and that offences against copyright were not to be viewed as mere statutory offences for which the statutory remedy or punishment was alone applicable. On the contrary, he thought that the right of the author and his assigns in his work was a natural and civil right which the statute had defined and protected but had not created, and infringements of copyright were violations of this civil right and not mere statute-made offences. The 42nd section of the 39 & 40 Vict. c. 36 (The By Customs Customs Consolidated Act, 1876) gives a list of " goods, &c. ^dksplT- ° absolutely prohibited to be imported, and which shall be tectedmaynot forfeited, and shall be destroyed or otherwise disposed of as the Commissioners of Customs may direct." In this list will be found enumerated " Books wherein the copy- right shall be first subsisting, 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 Com- missioners of Customs a notice in writing that such copyright subsists, such notice also stating when such copyright will expire. This section is much wider than the corresponding section in the 5 & 6 Vict. c. 45 ; it not only does away with the limitation of the restriction to books printed for sale or hire, but it prohibits books printed or reprinted in any other country. The Copyright Act, 5 & 6 Vict. c. 45, especially pro- hibits books reprinted out of her Majesty's dominions; the Customs Act especially prohibits books reprinted in any other country. It is by no means clear whether in the latter Act the words " any other country " mean and include the colonies. The Commissioners of Customs are to have printed lists of all such books in respect of which they shall have 220 THE LAW OF COPYEIGHT. Cap. VI. received such notices, and to expose the same at the several ports in the United Kingdom and in Her Majesty's possessions abroad. In the lists so to be printed and posted up a statement is to appear as to when the copyright will expire. By the 152nd section of the same Act any book wherein the copyright may be subsisting, first composed, or written or printed in the United Kingdom, and printed or re- printed in any other country, are absolutely prohibited to be imported into the British possessions abroad. But it is provided that no such books shall be prohibited to be imported as aforesaid unless the proprietor of such copyright or his agent shall have given notice in writing to the Commissioners of Customs that such copyright subsists, and in such notice shall have stated when the copyright will expire. And it is further provided that the Commissioners shall cause to be made and to be publicly exposed at the several ports in the British possessions abroad, from time to time, printed lists of books respecting which such notice shall have been duly given, and all books imported contrary thereto shall be forfeited : but nothing contained in the Act shall be taken to prevent Her Majesty from exercising the powers vested in her by the 10 & 11 Vict. c. 95, intituled " An Act to amend the Law relating to the Protection in the Colonies of Works entitled to Copyright in the United Kingdom," to suspend in certain cases such prohibition. The 45th section of the Act gives leave to any person complaining of the insertion of any books in the lists required by the above sections, to apply to any judge at chambers for a summons calling upon the person upon whose notice such book shall have been so inserted, to appear before such judge to shew cause why such book shall not be expunged from such list, and such judge is at the time appointed in the summons to hear and determine upon the matter and make his order thereon in writing: And it is provided that upon service of such order or a certified copy upon the Commissioners of Customs or their 1NFEINGEMENT OP COPYRIGHT. 221 secretary, the said Commissioners shall expunge such Cap. Vf. book from the list, or retain the same therein, according to the tenor of such order. Jt is further provided that if at the time appointed in any such summons the person summoned shall not appear before such judge, then upon proof by affidavit that such summons or a true copy thereof has been personally served upon or left at the last known or usual place of abode of the person so summoned, or in case the person to whom such summons was directed and his place of abode cannot be found, that due diligence has been used to ascertain the same, such judge shall be at liberty to proceed ex parte to hear and determine the matter. In the event of either party being dissatisfied with the order of the judge, he may apply to the superior court of which such judge is a member to revise such order and make such further order thereon as such court may see fit. 222 EEMEDY AT LAW IN CASES OF CHAPTEE VII. REMEDY AT LAW IN CASES OF INFRINGEMENT OF COPYRIGHT. Three reme- There are three remedies in cases of infringement of infringement C0 P vr ight — an action at law, or in equity, and in some of copyright, instances by summary proceeding before justices of the peace. Since the Judicature Act has come into operation, Courts of Law and Equity are, at any rate in theory, no longer separate tribunals, but it must be remembered that though the rules of Law and Equity are assimilated and a uniformity of procedure established, yet suitors are not deprived of any of their existing rights or remedies. The nature of the relief granted in each particular case will, as heretofore, depend on the form of the action or proceeding in which the relief is sought ; according as the plaintiff seeks to avail himself of his legal or his equitable remedy. It is therefore still advisable to consider separately what are the rights and remedies of the parties whose copyright is infringed both at law, and in equity. We propose to deal, in the first place, with the remedy provided by the 5 & 6 Vict. c. 45. Actions at law may be divided into two classes, first, under the statute for penalties and forfeiture; and, secondly, independent of the statute, for damages. In other words, where the statute has imposed penalties and forfeiture for the violation of copyright, these may be sued for, but where the statute confers a right but provides no specific remedy, then an action for damages lies. INFRINGEMENT OF COPYRIGHT. 223 Of course a common law action for damages will not lie Cap, VII. where no right is conferred by the statute, but where the right exists and the statutory remedies are either not com- • plete nor adequate for the protection of the right conferred, the common law remedies may be made available (a). By the 15th section of the Act, it is provided, that if Remedy for any person in any part of the British dominions shall Son on the print or cause to be printed, either for sale or exportation, case - any book in which there shall be subsisting copyright, without the consent in writing of the proprietor, or import for sale or hire any such book unlawfully printed from parts beyond the sea, or knowing such book to have been so unlawfully printed or imported, shall sell, publish, or expose for sale or hire, or cause to be sold, published, or exposed for sale or hire, or shall have in his possession for sale or hire, any such book without the consent of the proprietor, such offender shall be liable to a special action on the case, at the suit of the proprietor of the copyright, to be brought in any court of record in that part of the British dominions in which the offence shall be committed : Provided always, that in Scotland such offender shall be liable to an action in the Court of Session, there to be brought and prosecuted in the same manner as any other action of damages to the like amount (&). No person except the proprietor of the copyright, or some one authorized by him, may import into the United Kingdom, or other parts of the British dominions, for sale or hire, any printed book first composed or written, or printed and published, in the United Kingdom, wherein there is copyright, and reprinted in any country or place out of (a) Thus, by the 15th section of the Act of 1842, the printer is made liable to an action for damages only when the printing is for " sale or exportation," and the importer only when copies are imported for " sale or hire." No remedy is given against any person who prints or imports for gratuitous distribution, or who gratuitously distributes copies printed or imported without authority. But in Novello v. Ludlow (12 C. B. 177) it was held that an action for damages would lie under the statute for the gratuitous distribution among the members of a singing Bociety of lithographic copies of a musical composition. See too Booney v. Kelly, 14 Ir. L. R. (N.S.) 158. (b) 5 & 6 Vict. c. 45, s. 15. 224 REMEDY AT LAW IN CASES OP Cap. VII. the British dominions ; and if any person, not the pro- _ prietor or party authorized by him, shall import or bring or cause to be imported or brought, for sale or hire, any such printed book into the British dominions, or shall knowingly sell, publish, or expose for sale, or let to hire, or have in his possession for sale or hire, any such book, then every such book shall be forfeited and be seized and destroyed by any officer of the customs or excise, and every person so offending shall, on conviction, forfeit the sum of ten pounds, and double the value of every such book so unlawfully imported, sold, published, or exposed for sale, or let to hire ; five pounds to the use of such officer of customs or excise, and the remainder of the penalty to the use of the proprietor of the copyright in such book (a). By the customs laws, as we have already seen, it is absolutely prohibited to import into the United Kingdom books wherein the copyright shall be subsisting (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 that such copyright subsists, such notice also stating when such copyright will expire (b). (a) 5 & 6 Vict. c. 45, ». 17. As to separate penalties upon each separate violation of the Act on the same day, see 12 Geo. 2, c. 36, and Brooke v. Milliken, 3 T. E. 509. A publisher of a piratical work will not be liable at law for the infringement, unless guilty knowledge can be brought home to him ; such knowledge will not be presumed from the mere faot of his selling piratical works in print : Leader v. Strange, 2 Car. & Kir. 1010. (6) The Consolidated Act, 39 & 40 Vict. c. 36, prohibits the importing of certain enumerated articles, and declares that they shall be forfeited and may be destroyed or otherwise disposed of as the Commissioners of Customs may direct. Among the things thus enumerated are " buoks wherein the copyright shall be first subsisting, first composed, or written or printed in the United Kingdom, and printed or reprinted in any other country, as to which the proprietor of suoh copyright or his agent shall have given to the Commissioners of Customs a notice in writing duly declared, that suoh copyright subsists, such notice also stating when such copvright will expire." Section 44 enacts that "the Commissioners of Customs shall cause to be made and to be publioly exposed at the custom houses in the several porta of the United Kingdom, lists of all books wherein the copyright shall be subsisting, and as to which the proprietor of such copyright or his agent shall have given notice in writing to the Commissioners that such copy. INFRINGEMENT OP COPYRIGHT. 225 Neither the printer nor the importer can successfully Cap. Vll^ plead that he did not intentionally violate the copyright ignorance of of another ; but the publisher or the seller is not liable J™ufefor unless he knows that the book was unlawfully printed or printer or imported (a). Of course, if the publisher is also the lmpor printer or the importer, ignorance of wrong cannot be any excuse. All copies of any book wherein there may be copyright* Action for and of which entry shall have been made in the registry ^"ateTcopies book, and which shall have been unlawfully printed or imported without the consent of the registered proprietor of such copyright, shall be deemed to be the property of the proprietor of such copyright ; and such proprietor shall, after demand thereof in writing, be entitled to sue for and recover the same, or damages for the detention thereof, in an action of detinue, from any party who shall detain the same, or to sue for and recover damages for the conversion thereof in an action of trover (b). The owner of the copyright may therefore sue for the recovery of the copies found in the possession of the wrongdoer, and for the value of those he may have unlawfully disposed of. There is no common law right in the author or pro- prietor of a book which is pirated to the delivery up of the copies of the illegal work : and therefore, in a case under the 54 Geo. 3, c. 156, s. 4, it was held that the proprietor of a book who was entitled to an injunction to restrain the printing and sale of the unlawful work, right exists, stating in such notice when such copyright expires, ac- companied by a declaration made and subscribed before a collector of customs or a justice of the peace, that the contents of such notice are true." Section 45 provides that persons complaining of the prohibition of books in the copyright lists may appeal to a judge in chambers. Section 152 prohibits the importation into the British possessions abroad of foreign reprints of English copyright books, but provides that nothing shall be taken to prevent her Majesty from exercising the powers vested in her by the 10 & 11 Vict. e. 95, intituled "An Act to amend the Law /elating to the Protection iu the Colonies of Works entitled to Copyright in the United Kingdom," to suspend in certain cases such prohibition. (a) Colbum v. Simms, 2 Hare, 543, 557 ; Leader v. Strange, 2 Car. & Kir. 1010. (6) 5 & 6 Vict. c. 45, s. 23. Q 226 REMEDY AT LAW IN CASES OF Cap. VII. nevertheless was not entitled to an order for the delivery up of the illegal copies, if the book, the copyright of which had been infringed, was not composed and entered according to the statutes in force at the time the illegal copies were printed (a). In a case, however, under the Designs Act, Lord Justice Knight Bruce made an order for the delivery up to the plaintiff, for the purpose of being destroyed, of the drawings and cards used by the defendant in applying the plaintiff's design, and also the articles manufactured by the defendants to which the plaintiff's design had been applied (6). Notice of The 16th section of the Copyright Act, 1842, enacts plaintiff" title that m actions for piracy the defendant shall give notice to be given. f the objections to the plaintiff's title on which he intends to rely ; and if the nature of his defence be that the plaintiff in such action was not the author or first publisher of the book in which he shall by such action claim copyright, or is not the proprietor of the copyright therein, or that some other person than the. plaintiff was the author or first publisher of such book, or is the proprietor of the copyright therein, then the defendant shall specify in such notice the name of the person whom he alleges to have been the author or first publisher of such book, or the proprietor of the copyright therein, together with the title of such book, and the time when and the place where such book was first published ; other- wise the defendant in such action shall not, at the trial or hearing of such action, be allowed to give any evidence that the plaintiff in such action was not the author or first publisher of the book in which he claims such copy- right as aforesaid, or that he was not the proprietor of the copyright therein ; and at such trial or hearing no other objection shall be allowed to be made on behalf of such defendant than the objections stated in such notice, or that any other person was the author or first publisher of (a) Colbum v. Simms, 2 Hare, 643 ; 12 L. J. (N.S.) Ch. 388 ; 7 Jur. 1104 ; and see Belfe v. Delamotte, 3 K. & J. 581. (6) McBae v. Holdsworth, 2 De G. & Sm. 497. See post. INFRINGEMENT OF COPYRIGHT. 227 such book, or the proprietor of the copyright therein, than Cap. VII. the person specified in such notice, or give in evidence in support of his defence any other book than one sub- stantially corresponding in title, time, and place of publication, with the title, time, and place specified in such notice. In Leader v. Purday (a) a gentleman named Bellamy adapted words to an old air called ' Pestal,' and procured a friend of the name 'of Home to write an accompani- ment. The defendant, in an action for piracy of the same, gave notice of the following objections, among others : " That the plaintiffs were not the owners of the copyright; that there was no subsisting copyright in the musical publication." It was held that evidence could not be given by the defendant, that the copyright of the air was in Home, and not assigned by writing to Bellamy, Home's name not being mentioned in the objec- tions, as required by the above section. This was de- cided, although the objection appeared upon the plaintiff's case. The notice of objection is sufficient, if it allege a When definite publication of the disputed work at some parti- su cien ' cular place, by some definite party, either before, or simultaneously with, the publication by the plaintiff, or with a publication in another place (b). And on application by the plaintiff to have the notice Amending of objections delivered with the defendant's pleas under objection. this same section, amended, it was held that the alleged first publication having occurred abroad, and so far back as the year 1831, it was sufficient for the defendant to state the year of the first publication, and that it was not •necessary that he should be bound to specify the day or month ; but that he was bound to state the name of the (a) 7 C. B. 4. (6) Boosey v. Purday, 10 Jur. 1038 ; see Boosey v. Davidson, 4 D. & L. 147 ; Leader v. Purday, 7 0. B. 4; 1 D. & L. 408 ; Sweet v. Benning, 16 C. B. 451; Bullen and Leake's ' PleadiDgs,' 298, 720; and see Neihon v. Harford, 8 M. & W. 806. For form of particulars of objections, CocJis v. Purday, 5 C. B. 862. Q 2 228 REMEDY AT LAW IN CASES OF Cap. vii. party whom he alleged to be the proprietor or first publisher, the title of the work, the place where and the time when the first publication took place (a). In Ohappell v. Pu/rday (h), however, the defendant was allowed to plead that the plaintiff was not the proprietor of the copyright at the time of commencing the grievance ; and also that he was not the proprietor of the copyright when the books were printed. If no notice of objection, according to the statute, be given by the defendant, he will be precluded from giving any evidence in support of his case, or putting the plaintiff to the proof of his (c). In any action The 26th section of the Act enacts that if any action or the defendant su j^ b e commenced or brought against any person for doing TDfty pW'P.Cl tllG . 11 ji * * p l i general issue or causing to be done anything in pursuance ot the Act, and give ^iq defendant may plead the general issue and give the in evidence, special matter in evidence ; and if upon such action a verdict be given for the defendant, or the plaintiff become non- suited, or discontinue his action, then the defendant shall have and recover his full costs, for which he shall have the same remedy as a defendant has by law in any case. Construction According to numerous decisions, the words, in pursu- of the words ance j> this Act, do not only refer to those who have kept of this Act" within the strict line - of their duty, but also to those who intended to do so, but have by mistake gone beyond it. The general rule seems to be settled, that persons who bond fide and honestly believe that they are acting in the execution of the powers conferred on them by such a statute as the above, are within its privilege, although, in fact, they may have mistaken the extent of their power and have exceeded it, or failed to comply with the directions of the enactment (d). All actions to All actions, suits, bills, indictments, or informations for. be commenced innntViq (a)Boosey v. Davidson, 4 D. & L. 147. (6) 1 D. & L. 458 ; 12 M. & W. 303. (c) Haycock v. The North of England Co-operative Printing Society County Court, Manchester, 13 October, 1874, J. Russell, Q.C. (d) Smith v. Shaw, 10 Barn. & Cres. 277 ; cited Burke's Sup. to Godson's Copy. 99; Gaby v. The Wilts and Berks Canal Co., 3 M. & Selw. 580; Theobald v. Crichmore. 1 B. & Aid. 227 ; Parton v. Williams, S ibid. 330 ; Smith v. Wiltshire, 2 B. & B 619 ; Cook v. Leonard, 6 B. & C. 351. INFRINGEMENT OF COPYBiaHT. 229 any offence committed against the Act, must be com- Cap. vii. menced within twelve calendar months after the commission To what of the offence ; but this limitation does not extend to pr° ceedln gs ' does not apply. any actions, suits, or proceedings commenced under the Act in respect of copies of books required to be delivered to the British Museum and the four other libraries (a) ; nor to suits in equity, nor to actions at common law for infringement (b). Since the last edition of this work, there has been an express decision in accordance with the above view. In Hogg v. Scott (c) it appeared that in 1868 the defend- ant had published the first edition of a work, and issued a second edition in -1872. The work contaiued matter pirated from the plaintiff's works. He also intended to publish a third edition. In August, 1873, the plaintiff applied for an injunction to restrain the defendant from further publishing or selling any copies of such piratical work. One of the defences set up was that the statutory limitation applied to all actions and suits, whether for the penalties, or damages, or injunctions, and hence that the plaintiff's suit was barred by lapse of time. Vice-Chan- cellor Hall, however, expressed the opinion that the word " offence " was not used in the above section in the same sense as in section 15, which gives an action on the case for damages ; that the limitation prescribed was intended to apply only in cases of penalties and forfeitures, that it could not operate to destroy the property secured ; and that an action for damages, or a suit for an injunction might be maintained, although more than a year had passed since the wrong was done. But, however, this might be, he had no doubt that the defendant could not go on committing new wrongs or offences by continually publishing and selling the piratical work, in violation of (a) 5 & 6 Vict. u. 45, e. 26. (6) See the principle on which were decided the cases of Clark v. Bell, 29 Feb. Ifc04 ; Mor. Diet, of Dec. No. 3, App., Lit. Prop. ; and Stewart v. Black, 9 Seas. Cae., 2nd Ser. 1026 ; Ilogg v. Scott, L. E. 18 Eq. 444. (c) L. E. 18 Eq. 444. The offence is committed every time a copy ia sold : James, V.C., in Jarrold v. Heywoocl, 18 W. E. 281. 230 REMEDY AT LAW IN CASES OF Cap. VII. the plaintiff's right of property. The injunction was therefore granted. The statutes of 31 Eliz. c. 5, s. 2, and 21 James 1, c. 4, s. 2, requiring that in actions on penal statutes, the venue shall be laid in the county where the offence was com- mitted, do not apply to actions for debt, brought by a party aggrieved to recover a penalty expressly given to him, but has reference only to proceedings by informers. So in Planche v. Hooper, where the defendant sued for ten penalties of forty shillings each under the 3 & 4 Will. 4, c. 15, for representing a dramatic piece called the ' White Cat.' The representation constituting the breach took place at Bath, and the case was tried at Westminster, and the Court held that the venue was rightly laid in Middlesex, thus distinguishing between actions brought simply for penalties, and actions brought under penal statutes to recover compensation for injuries. Matters of For the plaintiff it must of course be proved, if the evidence. action be brought by him, that he is the author or pro- prietor of the work. It will next be necessary to produce a copy of the work complained of, and prove the injury sustained according to the specific allegations in the pleadings ; whether by printing and publishing, or by exposing to sale or hire or importing. Proof is often given that parts of the first work were used in the print- ing of the second, and that the alterations supplied in the MSS. were merely colourable. The prevalence of errors in the second work identical with those in the first is likewise good evidence of piracy, since it can scarcely have happened that two persons would fall into precisely the same mistakes in repeated instances. For the defendant the evidence will of course vary according to the nature of his defence. In an action for infringing copyright airs in an opera, the defendant, to prove publication abroad, cannot ask a witness skilled in music to whom a piece of music had been shewn, whether he had seen printed copies of it at Milan, without accounting for the non-production of the INFRINGEMENT OP COPYRIGHT. 231 original prints (a). Nor is a statement of the same Cai\ VII. witness that he had heard the music, produced in court, sung by persons in private society with printed music before them, as if singing therefrom, evidence to prove that the music so printed was the same as the music in court (6). In an action for damages for infringement of copyright, the proprietor of a copyright need not aver that the defendant published the plaintiff's book (c). And where the locus of the infringement was not specified, yet the plaintiff was allowed to amend his statement on payment of expenses incurred since the closing of the record (d). The Act 2 & 3 Vict. c. 12, imposes a penalty of 51. per copy for every omission to print the name and place of abode of the printer, on the first or the last leaf of every paper or book. It is no answer, however, to an action for infringing the copyright of the work, that it was printed and published without the name and residence as required by this Act (e). The evidence of an offer to compromise an action for Effect of evi- a certain amount cannot be accepted as conclusive, or to<^p r0 mjsc. even as suggestive that such amount was the extent only to which the party so offering to compromise has been damaged or has suffered injury. So where a person had offered to take 160Z. as the price of his right, and there- fore had (it was argued) shewn that he did not consider the probable harm that would be done to him as irre- mediable, and consequently had no right to ask for an injunction, it was said by Sir William Page Wood, then Vice-Chancellor, that that argument would not go far with the court. A person might be willing to forego his rights, and so avoid litigation ; but after the litigation, which he had shewn himself anxious to avoid, had begun, (a) Boosey v. Davidson, 13 Q. B. 257. (6) Ibid. (c) Rooney v. Kelly, 14 Ir. C. L. E. 158, Q. B. {d) Graves & Co. v. Logan, 7 So. Sess. Gas. 3rd Ser. 204. (e) Ghappell v. Dorithon, 18 C. B. 194. 232 REMEDY AT LAW, ETC. Cat-. VII. the circumstances were altered, and he surely should be Security for allowed to insist on his right to the utmost (a). costs. rj^g cour t w i]i no t entertain an application for security for costs, where there has been delay on the part of the applicants in making the application (6) ; nor will it, when a defendant has simply denied that a work was duly registered, permit him to prove that the name of the publisher has been untruly stated ; nor even give him leave to amend the statement of defence, so as to raise the latter point (c). (a) Aimworth v. Bentley, 14 W. R. 632. (6) In re Musical Compositions called ' Kathleen Mavourneen ' and ' Dermot Astore' Ex parte Hutchins & Homer, W. N. (1879) 99. (c) Collette v. Goode, 7 Ch. Div. 842 ; 47 L. J. (Ch.) 370 ; 38 L. T. 501 ; ' What an Afternoon ! ' ( 233 ) CHAPTEE VIII. EEMEDY IN EQUITY IN CASES OP INFBINGEMENT OF COPYRIGHT. In equity is to be found the most usual and expeditious Kemedy by means of obtaining redress from piracy, and for prevent- 111Juuctl011 ' ing the continuance of the injury. "Melius est in tempore occurrere, quam post causam vulneratam remediwm quse- rere " (a). Here, by the preliminary process of injunction, justice is more readily administered than in a court of law — the property in question protected from, perhaps, irre- parable damage pending the trial of the right ; and the wrong is not permitted to continue until the final decision of the court, at which time, frequently, from the circum- stances of the case, the mischief may be irremediable (b). Where formerly the question of legal injury was referred to a court of law under the sanction of a court of equity, an injunction was granted to restrain the evil complained of until the merits of the case could be finally heard, when, if the opinion of the court of law were in favour of the plaintiff, it granted its final preventive relief, which, by way of distinction from the temporary process just mentioned, was termed a perpetual injunction. An injunction may be described as a prohibitory writ, Definition of restraining the defendant from using some right, the an in J unctl01) - exercise of which would be contrary to equity and good conscience ; or from doing some act inconsistent with the admitted or probable legal rights of the complainant, and («) 2 Inst. 299. (b) Vide 2 Story, Eq. Jur. 926 ; 1 Fonbl. Eq. 34, notis ; Kerr on Injuno. 439 ; Saunders v. Smith, 3 My. & Cr. 728 ; Piatt v. Button, 19 Ves. 447. 234 KEMEDY IN EQUITY IN CASES OF Cap, viii. with the due perservation of the property affected by the act sought to be restrained (a). Formerly, courts of equity would not interfere by way of injunction, to protect copyrights any more than patent rights, until the title had been established at law (6). Thus, in an anonymous case reported in Vernon (c), upon a motion by the king's patentees for an injunction to stay the sale of English Bibles printed beyond the sea, Lord Keeper King refused the application until the validity of the patent had been established at law. The same judge again refused, in a subsequent case (d), to grant an injunc- tion against printing Bibles, until the plaintiffs had brought their action in the King's Bench. Lord Mans- In the general discussion of the common-law right of upontte 1111011 literary property, in Millar v. Taylor (e), great stress was issuing of laid upon the different injunctions which had been granted by courts of equity in favour of such right. Lord Mans- field (who had had very great experience in the Court of Chancery) said, that he looked at the injunctions which had been granted or continued before hearing, as equal to any final decree ; for, such injunction never was granted upon motion, unless the legal property of the plaintiff was made out, or continued after answer, unless it remained clear. The Court of Chancery never granted injunctions in cases of this kind, when there was any doubt. Sir Joseph Yates, on the contrary, in combating the general common-law right, expressed his opinion that the injunc- tion, being temporary only, decided nothing at all. Lord Camden, in his speech in Donaldson, v. Becket, already referred to, expressed himself upon this part of the argu- ment as follows : " All the injunction cases have been (a) Drewry on Injuno. Intro. 5. (b) 2 Story, Eq. Jur. chap. 23, s. 935 ; Hill v. University of Oxford, 1 Vera. 275; Baskett v. Cunningham, 2 Eden, 137; East India Co. v. Sandys, 1 Vera. 127; Jeffreys v. Baldwin, Amb. 164; Bateman v. Johnson, Eitz-Gib. 106 ; Blanchard v. Hill, 2 Atk. 485. See RedfieW, v. Myddleton, 7 Bosw. (Amer.) 649. (c) 1 Vern. 120. (d) Hill v. University of Oxford, 1 Vern. 275. See Basltelt v. Cunning- ham, sti)ira ; Grierson v. Jackson, 2 Eidg. Irish T. K. 304. (e) 1 Burr. 2303. INFRINGEMENT OP COPYEIGHT. 235 ably given ; though I shall only add, in general terms, that Cap. VIII. they can prove nothing if a thousand injunctions had been granted, unless the Chancellor, at the time he granted them, had pronounced a solemn opinion, that they were grounded upon the common law. Lord Hardwicke, after twenty years' experience, in the last case of the kind that came before him, declared that the point had never yet been determined. Lord Northington granted them on the idea of a doubtful title (a). I continued the practice on the same foundation, so did the present Lord Chancellor. Where then is the Chancellor who had declared, ex ca- thedra, that he decided upon the common-law right ? Let the decision be produced in direct terms " (b). The modern practice of granting injunctions is somewhat The modern different ; for now, in cases where the circumstances prac lce ' warrant it, the party will be entitled to an injunction, not only to the hearing, but, upon proper application, a perpetual injunction will issue. The jurisdiction will be exercised in all cases where where this there is a clear colour of title founded upon long pos- ^^ and "on session and assertion of right (c). Lord Eldon distinctly whatevidence. lays down this doctrine, he says (d) : " It is said in cases of this sort the universal rule is, that if the title is not clear at law, the court will not grant or sustain an in- junction until it is made clear at law. With all deference to Lord Mansfield, I cannot concede to that proposition so unqualified. There are many instances in my own memory in which this court has granted or continued an injunction to the hearing under such circumstances. In the case of patent rights, if the party gets his patent, and (a) But see Osborne v. Donaldson; Miller v. Donaldson, 2 Eden, 327. (6) Cited from Evan's ' Statutes,' vol. ii. p. 26. Vide Bruce v: Bruee, cited 13 Ves. 505 ; Harmer v. Plane, 14 Ves. 130 ; Hogg v. Kirby, 8 Ves. 215, 224 ; and Lord Erskine, in Gurney v. Longman, 13 Ves. 493, 505. (c) Universities of Oxford and Cambridge v. Richardson, 6 Ves. 689 ; Mawman v. Tegg, 2 Russ. 385, 391 ; Sheriff v. Coates, 1 Russ. & My. 159, 167 ; Shaw v. Shaw, 3 Jur. 217 ; Colburn v. Buncombe, 9 Sim. 151 ; Chappell v. Purday, 4 Y. & C. 485 ; Bohn v. Bogue, 10 Jur. 420 ; Tonson v. Walker, 3 Swanst. 679 ; Jeremy on Eq. Jur. bk. 3, ch. 2, s. 1 ; Eden on Injun, eh. 13, p. 284 ; Story on Eq. § 935. (d) Universities of Oxford and Cambridge v. Richardson, 6 Ves. 707. 236 REMEDY IN EQUITY IN CASES OF Cap. vill, puts his invention in execution, and has proceeded to a sale, that may be called possession under it, however doubtful it may be whether the patent can be sustained. This court has lately said, possession under a colour of title is ground enough to enjoin and to continue the injunction until it shall be proved at law that it is only colour, and not real title." An injunction pendente lite should not be granted on light grounds, nor in doubtful cases, but should await the full proof upon the final Equitable hearing (a). Even an equitable interest limited in point support of time or extent is sufficient (b). An equitable title, injunction. which will support an application for an injunction, occurs where the legal right has not been vested, but from the dealings between the actual owner and the party applying for the injunction such party has acquired a limited equitable right in the copyright, to the extent of being entitled to be one of the publishers, or the sole publisher of the work, for a given or an indefinite time. " This court " said the Vice-Chancellor of England in Bohn v. Bogue (c), always takes notice of the equitable interest: and if the equitable right to the copyright is complete, this court will take care that the real question shall be tried, notwithstanding there may be a defect in respect of the legal property." As to what amounts to an equitable interest sufficient to maintain an action, must depend upon circumstances, but it is clear that where there is no material interest in the work for which protection is claimed, no action can be maintained. An injunction will not be granted until the work has been registered, but the court will interfere by injunction to protect the copy- right of the assignee of the author, though it appear that at the time of the alleged piracy there was not an assign- ment in writing (d). But a mere agent to sell has not such a real interest in a work as will entitle him to relief (e). (a) Redfield v. Nyddleton, 7 Bosw. (Amer. - ) 649. (6) Sweet v. Cater, 11 Sim. 572 ; Chappell v. Purday. 4 Y. & 0. 485 ; Sims v. Marryat, 17 Q. B. 281. (c) 10 Jur. 421. {d) Hodges v. Welsh, 2 It. Eq. 266. (e) Nicol v. Stoclidale, 3 Swans. 687. INFEINGEMENT OF COPYRIGHT. 237 Nor will the court interfere where a prima facie title is not Cap. VIII. shewn, as in Piatt v. Button (a), where tlie plaintiff claimed Prima fade protection for the music of certain dances which he had s 'i ie ^™" s e permitted several persons to publish. Where the plaintiff states circumstances shewing a good equitable title, the court will, for the purpose of determining the fact of piracy, order the defendant to admit the legal title of the plain- tiff^). Judge Story remarks : "In some cases a court of equity will take upon itself the task of inspection and com- parison of books alleged to be piracies ; but the usual practice is, to refer the subject to a master, who then reports whether the books differ, and in what respects ; and upon such a report the court usually acts in making its inter- locutory, as well as its final decree " (e). And Mr. Curtis, on the same head, says : " In general, if the court sees strong ground for supposing that the defendant's work is a violation of the plaintiff's copyright, the course is to grant an injunction ex parte, until answer or further order. Then, in order to ascertain the fact of piracy or no piracy, it is referred to a master to examine into the originality of the new book, or the court takes upon itself the in- spection of both works. Where the works are long and of a complex character, containing original matter mixed with much that "is common property, they will be referred to a master; but where they are of a class affording facility for the detection of piracy by immediate inspec- tion, the court will examine them " (d). At the present day the court usually takes upon itself the inspection of the book (e). In all cases of injunctions in aid of legal rights, whether Injunction auxiliary to (a) 19 Ves. 447. legal nght " (V) Kerr, on Injunc. 439, citing Dickens v. Lee, 8 Jur. 183 ; Bohn v. Bogue, 10 Jur. 421 ; Sweet v. Shaw, 8 L. J. (N.S.) Ch. 216 ; Sweet v. Cater, 11 Sim. 572 ; 5 Jur. 68. (c) 2 Story, Eq. Jur. 124, s. 941 ; Eden on Injunc. chap. 13, 289 ; Carnan v. Bowles, 2 Bro. C. C. 80 ; v. Leadbetter, 4 Ves. 681 ; Cary v. Faden, 5 Ves. 24 ; Jeffrey v. Bowles, 1 Dick. 429 ; Truster v. Comyns, cited Id. ( Pike v. Nicholas, 20 L. T. (N.S.) 909; Kelly v. Hodge, 29 L. T. (N.S.) 387. {e) Delfv. Delamotte, 3 K. & J. 581 ; 3 Jur. (N.S.) 933. (/) Stevens v. Gladding, 2 Curt. (Amer.) 608. INFRINGEMENT OP COPYRIGHT. 271 receives is the gross profit coming to him from the Cap. vih. proceeds of the sales, and what he so receives, diminishes the net profit of the one who employs him to sell. That part of the profits of the sales, being in the hands of the commission merchant, the consignor is not accountable for them. But why should not the commission merchant, who has them, account for them ? He was liable to an action for damages for selling. That right is waived. I think he should pay over to the proprietor in lieu of damages, the gain he has made from the sales. It does not seem to me that the term ' profits ' necessarily, or, when construed in reference to the subject matter, properly has so restricted a meaning as to exclude com- missions received from the proceeds of sales of the pro- perty of the complainant." If the account is small it is usually waived (a), and if the if the account defendant submits, the suit does not proceed to the hearing, ^'y e ' ( £ aually but a decretal order is made, giving effect to the agreement between the parties. The defendant must, if required to do so for the purpose of the account or the inquiry as to damages, set out the price and profit and names of the purchasers of the pirated articles (b) ; and the plaintiff is entitled to continue the suit, until the discovery is given (c). A person whose copyright has been infringed is not Points as to bound to rest satisfied with the promise of the defendant cost3 ' not to commit any further infringement, but he has a right to have an injunction (d), and is entitled to the costs of such injunction (e). If the defendant do not offer to submit to the injunc- tion and pay all the costs up to that time (/), or if, (a) See Fradella v. WeUer, 2 R. & M. 247. (b) Stevens v. Brett, 12 W. R. 572 ; and with regard to patents, Howe v. M'Kernan, 30 Beav. 547 ; see Delarue v. Dickenson, 3 K. & J. 388. (c) See Colburn v. Simms, 2 Hare, 543 ; Kelly v. Hooper, 1 Y. & C C C 197 (d) Oeary v. Norton, 1 De G. & Sm. 9 ; Losh v. Hague, 1 Webs. 200 ; 2 Coo. C. C. 59, n. k (e) Geary v. Norton, supra. (/) Potts v. Levy, 2 Drew. 272. 272 REMEDY IN EQUITY IN CASES OF Cap, viii. although he offer to submit to the injunction, he refuse to pay the costs or to give the plaintiff any of the other relief to which he is entitled, the plaintiff is entitled to bring the suit to a hearing, and will have the costs of the suit (a). But if the defendant offer to submit to the injunction with costs, and to give the plaintiff all the other relief to which he may be under the circumstances en- titled, and no account is sought, or the account is waived, the court, though it may give judgment in the plaintiff's favour, will not give him the costs of the subsequent prosecution of the suit up to the hearing (b). The tender must include the costs of the suit up to the time when the tender is made (e). If both parties are in the wrong, the one claiming more than he is entitled to claim, and the other offering less than he was bound to offer, costs will not be given to either side (d). A bond fide offer from the defendants before suit to give the plaintiff all the relief to which he is entitled, and which he ultimately obtains by the suit, may be a reason, as we have seen, for depriving him of the costs of it (e) ; but in Edehten v. Edelsten (/), however, Lord Westbury said he could not take notice of negotiations antecedent to the suit, save in case of bad faith, unless they amounted to a release or binding agreement with respect to the cause of action. A man, however, whose legal right has been (a) Fradella v. Weller, 2 K. & M. 247 ; Geary v. Norton, 1 De G. & Sm. 12 ; Kelly v. Hooper, 1 Y. & C. 0. C. 197 ; Colburn v. Simms, 2 Hare, 561 ; Jamieson v. league, 3 Jur. (N.S.) 1206 ; ChappeU v. Davidson. 2 K. & J. 123 ; Burgess v. Bill, 26 Beav. 244 ; Burgess v. Hately, lb. 249 ; M' Andrew v. Bassett, 33 L. J. (Oh.) 561. (6) Millington v. Fox, 3 M. & C. 352 ; Colburn v. Simms, supra ; Nunn v. oV Albuquerque, 34 Beav. 595 ; Harvey v. Ferguson, 15 Ir. Oh. 277 ; Hudson v. Bennett, 12 Jur. (N.S.) 519. (e) Fradella v. Weller, supra ; Geary v. Norton, supra ; Jamieson v. league, supra ; Burgess v. Hill, supra ; Remnant v. Hood, 27 Beav. 74 ; Moet v. Couston, 33 Beav. 578. (d) Moet v. Couston, supra ; see Rochdale Canal Co. v. King, 16 Beav. 630 ; Pearce v. Wycombe Railway Co., 17 Jur. 660 ; Ainsworth v. Walmerley, L. B. 1 Eq. 518. (e) Millington v. Fox, supra ; Colburn v. Simms, supra ; Cliappell v. Davidson, supra ; Williams v. Thomas, 2 D. & Sm. 29, 37 ; see Woodman v. Robinson, 2 Sim. (N.S) 204; Nesbitt v. Berridge, 32 Beav. 282. (/) 1 D. J. & S. 185, 203. INFRINGEMENT OF COPYRIGHT. 273 invaded is under no obligation to make an application to Cap. VIII. the defendant before filing his bill for an injunction (a). The costs of the suit are often disposed of on an interlocutory application before judgment (b). In a case where the plaintiff after the hearing, but before judgment was delivered, became bankrupt, the bill was dismissed, but on the defendant moving that the plaintiff might be ordered personally to pay the costs, Wood, V.C., refused to make any order, and his decision was upheld on appeal (c). By the 21 & 22 Vict. c. 27, s. 2, the Court of Chancery was empowered to assess and award damages either in lieu of, or in addition to, an injunction (d), and it has this jurisdiction under the new judicial system. The rule laid down for estimating the damages sustained by a plaintiff in a case of piracy was thus laid down by James, V.C., " The defendant is to account for every copy of his book sold, as if it had been a copy of the plaintiff's, and to pay the plaintiff the profit which he would have received from the sale of so many additional copies " (e). We will conclude this subject with the words of Sir William D. Evans : " It is clear," says he, in the second volume of his ' Statutes ' (/), " that the proceeding by injunction is the most ready and effectual remedy which can be resorted to on the part of the plaintiff, but that a great degree of caution in the application of that pro- ceeding, in the first instance, is requisite for preventing injustice to the defendant, whose loss does not, from the nature of it, admit of reparation if the injunction should, upon further investigation, be found to have been erro- neously applied; and the judges of courts of equity have in many cases expressed a strong sense of the importance of this principle." (a) Burgess v. Hill, 26 Beav. 244 ; Burgess v. Hateley, lb. 249. (b) W org. & Da v. on Costs, 47-62. (c) Boucicault v. Delafield, 10 Jur. (N.S.I 1063. (d) 1'insley v. Lacy, 1 H. & M. 747 ; Johnson v. Wyatt, 2 De G. J. & S. 18; Pike v. Nicholas, L. E. 5 Ch. 260; Cox v. Land and Water Journal Co., L. B. 9 Eq. H24: Smith v. Chatto, 31 L. T. (N.S.) 775. (e) Pike v. Nicholas, supra. (/) Part iii. class l,no(e 29. T 274 THE LAW OF COPYRIGHT. CHAPTEE IX. CROWN COPYRIGHT. Prerogative The prerogative copyrights of the Crown constitute a oopyng t. peculiar branch of literary property which has given rise to much controversy. The sovereign's prerogative in granting letters patent for the privilege of printing prerogative copies, as they are called, is said to embrace the English translation of the Bible, the Book of Common Prayer, the statutes, alma- nacs, and the Latin grammar. The validity of this privilege has been questioned on the ground that grants of this exclusive nature tend to a monopoly. They contribute forcibly to enhance the prices of books, to restrain free trade, to discourage industry, and by discountenancing competition they serve to render the patentees careless and remiss in their duty. Notwithstand- ing, it must be admitted that the sovereign has a peculiar prerogative in printing, which has been vindicated, allowed, and maintained ever since the introduction of printing. Nature of the The right is said to be founded on grounds of public policy. Lord Mansfield considered it as merely a modifi- cation of the general and common right of literary pro- perty ; and from the cases which had been decided in favour of the particular copies, he inferred, as a necessary conse- quence, the existence of the general right. They rested upon property arising from the king's right of original publication. The copy of the Hebrew Bible, of the Greek Testament, or of the Septuagint, did not belong to the king, — it was common ; but the English transla- right. CBOWN COPYRIGHT. 275 tion he bought, and therefore it was concluded to be his Cap. ix. property. Printing, on its first introduction, was considered, as well in England as in other countries, to be a matter of state. The quick and extensive circulation of sentiments and opinions which that invaluable art produced could not but fall under the grip of government, whose strength was to some extent based upon the ignorance of the people governed. The press was, therefore, wholly under the coercion of the Crown, and all printing, not only of public books, containing ordinances, religious or civil, but of every species of publication whatsoever, was regulated by the king's proclamations, prohibitions, charters of privilege, and, finally, by the decrees of the Star Chamber. After the demolition of that odious jurisdiction (a), the Long Parliament, on its rupture with Charles I., assumed the power which had previously existed solely in the Crown. After the Restoration, the same restrictions were re-enacted and re-annexed to the prerogative by the statute 13 & 14 Car. 2, and continued down, by subsequent Acts, until after the Revolution. The expiration of these disgraceful statutes, by the refusal of Parliament to continue them any longer, formed the great era of the liberty of the press in this country, and stripped the Crown of every prerogative over it, except that which, upon just and rational principles of government, must ever belong to the executive magis- trate in all countries, namely, the exclusive right to publish religious or civil constitutions, in a word, to promulgate every ordinance by which the subject is to live and be governed. These always did belong, and from the very nature of civil government always ought to belong, to the sovereign, and hence have gained the title of " prerogative copies" (h). (a) " Where change of fav'ritea made no change of laws, And senates heard before they judged a cause "(?) — John. (6)' Lord Erskine's Speeches, vol. i. p. 40, by Ridgway. T 2 276 THE LAW OF COPYRIGHT. Cap. IX. The Bible and Booh of Common Prayer (a). The Bible and For two hundred years and more the kings hare in Pr^MBook England granted patents to their printers (b). From the time of Henry VIII. have different persons enjoyed, by letters patent, the privilege of printing prerogative copies to the exclusion of all other persons. These patents have, from time to time, come under the consideration of the courts, and the judges have been invited to settle their limits. Many have given it as their opinion, that the prerogative is founded on the circumstance of the translation of the Bible having been actually paid for by King James, and its having thus become the pro- perty of the Crown (c). Others have referred it to the circumstance of the king of England being the supreme head of the Church of England, and have invested him with the prerogative in virtue of that character. This latter argument, Mr. Godson (d) contends, destroys the proposition it is adduced to support ; for, if the sovereign as head of the church, has the exclusive right of printing all books of Divine service, why not, as head of the church have a right to print the principal book used in the Divine service — the Bible — and all kinds of Bibles, in whatever language they may be written ? And yet the principle of property is resorted to for the right of printing the present edition of the Bible ; and Lord Mansfield has declared that there is no prerogative right to the Bible in the original languages (e). Others again have been of opinion that it is to be re- ferred to another consideration, namely, to the character of the duty imposed upon the chief executive officers of (a) See Mayo v. Hill, cited 2 Show. 260 ; King's Printer v. Bell, Mor. Diet, of Dec. 19-20, p. 8316 ; Chitty's Prerogative of the Crown, ch. xi. s. 3. (6) The letters patent conferring the office of King's Printer (Scotland) bear that he shall have " solum et unicum privilegium imprimendi in Scotia Biblia Sacra, Nova T^stamenta, Psalmorum libros, et libros Precum cominunium, Confessiones Fidei, Majores et Minores Catechismos, in lingua Anglicana." (c) Nullum tempus occurrit regi. Hex nunquam moritur. (d) ' Patents and Copyrights,' p. 437. (e) 4 Burr. 2405, cited Godson's Pat. and Copy. 437. CROWN COPYRIGHT. 277 the government, to superintend the publication of the acts Cap. IX. of the legislature and acts of state of that description ; and also of those works upon which, the established doctrines of our religion are founded, that it is a duty imposed upon the first executive magistrate, carrying with it a corres- ponding prerogative. That was the opinion of Lord Camden as expressed in the case of Donaldson v. Becket, and of Chief Baron Skinner in Eyre and Strahan v. Carnan (a). No attempt has ever been made to prevent any person from publishing a translation of one book, or of a part of the Bible, from the original text, and enjoying a copyright in his production. And, with respect both to Acts of Parliament and Bibles, any one is at liberty to print them with notes. Mr. Reeves, one of the royal patentees, and the writer of several learned juridical publications, in the preface to his edition of the Bible (divided into sections), observes, that all the authorized Bibles published by the king's printer and the universities are wholly without explanatory notes. These privileged persons have confined themselves to printing the bare text, in which they have an exclusive right, forbearing to publish it with notes, which it is deemed may be done by any of the king's subjects as well as themselves. He subjoins to this passage a note in the following terms: "I mean such notes as are bond fide intended for annotations, not the pretence of notes which I have seen in some editions of the Bible and Common Prayer Book, placed there merely as a cover to the piracy of printing upon the patentees, as if fraud could make legal anything that was in itself illegal. In some of these editions the notes are placed purposely to be cut off by the binder " (I). In Grierson v. Jackson (c), upon an application for an view taken in injunction against printing an edition of a Bible in numbers Ireland - with prints and notes, Lord Clare, as Chancellor of Ireland, (a) Exchequer, 1781, cited 6 Ves. 697, and reported at length in 6 Buc. Abr., tit., Prerog. 509. (h) 2 Evans' ' Statutes,' 2nd Ed. p. 19. (c) Irish T. E. 304. 278 THE LAW OF COPYRIGHT. Cap ix. asked if the validity of the patent had ever been esta- blished at law, and said he did not know that the Crown had a right to gfant a monopoly of that kind. In the course of the discussion he made the following observa- tions : " I can conceive that the king, as head of the church, may say that there shall be but one man who shall print Bibles and Books of Common Prayer for the use of churches and other particular purposes, but I cannot conceive that the king has any prerogative to grant a monopoly as to Bibles for the instruction of mankind in the revealed religion ; if he had, it would be in the power of the patentee to put what price he pleased upon the book, and thus prevent the instruction of men in the Christian religion. If ever there was a time which called aloud for the dissemination of religious knowledge, it is this, and therefore I should with great reluctance decide in favour of such a monopoly as this, which must necessarily confine the circulation of the book." , View taken in This has not been the view taken of the subject in ng an ' England, for in the case of the Universities of Oxford and Cambridge v. Richardson (a), an injunction upon motion was granted against the king's printer in Scotland, who had a patent for the sale of Bibles, printing or selling them in England, upon the ground that possession, under colour of title, was sufficient to injoin and to continue the injunction till it was proved at law that it was only colour and not real title. In the course of the case it appeared that, in the year 1718, Sir Joseph Jekyll, as Master of the Bolls, had granted an injunction in a similar case, which was supported on appeal before the Lord Chancellor ; and also, that a decree of the Court of Session had, in the year 1717, been reversed by the House of Lords in favour of the right of the king's printer in England, confining the right of the Scotch printer to Scotland. With respect to the precedent of the injunction, it is clear that there had been abundance of injunctions before upon private copyright, until the claim was finally put an end to by the decree of (a) 6 Ves. 689. See Manners v. Blair, 3 Bli. K. (N.S.) 391. CROWN COPYEIGHT. 279 the Lords ; and questions between rival patentees were cap. hc. not the most probable . method of bringing into fair dis- cussion the general rights of the subject to resist the claim of prerogative, root and branch (a). The Lord Chancellor, in his judgment, said, " My opinion is, that the public interest may be looked to upon a subject, the communication of which to the public in an authentic shape, if a matter of right, is also a matter of duty in the Crown, which are commensurate. It is not accurate to say, these privileges are not granted for the sake of unlimited sale, and for the sake of the universities, &c. They are, to a certain degree, like all other offices, calculated for that sort of advantage which will secure to the public the due execution of the duty ; upon this principle proceed all the branches of our constitution, (which does not adopt the wild theories that require the execution of a duty without a due compensa- tion,) that the duty is well secured in one way by giving a responsibility, in point of means, to the person to execute it. The reasoning which affects to depreciate monopoly, will perhaps tend to create it." There certainly is no great risk that false copies of the Bible would get into general circulation by an unlimited right of printing them. We do not find it materially the case in other works ; and there are very few persons indeed who would admit that the beneficial circulation of any commodity in general, or of these writings in particular, can be promoted by means of an exclusive monopoly ; and the principal object, both of the right and the duty, with respect to the particular subject, appears to be the benefit arising to the privileged individuals (b). The question was afterwards brought before the House of Lords, and the injunction against the Scotch printer continued. The Universities of Oxford and Cambridge and the queen's printer long exercised this monopoly, under patents from the Crown, but the claim has not been very rigidly () the prerogative right of printing Acts of Parliament was sanctioned by a decision of the Court of King's Bench. That case arose upon a bill filed by the plaintiffs for an injunction to restrain the defendants from printing and (a) 3 Mod. 77 ; 6 Bao. Abr. 507. (fc) 1 W. Bl. 105 ; 2 Burr. 661 ; see 2 Bla. Com. 416 ; and 5 Bao. Abr. tit. Pre. F. 5. CEOWN COPYRIGHT. 283 selling a book entitled ' An Exact Abridgment of all the Cap. tx. Acts of Parliament relating to the Excise on Beer, &c.' Both parties claimed under letters patent from the Crown ; the plaintiffs as the king's printers. The court were of opinion that during the term granted by the letters patent to the plaintiffs, they were entitled to the right of printing Acts of Parliament and abridgments of Acts of Parliament, exclusive of all other persons not authorized to print the same by prior grants from the Crown ; but they thought that by the letters patent granted to the university, it was entrusted with a concurrent authority to print Acts of Parliament and abridgments of Acts, within the university, upon the terms contained in those letters patent. Soon after the Restoration an Act of Parliament having prohibited the printing of law books without the license of the lord chancellor, the two chief justices, and the chief baron, it became the practice to prefix such a licence to all reports published after that period, in which it was usual for the rest of the judges to concur, and to add to the imprimatur a testimonial of the great judgment and learning of the author. This Act was renewed from time to time, but finally expired in the reign of the third William. The form of licence and testimonial, however, was continued till the reign of George II., when the judges seemed to have arrived at the determination not to grant any more of them (a). Sir James Burrow offers an apology for publishing his reports without an im- primatur (b). Though a court of justice appears to have the sole As to the power of authenticating the publication of its own pro- publication of ceedings, it does not necessarily follow that it has an in courts of exclusive right of publication. JUS lce " Since the Year-Books, it seems that no judicial pro- ceedings, with the exception of state trials, have been published under authoritative care and inspection, either by the House of Lords or by any court of judicature. (a) Pref. to Dougl. E. (6) Burr. E. Pref. viii. 284 THE LAW OF COPYKIGHT. Cap. IX. I" Sayer's Case (a) the judges of the Court of Queen's ~ Bench directed, and in part revised, a report of the trial. The trial of Lord Melville (b) was likewise published by order of the Lords ; and the person appointed for that purpose by the Lord Chancellor obtained an injunction against a bookseller for publishing another report of the case. Manley v. Owen (e) recognises the exclusive right of the Lord Mayor of London, as head of the commission, to appoint a person to print the sessions papers of the Old Bailey. Formerly, it was held to be a contempt of court to publish any reports whatever, but the practical applica- tion of this doctrine was soon relaxed, and publication is now only treated as a contempt in those cases in which the report is published in opposition to an order of the court. Whenpubli- Publication during the course of a trial will be pro- cation during hibjted, when the publication would have a tendency to trial pro- . * ... hibited. interfere with a fair and impartial decision ; on this prin- ciple Lord Abbott, C.J., sitting at the Old Bailey, acted on the indictment of Thistlewood and others for high treason in the year 1820 (d). The prohibition was in- fringed by the proprietor of the ' Observer' newspaper, and the proprietor was fined 5001. for contempt of court. He appealed subsequently to the Queen's Bench, on which occasion Holroyd, J., in refusing to make absolute a rule nisi obtained, said : " This was an order made in a pro- ceeding over which the court had judicial cognizance ; the subject matter respecting which it was made was then in the course of . judicature before them. The object for which it was made was already, as it appears to me, one within their jurisdiction, viz., the furtherance of justice in proceedings then pending before the court ; and it was made to remain in force so long, and so long only, as those proceedings should be pending before them, Now, I take (a) 16 How. St. Tr. 93 ; 8 Pari. Hist. 54. (6) 29 How. St. Tr. 549. See Bathurst v. Kearsley, cited Gurney v. Longman, 13 Vea. 493, 509. (e) Cited Millar v. Taylor, 4 Burr. 2329. See 13 Ves. 493 ; Stockdale v. Hansard, 9 Ad. & E. 1, 97. (d) Reg. v. Clement, 4 Barn. & Aid. 218 ; see also Tichborne v. Mostyn, L. B. 7 Eq. 55, note. OEOWN COPYKIGHT. 285 it to be clear that a court of record has a right to make Caf - ix - orders for regulating their proceedings and for the further- ance of justice in the proceedings before them, which are to continue in force during the time that such proceedings are pending. It appears to me, that the arguments as to a further power of continuing such orders in force for a longer period, do not apply. It is sufficient for the pre- sent case, that the court have that power during the pen- dency of the proceedings. This order was made to delay publication only so long as it was necessary for the pur- poses of justice, leaving every person at liberty to publish the report of the proceedings subsequently to their ter- mination. I am therefore of opinion, that this was an order which the court had the power to make." A criminal information will lie for publishing an ex parte Publication of statement of the proceedings upon a coroner's inquest, sf a f e ment8 accompanied with comments, although the statement be upon a^ correct, and the party has no malicious motive in the i n q Ues t, publication. Mr. Justice Bay ley on one occasion observed that it was a matter of great criminality ; for the inquest before the coroner leads to a second inquiry, in which the conduct of the accused is to be considered by persons who ought to have formed no previous judgment in the case. A jury who are afterwards to sit upon the trial ought not to have ex parte accounts previously laid before them ; they ought to decide solely upon the evidence which they hear upon the trial (a). No prerogative claim to the exclusive publication of judicial proceedings has now been asserted for very many years, and in Butterworth v. Bobinson (b), and Saunders v. Smith (o), individuals were treated as authors and pro- prietors of copyright in law reports (d). (a) Rex v. Fleet, 1 Barn. & Aid. 879, 384. See Tichbome v. Tichborne, 15 W. R. 1072 ; 17 L. T. (N.S.) 5. As to staying reports of cases as libellous or unfair, see Brooke v. Evans, 6 Jur. (N.S,) 1025 ; Coleman \ ■ W. Hartlepool Railway, 8 W. K. 734. (6) 5 Ves. 709. (c) 3 My. & Or. 711, and Vesey v. Sweet, cited 5 Ves. 709, note 3. (<2) Phillips on Copy. 196. See Wheaton v. Peters, 8 Peters R. (Amer.) 591, 668, and remarks of Story, J., in Gray v. Russell, 1 Story, K. (Amer.) 4. 286 THE LAW OP .COPYRIGHT. Cap. IX. It is clear, however, that no individual can claim any copyright in the opinions or judgments of the judges, for though there is no express decision as to copyright in judicial decisions, yet it is obvious that the reporter who merely gives a copy of what he has taken down, probably verbatim, from the lips of the judge can claim no exclusive right to such decision. It seems clear that if bond fide notes accompany statutes printed by others than those having the patent right, the copyright of the latter is not infringed, but the notes must be bond fide, and not merely colourable or collusive (a). Almanacs. As to the The origin of this absurd claim is put upon still more almanacs. ridiculous grounds. Property in almanacs is said to be the king's : 1st, because derelict ; 2nd, because they regu- late the feasts of the church (6). On the 8th of March, 1615, the king by letters patent granted to the Stationers' Company and their successors for ever (inter alia) exclusive power and licence to print, or cause to be printed, "all manner of almanacs and prognostications whatsoever in the English tongue, and all manner of books and pamphlets tending to the same pur- pose, and which are not be taken and construed other than almanacs or pronostications being allowed by the Archbishop of Canterbury and the Bishop of London, or one of them for the time being." In an action of debt by the Company of Stationers against Seymour (c), for printing ' Gadbury's Almanac,' it was adjudged that the letters patent granted to the company for the sole printing of almanacs were valid : and though the jury found that the almanac so printed contained some additions, yet having likewise found that the said almanac had all the essential parts of the almanac (a) Bashett v. Cunningham, 1 W. Bl. 370. (6) 2 Show. 258 ; Stationer*' Co. v. Wright, 2 Ch. Cas. 76. (c) 1 Mod. 256. CROWN COPYRIGHT. 287 that was printed before the Book of Common Prayer, the Cap. IX. additions were regarded as immaterial. So also was an injunction granted against Lee (a), on the application of the Stationers' Company, to restrain him from selling " primers, psalters, almanacs, and singing psalms, imported from Holland," the sole privilege of printing these belonging to that company; and that without any trial directed as to the validity of the patent. Notwithstanding the above decisions, the prerogative right to the printing of almanacs was strongly protested against in the case of the Stationers' Company v. Partridge (b). No judgment, indeed, was given in that case, but it stood over that the company might see if they could make it like the case of the Common Prayer Book, — whether they could shew that the right of the Crown had any foundation in property ; and it was never referred to again. In a subsequent case, that of the Stationers' Company v. Carnan (c), the right was successfully combated, and judg- ment given in favour of the defendant. An account of these various phases of legal doubt and indecision is succinctly given by Lord Erskine in Gurney v. Long- man (d) : " It appears in the case of Millar v. Taylor that the Crown had been in the constant course of granting the right of printing almanacs; and at last King James II. granted that right by charter to the Stationers' Company and the two universities, and for a century they kept up that monopoly by the effect of prosecutions. At length Carnan, an obstinate man, insisted upon print- ing them. An injunction was applied for in the Court of Exchequer, and was granted to the hearing ; but at the hearing, the Court of Exchequer directed the question to be put to the Court of Common Pleas, whether the king had a right to grant the publication of almanacs, as not (a) 2 Ch. Ca. 76, 93 ; 2 Show. 258 ; Stationers' Co. v. Wright, Skin. 234 ; 4 Burr. 2328. (6) 10 Mod. 105, cited 2 Bro. P. C. 137. (c) 2 Win. Bl. 1004. (d) 13 Ves. 508. 288 THE LAW OF COPYRIGHT. Cap. tx. falling within the scope of the necessity or expediency, the foundation of prerogative copies. It was twice argued in the Court of Common Pleas ; and the answer returned by that court to the Court of Exchequer was, that the charter was void, and almanacs were not prerogative copies. The injunction was accordingly dissolved, that usurpation having gone on for a century ; and the House of Commons threw out a bill, brought in for the purpose of vesting that right in the Stationers' Company." In consequence of this decision, an Act was passed, which, after reciting, that the power of granting a liberty to print almanacs and other books was theretofore sup- posed to be an inherent right in the Crown, and that the Crown had, by different charters under the great seal, granted to the universities of Oxford and Cambridge, among other things, the privilege of printing almanacs ; and that the universities had demised to the Company of Stationers their privileges of printing and vending almauacs and calendars, and had received an annual sum of £1000 and upwards as a consideration for such privilege, and that the money so received by them had been laid out and expended in promoting different branches of literature and science, to the great increase of religion and learning and the general benefit and advantage of these realms ; and that the privilege or right of printing almanacs had been, by a late decision at law, found to have been a common right, over which the Crown had no control, and consequently the universities no power to demise the same to any par- ticular person or body of men, whereby the payments so made to them by the Company of Stationers had ceased and been discontinued, enacted that £500 a year should be paid to each of the universities, out of the moneys arising from the duties upon almanacs (a). Any person may now make the calculations usually published in almanacs, and claim a copyright therein. A power was given by Act of Parliament to certain (o) 21 Geo. 3, c. 56, B . 10. CROWN COPYRIGHT. 289 commissioners, to publish a ' Nautical Almanac, or Astro- cap. IX. nomical Ephemeris,' and to license some one to print it. The Nautical Any other person printing, publishing, or vending it, sub- mauat "- jects himself to a penalty. The ' Nautical Almanac ' is now, however, placed under the control of the Lords of the Admiralty, and the penalty is increased to £20 with costs of suit, to be paid and applied to the use of the Royal Hospital for Seamen at Greenwich (a). The claim to the prerogative right in ' Lilly's Latin As to the Grammar ' was founded on an allegation that the work if tlu & _ Grammar. had been originally written and composed at the king's expense. Mr. Justice Yates observed in Millar v. Taylor that the expense of printing prerogative books was " in fact no private disbursement of the king, but done at the public charge, and formed part of the expense of govern- ment." How, then, could they be his private property, like private property claimed by an author in his own compositions ? (&) The claim has long been abandoned. (a) 9 Geo. 4, ^. 66. (6) See Stationers' Co. v. Partridge, 4 Burr. 2339, 2382, 2402 ; 10 Mod. 105 ; Nicol v. Stockdale, 3 Swans. 687. 290 THE LAW OF COPYRIGHT. CHAPTER X. UNIVEKSITY AND COLLEGE COPYRIGHT. Copyright Upon the introduction of the art of printing into England at * he ., . by Henry VI. a press was set up at Oxford ; and an im- universities •> J r ,,. . and colleges, portant dominion over the publication of books was, for many years, very naturally assumed by that learned body. The sway was extended to the sister university, and increased in power by charters and grants conferred upon them by the liberality and bounty of several kings. Immediately after, and in consequence of, the decision in Donaldson v. Beehet (a), the universities hastened to Parliament, and in the same year obtained an Act (b) for enabling the two universities in England, the four universities in Scotland, and the several colleges of Eton, Westminster, and Winchester, to hold in perpetuity their copyright in books given or bequeathed to them for the advancement of useful learning and other purposes of education. The right exists in all such books as had, before the year 1775, or have since, been given or bequeathed by the authors of the same, or their representatives, to or in trust for those universities, or any college or house of learning within them, or to or in trust for the colleges of Eton, Westminster, and Winchester, or any of them, for the beneficial purpose of education within them or any of them. The exception in favour of the universities and colleges is to extend only to their own books, so long as they are (a) 4 Burr. 2408. (6) 15 Geo. 3, c. 53. UNIVEKSITY AND COLLEGE COPYRIGHT. 291 printed at the college press and for their sole benefit ; and Cap. X. any delegation of the right works a forfeiture, and the privilege becomes of no effect. A power is given to the universities to sell or dispose Aa to their of the copyrights given or bequeathed to tbem, but if they and'sale' ' 1 delegate, grant, lease, or sell the copyright of any book, or allow any person to print it, their privilege ceases to exist. The copyright of any work presented to the universities must be registered at Stationers' Hall within two months after any such gift shall come to the knowledge of the officers of the universities. The register book may be inspected without fee, and Registration, the clerk is to give a certificate of any entry on payment of a fee not exceeding sixpence. If the clerk refuse to make entry or give certificates of entries, the university or college which owns the copyright (notice being first given of such refusal by an advertisement in the Gazette), is to have the like benefit as if such entry or certificates bad been duly made and given, and the clerk who refuses is for every offence to forfeit 201. to the proprietors of the copyright. If any one prints, reprints, or imports, or causes to be Piracy, printed, reprinted, or imported, any such book or books, or, knowing the same to be so printed or reprinted, sells, publishes, or exposes to sale, or causes to be sold, pub- lished, or exposed to sale, any such book or books, he is to forfeit the books and every sheet of them, to the proprietor of the copyright, and one penny for every sheet found in his custody either printed, or printing, published, or exposed to sale, contrary to the true intent and mean- ing of the Act, one half to go to the Crown, the other half to the prosecutor (a). By an Act passed in the forty-first year of Geo. 3, c. 107, a similar copyright is given to Trinity College, Dublin. And by the 27th section of the 5 & 6 Vict, c. 45, the rights of the respective universities and colleges above enumerated are saved from the operation of the Copyright Act. (a) 15 Geo. 3, c. 53, s. 2. U 2 292 THE LAW OF COPYRIGHT. Copyrights at present by the universities. It appears that the University of Oxford possesses six copyrights, and the University of Cambridge has none. " This fact," say the Eoyal Commissioners in their recent Report on Copyright, " shews that the privilege, which is by no means of recent origin, is of very little real value, and as it is undesirable to continue any special and unusual kinds of copyright, we are of opinion that this exceptional privilege should be omitted from the future law. We do not, however, think it would be right to deprive the institutions above named of the copyrights they already possess, without their consent, but should they be retained, we suggest that the universities and other institutions should be placed upon the same footing as regards protection of their copyrights as other copy- right owners, and that the exceptional penalties and remedies given by the Act which was passed in the 15th year of the reign of his late Majesty King George III. should be repealed." ( 293 ) CHAPTER XI. MUSICAL AND DRAMATIC COPYRIGHT. Musical compositions, when in manuscript, are protected Musical like other literary compositions ; when printed and pub- ^th P in the™ lished they are books within the meaning of the Literary Literary Copyright Act. ' 2S^" The point whether there could be copyright in a musical composition first came before Lord Mansfield in Bach v. Longman (a). It was a case sent out of Chancery for the opinion of the Court of King's Bench : " Whether, in a composition for the harpischord, called a sonata, the original composer had a copyright ?" The opinion given was, that the same rules of law apply both to literary and musical compositions. It was said that the words of the Act of Parliament were very extensive : " Books, or other (a) Cowp. 623. In D'Almaine v. Boosey, 1 Y. & C. Exch. 299, Lord Abinger said : " I spent three or four days at Stationers' Hal} in order to ascertain what entries were made under the Act of Parliament, and I found not only that short publications on single sheets of paper were entered as books, but also a great deal of music. There is no doubt, there- fore, that printed music, in whatever form it may be published, is to be considered in reference to proceedings of this nature, as a book." Music copyrights are sometimes of great value. At a recent sale of Messrs. Hopwood and Crewe, the copyrights of that firm fetched a total of £15,000 — Coote's ' Burlesque Valse,' £175 10s. ; the ' Sweetly Pretty Valse,' £215 ; the ' Cornflower Valse,' £132 ; and the ' Prince Imperial Galop,' £990, the largest sum ever obtained, it is believed, for a single piece of dance music ; Hobson's ' Popular Favourites for the Pianoforte ' sold for £412 10s. ; Buckley's song, ' Come where the Moonbeams Linger,' £157 10s: ; and H. Clifton's ' Very Suspicious,' £330. Mr. Coote purchased his own ' Snowdrift Galop ' for £561. The copyright of some comic songs often fetch high prices. It was given in evidence, in a case which came before the Common Pleas Division of the High Court of Justice a short time since, that they were worth sometimes from £1000 to £2000, the comic music publisher, Henry d' Alcorn, stating that he bad sold as many as 90,000 copies of the music of ' Slap Bang ! Here We Are Again ! ' and of another song he had sold 70,000 copies. 294 THE LAW OF COPYRIGHT. Cap. xr. writings," and consequently they were not confined to language and letters only. Music is a science ; it may be written, and the mode of conveying the ideas is by signs and marks. If the narrow interpretation contended for were to hold (i.e. confined to books only), it would apply equally to mathematics, algebra, arithmetic, or hiero- glyphics. The case being one sent out of Chancery, the certificate of the judge was : that a musical composition is a writing within the statute of 8 Anne, c. 19, and that of course the plaintiff was entitled to the copyright given to the author by that Act. In Storace v. Longman (a), a " certain musical air, tune, and writing," on one sheet, was protected, and in a later case (J) a single sheet of music was held to be a book within the meaning of the statute of Anne. And where copyright was claimed under 54 Geo. 3, c. 156, in a piece of instrumental music, Chief Justice Abbott, in delivering the judgment of the King's Bench, expressed the opinion that " any composition, whether large or small, is a book within the meaning of the Act of Parliament " (c). Now, by the interpretation clause of the 5 & 6 Vict. c. 45, the word " book," in the construction of the Act, is 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." Musical compositions intended for the stage come under the head of dramatic compositions. The man who adapts words of his own to an old air, and adds thereto a prelude and accompaniment also his own, acquires a copyright in the combination. The 20th section of the 5 & 6 Vict. c. 45, secures the sole liberty of performing musical compositions on the same conditions and for the same term as are prescribed in the case of dramatic compositions. instrumental This provision would seem to include and indeed to be music. (a) 2 Camp. 27, note a. (b) dementi v. Golding, 2 Camp. 32. (c) White v. Geroch, 2 Barn. & Aid. 298 ; see Clayton v. Stone, 2 Paine (Amer.) 383. MUSICAL AND DRAMATIC COPYRIGHT. 295 specially aimed at the right of playing instrumental Cap. XI. music, for dramatic musical compositions were already protected by the statute of 3 & 4 Will. 4, c. 15, and are included in the definition of dramatic pieces in the statute of Victoria. Hence the owner of a purely instrumental piece, whether written for the orchestra, organ, piano, or other instrument, has not only the copyright therein, but also the exclusive right to the performance of, or the playing of it in public. And it may be here observed that both in the case of dramatic and musical compositions the right of representation and performance is secured to the authors thereof while yet in manuscript. In an early case, it was declared that the acting a play was not a publication of it ; and by analogy, it was subse- quently held, at common law, that the mere acting a play which had been printed and published did not constitute a piracy or an infringement of the copyright (a). In the former case, the plaintiff was the author of a Formerly farce called ' Love a la Mode,' consisting of two acts, no t e q U i va ient which was performed, with his permission, several times t0 publication, at the different London theatres in successive years, but was never printed or published by him. When the farce was over, the plaintiff used to take the copy away from the prompter, and when it was played at the benefits of particular actors he made them pay a certain sum for the performance. The defendants, who were proprietors of a magazine, called ' The Court Miscellany, or Gentleman and Lady's Magazine,' employed a shorthand writer to take down the words of the play at the theatre, and thus published the first act, giving notice that they would publish the second act in their next number. An injunc- tion, however, was obtained on the ground that acting a play was not a publication of it (b). (a) In equity, injunctions have been granted to stop the performance of printed dramatic works at the request of the authors of them : Morris v. Harris, Morris v. Kelly, 1 Jac. & W. 481 ; cited Godson on ' Patents and Copyrights,' 390. (6) Macklin v. Richardson, Amb. 691 ; but see 5 & 6 Vict. c. 45, a. 20. 29 b' THE LAW OF COPYRIGHT. Cap. XI. The latter case was an action on the statute of Anne, for publishing an entertainment called ' The Agreeable Surprise.' The plaintiff had purchased the copyright from O'Keefe, the author, and the only evidence of the publica- tion by the defendant was the representation of the piece upon his stage at Bichmond. It was held that there was no publication ; the statute for the protection of copy- right only extending to prohibit the publication of the work itself by any other than the author (a). American Though the law on this point has been altered as to the subject. 1S English law, the American law would appear to be in accordance with the above decision. In a late case before the Superior Court of New York (b), the facts were as follows. The action was brought to obtain an injunction restraining the printing and publishing by the defendant of a drama or comedy called ' Play,' and the complaint alleged that immediately prior to February, 1868, Mr. Eobertson, of London, sold to the plaintiff his exclusive right of performing the drama upon the stage, and printing and publishing the same within and throughout the United States ; that the first performance of it was at the Prince of Wales Theatre, in London, but that there had been no publication in any other way. The defendant, however, had obtained the words of the play, &c, from persons who had seen it acted in London, and he pub- lished it in the United States before the plaintiff. This the defendant justified on the ground that the tickets admitting the spectators to the performance in London contained no notice or prohibition against carrying the comedy away, by memory or otherwise, and using, printing or publishing the same ; nor was any notice to that effect posted in any. of the theatres in view of the spectators. The question was, whether the performance in London was such a publication as would deprive the owner of his (a) Coleman v. Wathen, 5 T. E. 245. Sheridan's opera of the ' Duenna ' (The Proprietors of Covent Garden v. Vandermere and others) was also re- presented on the stage without the permission of the proprietor on similar grounds ; see, however, 5 & 6 Vict. c. 45, s. 40. (&) Palmer v. Dewett, 23 L. T. Rep. (N.S.) 823. MUSICAL AND DRAMATIC COPYKIGHT. 297 common law right of property in it, and the court held Cap. xi. that it was not. Mr. Justice Monell, in his judgment, after examining the case of Keen v. Clark (a), where it has been decided that it is not unlawful for a spectator to carry away in memory and give to the world an unpub- lished literary production, the performance of which he had witnessed, or to the recital of which he had listened, saying : " The question of what constitutes publication is not much enlightened by any of the adjudicated cases which have come under my observation. Most of the cases involve considerations arising from copyright laws, and do not undertake to determine when or in what manner an author may be said to surrender his property in his literary work. The case most relied on by the defendant, Boucicault v. Delafield (b), arose under the English statute of copyright. That statute provides that one public representation or performance of any dramatic piece shall be deemed sufficient, in the construction of the Act, to be a publication of the work. It was accordingly held, in an action to recover a penalty imposed by the statute, that public performance of the drama in the United States, before taking out a copyright in England, was a publication within the statute. Words used in a statute to define the meaning of particular parts of it, are never extended beyond the statute, and have, therefore, no controlling effect, except in the interpretation of the statute. They define the intent and meaning of the law makers, and are made to extend the statute to cases not otherwise recognised as coming within its purview. But the legislature cannot, by merely expressing the intent of the law in respect to a particular statute, affect the meaning of words used in other statutes, or deprive them of the significance which they receive from settled prin- ciples of the common law. The case therefore of Boucicault v. Delafield is not an authority upon any question of actual or constructive publication not arising under the English (a) 5 Eobt. (Amer.) 38. (6) 33 L. J. (N.S.) 38 Oh. ; 9L,T. (N.S.),,7Q9. 298 THE LAW OF COPYRIGHT. Cap, XI. copyright law. Nor is it entitled to any more weight than the statute itself, which is a mere legislative inter- pretation of what, for certain purposes, shall be deemed a publication of a dramatic piece.". . . "My conclusions upon the whole case are, that there was no such publication by the plaintiff, or by his assignor, of the play in question as to deprive the plaintiff of his common law right of property in it. That public representations of the play were not a publication of the play so as to take away the common law right I am, therefore, of opinion that the plaintiff is entitled to a judgment restraining the defendant from further printing or publishing the play, and requiring him to deliver up to be destroyed such as are now in print " (a). Performing When the play is a fair abridgment or alteration of a abridged 11 M f° rmer dramatic representation, it is doubtful whether an form. action can be maintained by the original author. Thus where Lord Byron's tragedy of ' Marino Faliero,' altered and abridged for the stage, was performed without the consent of the owner of the copyright, who applied for an injunction, it was laid down, that an action could not he maintained, " for publicly acting and representing the said tragedy, abridged in manner aforesaid" (b). As, however, in the case cited the plaintiff, apart from the question of abridgment, had no exclusive right, it is difficult to see what stress the court laid upon the fact of the alleged piracy being an abridgment. Where the similarity between two pieces arises from the fact of their being taken from a source open to all, there is no piracy. As Lord Eldon said, " All human events are equally open to all who wish to add to or improve the materials already collected by others." There can be no plagiarism in dramatizing the same incidents. In Seman v. Copeland, where the action was for having caused to be represented the plaintiff's play, or a portion thereof, proof that the plot had been taken from the same source, (a) 7 Bob. (N.Y.) 530 ; 2 Sweeny (N.Y.) 530 ; 47 N. Y. 532, 543. (6) Murray v. Elliston, 5 Barn. & Aid. 657 ; and S. C. 1 Dowl. & Kyi. 299. MUSICAL AND DRAMATIC COPYRIGHT. 299 namely, that of a newspaper report of some stirring events cap. XI. which took place during the Indian Mutiny at Delhi, was a good defence. Here the narrative suggested the plot, and most of the characters, alike in the minds of both parties ; but when a scene only from the play of another, mixed up with that which is not original, is infringed, the court will protect the author. Copyright, there- fore, may be said to exist in the incidents of a play. Thus in Boucicault v. Egan an injunction was granted to restrain the representation of the water-cave scene in the plaintiff's drama of 'The Colleen Bawn.' The de- fendant had represented a play dramatized from Gerald Griffin's novel of 'The Collegians,' the parent of the plaintiffs play also ; but the scene in question, of which the defendant's representation was a colourable imitation, was original, and the most important and effective in the plaintiff's piece, and not contained in the novel. The many defects existing in the law of dramatic The 3 & i copyright led to the passing of the 3 & 4 Will. 4, c. 15 (a), to amend the which gave to the author, or his assignee, of any printed law relating . ° ,,. . , , . T » to dramatic and unpublished tragedy, comedy, play, opera, farce, or copyright. other dramatic piece or entertainment (b), composed and not printed and published, the sole right of having it represented in any part of the British dominions ; and to the author, or his assignee, of any such dramatic produc- tion which was printed or published the sole right of re- presentation from the time of publication, for a period of twenty-eight years, and also if the author were living at the end of that time, for the remainder of the author's life. And further enacted, that if any person should represent, or cause to be represented, without the consent in writing of the author or other proprietor, at any place of dramatic entertainment, any such production, or any part thereof, every such offender should be liable for each and every such representation to the payment of an amount not less (a) Commonly called Sir Edward Bulwer Lytton's Act. (b) In Lee v. Simpson, 3 C. B. 871, 4 D. 4 I, 666, it was determined that a pantomime, or rather tbe introduction to one, which is the only written part of the entertainment, is protected from piracy under this Act. 300 THE LAW OF COPYRIGHT. Cap. XI. than 40s. or to the full amount of the benefit or advantage arising from such representation, or the injury or loss sustained by the plaintiff therefrom, whichever should be the greater damages, to the author or other proprietor of such production so represented, to be recovered, together with double costs of suit. Double costs were taken away in all cases by the 5 & 6 Vict. c. 97, s. 2. and the plaintiff can now only recover a full and reasonable indemnity as to all expenses incurred, to be taxed by the proper officer in that behalf. Provisions of The provisions of the 3 & 4 Will. 4, e. 15, are extended Will, i c. 15 to musical compositions, and the term of copyright as extended to provided by the 5 & 6 Vict. c. 45, applied to the liberty musical com- x , .. i-i - ■ positions, and ot representing dramatic pieces and musical compositions, made S equf- i0n ^ the 20th section of tne ]atter Act > wnicl1 enacts valenttopubli- that the sole liberty of representing or performing, or causing (a) 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 the Act provided for the duration of copy- right in books (b) ; and the provisions thereinbefore enacted in respect of the property of such copyright, and of registering the same, shall apply to the liberty of repre- senting or performing any dramatic piece or musical composition, as if the same were therein expressly re- enacted and applied thereto (e), 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 the Act, to the first publication of any book : provided always, that in case of any dramatic piece or musical composition in manuscript, it shall be sufficient for the person having the sole liberty of repre- senting or performing, or causing to be represented or (a) See Parsons v. Chapman, 5 Car. & Payne, 33. (6) Strictly, a copyright song cannot be publicly sung, or a tune publicly played, ■without the permission of the composer or nis assigns. (c) By virtue of this section the 5 & 6 "Vict. c. 45, is retrospective as to the exclusive right to the performance of musical compositions published before the passing of the Act : Ex parte Hutchins and Homer, W. N. (1879) 114. MUSICAL AND DEAMATIC COPYRIGHT. 301 performed, the same, to register only the title thereof, the Cap. XI. name and place of abode of the author or composer thereof, the name and place of abode of the proprietor thereof, and the time and place of its first representation or per- formance. The common law right to the exclusive representation Effect of re- n -j.i-ij.iii it e £ presentation oi a manuscript play is lost by the public performance of f manuscript the piece, and since the passing of the statute the only P la y- protection the author can claim is that conferred by the statute. This evidently does not attach until the play has been publicly represented. It is doubtful whether, supposing a dramatic piece or musical composition in manuscript to have been registered so as to give protection to the right of representing it or performing it, the subsequent printing and publication of such piece or composition, if not followed by the deposit at Stationers' Hall, can be held to take away that right (a). The Act of. 5 & 6 Vict. c. 45, in extending the term of The remedies copyright in dramatic pieces, and providing for their the Act of registration and assignment, does not deprive the pro- Wl } L Jt' prietor of the remedies given by the Act of Will. 4. by the 5 & 6 This was seen in a case which came before the Court of °' ' Exchequer a few years since. The facts were briefly these : The plaintiff purchased from a Mr. Elton all the property in the copyright in the words of a comic song called ' Come to Peckham Rye,' of which the latter was the author, the sum given being £2. Mr. Clark was in the habit of singing this song at the Oxford Music Hall, and similar places of entertainment. In the course of his performance the song attracted much attention, and he was offered by a certain publisher ten guineas for his property in the composition. The defendant Bishop, who was a publisher in the East end of London, contrived to obtain a copy of the song, which up to this moment remained in manuscript, and published the same with some slight alterations. The plaintiff, feeling himself aggrieved, brought an action for damages against Bishop for the (a) See Boosey v. Fairlie, 7 Ch. Div. 301. 302 THE LAW OF COPYRIGHT. Cap, xj. infringement of his copyright. The case was tried before tbe common Serjeant in the Lord Mayor's Court, when a verdict was returned against the defendant with £10 damages. A rule to set aside such verdict was, however, obtained on the ground that the plaintiff not having registered his copyright at Stationers' Hall, he had no right to sue for damages in respect of it. The point having been fully argued, the court decided that the 24th section of the Act applied only to books, and had no reference to such productions as that in question : and that the other sections relating to songs and dramatic representations connected with them, did not make it obligatory on the owners to register them in order to preserve them against any infringement of their copy- Omission to right (a). Consequently it may be taken that the omission not'affect'the to re gi s * er w iH n °t prejudice the remedies which the copyright or proprietor of the sole liberty of representing any dramatic of^enaitfeZ piece has by virtue of the Act 5 & 6 Vict. c. 45, or of the 3 & 4 Will. 4, c. 15. There are several points which we propose now to con- sider in the order in which they are enumerated in the sections before us. Where the There is nothing in the Act to shew when the right in mroubffched an unpublished play is to begin, and when it is to end. work dates The penalties are only incurred if tbe representation be . ' . without the consent in writing of the author or other pro- consent of the prietor. The consent may be given by the author's ; ' " l " agent, and it has been decided that the Dramatic Authors' Society is agent to its members, for the purpose of authorizing managers of theatres to perform pieces com- posed by its members (b). The plaintiff was a member of the Dramatic Authors' Society, which announced that leave might be obtained from the secretary to represent pieces belonging to the members at certain prices mentioned in a list, and that (a) Clarh v. Bishop, Exchequer, Jan. 11th, 1S72 ; 25 L. T. (N.S.) 908. (6) Moreton v. Copeland, 16 C. B. 517 ; S. C. 24 L. J. (C.P.) 169 FitzbaU v. Brooke, 2 Dow. & Lown. 477 ; Shepherd v. Conquest, 25 L. J (C.P.) 127 ; 17 0. B. 427. MUSICAL AND DRAMATIC COPYEIGHT. 303 lists would be published from year to year containing the Cap. XI. names of the new pieces. In 1849 the secretary of the society gave the defendant leave in writing, signed by himself, to play " dramas belonging to the authors form- ing the Dramatic Authors' Society, upon his punctual transmission of the monthly bills, and payment of the prices for the performance of such dramas." Three pieces were performed belonging to the society. It was held that the defendant was not liable to penalties ; that the documents given by the secretary amounted, under the circumstances, to " a consent in writing of the author." The consent may apply to works not in existence at the time it is given. It is not as it is under the Statute of Frauds, which expressly requires that the contract shall be signed by the party to be charged ; and even that is satis- fied, if it is signed in his name by an agent duly authorized so to sign. It is very rarely the case that a document required by the law need be wholly in the handwriting of the party on whose behalf it is to be given. The present statute does not require signature, nor the handwriting of the author. All that it requires is that there should be his consent, and that it should appear in writing (a). Where there are several owners of a copyright, consent must be obtained from all, one co-owner cannot grant a license in respect of that which really belongs to two. Thus in an action by the co-owners of a moiety of the copyright of an opera to restrain the defendant, who on the evidence in the case had only a license from the other co-owner, from representing it, and for damages, the Master of the Bolls held that the plaintiffs were entitled to sustain the action and to recover a moiety of the statutory penalty of £2 a night for each representa- tion (b). Again, although by a former Act the performance which Performance is alleged to be an infringement of the original right must ^ a ^' t ^ e of have taken place at some place of dramatic entertainment, entertain- ment. (a) Per Maule, J., in Moreton v. Copeland, 16 C. B. 517. (6) Powell v. Head, W. N. (1879) 86. 304 THE LAW OF COPYEIGHT. Cap. XI. for the author to have maintained an action, yet the above provision does not appear -to be so restrictive. It has never been judicially decided that an infringement which is not committed in a place of dramatic entertainment would be the subject of an action ; but, from the general aspect of the above, we are inclined to think that it would. The question was raised in Russell v. Smith (a), but the judges did not express an opinion upon it, because the case was decided upon other grounds. Mr. Eussell, who was the composer of a song called ' The Ship on Fire,' brought an action against a man of the name of Smith for singing the same song, among others, at an entertain- ment which he opened at Crosby Hall, Bishopsgate, and to which he gave admission by shilling and two-shilling tickets. The building called Crosby Hall belonged to a literary institution, and contained a large room in which elocution classes met periodically, but which, at other times, was let out for concerts and musical entertain- ments. It had been hired for recitations intermixed with songs, and for performances of ventriloquy ; and a music licence had been taken out for it under statute 25 Geo. 2, c. 36. On the trial it was objected that Crosby Hall was not a " a place of dramatic entertainment " within the meaning of statute 3 & 4 Will. 4, c. 15, s. 1, referred to by statute 5 & 6 Vict. c. 45, s. 20. But Lord Denman held, that as Crosby Hall was used for the public repre- sentation for profit of a dramatic piece, it became a place of dramatic entertainment for the time being within the statutes in question. "The use for the time in question," added the learned chief justice, " and not for a former time, is the essential fact. As a regular theatre may be a lecture-room, dioing-room, ball-room, and concert-room on successive days, so a room used ordinarily for either of those purposes would become for the time being a theatre, if used for the representation of a regular stage play (b). (a) 12 Q. B. 217. (b) In the same case Patteson, J., remarked that " the street where ' Punch ' is performed is for the time being » place of dramatic entertainment. ' MUSICAL AND DRAMATIC COPYRIGHT. 305 In this sense, as ' The Ship on Fire ' was a dramatic piece Cap. XL in our view, Crosby Hall, when used for the public repre- sentation and performance of it for profit, became a place of dramatic entertainment." In an action for penalties brought under the 3 & 4 Will. 4, c. 15, the declaration stated that the plaintiff was the author of a certain dramatic piece or musical com- position, &c, and that defendant caused the said piece to be represented at a certain place of dramatic entertain- ment, &c, whereby, &c. It was determined, first, that the introduction of a pantomime was a dramatic enter- tainment, within the meaning of the statute ; secondly, that it was not necessary to allege in the declaration, or to prove at the trial, that the defendant knew that the plaintiff was the author; thirdly, that the allegation in the declaration, that the same was represented at a certain place of dramatic entertainment, was sufficient. Though it was here decided that a person ignorant of Punishment the piratical nature of a representation may be an ,£en?noUo" offender within the meaning of the Act, yet one cannot be visited be considered a transgressor of the provisions of the actually statute, so as to subiect himself to an action of the above taking P^t nature, unless he himself, or his agent, actually takes performance, part in the representation which is a violation of copy- right. Were it to be otherwise held, all those who supply any of the means of representation to him who actually represents, would have to be considered as thereby con- stituting him their agent, and thus causing the repre- sentation, within the meaning of the Act ; such a doctrine would embrace a class of persons not at all intended by the legislature (a). A person, therefore, who lets for hire by the evening a place of dramatic entertainment for the public perfor- mance of songs and music, and provides the hirer, who performs songs and music which he has not liberty to perform, with lights, benches, &c. is not liable to pay damages to the author for causing or permitting to be (a) Russell v. Briant, 19 L. J. (C.P.) 33 ; 14 Jur. 201 ; 8 C. B. 836. X (506 THE LAW OP COPYKIGHT. Cap. XI. represented or performed a musical composition without the author's written consent (a). This doctrine was followed in Lyon v. Knowles (6). The defendant, the proprietor of a theatre, allowed one Dillon to have the use of it for the purpose of dramatic entertainments. The defendant provided the band, the scene-shifters, the supernumeraries, the money-takers, and paid for printing and advertising. Dillon employed his own company of actors and actresses, and selected the pieces which were to be represented, free from control on the part of the defendant. It was arranged that the money taken at the doors should be divided equally between the defendant and Dillon. During the period of such occupation of the theatre by Dillon, certain pieces were performed which the plaintiff had the sole liberty of representing or causing to be represented ; and it was held, in an action to recover the penalties imposed by the above sections, that the plaintiff could not recover, inas- much as, under the circumstances, the defendant was not shewn to have represented, directly or indirectly, the said dramatic pieces. If the representation of the pieces could have been considered a joint act of the defendant and Dillon, the defendant would have been liable. The defen- dant had no right to interfere in the choice of the pieces to be represented; and in short, though the proprietor, he was not the manager. Neither was he a partner; for the receipt of the moneys at the door was a receipt of gross proceeds, not net profits, and was merely a mode of receiving and securing the rent. There was an agree- ment between them to divide the gross receipts in lieu of payment of a specific sum as rent. But this did not make them partners. The defendant, then, having no control over the performances, could not be said to have caused them to be represented, and was consequently not liable. The defendant, to have been marie liable, must have been shewn to have been either the partner or (a) Russell v. Briant, 19 L. J. (C.P.) 33 ; 14 Jur. 201 ; 8 C. B. 836. (6) 11 W". R. 266 ; 32 L. J. (Q.B.) 71 ; 10 L. T. (N.S.) 876. MUSICAL. AND DRAMATIC COPYRIGHT. 307 principal of Dillon, the person who actually directed the Cap. XI. representation (a). In the case last referred to Mr. Justice Blackburn said : "I do not think that, by furnishing servants to another, a man can be said to do all that is done by those servants while under the command of that other. A familiar example may be found in the case of a man letting a ready-furnished house, leaving an old servant in it. Suppose the tenant gave a dinner, which was cooked by that servant, who also attended on him at it, and for which the plates and furniture of the landlord were used, no one would say that, in any sense of the words, the land- lord gave that dinner." In another case (b) the defendant was the owner and manager of the Grecian Theatre, and for £30 he had let for one night to his son, who was the stage manager, the use of the theatre, company, and all persons employed. The son selected and brought out a play, for which repre- sentation the court held the defendant liable. The judg- ment was based on the fact that the defendant had the control and management of the theatre and the company during that performance. " I think," said Erie, C. J., " 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 by his permission. The case of Lyon v. Knowles seems to me to recognise that distinction. There the defendant merely let his theatre with the scenery, scene-shifters, bands, lights, &c, to Dillon, who brought his own company to represent pieces of his own selection, the plaintiff having no control whatever over any person employed in the representation. Here, how- ever, the piece is performed by the defendant's own corps dramatique, his son being one of them ; and the perfor- mance takes place for the defendant's profit to the extent (a) Lyon v. Knowles, 11 W. R. 266 ; 3 B. & S. 556 ; affirmed on appeal 5 B. & S. 751 ; 12 W. R. 1083 ; 10 L. T. (N.S.) 876. (6) Marsh v. Conquest, 17 0. B. (N.S.) 418. See Parsons v. Chapman, '5 C. & P. 33. x 2 308 THE LAW OP COPYRIGHT. to a repre sentation. Oaf. XI. of £30. I think, therefore, it is impossible to say that the defendant did not cause the piece to be represented." Whtttamounts Representing, within the meaning of the Act, is defined to be the bringing forward on a stage or place of public representation ; and the question whether in any particular case the act done amounts to a representation, is a proper question for a jury. If the words of one song only be taken from a musical or dramatic piece protected by the Act, or be sung on a stage or in any place of theatrical entertainment, without the permission of the proprietor, the representation will be actionable (a). In Planehe v. Braham, the defendant sang two or three songs of the plaintiffs libretto to an opera, and one in particular commencing with the words " Ocean ! thou mighty monster ! " And it was held that this was an infringement of the plaintiff's sole right of representation. So, too, the playing in public the music, though other words than the original be used, would be an infringe- ment. The Act of William IV. gives to the authors of " any tragedy, comedy, play, opera, farce, or other dramatic piece or entertainment," the sole liberty of representing it. This right is affirmed by the statute of Victoria, which further declares that '• the words ' dramatic piece' shall be construed to mean and include every tragedy, comedy, play, opera, farce, or other scenic, musical, or dramatic entertainment." The above terms are not very distinct, and questions have arisen as to what is, or is not included in the " or other scenic, musical, or dramatic entertainment." A work not intended for the stage may be in substance a drama, and may be easily adapted for representation. Is it. excluded from the operation of the statute, because (a) Planehe v. Braham, 1 Jur. 823 ; 8 C. & P. 68 ; 4 Bing. (N.C.) 17. Two pounds may be exacted for each song, and if there is a performance in which 1000 people take part, as in a chorus, each would be liable for a separate penulty. What is a dramatic composition. MUSICAL AND DEAMATIC COPYRIGHT. 309 it is not in form and name a drama ? Again, if fitness Cap. XI. for public performance is the test of a dramatic composition, are songs within the purview of the statute ? Though hardly dramatic compositions in the ordinary acceptation of the term, they seem to come within the words " musical entertainment." Whether a production is called a poem, or a tragedy, or novel, or a comedy, a history, or a drama, or whether its author did or did not intend it for public representation, is immaterial in ascertaining whether it is a dramatic composition. This question is determined by the character of the work, and not by what it is called, or the purpose for which the author has intended it. So also it is immaterial whether the words of a drama are spoken or sung; whether they are or are not ac- companied with instrumental music. An opera, not less than a play without music, is a drama. The judicial construction given to "dramatic piece," as used and defined in the statute, is broad enough to embrace every composition which is dramatic in character and is suitable to be performed, recited, read, or sung for the entertainment of an audience. Thus it has been decided that a song which related the burning of a ship at sea, and the escape of those on board, describing their feelings in vehement language, and sometimes expressing them in the supposed words of the suffering parties, is dramatic, and consequently within the meaning of the statute, even though it be sung by one person only, sitting at a piano, giving effect to the verses by the delivery, but not assisted by scenery or appropriate dress (a). That the whole is expressed in music makes no differ- ence. The early Greek drama was musical throughout ; so in the modern Italian opera. Nor can any distinction arise from the want of scenery or appropriate dress : an oratorio has neither, yet it is often dramatic. Nor, again, is it material that no second person performs. No one would suggest that Mr. Mathews' representations, or the readings of Shakespeare by Mrs. Siddons or Mr. Charles (a) Bussell v. Smith, 13 Q. B. 217. 310 THE LAW OF COPYRIGHT. Cap. XI. Kemble, were not dramatic. The character of Elijah is essentially a dramatic one, requiring, however, not dramatic action, but dramatic sentiment, in order to delineate it. Sometimes the wrath and gloom of such a character must be displayed, at other times the most pathetic tenderness. If the character of drama were denied to this species of en- tertainment, nothing short of requiring all the ingredients of a play would be admitted as a dramatic representation. If the interpretation clause of statute 5 & 6 Vict. c. 45, be referred to, it will be remarked that the 2nd section declares that " dramatic pieces " within that Act include " tragedy, comedy, play, opera, farce," or " other scenic, musical, or dramatic entertainment." These words com- prehend any piece which can be called dramatic in its widest sense ; any piece which, on being presented by any performer to an audience, will produce the emotions which are the purpose of the regular drama, and which constitute the entertainment of the audience (a). In a recent case, the court held the song, ' Come to Peckham Rye,' which has little, if any, of the dramatic character, to be a dramatic piece (b). And though there is no express decision to the effect that all songs are entitled to protection, yet there can be little doubt that this is practically the effect of the judicial decisions. The statute under consideration does not, however, protect a literary production which is not a musical or dramatic composition, and the author has no remedy against any person who publicly reads or recites such production. Of course this applies only to published works, for the unauthorized public reading of any un- published production, whether a dramatic composition or not, would be a violation of the owner's common law rights in the manuscript. Copyright in A spectacular piece is within the protection afforded by spectacular ^ statute. Thus in a case to be hereafter more fully piece. . * considered, where it appeared that the defendant had (a) Lord Denman, C.J., in Russell v. Smith, 12 Q. B. 217; 17 L. J. (Q.B.) 225. (6) Clark v. Bishop, 25 L. T. (N.S.) 908. MUSICAL AND DKAMATIC COPYRIGHT. 311 taken from the plaintiff's play two scenes or situations, Cap. xi. consisting more of scenic effects than of dialogue, Mr. Justice Brett said : " Now, it was first said that the subject matter of the action was not the subsequent matter of copyright ; that the Act gives a property in words, and not in situations and scenic effects ; but I think that these latter are more peculiarly the subject of copyright than the words themselves (a). Copyright may be secured in the adaptation of a play Adaptation of which is itself common property. Thus in Hatton v. ° p ay ' Kean, where it appeared that the defendant had designed a dramatic representation, consisting of one of Shakespeare's plays, with certain alterations in the text, original music, scenic effects, and other accessories, the court did not doubt that the production, as a whole, was a proper subject of copyright, although the play itself was, in its original form, common property (b). A translation of a foreign play not entitled to protection Translation of in this country, will receive the same protection as an oreign rama - original drama. Any number of persons may dramatize or translate a work which is common property, or, with the consent of the owner of the copyright, a work wherein copyright exists, and whatever may be the similarity between two dramatizations, adaptations, or translations, each dramatist will have copyright in his own version. Though the words in the Act 3 & 4 Will. 4 imposed Principal the penalties there specified upon any who may pirate questions of any protected " production or any part thereof," yet it piracy under was not necessarily intended to prevent the copying and will. iy. reproduction of every and any part without regard to its importance. At the same time it does not follow that either the very language of the original drama, or a very considerable portion of it, must be appropriated in order to bring the case within the statute. In considering and judging of what amount of copying or imitation would constitute piracy, similar rules to those (a) Chatterton v. Cave, 33 L. T. (N.S.) 256. (fc) 7 0. B. (N.S.) 268. 312 THE LAW OF COPYRIGHT. Cap. XI. already laid down with reference to copyright in books may be applied to the authors and owners of dramatic productions, for it would seem to be a proper rule to apply the same principle of construction to statutes which aim at objects substantially the same. The question of materiality must depend upon a consideration of the quantity and value of the portion taken or use made, and must vary indefinitely in various circumstances. As Lord Chancellor Cottenham said in Bramwell v. Halcomb (a) : " It is useless to refer to any particular cases as to quantity." The quantity taken may be great or small, but if it comprise a material portion of the book, it is taken illegally. The question is as to the substance of the thing, and if there be no abstraction of that which may be substantially appreciated, no penalty is incurred. In all cases, the matter is dealt with as one of degree. In all, quantity and value are both the subjects of consideration, and in none of them has an infringement been established without satisfactory evidence of an appropriation, possibly involving a substan- tial loss to one person, and a substantial gain to another. The question in every case must be a question of fact, and therefore one for a jury. The two principal cases under the 3 & 4 Will. 4, c. 15, are the cases of Blanche v. Braham (b), and Ghatterton v. Cave (c). In the first of these cases the defendant used the words of two or three songs of the plaintiffs as the vehicle of some airs in an English version of "Weber's opera of ' Oberon,' and the action was brought under the above Act. The rest of the version had been written by another person. There was no question as to appropriation of the music ; and Lord Chief Justice Tindal left it to the jury to say whether there had been a representation of a part of the plaintiff's dramatic production. The jury found that there had been ; and gave a verdict accordingly for the statutory penalty. Serjeant Wilde moved to set aside the verdict on the ground that as there had been (o) 3 My. & Or. 738. (6) 4 Bing. N. C. 17. (c) L. E. 10 C. P. 572 ; 2 0. P. D. 42 ; 3 App. Cas. 483. MUSICAL AND DRAMATIC COPYKIGHT. 313 no representation of a part of the plaintiff's piece, — the Oap. XI. words of the songs adapted to the music being immaterial to the development of the drama, — the defendant was entitled to a judgment. But the court affirmed the the verdict, holding that the question before it must in all cases be determined by a jury. " It is difficult," said the Chief Justice, " to say what is or is not a representation of a part of a dramatic production, .... and it must be left to a jury to determine the fact." The second case was an action against the defendant in respect of his having committed an infringement of the copyright of the plaintiffs in a drama founded on the novel by Eugene Sue called 'The Wandering Jew.' There had been a drama in French founded on the same novel, and the version claimed by the plaintiffs, prepared by Mr. Lewis and assigned by him to them, was an adaptation from the French. The defendant had since brought out another adaptation, which it was alleged was, in part, an imitation of the former, and had thereby committed an infringement of the plaintiffs' copyright. When the case came on for trial, it was agreed to dis- charge the jury, Lord Coleridge undertaking to read the plays, to receive such evidence as he might deem material, and to find whether there had been any copying so as to bring the case within the statute. He found there had been two "scenes or points" of the plaintiffs' drama taken by the defendant without recourse either to the French novel or to the drama constructed from it, and he directed the verdict to be entered for the defendant. The finding was as follows : — " I find in this case that two scenes or points of the drama of the defendant have been taken direct from the drama of which Mr. Lewis was the author and the plaintiffs the assignees, without recourse to either the French novel or the French drama, originals common to the dramas of both the plaintiffs and defendant. I find this, first, in respect of the final scene of the defendant's drama ; and secondly, of the appearance of the Wandering Jew, and the stage 314 THE LAW OF COPYRIGHT. Cap. xr. business connected with that appearance, which are to be found in the second scene of the second act of the de- fendant's drama, and in the fourth scene of the first act of the plaintiffs' drama. I find that the drama of the de- fendant is not, except in these respects, a copy from or a colourable imitation of, the drama of the plaintiffs'. I direct the verdict to be entered for the defendant. I assess the damages at 40s. if upon argument, as provided by the terms agreed to at the trial, the court should be of opinion that the verdict ought to be entered for the plaintiffs." The case was argued upon a rule obtained to enter the verdict for the plaintiffs. This rule was discharged (a), and on appeal this decision was affirmed (&). The plaintiffs appealed to the House of Lords, and it was argued that the scenes, or points, as they were called, were material, valuable, and striking points, and affected considerably the attrac- tiveness of the drama, and no one doubted that they had been copied from the plaintiffs' production, but the House affirmed the decisions of the courts below, Lord Hatherley saying : " There is indeed one obvious difference between the copyright in books and that in dramatic performances. Books are published with an expectation, if not a desire, that they will be criticised in reviews, and if deemed valuable, that parts of them will be used as affording illustrations by way of quotation or the like, and if the quantity taken be neither substantial nor material, if, as it had been expressed by some Judges, ' a fair use' only be made of the publication, no wrong is done and no action can be brought. It is not, perhaps, exactly the same with dramatic performances. They are not intended to be repeated by others, or to be used in such a way as a book may be used, but still the principle de minimis non curat lex applies to a supposed wrong in taking a part of dramatic works, as well as in reproducing a part of a book. The minimum of damages, to be awarded when the fact of damage and the right to damages have been once esta- blished, was no doubt fixed because of the difficulty of (o) L. E. 10 0. P. 572. (6) 2 0. P. D. 42. MOSICAL AND DEAMATIC COPYRIGHT. 315 proving with definiteness what amount of actual damage Cap. XI. had been sustained, by perhaps a single performance at a provincial theatre of a work belonging to a plaintiff, whilst at the same time his work might be seriously depreciated if he did not establish his right as against all those who infringed upon it. ... I think, my lords, regard being had to the whole of the case, to the finding of the Lord Chief Justice that the parts which were so taken were neither substantial nor material parts, and the impossibility of damage being held to have accrued to the plaintiff from such taking, and the concurrence of the other Judges before whom the case was brought, that this appeal should be dismissed, and dismissed with costs " (a). It is worthy of note here that when the question was raised in the Common Pleas, Lord Coleridge set out fully the reasons which had dictated his direction, and it then appeared that though the finding had no explicit allegation as to the character of the " scenes " or " points " which it finds to have been taken, their immateriality was meant to be conveyed. " These points so copied," said he, " were not parts of the dialogue or composition of the plaintiffs' drama, but were in the nature of dramatic situations or scenic effects. It appeared to me that, looking to the general character of the two dramas respectively, 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 plaintiffs'. Therefore, though I felt bound to find that there was a taking of these two small points, I decided to enter the verdict for the defendant." The court will not protect any person in the exclusive i mm0 ral play. right of representing an immoral play (&). The proprietor of a drama whether published or un- Licences. (a) 3 App. Cas. 483, 492, 493. (6) The Lord Chamberlain recently (' The Happy Land ' at the Court Theatre) interposed to prevent certain high personages being represented in ludicrous positions upon the stage ; see the powers of the Lord Chamberlain, 6 & 7 Vict. c. 68, Appendix. 31(5 ti:k law of copyeight. Cap. XI. published; may license one or more persons to perform it anywhere, without giving to any one the exclusive right of representation. But in such case the owner of the copyright only could maintain an action in respect of unlicensed performances. The owner may grant the ex- clusive right of representation for any named part of the country, or any town, city, or county, and within such limits, no one without the consent of the licensee has the right to perform the play. Assignment By the 22nd section of the 5 & 6 Vict. c. 45, it is of reprefenta- enacted that no assignment of the copyright of any book tion consisting of or containing a dramatic piece or musical composition, shall be holden to convey to the assignee the right of representing or performing such dramatic piece or musical composition, unless an entry in the registry book, to which reference has already been made (a), shall be made of such assignment, wherein shall be expressed the intention of the parties that such right should pass by such assignment. Under an assignment of " all present and future vested and contingent copy- right in a musical composition," together with "all property" therein, the exclusive right of performance passes (b). It is competent for an assignee of the sole right of representing a dramatic piece to sue for penalties under 3 & 4 Will. 4, c. 15, notwithstanding the assignment is not made by deed, or registered under 5 & 6 Yict. c. 45 (c). The administrator of an author of a dramatic piece first acted in 1843, by deed dated the 14th of April, 1859, in consideration of £100, assigned to the plaintiff the copy- right and right of representation in all dramatic pieces written by the author ; no entry of the assignment to the plaintiff had been made in the registry book in pursuance of the section under consideration ; but it was held that the plaintiff might maintain an action for penalties under statute 3 & 4 Will. 4, c. 15, against the defendant, for (a) Ante, p. 135. (6) Ex parte Hutchins and Eomer, "W. N. (1879) 114. (c) Marsh v. Conquest, 17 C. B. (N.S.) 418 ; 10 L. T. (N.S.) 717. MUSTCAL AND DRAMATIC COPYRIGHT. 317 representing the piece without his license within twenty- Cap. XI. eight years of its publication, the period for which the sole liberty of representation is given by that statute, although the deed was not registered under statute 5 & 6 Vict. c. 45, s. 22. That section in terms applies only to the effect of an assignment of the copyright, limiting its operation as such, and was intended to correct what had probably been an omission in previous legislation ; for upon the construction of statute 3 & 4 Will. 4, c. 15, s. 1, the Court of Queen's Bench in Cumberland v. Planche (a) had held that the assignment of the copyright of a dramatic piece carried with it, incidentally, the exclusive right of representation. Section 22 of statute 5 & 6 Vict. c. 45, was intended to meet that decision by enacting that no assignment of the copyright of a dramatic piece or musical composition should be holden to convey the right of representing or performing it, unless an entry was made in the registry book that it was the intention of the parties that such right should pass by the assignment. That enactment does not apply to a case in which there is an express assignment of the right of representing or performing. In the case of Laey v. Rhys, there was an assignment of the right of acting, as well as of the copyright ; and it was held, that it did not follow that, because section 24 required registration of an assignment of the copyright, and there was such an assignment there, therefore the assignment of the right to represent was in any way affected : Utile per inutile non vitiatur. When a person professes to convey two things, one of which he has a right to conVey and the other he has not, the instrument operates to pass the property in that which he has a right to convey, and the rest is surplusage (&)i , It is clear, therefore, that an assignment merely of the Assignment of right of xepresentation needs not to be registered under representation , .. „ . , „ -n ? nn need not be (a) 1 Ad. & E. 580. registered (6) Per Oookburn, C.J., in Lacy v. Bhys, i B. & S. 873, 883 ; 12 W. R. re S lsl;erea - 309 ; 33 L. J. (Q.B.) 157 ; 10 Jur. (N.S.) 612. See Marih v. Conquest, 10 L. T. (N.S.) 717; 17 C. B. (N.S.U18. 318 THE LAW OF COPYRIGHT. Cap. XI. the 22nd section; nor indeed need it be in writing according to some authorities. The provision of this section applies only to cases where the copyright in a dramatic or musical composition is assigned without any mention of the right of representation, and where con- sequently it may be doubtful whether the latter right was intended to be passed (a). The legal The legal assignment either of the right to represent a mTsTbTin dramatic piece or perform a musical composition must be writing. j n writing (b), but need not be attested (c) or sealed (d). This was decided in Shepherd v. Conquest (e), where it appeared that the plaintiffs, being proprietors of the Surrey Theatre, verbally agreed with one Courtney that the latter should go to Paris for the purpose of adapting a piece there in vogue for representation on the English stage ; that the plaintiffs should pay all Courtney's expenses, and should have the sole right of representing the piece in London, Courtney retaining the right of representation in the provinces. Courtney accordingly proceeded to Paris, produced a piece called * Old Joe and Young Joe,' and was paid by the plaintiffs as agreed. The piece was brought out at the Surrey Theatre by the plaintiffs, and afterwards at the Grecian Saloon by the defendant, who had obtained an assignment from Courtney. The representations by the defendant at the Grecian Saloon were the infringements of the plaintiffs' right complained of. The defendant objected that, as there was no assignment in writing from Courtney to the plaintiffs, the action was not maintainable. The plaintiffs contended that no assignment was necessary, for that, by virtue of Courtney's employment by them, they were the proprietors of the piece in question from the first moment (a) See Wood v. Boosey, 7 B. & S. 869 ; L. E. 10 Q. B. 347. 6) See ante, pp. 164, 165, as to what is an assignment, see Leader v. Purday, 7 C. B 4 ; Lacy v. Took, 15 L. T. (N.S.) 512. (c) Cumberland v. Cop eland, 1 Hurl. & C. 194. v. Conquest, 11 C. B. (N.S ) 479 ; Boosey v. Fairlie, 7 Ch. D. 301 ; Chatterton v. Cave, L. K. 10 C. P. 572 ; on app. 2 C. P. D. 42 ; 3 App. Cas. 483. (b) Beade v. Conquest, supra ; Boosey v. Fairlie, supra. MUSICAL AND DRAMATIC COPYEIGHT. 327 illustrated by a recent American case (a). The matter Cap, xi. alleged to have been pirated was the " railroad scene " in What amounts Daly's play 'Under the Gaslight.' In this scene is Xntity^ 1 represented a surface railroad and a signal-station shed, in which a woman, at her own request, is locked by the signalman, who then disappears. Next are seen two men, one of whom binds the other with a rope, fastens him to the railroad track, and leaves him to be killed by an expected train. From a window in the shed the woman sees what is done, hears the noise of the approaching train, breaks open the door with an axe, and frees the intended victim an instant before the train rushes by. This scene was reproduced, but with variations, by Mr. Boucicault in his drama entitled ' After Dark.' In that play he makes one of the characters, from a wine vault where he had been thrown, see, through a door into an adjoining vault, two persons pass through a hole in the wall the body of a man who had been made unconscious by drugs. With an iron bar he enlarges an orifice in the wall of the vault, which opens on an underground railway, and sees lying insensible on the track the person whose body had just been put there by the two men in the adjoining vault. Hearing the noise of a coming locomotive, he quickly makes his way through the opening in the wall and moves the body from the track, just in time to prevent it from being run over by the passing train. In Daly's drama this incident occupies the third scene of the fourth act, and during its progress, there is con- siderable conversation between the several characters on the stage. In Boucicault's drama, it is represented in three scenes of the third act, chiefly by action, but partly by monologue spoken by one of the characters after he has seen the body on the track. In laying down the law applicable to these facts, Mr. Justice Blatchford said : — (a.) Daly v. Palmer, 6 Blatcli. (Amer.) 256 ; see Boucicault v. Wood, 2 Biss. (Amer.) 34 ; Martinetti v. Maguire, 1 Deady (Amer.) 216. 328 THJ5 LAW OP COPYRIGHT. _ °^i x '- . " The series of events so represented, and communicated by movement and gesture alone to the intelligence of the spectator, according to the directions contained in paren- theses, in the two plays in question here, embraces the confinement of A. in a receptacle from which there seems to be no feasible means of egress : a railroad track, with the body of B. placed across it in such a manner as to involve the apparent certain destruction of his life by a passing train ; the appearance of A. at an opening in the receptacle, from which A. can see the body of B., audible indications that the train is approaching, successful efforts by A. from within the receptacle, by means of an implement found within it, to obtain egress from it upon the track ; and the moving of the body of B. by A., from the impending danger, a moment before the train rushes by. In both of the plays the idea is conveyed that B. is placed intentionally on the track, with the purpose of having him killed. Such idea is, in the plaintiffs play, conveyed by the joint medium of language uttered, and of movements which are the result of prescribed directions, while in Boucicault's play it is conveyed solely by lan- guage uttered. The action, the narrative, the dramatic effect and impression, and the series of events in the two scenes, are identical. Both are dramatic compositions, designed or suited for public representation. It is true that in one A. is a woman, and in the other A. is a man ; that in one A. is confined in a surface railroad station- shed, and in the other A. is confined in a cellar abutting on the track ; that in one A. uses an axe, and in the other A. uses an iron bar; that in one A. breaks down a door, and in the other A. enlarges a circular hole; that in one B. is conscious, and is fastened to the rails by a rope, and in the other B. is insensible, and is not fastened; and that in one there is a good deal of dialogue during the scene, and in the other only a soliloquy by A. and no dialogue. But the two scenes are identical in substance, as written dramatic compositions, in the particulars in which the plaintiff alleges that what he has MUSICAL AND DEAMATIC COPYEIGHT. 329 invented, and set in order, in the scene, has been ap- Cap. XI. propriated by Boucicault. " All that is substantial and material in the plaintiff's railroad scene has been used by Boucicault, in the same order and sequence of events, and in a manner to convey the same sensations and impressions to those who see it represented, as in the plaintiff's play. Boucicault has, indeed, adapted the plaintiff's series of events to the story of his play, and, in doing so, has evinced skill and art ; but the same use is made in both plays of the same series of events, to excite, by representation, the same emotions, in the same sequence. There is no new use, in the sense of the law, in Boucicault's play, of what is found in the plaintiff's railroad scene. The railroad scene in Boucicault's play contains everything which makes the railroad scene in the plaintiff's play attractive as a representation on the stage. As, in the case of the musical composition, the air is the invention of the author, and a piracy is committed if that in which the whole meritorious part of the invention consists is in- corporated in another work, without any material altera- tion in sequence of bars ; so in the case of the dramatic composition, designed or suited for representation, the series of events directed in writing by the author, in any particular scene, is his invention, and a piracy is committed if that in which the whole merit of the scene consists is incorporated in another work, without any material alteration in the constituent parts of the series of events, or in the sequence of the events in the series. "The adaptation of such series of events to different characters who use different language from the characters and language in the first play is like the adaptation of the musical air to a different instrument, or the addition to it of variations or of an accompaniment. The original subject of invention, that which required genius to construct it and set it in order, remains the same in the adaptation. A mere mechanic in dramatic composition can make such adaptation, and it is a piracy, if the appropriated series of 330 THE LAW OF COPYKTGHT. Cap. XI. Infringement of the copy- right in a musical composition. events, when represented on the stage, although per- formed by new and different characters using different language, is recognised by the spectator, through any of the senses to which the representation is addressed, as conveying substantially the same impressions to, and exciting the same emotions in the mind, in the same sequence or order. Tested by these principles, the rail- road scene in Boucicault's play is, undoubtedly, when acted, performed, or represented on a stage or public place, an invasion and infringement of the copyright of the plaintiff in the railroad scene in his play." As to what amounts to an infringement of the copyright in a musical composition (a), it has been decided that to publish, in the form of quadrilles and waltzes, the airs of an opera in which there exists an exclusive copyright, amounts to such. In D'Almaine v. Boosey (V), the plain- tiff published, first the overture, and then a number of airs, and all the melodies. It was admitted that the defendant had published portions of the opera containing the melodious parts of it ; that he had also published entire airs ; and that, in one of his waltzes, he had introduced seventeen bars in succession containing the whole of the original air, although he added fifteen other bars which were not to be found in it. This, it was contended, was not a piracy : first, because the whole of each air had not been taken ; and secondly, because what the plaintiff had purchased of the original author was the entire opera, and the opera consisted, not merely of certain airs and melodies, but of the whole score. Lord Lyndhurst, Chief Baron, however, held, as to the first argument, that piracy might be of part of an air as well as of the whole ; and with reference to the second, that, admitting that the opera consisted of the whole score, yet if the plaintiff was entitled to the work, a fortiori he was entitled to publish the melodies which formed a part. The Lord Chief Baron regarded the subject of music on a (a) Assumption of the name and description of a song, see Chappell v. Sheard, 2 K. & J. 117. (6) 1 Y. & C. 288. See Chappell v. Sheard, 1 Jur. (N.S.) 996. MUSICAL AND DKAMATIC COPYEIGHT. 331 different principle to that which he regarded other literary Cap. XI. works ; for he would not admit that the adapting for dancing, or otherwise, from the original composition, in which some degree of art is needed, could be deemed such a modification of an original work as should absorb the merit of the original in the new composition. It is the air or melody which is the invention of the author, and which may, in such case, be the subject of piracy ;, and a piracy is committed if, by taking, not a single bar, but several, that in which the whole meritorious part of the invention consists is incorporated in the new work. " If," said Lord Lyndhurst, " you take from the compo- sition of an author all those bars consecutively which form the entire air or melody, without any material alteration, it is a piracy ; though, on the other hand, you might take them, in a different order, or broken by the intersection of others, like words, in such a manner as should not be a piracy. It must depend on whether the air taken is substantially the same with the original. Now, the most 'unlettered in music can distinguish one song from another, and the mere adaptation of the air, either by changing it to a dance or by transferring it from one instrument to another, does not, even to common apprehensions, alter the original subject. The ear tells you that it is the same. The original air requires the aid of genius for its construction, but a mere mechanic in music can make the adaptation or accompaniment. 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. The adding variations makes no difference in the principle." The author of a dramatic work which has been first Kepresenta- represented in a foreign country (such country not being ^foreign ™ a country with which a convention has been entered into) country is not entitled to any exclusive right of representation in exclusive this country, the representation of a dramatic work being ri s ht of . ,. J , . . representation a publication of it within the meaning of the statute beingobtained 7 Vict. c. 12, s. 19. This section provides that no author ere- or composer of any dramatic piece or musical composition 332 THE LAW OF COPYRIGHT. Cap, xi. which shall, after the passing of the Act, be first published out of Her Majesty's dominions, shall have any copyright therein, or any exclusive right to the public representa- tion or performance thereof, otherwise than such (if any) as he may become entitled to under that Act. The only question which seems to have arisen upon this section has been as to the meaning to be attached to the word " published." In 1863 the point came before Vice- Chancellor Wood with reference to the piece known as ' The Colleen Bawn.' Mr. Boucicault filed his bill against Mr. Delafield, the proprietor of a theatre in the provinces, to restrain his performing this play. It appeared that ' The Colleen Bawn ' had been performed in New York, and the Vice-Chancellor decided that the public performance in New York was a publication, and that having published it in that way, Mr. Boucicault was, under the 19th section of the 7 Vict. c. 12, absolutely deprived of the exclusive right in this country (a). After referring to the 19th section the Vice-Chancellor says : " If Mr. Boucicault had first represented his piece in this country, he would have been entitled to the copyright given by the earlier statutes. So, also, if he had given his first representation in any country with which a convention had been made under the International Copyright Act, he would have been entitled under that Act to all the same privileges. But in no case is a person to enjoy any rights conferred by the old Acts concurrently with those created by the International Copyright Act. This is the effect of the 19th section The plain purpose of the statute is to secure for this country the benefit of the first publication of new works, and certain conditions are made without which works first published abroad are not to be entitled to copyright. These conditions have not been complied with. The plaintiff, therefore,, fails in his demand, and the bill must be dismissed." The point was again raised by the same plaintiff in a subsequent case (6). (a) Boucicault v. Delafield, 1 H. & M. 597. (6) Boucicault y. Ghaiterton, 5 Oh. Div. 267. MUSICAL AND DRAMATIC COPYRIGHT. 333 Mr. Boucicault applied for an injunction to restrain Cap. xr. Mr. Chatterton, who was the lessee of the Adelphi Theatre, from representing the drama called ' The Shaughraun,' the copyright in, and the sole right of representing or performing which, he claimed. ' The Shaughraun ' was written by the plaintiff in 1874, and was first performed in New York in November of that year. It was registered at Stationers' Hall in 1874, as a book under the Copy- right Act, 1842, but there being an inaccuracy in the form of the registration, the drama was again registered in November, 1876, in the name of Mr. Boucicault as the proprietor of the copyright. In September, 1875, the play was produced at Drury Lane under an arrangement between the plaintiff and defendant, and it was there performed till the month of December, after which it was transferred to the Adelphi, and played till January, 1876. Mr. Boucicault then went to America, where he had been naturalized. After this a correspondence took place between the plaintiff and the defendant, in which the defendant expressed his desire to reproduce the drama at the Adelphi Theatre, but the plain tiff declined the defendant's proposals, and refused to permit the per- formance. The defendant thereupon advertised the per- formance, and the plaintiff commenced an action. He claimed under the Act 3 & 4 Will. 4, c. 15, and contended that his rights under this Act were unaffected by the 7 Vict. c. 12. It was argued that the play had not been published abroad, as representation did not amount to publi- cation ; that the statute 7 Vict. c. 12, only took away the right conferred by the 3 & 4 Will. 4, c. 15, and preserved by the 5 & 6 Vict. c. 45, as far as regards plays published abroad by printing. Vice-Chancellor Malins considered himself bound by the decision in Boucicault v. Delafield, and held that the acting of the play in New York was a publication within the meaning of 7 Vict. c. 12, s. 19, and that by that publication Mr. Boucicault had lost his exclusive right of performance. On appeal this view was confirmed, Lord Justice James 334 THE LAW OF COPYRIGHT. Cap. XI. saying : " The 19th section of the International Copyright Act has a limited purpose only, expressed in terms shewing the meaning of the word ' published,' which must express something that can be predicated of a book, of a dramatic piece, of a musical composition, of a print or article of sculpture, or any other work of art ; that is to say, its being made public by those means which are appropriated to the particular thing. A book is published by being printed and issued to the public, a dramatic piece or a musical composition is published by being publicly performed, a piece of sculpture or other work of art by being multiplied by casts or other copies. That, as it appears to me, is the natural meaning of the word ' published ' in that section, and that is the meaning attributed to it by the Vice-Chancellor." And Brett, J.A., saying: "A dramatic composition differs from many com- positions in this, that it can be made use of in two different ways. It may be made use of by printing it, and dis- tributing it as a written composition or a book. It may also be used by having it acted on the stage of a theatre. If the author be an Englishman, no doubt he has certain rights given to him by the statute 3 & 4 Will. 4, c. 15, but a foreign author has no rights at all under that statute. If, therefore, a foreign author's play was first acted abroad, he could not afterwards claim any protection in England. He would by acting it abroad have made it publici juris in England, and, therefore, anybody in England might act it here. It is said that an English author, although he allows his compositions to be acted abroad, does not come under the same difficulty, because he is protected by the statute of 3 & 4 Will. 4, c. 15. That may be, and although I have some doubts whether the limitation of the meaning of the word ' published ' which has been contended for applies even to that statute, I will assume that it does, and that an Englishman, although his piere was first acted abroad, could claim the protection given by the statute of 3 & 4 Will. 4, c. 15. A foreigner, however, certainly could not claim that protection. Then, it' MUSICAL AND DRAMATIC COPYRIGHT. 335 that be the state of things before the statute 7 Vict. c. 12, cap. XI. we have two sets of people to deal with as regards dramatic compositions, that is, foreign authors who had no protection in England, and English authors who might first of all have their pieces acted abroad, and yet have protection under 3 & 4 Will. 4, c. 15. The statute of Victoria begins by giving the Queen power to give protec- tion to foreign authors and dramatic composers, and that is done under section 5, which has regard to their protec- tion against performances. Their protection against publication by printing is given to them under other sections. The 5th section provides that where the authors of dramatic pieces have first publicly represented or performed them in any foreign country, the Queen shall have the power of giving them sole liberty of representing or performing the same in any part of Her Majesty's dominions. The statute is dealing with several kinds of things to be protected, which may be published in different ways, and with different persons, with foreigners, and, as we shall presently see, with Englishmen. Then the 19th section provides in perfectly general words, ' That the author of no 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 repre- sentation or performance thereof, otherwise than such (if any) as he may become entitled to under this Act. Now, it is said that the word ' published ' ought to be restricted to the meaning which is said to have been affixed to it in the statute 3 & 4 Will. 4, c. 15. If so, the word ' published,' when applied to English authors, must have one meaning, and another when applied to foreign authors under precisely similar circumstances. That seems to me to be contrary to the common canon of the construction of statutes, for it requires us to introduce into the statute the proviso that in the case of English authors representation out of Her Majesty's dominions shall not be considered a publication. That would be to introduce 336 THE LAW OF COPYRIGHT. Cap. xr. words which we have no right to introduce, unless there be something in the nature of the case which makes it obvious that such must have been the object of the legislature. It is endeavoured to make out this to have been the object by saying that it is unjust to take away the right of an English author. I see nothing contrary to reason or justice in saying that if an English author chooses to go abroad and there represent, or allow to be represented, his composition for the first time, he shall be in the same position as a foreigner who has done the same thing. If that be so, the word ' published ' must have its natural construction, whether it is applied to the compositions of Englishmen or foreigners. That ordinary meaning is ' made public,' and a dramatic composition is made public the moment it is represented or acted. If Englishmen have their plays first represented abroad, they are by this statute placed on the same footing as foreigners ; if they have them first represented in England they do not come under this statute at all ; but their rights will be governed by 3 & 4 Will. 4, c. 15, and 5 & 6 Vict. c. 45." A novel may Though no person may, without the author's written be dramatized C0]isen t represent the incidents of his published dramatic without . i • t 1 n . infringement, piece, however indirectly taken, yet no action will lie, at the suit of the author of a novel, against a person who dramatizes it and causes it to be acted on the stage (a). This was decided in Beade v. Conquest (b). The second count of the declaration alleged that the plaintiff was the duly registered proprietor of the copyright in a certain registered book, namely, a tale or novel or story entitled ' It is Never too Late to Mend,' and complained that the defendant, without the plaintiff's consent, dramatized the said novel, and caused it to be publicly represented and performed as a drama at the Grecian Theatre for profit, and thereby the sale of the book was injured, &c. To this count there was a demurrer ; and it was insisted, on the part of the defendant, that representing the incidents (a) Beade v. Conquest, 9 C. B. (N.S.) 755 ; S. C. 30 L. J. (N.S.) (O.P.) 209 ; 9 W. E. 434 ; 7 Jur. (N.S.) 265. (&) Ibid. MUSICAL AND DRAMATIC COPYRIGHT. 337 of a published novel in a dramatic form upon the stage, cap. XI. although done publicly and for profit, is not an infringe- ~ ment of the plaintiff's copyright therein ; and the Court of Common Pleas was of opinion that the defendant was right (a). Neither the 3 & 4 Will. 4, c. 15, nor the 5 & 6 Vict, c. 45, contemplated the conversion of a book into a dramatic piece, and the definition of copyright in the second section of the latter Act, " the sole and exclusive liberty of printing or otherwise multiplying copies of any subject to which the said word is herein applied," evidently did not include the claim of the plaintiff in the above case. All that was here decided was, that the defendant had Butthedrnma a right to act, that is to say, to speak and represent the ^nted* & drama which was constructed out of the plaintiff's novel ; it was not held that the defendant had a right to print it. In a subsequent case, in 1862 Q>), Lush, as counsel for the defendant, submitted that he had a right to print and publish such a drama, with the exception of any passages which were mere copies of the novel ; but the circum- stances of the case did not render it necessary that the point should be decided. " If that question should arise," said Erie, C. J., " it would then be time to decide whether the defendant could find any defence ; but it is clear he could not in that case defend himself on the ground that he was the author of the parts which he copied." The question, however, has since arisen in the case of Tinsley v. Lacy (c). A bill was filed by the publishers and owners of the copyright in two novels, called ' Aurora (a) In a French case cited in Le Blanc on ' Piracy,' p. 233, under the name of Lefranc v. Paul de Brusset, a different principle was followed. The defendant there had dramatized a tale written by the plaintiff, and represented it upon the stage for profit ; the plaintiff claimed to be entitled , as collaborateur, to a portion of the profits, and the court decided that, although he could not claim it in that capacity, inasmuch as the adaptation of the tale to the stage was without his knowledge or consent, still he had a good claim for damages against the defendant for the piracy, and it mulcted the defendant in damages and costs. (6) Reade v. Conquest, 31 L. J. (C.P.^ 153 ; 8 Jur. (N.S.) 764 ; 11 C. B. (N.S) 479. (c 1 ) 32 L. J. (Ch.) 535 ; 11 W. R. 876 ; 1 Hem. & Mill. 747. 338 THE LAW OF COPYKIGHT. Cap. XI. Floyd ' and ' Lady Audley's Secret,' written by Miss Brad- don. The novels had been dramatized by a Mr. Suter, and performed at the Queen's Theatre. The defendant, Mr. Lacy, had published the two plays as they were per- formed. It was proved that a large portion of the dramas, including the most striking incidents and much of the actual language of the novels, had been taken bodily from the novels. Vice- Chancellor Wood, in passing judgment, admitted that the defendant was entitled to dramatize the novels for the purpose of a mere acting drama; but held that he was not so entitled for the purpose of printing or selling his compilation. "He has taken," said the "Vice-Chancellor, " to use the language of Lord Cottenham in Bramwell v. Halcomb, the vital portion of the novels, the leading incidents of the plot, and in many instances the very language of the novel itself. He reprints in his books (and I confine myself to what appears in the books, and say nothing as to the represented drama), the very words of the most stirring passages of the novels. It is no answer to say that similar infringements have often been committed. Although Sir Walter Scotf and other authors did not choose to assert any claim of this kind, this does not affect the rights of the plaintiff ; and it is to be observed, moreover, that there has been a considerable alteration of the law since the time referred to by the extension of copyright to dramatic performances. . . . The question of the extent of appropriation which is neces- sary 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 propor- tion which the borrowed passages may bear to the whole work. Here it is enough to say, that the defendant admits that one-fourth of the dramas is composed of matter taken from the novels. In Campbell v. Scott (a), which has a strong bearing on this point, the defendants had published a work containing biographies and selections from the works of a large number of modern poets, and (a) 11 Sim. 31 ; 11 L. J. (N.S.) Oh. 166; 6 Jur. 186. MUSICAL AND DRAMATIC COPYRIGHT. 339 among others, six short poems, and extracts from larger cap. XI. poems written by the plaintiff. The defence was, that the poems were bond fide selections, forming a very small proportion of the writings of the plaintiff ; that such com- pilations were cautiously made by the most respectable publishers ; that the price of the compilation was £1 Is., while the plaintiff's entire works were published at 2s. 6d. ; and that the plaintiff would be rather benefited than injured by the defendants' work, which contained 10,000 lines, of which only a few hundreds were taken from the plaintiffs poems." The Vice-Chancellor, after observing that in the case of the ' Encyclopaedia Londinensis ' the jury found for the plaintiff, though the matter taken formed but a very small proportion of the work into which it was introduced, adds, that it is not necessary to consider whether the selections were the cream and essence of all that Mr. Campbell ever wrote. There is no doubt that in this case, as in that of Campbell's poems, the passages taken were the striking passages, and these have been taken by the author of the defendant's publications for the express purpose of using Miss Braddon's property for his own benefit. So long as he confined himself to dramatic representations he could not be interfered with ; but when he printed his plays he brought himself within the letter of the law." The author of a play who makes use of its plot and Author may dialogue in the composition of a novel, does not thereby jjjj^ c v lli8 forfeit his right to restrain infringement of his copyright dramatizing in the play, although such infringement takes place iic a °tion PU " through the medium of the novel, by a person who was ignorant of the existence of the original play. The in- direct appropriation, then, of any portion of the novel taken from the play, is an infringement of the copyright in the play. The plaintiff in Reads v. Lacy (a), wrote a play called 'Gold,' which he afterwards adapted as a novel, embodied a portion of the dialogue, and called it, 'Never too Late to Mend.' The novel was dramatized by (a) IJ. & H. 524. z 2 340 THE LAW OF COPYRIGHT. dramatizing it after publication. Cap. xi. another person, and, in doing so, portions of the original play were copied word for word, and in that form published by the defendant. It was held that ignorance would not justify the infringement of a right in one case more than in another, and that the publication of the play was an infringement of the copyright in ' Gold,' although the existence of that play was not known to the author, who took his materials from the novel (a). Author cannot But, according to the authority of Toole v. Young (b), an novel by author cannot protect his novel from dramatization by dramatizing it after its publication, it must be effected before publication of the novel. Tn the case referred to JohnHollingshead had published in 1863, in the magazine called ' Good Words,' a story entitled ' Not Above his Business,' which he had written in dramatic form, that it might, with plight alterations, be performed on the stage. Soon after, the author adapted the piece for representation and called the play ' Shop,' which was substantially the same as the published story. In 1865, the play was bought from the author by the comedian Toole ; and, when the action was brought, it had not been published or acted. In 1870, Grattan dramatized the story, which had appeared in ' Good Words,' and afterwards sold the play to the defendant, by whom it was repeatedly performed on the stage under the name of ' Glory.' It was admitted that the plays were substantially the same, and that the defendant's had been obtained from the story, and not from the plaintiff's ' Shop.' The judgment of the court was that no rights, either in the work dramatized or in the plaintiff's play, had been invaded by the defendant's dramatization ; but, by first publishing his composition as a book, an author forfeits the exclusive right to dramatize and to represent it on the stage ; and though he should (a) So in Lee v. Simpson, 3 C. B. 871 ; 4 D. & L. 666, where the de- fendant had purchased the piece which he lepreseuted and believed he had a right to, but on proof by the plaintiff that he, the plaintiff, had the right, the judgment was against the defendant. If the plaintiff had been bound to shew the defendant's knowledge, the protection conceded by the statute would be illusory. (b) L. E. 9 Q. B. 523. MUSICAL AND DRAMATIC COPYRIGHT. 341 afterwards dramatize his own published composition, he can- cap. xi. not thereby bar others from exercising the same privilege. It seems doubtful how far the distinction drawn by the court between the publication of the novelist's drama preceding the novel and succeeding the same is sound. The only way, therefore, according to the authorities, in which it appears possible for an author to prevent other persons from reciting or representing as a dramatic per- formance the whole or any portion of a work of his com- position, is himself to publish his work in the form of a drama, before publishing the novel and thus bring him- self within the scope of the dramatic copyright clauses (a). (a) As to the dramatization of novels, the Royal Commissioners on Copyright in their recent report say : " With reference to the drama, our attention has been directed to a practice, now very common, of taking a novel and turning its contents into a play for stage purposes, without the consent of the author or owner of the copyright. The same thing may be done with works of other kinds if adapted for the purpose, but inasmuch as novels are more suitable for this practice than other works, the practice has acquired the designation of dramatization of novels. The extent to which novels may be used for this purpose varies. Stories have been written in a form adapted to stage representation almost without change. Sometimes certain parts and passages of novels are put boilily into the play, while the bulk of the play is original matter ; and at other times the plot of the novel is taken as the basis of a play, the dialogue being altogether original. " Whatever may be the precise form of the dramatization, the practice has given rise to much complaint, and considerable loss, both in money and reputation, is alleged to have been inflicted upon novelists. The author's pecuniary injury consists in his failing to obtain the profit he might receive if dramatization could not take place without his consent. He may be inj ured in reputation if an erroneous impression is given of his book. " In addition to these complaints, it has been pressed upon us that it is only just that an author should be entitled to the full amount of profit which he can derive from his own creation ; that the product of a man's brain ought to be his own for all purposes ; and that it is unjust, when he has expended his invention and labour in the composition of a story, that another man should be able to reap part of the harvest. " On the other hand, it has been argued that the principle of copyright does not prevent the free use of the ideas contained in the original work, though it protects the special form in which those ideas are embodied ; that a chaDge in the existing law would lead to endless litigation ; and that it would work to the disadvantage both of the author and the public. Upon these grounds, or some of them, a bill introduced by Lord Lyttleton in 1866 and supported by Lord Stanhope was defeated. "We have fully considered all these points, and have come to the conclusion that the right of dramatizing a novel or other work should be reserved to the author. This change would assimilate our law to that of France and the United States, where the author's right in this respect is fully protected. " Were this recommendation adopted, a further question would arise 342 THE LAW OF COPYKIGHT. Cap. XI. Not only an original composition, but any substantially new arrangement or adaptation of an old piece of music is a proper subject of copyright (a). Thepianoforte The pianoforte score of an already existing opera, opera" an whether arranged by the composer himself or by another person, is the subject of copyright ; and as such is entitled to protection, provided the arranger had a right so to use the origiual. The arrangement of the opera score for the pianoforte involves labour as well as intelligence and skill, which constitutes it a new work (b). In Kenouard's ' Traite des Droits d'Auteurs,' tome ii. p. ] 90, pt. iv. ch. 2, p. 78, it is said : " Des arrangemens, variations, valses, contredanses, etc., composes sur un theme, un air, un motif meme, appartenant au domaine public ; des pots-pourris, sorte de compilation musicale, disposes dans un certain ordre et avec certaines liaisons ou transitions, sont-ils des objets de privilege ? Je nhesite pas a croire que la solution affirma- tive resulte des principes generaux sur la matiere, exposes au commencement de ce chapitre. II resulte des memes prin- cipes que ces compositions ne confereront un privilege qu'autant qu'elles supposeront de I'art, du travail, un effort d' intelligence ; qu'elles seront, en un mot, une production de Tespritr And in deciding the point in the last cited case Sir A. as to the time during which this right should be vested in the author, and, in the event of his not choosing to dramatize his novel, whether other persons should be debarred from making use of the story he has given to the world. We are disposed to think that the right of dramatization should be co-extensive with the copyright. It has been suggested in the interest of the public, that a term, say of three or five years, or even more, should be allowed to the author, within which he should have the sole right to dramatize his novel, and that it should be then open to any one to dramatize it. The benefit, however, to the public in having a story represented on the stage does not appear to us to be sufficient to outweigh the convenience of making the right of dramatizing uniform in its incidents with other copyright." Par. 76-81 . (a) So also the arrangement for the piano of quadrilles, waltzes, etc., selected from an opera, is entitled to protection : Atwill f. Ferrett, 2 Blatch. (Amer.) 39. So copyright has been held to vest in a song con- sisting of new words and a new accompaniment written to an old air: Leader v. Purday, 7 C. B. 4. (6) Wood v. Boosey, L. R. 2 Q. B. 340 ; 7 B. & S. 8fi9 ; 36 L. J. (Q.B.) 103; 15 W. R. 309 ; 15 L. T. (N.S.) 530 ; affirmed 9 B. & S. 175; L. K. S Q. B. 223; 37 L. J. (Q.B.) 84 ; 16 W. R. 485; 18 L. T. (N.S.) 105; Boosey v. Fairlie, 7 Ch. Div. 301. MUSICAL AND DKAMATIC COYPRIGHT. 343 Cockburn, C.J., said : " It seems impossible to believe that Cap. xi. any musician, however great his talent, whether as a composer or an executant, from the mere circumstance of having the opera in its entirety before him, that is to say, with all the score for all the instruments, which neither eye nor mind could take in at the same time, could be able to play the accompaniment while singing the music of the opera at the piano. It requires time, reflection, skill, and mind so to condense the opera score as to com- pose the pianoforte accompaniment I cannot, there- fore, bring myself to think that the pianoforte arrangement of the music of an opera, which originally consisted of vocal music and instrumentation to be executed by some half- hundred instruments, can be said to be anything else than a specific, separate, and distinct work from the opera itself. And it seems to me to hold otherwise would lead to very serious consequences. Operas are very frequently ar- ranged, sometimes by the composer of the opera himself, sometimes by other persons, with the consent or without the consent of the original composer. It may be, if the arrangement be made without the consent of the composer of the opera, such an adaptation would be an infringement of his copyright, which would subject the adapter to an action. It is not necessary to decide that. But it may be that, after the copyright has expired, an arrangement for the pianoforte may be made in the first instance, or some musical composer, thinking that an arrangement that already existed of some well-known and popular opera is not as good as it can be made, might apply his hand to the work and make a new arrangement. Can it be said that such an arrangement, useful as regards the musical world, shall not be the subject of protection under the Copyright Acts ? " And on appeal Sir Fitzroy Kelly, C.B. (a), in affirming the decision of the Queen's Bench, clearly pointed out the difference between the pianoforte score and the original score, and the fact that each might be the subject of copy- (o) L. R. 3 Q. B. 223, 229 ; 15 L. T. (N.S.) 530. 344 THE LAW OF COPYKIGHT. Cap. XI. right. " The opera " said he, " is composed and is pub- lished in score, and contains in each line of what is called the entire score, the music for some one particular instru- ment, these instruments being some twenty in number. Now let us come to what the arrangement is for the pianoforte. Undoubtedly there are portions of it which are identical, as in the case before the Exchequer, and might subject, as I have already observed, the author of the adaptation to an action if it had been published without the authority of the author of the opera. But what is the pianoforte arrangement? It is an arrange- ment of the whole of the music of this opera for the pianoforte, a part of which is the ordinary pianoforte accompaniment, the bass and the treble, played with both hands, and which is independent of the melody. There may be, as it appears, the line of music for one voice, or two or three voices, as the case may be ; and there are separate and distinct lines for the accompaniment for the pianoforte ; and no doubt, here and there throughout this accompaniment, and by going line by line through the score of the original opera, there may be found the same notes ; but there are other parts of the accompaniment which are merely the pianoforte accompaniment, the notes forming which are nowhere to be found in the score at all. The accompaniment for the pianoforte is a work of greater or less skill. In some cases, perhaps in many cases — it may be in this for aught I know — the operation of adaptation is little more than mechanical, and what any one acquainted with the science of music, any composer of experience, might have been able to do without difficulty ; but it may be, and often is, as in the case of the six operas of Mozart's, by Mazzinghi, a work — I would hardly use the term of great geniu?, but a work — of great merit and skill of that eminent composer and pianist, Mazzinghi. If such a work be published as the adaptation to the pianoforte by a composer, other than the composer of the original opera, no doubt it is a piracy of the opera, and the composer may maintain an action against the adapter MUSICAL AND DKAMATIC COPYKIGHT. 345 or the publisher of the adaptation : but, whenever the Cap. XI. copyright in the original opera has expired, if after that, and for the first time, another composer composes another adaptation of that opera to the pianoforte, it is a new substantive work, in respect of which he is just as much entitled to the benefit of the copyright in this country, as the original composer of the opera ; and if any one had by an adaptation pirated that arrangement, he would be liable to an action for that piracy. I consider that an infallible test to shew the difference between the one work and the other — between the original opera and the arrangement of it for the pianoforte. It is perfectly clear, therefore, that in point of fact — for it is rather a matter of fact than anything else- — the adaptation to the pianoforte, or the arrangement for the pianoforte, of an opera already published, is itself a new and separate work, and is not one and the same with the original opera (a)." So also with reference to a piece of music called ' Pestal,' which had been played by the military bands in the style of a Russian Polonaise. The plaintiff, in an action for infringement, had got possession of the score, it did not transpire how — set it to words, concocted a thrilling introductory anecdote, and sold the copyright to a music- seller who published it with success. Other publishers arranged new versions of song and verses, for which the proprietor recovered damages. The coincidence between the harmonies and accompaniments in such a case, must be relied on as forming the part alone in which copyright exists. The original composition, if not claimed by any one, becomes public property ; and one person has as much right to publish it as another (b). (a) In this same case Bramwell, B., said : " It has been said that there is nothing inventive on the part of the person who makes the arrangement. In one sense, there is not — that is to say, he neither invents the tune nor the harmony ; but there is invention in another sense, or rather there is composition in the adaptation to the particular instrument. Of that, the adapter is the author, and it is perfectly certain that the man who wanted to arrange this opera for a pianoforte would find it a great deal easier to copy what Brissler had done than to take the score and do it over again. " (6) Leader v. Purday, 7 C. B. 4. 316 THE LAW OF COPYKIGHT. Cap. xi. In Leader v. Cocks, it was held that one who adapts The adapta- words to an old air, and procures a friend to compose an andf™^ accompaniment thereto, acquires a copyright in both paniment to words and accompaniment, and his assignee in declaring for an infringement, may describe himself proprietor of the copyright in the whole composition. So in Ghappell y. Sheard (a), where new words had been adapted to an old American melody known as ' Lillie Dale,' in which there was no copyright, to which was added a symphony and accompaniments, and a cadence at the close, and entitled, ' Minnie,' with a portrait of Madame Anna Tbillon ; and the defendant published a song to the same air, and called it ' Minnie Dale,' with a similar portrait, but different words, and represented it as having been sung by the same lady, whereas in truth this song had never been sung by her, it was held that the plaintiff had obtained a right of property in the name and description of his song, which a Court of Equity, as in the case of dramatic representa- tions and literature, would restrain any person from in- fringing ; and that the publication of the defendant's song was a palpable attempt to induce the public to believe that the song so published was the same as that of the first publisher. In another suit (b), where the facts were nearly similar, and the title 'Minnie, dear Minnie,' it was held to be an obvious attempt to pass off the de- fendant's publication for that of the plaintiff which had obtained the public favour. Neither could the defendant escape his liability by cautioning his shopmen to explain to purchasers that his song was not the same as the plaintiff's ; because he could not secure that retail dealers purchasing from him would give the same information to their customers (e). But the court refused to extend the injunction to restrain the piracy of two bars of music which had been added by the plaintiff to the original air, until the fact had been established by a trial at law. The principle here expressed appears to be that where a (a) 2 K. & J. 1 17. (6) 2 K. & J. 123. (e) See Sylces v. Sykes, 3 B. & C. 441. MUSICAL AND DEAMATIC COPYRIGHT. 347 great resemblance exists between a spurious article and Cap. XI. the genuine, although the articles may not be exactly- alike, yet if there be that which conveys the idea that the article is genuine, whereby the public is deceived, it is a colourable representation of the original, and a piracy of the author's copyright. As each of two or more independent dramas from a common original is entitled to protection, one is not a piracy of another, unless there has been unlawful copying. The 3 & 4 Will 4, c. 15, secures no other right and Eemedy in prohibits no other act than that of representation. The infringements. right secured by this statute is re-affirmed, its duration enlarged, and its application extended to musical compo- sitions by the 20th section of the Act of 1842 ; but the remedies prescribed by the latter statute for the unlawful publication of a book do not apply, and are not extended to the unlicensed representation of a play. For the latter wrong, the penalties given by the statute of William are re-enacted by the 21st section of the 5 & 6 Yict. c. 45. This section gives to the proprietors of the right of dramatic or musical representation or performance, during the term of their interest, all the remedies provided by the 3 & 4 Will. 4, c. 15. By the second section of this latter Act it is enacted, that if any person, during the continuance of the exclusive right of representing a dramatic piece, cause to be represented, without the author's or the proprietor's previous written consent, such production at any place of dramatic entertainment within the British dominions, every such offender shall, for each representation, be liable to the payment of not less than 40s., or of the full amount of the advantage arising from the representation, or of the loss sustained by the plaintiff, whichever shall be the greater damages. These penalties are recoverable by the author or pro- prietor in any court having jurisdiction in such cases in that part of the British dominions where the offence is committed. 348 THE LAW OF COPYEIGHT. Cap. XL When the part taken is material, the plaintiff is not bound to prove actual damage (a). " The positive enact- ment," said Tindal, C.J., in the last cited case, " that every offender shall be liable to an amount not less than 40s., or to the full amount of the benefit derived or loss sustained, shews that damage to the plaintiff is not the test of the defendant's liability, but that 40s., is to be paid, even if there be no actual damage." In a recent case (6), how- ever, Lord Hatherley seems to have thought it necessary to prove damage in order to subject the defendant to the statutory penalty. " The minimum of damages," said he, " to be awarded when the fact of damage and the right to damages have been once established, was no doubt fixed because of the difficulty of proving with definiteness what amount of actual damage had been sustained, by perhaps a single performance at a provincial theatre of a work be- longing to a plaintiff, whilst at the same time his work might be seriously depreciated if he did not establish his right as against all those who infringed upon it." The Copyright The Eoyal Commissioners in their recent report on Sonere ? sug- Copyright say (c) :— " This provision for the 40s. penalty gestions. has lately been much abused. Copyright in favourite songs from operas and in other works has been bought, and powers of attorney have been obtained to act ap- parently for the owners of the copyright in such works, and to claim immediate payment of £2 for the performance of each song. These songs are frequently selected by ladies and others for singing at penny readings and village or charitable entertainments, and they sing them, not for their own gain, but for benevolent objects. In such cases there is manifestly no intention to infringe the rights of any person ; the performers are unconscious that they are infringing such rights, and no injury whatever can be in- flicted on the proprietors of the copyrights. In many cases of this kind, and under a threat of legal proceedings, (a) Planche v. Braham, 4 Bing. N. C. 19 ; and see Chatterton v. Cave, 3 App. Cas. 498. (6) Chatterton v. Cave, 3 App. Cas. 492. (o) Pars. 169, 171, 172. MUSICAL AND DRAMATIC COPYRIGHT. 349 in default of payment, the penalty has been demanded, cap. XI. and we have reason to believe that the money so demanded has been generally paid. Many instances of this pro- ceeding have been brought to our notice from various parts of the country. . . . The amendment in the law which we propose as most likely to preserve control for the composers, and at the same time to check the existing abuse, is that every musical composition should bear on its title-page a note stating whether the right of public per- formance is reserved, and the name and address of the person to whom application for permission to perform is to be made. The owner of such composition should only be entitled to recover damages for public performance when such a statement has been made ; and instead of the minimum penalty of not less than 40s. at present recover- able for any infringement of musical copyright by repre- sentation, the court should have power to award com- pensation according to the damage sustained." It did not seem to them that the abuse above referred to had arisen in the case of dramatic copyright, nor did it seem to them likely to arise so long as the present law of licensing places of dramatic performance exists, and therefore they did not suggest any alteration in the law so far as it applies to that copyright. The third section of the 3 & 4 Will. 4, c. 15, provides Actions to be that all proceedings for any offence or injury under that inl^felve" Act shall be brought within twelve months from the com- months. mitting of the offence, or else the same shall be void and of no effect. This limitation seems to apply only to pro- ceedings for penalties under the Act and not to actions for damages or in equity. It is sufficient in an action upon this statute to describe the offence in the words of the Act ; and it is not neces- sary, in order to constitute the offence, to shew that the defendant knowingly invaded the plaintiff's right (a). The object of the legislature was to protect authors (a) Lee v. Simpson, 4 D. & L. 666 ; 3 0. B. 871 ; Beade v. Lacy, 1 J. & H. 524. 350 THE LAW OF COPYRIGHT. Cap. XI. against the piratical invasion of their rights, and in con- struing the law the Judges have given it the fullest inter- pretation. Therefore in an action of debt to recover penalties under the 3 & 4 Will. 4, c. 15, s. 2, for representing a pantomime, of which the plaintiff was the author, without his license, at a place of dramatic enter- tainment, upon nil debet by statute pleaded, it was held that the plaintiff's undertaking to give material evidence in Middlesex was fulfilled by proof of an offer to sell the pantomime in Middlesex by the plaintiff's agent, acting under his direction (a). Where the plaintiff, as the author of a dramatic work, assigned the " London right " of it to A., the judge at the trial having found that " London right " meant the whole right of representation in London, and that the assign- ment was to A. and his assigns, it was held that the plaintiff could not bring an action for penalties under the 3 & 4 Will. 4, c. 15, in respect of representations in London, except as trustee for A. and his assigns (b). (a) Lee v. Simpson, 4 D. & L. 666 ; 3 C. B. 871. (6) Taylor v. Neville, 47 L. J. Q. B. 254 ; 26 W. E. 299 ; 38 L. T. 50. ( 351 ) CHAP TEE XII. COPYRIGHT IN ENGRAVINGS, PRINTS, AND LITHOGRAPHS. Strange yet true it is, that an art of so much importance Nature and — one which has exercised such an influence on the °™j^ of 4 e refinement of the people, and tended so apparently, yet indirectly, to the formation of the polished character of civilized Europe — should have remained for years without any protection whatever from the legislature. In England, protection was not afforded to the artist until that great engraver and designer, Hogarth, arose like a giant from the most elevated of his associates in the art, and without the aid of his keen and penetrating intel- lect discovered, that, toil and labour how much soever he might, the product of his intellectual genius was by no means regarded as solely his, nor he deemed to have acquired a more permanent property in it, than the pur- chaser or imitator of one of his numerous works of art. Engravings resemble literary works as regards the in- corporeal right in them accruing to the author by the exer- tion of his mental powers in their production ; but differ, as they also require a considerable amount of his manual skill and labour; they are, therefore, his property upon the same general principles as any other manufacture. In handling the present state of the law on this branch of the fine arts we may properly investigate, under one view, the various Acts of Parliament which are particu- larly appurtenant to the collective arts of designing, en- graving, and etching, inasmuch as they, unlike those respecting literary copyright, have not yet been con- 352 COPYRIGHT IN ENGRAVINGS, Cae. xii. solidated. A bill, however, to effectuate this, and to consolidate the whole of the law of copyright in works of fine arts, is certainly now before the House, but when it will become law, if at all, is a matter difficult to determine. Engravings are works having a commercial value, and as sucb have a double claim upon the protection of the legislature. On the one hand, the artist claims that the productions of his genius may be protected, and injury to his fame and reputation, by the circulation of inferior imitations, prevened or guarded against ; and on the other hand, security in the possession of the money value of the creation of his own mind. Fine arts During the reign of the Stuarts the fine arts received encouraged by . ° n n , the Stuarts, more or less patronage, and engraving and other pro- ductive arts began to flourish accordingly. George I. knighted the engraver of the Cartoons. Line engraving, however, had been most cultivated, and the amount of skill required to imitate a plate must have nearly equalled that of its first production ; every stroke of the graver would have to be repeated, so that the pirate could hardly undersell the original ; and from the costliness of this style and its refinement few could afford to purchase, and perhaps, fewer could appreciate. As so much talent had to be spent by the engraver in transferring the forms to a new medium, from the canvas to the copper-plate, the value of the right of engraving to the owner of the picture was small ; and the picture itself, whether a portrait or work of imagination, was executed solely -as an individual work of art. Gradually, however, it became the practice to publish small prints, not for the profit on them, but to assist in spreading the reputation of the painter, and this was done in the case of portraits of public men. Of course the name of the artist was not omitted ; it was attached to the corner, to secure, not, as now, the property in the print, but the fame of the picture. The diffusion of some new mechanic or chemic arts of engraving or etching facilitated this (a). («) Turner on ' Copyright in Designs,' p. 13. PRINTS, AND LITHOGRAPHS. 353 The first Act recognising engraving as an art, and cap. xii. extending towards its professors the protection they so The first unquestionably deserved, was that of the 8 Geo. 2, c. 13, Copyright entitled "An Act for the Encouragement of the Arts of Act. designing, engraving, and etching historical and other Prints, by vesting the Properties thereof in the Iuventors and Engravers during the time therein mentioned." After reciting that " divers persons had, by their genius, industry, pains, and expense, invented and engraved, or worked, in mezzotinto or chiaro-oscuro, sets of historical and other prints, in hopes to have reaped the sole benefit of their labours, and that printsellers and other persons had of late, without the consent of the inventors, de- signers, or proprietors of such prints, frequently taken the liberty of copying, engraving, and publishing, or causing to be copied, engraved, and published, base (a) copies of such works, designs, and prints, to the very great prejudice and detriment of the inventors, designers, and proprietors thereof," it enacted, that from and after the 24th of June, 1735, every person who should invent and design, engrave, etch, or work in mezzotinto or chiaro-oscuro any historical or other print or prints, should have the sole right and liberty of printing and representing the same for the term of fourteen years, to commence from the day of the first publishing thereof, which should be truly engraved with the name of the proprietor on each plate, and printed on every such print or prints. And the Act inflicted on other persons pirating the same " without the consent of the proprietor thereof first had and obtained in writing," the penalty of for- feiting the plate, the sheets on which the prints were copied, together with 5s. for every print so pirated, the one moiety to the king, and the other to any person who should sue for the same. And it further provided, that it should be lawful for any person who should thereafter purchase any plate for printing from the original proprietor, to print and reprint from the said plates without incurring any penalty. Under this Act Lord Hardwicke refused relief to a (a) See Graves v. Ashford, L. B. 2 C. P. 419 2 A 354 COPYRIGHT IN ENGRAVINGS, Cap. xii. person complaining of the piracy of a drawing or design which he had only procured to be made ; " for," said he> " the case was not within the statute, which was made for the encouragement of genius and art ; if it was, any person who employs a printer or engraver would be so too. The statute is, in this respect, like the statute of new inventions, from which it is taken " (a). In Blackwell v. Harper (b) it was held that this Act was not confined to works of invention only, but included the designing or engraving anything already in nature, and that a print published of any building, house or garden fell within its scope. No provision, it will be seen, is in this Act made for the protection of any work of which the engraver is not also the designer ; and this has been accounted for by the fact that Hogarth, by whose influence the Act was introduced, was invariably the designer as well as the engraver of his celebrated works. The second The 7 Geo. 3, c. 38, was made to remedy this over- sight, and protection consequently extended to any person making an engraving from the original work of another. Its title is, " An Act to amend and render more effectual an Act made in the 8 Geo. 2, for Encouragement of the Arts of designing, engraving, and etching historical and other Prints, and for vesting in and securing to Jane Hogarth, widow, the Property in certain Prints." The first section recites that the former Act had been found ineffectual for the purposes thereby intended, and enacts that all and every person and persons who shall invent or design, engrave, etch, or work in mezzotinto or chiaro-oscuro, any historical print or prints, or any other print or prints of any portrait, conversation, landscape, or architecture, map, chart, or plan, or any other print or prints whatsoever, shall have the benefit and protection of the said Act and this Act, under th-3 restrictions and limitation thereinafter (o) Jefferys v. Baldwin, Ambl. 104 ; see Pierpont v. Fowle, 2 Wood. & Min. (Amer.) 46 ; Binns v. Woodruff, 4 Wash. (Amer.) 53. (6) i Atk. 93. Act. PRINTS, AND LITHOGRAPHS. 355 mentioned. The second section enacts that all and every cap. XII. person and persons 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, shall have the benefit and protection of the said Act and this Act for the term thereinafter mentioned (twenty-eight years), in like manner as if such print had been graved or drawn from the original design of such graver, etcher, or drafts- man ; and, if any person shall engrave, print, and publish, or import for sale, any copy of any such print, contrary to the true intent and meaning of this Act and the said former Act, every such person shall be liable to the penalties contained in the said Act, to be recovered as in the said Acts mentioned (a). By the next statute of 17 Geo. 3, c. 57, it was enacted, The third Act. that if any person should within the times limited by the aforesaid Acts or either of them, engrave, etch, or work, or cause, or procure to be engraved, etched, or worked in mezzotinto, or chiaro-oscuro or otherwise, or in any other manner copy in the whole or in part, by varying, adding to, or diminishing from the main design, any copy or copies of 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 whatso- ever, which had been, or should be engraved, etched, drawn, or designed in any part of Great Britain, without the express consent of the proprietor or proprietors thereof, the proprietor should, by a special action on the case, recover damages against the person so offending. The inventor of the subject of an artistic design, al- though himself unable to draw, may nevertheless have a copyright in the design in question, if he has employed another person to make the drawings for him, and communi- cated his ideas to that person (b). But the design must be the production of the party claiming the copyright, and (a) For the defective -working of this Act, see Mr. Corrie's remarks in Beg. v. Powell, the ' Times,' Novemher 10, 1862. (b) Stannard v. Harrison, 19 W. E. 811. 2 a 2 • 356 COPYRIGHT IN ENGRAVINGS, Cap. xil difficulties may occasionally arise as to what constitutes a design within the meaning of the statute. " If," says Mr. Curtis (a), " the party personally engraves the subject of his conceptions, then he is both the inventor and designer ; since he has not only conceived the subject of the picture, but has represented it in a visible form. But if the en- graving is made by another under his direction, it must be made from his ' design ; ' and the question is, whether this term means only the intellectual conception, or work of the imagination, before it is reduced to some visible form, or whether it implies a drawing or other visible representa- tion of the invention, by the hand of its author. Under the American Act of 29 April, 1802, ch. 36, which contained a similar provision, it was held by Mr. Justice Washington, that the party must not only have invented but he must have designed or represented the subject in some visible form, from which the engraver who executes it must have taken the picture (b). The term ' design,' therefore, means the visible form given to the conception of the mind, and must be done by the inventor himself." In the case of Stannard v. Harrison (c), an engraver was examined. He proved that the plaintiff had brought to him his rough sketch or draft, a drawing of the same size as the stone upon which it was to be engraved, pointing out a rough sketch of the forts and towns to give the en- graver an idea ; he furnished him also with a large French map, and some maps published in the ' Times ' and ' Daily Telegraph,' he also gave him notice daily of the earth- works that were made, and produced besides a picture published in the ' Illustrated London News.' The plain- tiff could not draw himself — and the Vice-Chancellor said : " That the plaintiff cannot draw himself is a (a) Copy. 145. (6) Binns v. Woodruff, 4 Washington Eep. (Amer.) 48. The Act of 1802 was in these words : " Any person being a citizen of the United States, or a resident within the same, who shall invent and design, engrave, etch, or work, or from his own works and inventions shall cause to be designed and engraved, etched, or worked, any historical or other print, shall have the sole right," &c. lb. (e) 24 L. T. (N.S.) 570. PRINTS, AND LITHOGRAPHS. 357 matter wholly unimportant if lie has caused other persons C ap, xh . 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 earth- works are thrown up. These he communicates to the man whom he has employed to make a drawing for him Can there be anything more plainly within the words of the Act of Parliament than that Mr. Stannard did himself invent, that he did procure another person to design and draw for him, and do that which he himself could not do ? " In order to vest the copyright of an engraving in the Provisions of designer or engraver of the same, no registration, such as Bt ^\y " is necessary in the case of literary copyright, is required ; complied with. the Acts above enumerated have merely to be strictly complied with. In the first place, it is therefore important that engravings should contain the date of publication and name of the publisher, in order to entitle the party to the penalties imposed by the statute Geo. 2. The reason assigned by the court in Sayer v. Dicey (a) being, " that any person may know when the proprietor's exclusive right ceases, and when, and against whom, he may be guilty of offending contrary to the statute." Lord Hardwicke, in an early case, doubted whether the clause on this subject in the Act ought to be construed as directory or descrip- tive, but he was of opinion that the property was vested absolutely in the engraver, although the day of publication was not mentioned, and compared it to the clause under the statute of Anne, which requires entry at Stationers' Hall, upon the construction of which it has been determined that the property vests although the direction has not been (a) 3 Wils. 60. 358 COPYRIGHT IN ENGRAVINGS, Cap. XIL_ complied with (a). However, it has subsequently been taken for granted by the Court of King's Bench that both the name and date should appear ; the date, Lord Kenyon observed, is of importance, that the public may know the period of the monopoly ; the name should appear, in order that those who wish to copy it may know to whom to apply for consent (b). As to the date. So in Harrison v. Hogg (c) Lord Alvanley differed from Lord Hardwicke, considering the insertion of the name and date essential to the plaintiff's right ; that the correct date is a sine qua non was expressly decided in Bonner v. Field (d). It was an action for pirating a print of the seal of the Countess of Talbot. The plaintiff had been em- ployed by Lady Talbot to engrave this plate for her, which he executed on the 1st of June, 1778, when he took off some impressions for her use. On the following day she gave the plate to the plaintiff, who engraved on the bottom of it, " Drawn and engraved by J. Bonner ; pub- lished on the 1st of June, 1778, as the Act directs." The declaration having stated that the plaintiff was the pro- prietor on the 1st of June, Lord Mansfield nonsuited the plaintiff on the ground that he had no title on the day when he claimed it. The cases were fully reviewed and commented on in the leading case on the subject of Newton v. Cowie (e), and it was held that the proprietor's name and the date of publi- cation must appear on the original print, but that it was not necessary that the designation " proprietor " should be (a) Blackwell v. Harper, 2 Atk. 95 ; Barn. Ch. Rep 210. See Jefferys v. Baldwin, Amb. 164; Boworth v. Wilkes, 1 Camp. 94; Harrison v. Hogg, 2 Ves. Jim. 323 ; Thompson v. Symonds, 5 T. R. 41. (6) Hiompsm v. Symonds, supra; Mackmurdo v. Smith, 7 T. R. 518; Harrison v. Hogg, supra. (c) 2 Ves. Jun. 323 ; Newton v. Cowie, 4 Bing. 234 ; Brooks v. Cock, 3 Ad. & E. 138, 4 N. & M. 652 ; Colnaghi v. Ward, 12 L. J. (N.S.) (Q.B.) 1 ; 6 Jur. 969 ; Bogue v. Houlston, 5 De G. & Sm. 267 ; Graves v. Ashford, 15 W. R. 495 ; Kerr on Injunc. 465 ; Hock v. Lazarus, L. R. 15 Bq. 104 ; 27 L. T. (N.S.) 744. So the proprietor of a foreign print must print his name and the date of publication on the plate as required by 8 Geo. 2, o. 13, in order to claim copyright under the International Copyright Acts: Avanzo v. Mndie, 10 Excb. 203. (d) Cited 5 T. R. 44. (e) 4 Bing. 234 PRINT*, AND LITHOGRAPHS. 359 added to the name ; and that the words on the print Cap. XII. "Newton del., 1st May, 1826, Gladwin sculp.," was a sufficient compliance with the provisions of the 8 Geo. 2, c. 13. Best, C.J., on the occasion saying: "Looking at the subject-matter of the law, at the language employed by the legislature, and the practice which has uniformly been followed by engravers, we cannot hesitate to deter- mine that the proprietors of these prints are entitled to the protection which is afforded by the statutes ; a de- cision we have come to with satisfaction, seeing that they exercise a branch of art eminently useful and which in no slight degree emollit mores, nee sinit esse feros. They contribute also by the same means to the circula- tion of a knowledge of mechanics so necessary to our manufactures, and so useful to the best interests of the country." These essentials, in order to secure to the artist the Engravings or copyright in engravings or etchings when published sepa- published with rately, are not requisite where the engravings form part lettel, -P ress - of a book in which there is copyright ; for the Copyright Act, 1842, gives a copyright in " every volume, part or division of a volume, pamphlet, sheet of letter-press, sheet of music, manuscript, map, plan, or chart, separately pub- lished," and this definition, though it would not, of course, extend to prints or designs separately published, yet is sufficiently comprehensive to include prints and designs forming part of a book. The book is not less a book because it contains prints or designs, or other illustrations of the letter-press. A book must include every part of the book ; it must include every print, design, or engrav- ing which forms part of the book, as well as the letter- press therein, which is another part of it. A plaintiff published a book containing letter-press, illustrated by wood engravings, printed on the same paper at the same time. The defendants published a similar book with dif- ferent letter-press, but containing pirated copies of the wood engravings. The plaintiff, upon motion for an in- junction, proved that he had complied with the requisi- 360 COPYRIGHT IN ENGRAVINGS, Oaf, xii. tions of the Copyright Act, 1842, but had not complied with the Act for the protection of engravings (8 Geo. 2, c. 13), by printing the date of publication and the name of the proprietor on each copy. Vice-Chancellor Parker considered the plaintiff entitled to an injunction, for upon the construction of the 5 & 6 Vict. c. 45, where there are designs forming part of a book in which a person has copyright, such copyright extends to the illustrations and designs of the book, equally as to the letter-press (a). Maps. In regard to copyright in maps, there are two con- current Acts relating to the same thing, the Literary Copyright Act, 1842 (5 & 6 Vict. c. 45), and the series of Acts, viz.: 8 Geo. 2, c. 13; 7 Geo. 3, c. 38; and 17 Geo. 3, c. 57. Maps published together or in connection with letter- press, obviously come within the head " book," and as such are included in the former Act. Maps, charts, or plans, separately published, are within the above Engraving Acts, as also within the 3rd section of the Literary Copyright Act. Viewed in the light of literary efforts they are entitled to copyright under the latter Act during the life of the author, and for seven years after his death, or for the term of forty-two years, as the case may be. Regarded as artistic works under the former statutes they are entitled to protection for an absolute term of twenty-eight years. Yet no action or suit in respect of an infringement of such copyright can be maintained under the 5 & 6 Vict. c. 45, until the author shall have previously registered in the manner prescribed by sec- tion 13 of the Act (b) ; nor under the Acts of Geo. 2 and Geo 3, unless the proprietor shall have printed his name and the day of publication on every copy (e). This appears to be the law on the subject, notwithstand- ing the impression receivable from the unguarded decision in Stannard v. Lee ; and the inference from that case to be (a) Bogue v. Houhton, 5 De G. & Sm. 267 ; Woods v. Highky, 1866, before Vice-Chancellor Wood. (6) Stannard v. Lee, 19 W. R. 615 ; L. R. 6 Eq. 316. (o) Bogue v. Houhton, 5 De Gex & Srn. 267. PKINTS, AND LITHOGRAPHS. 361 drawn would seem to be that if the proprietor wishes to Cap. xii. sue iu respect of an infringement without having registered, he must allege that it is an engraving, or otherwise bring it within the Acts of Geo. 2 and Geo. 3, which do not require registration, for in the event of his alleging he has printed and published " a map," the plea that the map has not been registered will meet the case ; and this under the rule that every allegation is to be taken most strongly against the pleader, and therefore the defendant is entitled to say that the thing which the plaintiff alleged to be a map, was a map within 5 & 6 Vict. c. 45, and consequently required to be registered (a). In Stannard v. Lee (I), where the plaintiffs printed and published on the 21st of July, 1870, a map described as ' No. 1, Stannard & Son's Panoramic Bird's-eye View of France and Prussia, and the surrounding countries likely to be involved in the war, with the railways and strategic positions of each army, and the great fortresses of the Rhine provinces,' and filed affidavits alleging in substance that they had formed a design of publishing maps illus- trating the seat of war, and had " designed a map," and on the date above mentioned had " in accordance with the Acts of Parliament in that behalf," printed and published the said map by the above description, and that they were proprietors of the map ; it was held, that notwithstanding that on the map itself it appeared that Messrs. Packer and Griffin were the delineators and lithographers of the map, there was a sufficient proof under the requirements of the Acts of the plaintiffs' proprietorship, and a motion to dismiss an ex parte injunction obtained against the de- fendant to restrain the infringement of the copyright claimed by the plaintiffs, on the ground, " first, that the plaintiffs were not registered as proprietors under the Act of 5 & 6 Vict. c. 45 ; and, secondly, that it had not ap- peared on the map that they were the proprietors of the copyright, was refused. " The Acts of Geo. 2 and Geo. 3," (a) See Stannard v. Harrison, 19 W. B. 811. (6)23L. T. (N.S.)30B. 362 COPYRIGHT IN ENGRAVINGS, Cap. XII. said Vice-Chancellur Bacon, " are not mentioned in the Act of 5 & 6 Vict. c. 45, and I do not construe that Act as interfering in any way with the previous Acts, and 15 Vict. c. 12, and the rights conferred thereby." The Lords Justices, however (a), were of opinion that the earlier Acts are virtually repealed by the 5 & 6 Vict. c. 45, and that registration is, therefore, a necessary preliminary to a suit for an infringement of copyright in the case of a map separately published. Lord Justice James said: "In this case, if the argument of Mr. Cotton were to prevail, it would lead at once to one of these two results ; either there would be two kinds of maps, — maps published separately and maps forming part of a book, with respect to which there would be two distinct laws of copyright, — or else as to all maps there would be two distinct laws of copyright, one giving a conditional right of property with an unconditional right of action or suit, the other giving an unconditional right of property with a conditional right of action or suit. Either of these states of the law would be strangely inconvenient. " Thus 5 & 6 Vict. c. 45, s. 2, says that a book shall mean and include every map, chart, or plan separately published ; and in the 24th section it proceeds to say that no proprietor of copyright in any book, that is of a map, chart, or plan separately published, according to the defini- tion given of a book, shall maintain an action or suit in respect of any infringement of such copyright unless he shall have previously registered such map, chart, or plan, in the way prescribed by the Act. No very heavy onus on the proprietor — no very difficult step to take before he commences his suit. The words are plain and simple, and there is no reason for saying that the intention of the legislature was different from that which is expressed by the words. The object of the enactment is very clear. Formerly maps have been considered artistic works : now they were to be brought into their proper place as literary works. And rightly so, in my opinion, for maps are (a) Stannard v. Lee, 19 W. K. 615 ; L. K. 6 Ch. 346. TKINTS, AND LITHOGRAPHS. 363 intended to give information in the same way as a book cap. xii. does. A chart, for instance, gives similar information to sailing rules ; maps give instruction as to statistics and history of the country portrayed; they point out the amount of population, the places where battles were fought, the dates when provinces were annexed, as in maps of India, and give other geographical and historical details. It was quite reasonable, therefore, to take them out of the law of artistic works, and to give them greater protection by bringing them under the law of copyright of literary works. There is no inconvenience in giving the natural meaning to the words of the statute, and there would be great inconvenience in the contrary construction. I think, therefore, the plea was well pleaded, and the plaintiffs are not entitled to maintain their suit until they have registered their maps." Vice-Chancellor Bacon, however, evidently adhered to his original decision, or rather to the exposition of the law there given, and in the case of Stannard v. Harrison (a), which was decided after the Lords Justices had reversed his decision in Stannard v. Lee, he explained that they held the map in question not to be protected " because the plaintiff had alleged in his bill that he had invented a design," and published a " map," and the defendants there pleaded, relyiDg on the large interpretation of the word " book " in the last Act, that the statute prohibited the institution of any suit before registration had been per- formed. But in the case then before him the facts were different. The plaintiffs carried on the business of litho- graphers and publishers, and had acquired a reputation as publishers of maps and lithographic views in the nature of maps during the American War, giving bird's-eye views in apparent relief of the seat of war. During the war between France and Germany the plaintiffs published a series of bird's-eye views or plans illustrating the seat of war, of which they sold a great number of copies. On the 1st of September, 1870, the plaintiffs published a bird's-eye view («) 19 W. R. 811 ; 24 L. T. (N.S.) 570. 364 COPYEIGHT IN ENGBAVINGS, Oai-. XII. of Paris and its fortifications under the following descrip- tion : " No. 8, Stannard & Son's Perspective View of Paris and its Environs, shewing all the fortifications and redoubts, together with the lines of defence recently thrown up, and the roads, rivers, and railways communicating with the interior, compiled from the latest official sources by Alfred Concanen." The plaintiffs alleged that this view was duly designed, or caused to be designed and litho- graphed, and was -duly printed and published by them in accordance with the provisions of the several Acts of Parliament made in that behalf, and that the litho- graphed copies of this view were prints within the meaning of these Acts. The defendants were the pro- prietors of a weekly periodical called the ' Gentleman's Journal and Youth's Miscellany,' and with the number of that journal of the 1st of November, 1870, they published a bird's-eye view of Paris and its fortifications, which the plaintiffs alleged was an imitation of their view and an infringement of their copyright. The plaintiffs accord- ingly filed their bill, and on the 19th of November, 1870, a decree was made by consent, by which a perpetual in- junction was granted restraining the defendants from printing, publishing, or selling these views, directing an inquiry as to damages, and ordering the defendants to pay the plaintiffs' costs. The defendants petitioned for a rehearing of the suit, or for leave to file a bill of review on the grounds, amongst others, that the plaintiffs had not registered their alleged proprietorship of copyright in the bird's-eye view in question at Stationers' Hall, pursuant to the 5 & 6 Vict. c. 45, s. 13 ; that the facts in the case were substantially the same as those in Stannard v. Lee; that on the authority of that decision, as the plaintiffs had not before the commencement of the suit registered their alleged proprietorship of the copyright, they were debarred by the 5 & 6 Vict. c. 45, from maintaining the suit, and that that statute precluded the Vice-Chancellor from making the decree, even with consent. PRINTS, AND LITHOGRAPHS. 365 Bacon, V.C., dismissed the petition, refusing to re-open cap. xii. the question, and in the course of his judgment said : — "The case was formerly argued before me upon these different statutes (the statutes of Geo. 2 and Geo. 3), and Mr. Fooks in his argument insisted that the 5 & 6 Vict. c. 45, containing that prohibition against commencing any action or suit until registration had taken place, and there being no evidence that that registration had been made, he was entitled to use that as an objection to the continuation of the injunction which had been granted. I considered the point at the time. I have considered it since, and more especially have I considered the judgment of the Lords Justices, and I am of opinion that that statute has nothing in the world to do with it. That there is no prohibition in the first two statutes I have mentioned is unquestionable ; and although in the case of Stannard v. Lee before the Lords Justices it was held that the design there was not protected for want of registration, that was because the plaintiff had alleged in his bill that he had invented a design and published a map, and the defendant there pleads, relying on the large interpretation of the word ' book ' in the last Act, that the statute prohibited the institution of any suit before registration had been performed. Both the Lords Justices were of that opinion, but the Lords Justices have said nothing in any part of their judgment about the other two statutes except this : The plaintiff's counsel, desiring to save himself by reference to the earlier statutes, they said ' You cannot do that now you are here ; the plea has been filed to your bill, and the plea meets everything that you allege in your bill ; the plea must be either allowed or overruled.' The statutes were the thing relied upon. Every word of the Lords Justices' judgment proceeds upon that ground, and they never considered anything but that. The judgment of Mellish, L. J., puts that in the plainest light. He, as it were, congratulates them on having, by a mere trick, or accident, the good fortune of placing a technical difficulty in the plaintiffs way so as to 366 COPYRIGHT IN ENGRAVINGS, Cap. XII. get the plea allowed ; but there is not a word about any meritorious elements in the case on the part of the de- fendant ; there is not any doubt expressed that the plaintiffs claim in morals and in truth was a perfectly good and just claim. That this was so is seen in another part of the judgment, where the Lord Justice, answering Mr. Cotton, who desired to amend his bill so as to raise that question as to its being an historical engraving, says : ' You ought to file a new bill ; you have yourself put it in the category of maps.' Nothing could be further from my wish and desire, as nothing could be more opposed to the proper discharge of my duty, than to call in question, or to express any doubt, of the correctness of the judgment of the Lords Justices, or to decline to follow it. I am bound by whatever judgment they pronounce. " Upon the question of the prohibition contained in the statute, I can see no application to this case, because there is no prohibition in the two statutes upon which alone the plaintiffs can rely. An argument was addressed to me upon the Shipping Acts ; it is not necessary to pause long upon that in order to see that there is no kind of re- semblance between the two things. It is for the public benefit, for the actual defence of the realm among other things, that certain restrictions should be placed upon dealings in ships, and therefore the legislature has thought fit to lay down certain conditions with respect to which there can be no doubt, and without which having been fulfilled there is no validity in any contract entered into. The court is bound to take notice of all those things there stated which are applicable to the matter. But there are many other statutes; there are statutes, for example, which require notice to be given before an action shall be brought against a magistrate. There has been a very notorious statute in force for a long time, 1 mean the Statute of Frauds, but unless the objection is raised, the court never pays any attention to it. The court does not attend to the Statute of Frauds unless it is pleaded in some way or other. That is a prohibition PRINTS, AND LITHOGRAPHS. 367 of the same kind and degree as that which is contained Cap. xii. in the Act of the 5 & 6 Vict. c. 45, and that is done in ~ order that every man who is dealing with this kind of property, who is the owner of it, should have a place to resort to, to satisfy any inquiries that he may choose to make. There is nothing to induce us to call it a pro- hibition beyond what the necessities of the case require. The new matter which has been discovered consists of the judgment of the Lords Justices, and of facts which have been extracted from Mr. Concanen in his examination, which I do not think maintain the defendant's contention in the slightest degree. All those things now before the court, in my opinion, furnish no reason for a rehearing of this case" (a). As to Christmas cards, the mode in which the copyright Chribtmas should be secured depends to a certain extent on their oards ' nature and general character. Some are of such a nature as that protection may be found under the Engravings Acts of Geo. 2 and Geo. 3 ; or the 25 & 26 Vict. c. 68, if in the nature of a painting, drawing, or photograph ; others again mny be registered under the Ornamental Designs Act, 1842. It matters not whether the person selling the pirated Ignorance no engravings is aware of their being spurious or genuine; for though the 8 Geo. 2, c. 13, imposed, first, a penalty upon any person who should eUgrave, copy, or sell, or cause to be copied or sold, in the whole or in part, by varying, adding to, or diminishing from the main design ; and, secondly, upon persons selling the same, " knowing the same to he so printed or reprinted ; " yet in the 17 Geo. 3, c. 57, the words "knowing the same to be printed or reprinted " are omitted ; and it may, therefore, fairly be inferred that the legislature intended to comprehend even those who were not aware that they were selling base copies (b). (a) Stannard v. Harrison, 24 L. T. (N.S.) 570. (6) West v, Francis, 5 Barn. & Aid. 737 ; 1 D. & E. 400 ; Gambart v. Sumner. 1 L. T. (N.S.) 13 ; 5 Hurl. & Nor. 5 ; Clement v. Maddich, 1 Giff. 98; 5 Jur. (N.S.) 592. 368 COPYRIGHT IN ENGRAVINGS, Cap. xii. The former part of the 17 Geo. 3, c. 57, s. 1, applies to persons who actually make the copy, and who therefore must know it to be a piracy. But the latter branch applies to all persons who import for sale, or sell, any copy of a piratical print. As to what is What is an infringement is, in many cases, a difficult merit.' 1 " 56 " matter to solve. There can be no reason why a person should not be liable where he sells a copy with a mere collusive variation, for a copy is defined to be that which comes so near to the original as to give to every person seeing it the idea created by the original (a). Great solicitude is requisite to guard against two ex- tremes equally prejudicial : the one, that men of ability, who have employed their energies for the service of the community, may not be deprived of their just merits, and the reward of their ingenuity and labour ; the other, that the community may not be deprived of improvements, nor the progress of the arts retarded. The Act which secures copyright to authors, guards against the piracy of the words and sentiments, but it does not prohibit writing on the same subject. As in the case of histories and diction- aries : in the first, a man may give a relation of the same facts, and in the same order of time ; in the latter, an interpretation is given of the identical words. In all these cases the question of fact to come before a jury is, whether the alteration be colourable or not? There must be such a similitude as to make it probable and reasonable to suppose that one is a transcript of the other, and nothing more than a mere transcript. So in the case of prints, no doubt different men may take engravings from the same picture. There is no monopoly of the sub- ject here any more than in the other instances, but upon any question of this nature, the jury will have to decide whether it be a servile imitation or not (b). The first engraver does not claim the monopoly of the use of the picture from which the engraving is made ; he (n) West v. Francis, 5 Bnra. & Aid. 737. See Boworth v. Willtes, 1 Camp. 94 ; Moore v. Clark, 9 M. & W. 692. (fc) Sayre v. Moore, 1 East, 361, u. PRINTS, AND LITHOGRAPHS. 369 says, Take the trouble of going to the picture yourself, but cap. xii. do not avail yourself of my labour, who have been to the picture and have executed an engraving (a). Where an engraving is made of an object in nature, as An engraver of a particular flower or plant, the artist cannot restrain pX™™]™ 10 " any one from executing a similar print of the same flower subject. or plant ; but no one is allowed to copy from the work of another person, each must draw from nature. When it was contended before Lord Hardwicke (b) that some engravings of plants could not be protected, because every herbal-book had prints of those plants in them, he observed : " The defendant, to make out the case he aims at, must shew me that these prints of medicinal plants are in any book or herbal whatsoever, in the same manner and form as they are represented here; for they are represented in all their several gradations, the flower, the flower-cup, the seed-vessel and the seed." So on the same principle if two persons should bond fide make engravings from a perusal of the same text, although there might, and probably would be, a similarity between them, yet each would acquire a copyright in the engraving which he has made. An engraver is invariably a copyist, and if engravings from drawings were not to be deemed within the intention of the legislature these Acts would afford no protection to that most useful body of men, the engravers. The engraver, although a copyist, produces the resemblance he is desirous of obtaining by means very different from those employed by the painter or draftsman from whom he copies : means which require great labour and talent. 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 (a) De Berenger v. Wheble, 2 Stark. N. P. C. 548. (6) Blacltwdl v. Harper, 2 Atk. 94 ; S. C. Barn. 210. 2 B 370 COPYI1IGHT IN ENGRAVINGS, Cap. XII. Engraving Acts extended to Ireland. Engravings . Acts to include lithographs. The right in engravings may be infringed by photography. of his print. If he were to copy from another engraving, he might see how the person who engraved that had produced the desired effect, and so without skill or attention become a successful rival (a). The Engraving Acts were extended to Ireland in 1837. By the 6 & 7 Will. 4, c. 59, it was enacted that, from and after the passing of that Act, if any engraver, etcher, printseller, or other person should, within the period limited for the protection of copyright in engravings, engrave, etch, or publish, or cause to be engraved, etched, or published, any engraving or print of any description whatsoever, either in whole or in part, which might have been or which should thereafter be published in any part of Great Britain or Ireland, without the express consent of the proprietor or proprietors thereof first had and obtained , in writing signed by him, her, or them respectively with his, her, or their own hand or hands in the presence of and attested by two or more credible witnesses, then every such proprietor might, by and in a separate action upon the case, to be brought against the person so offend- ing in any court of law in Great Britain or Ireland, recover such damages as a jury on the trial of such action, or on the execution of a writ of inquiry thereon, should give or assess. The 15 & 16 Vict. c. 12, s. 14, declares that the pro- visions of this Act and the Engraving Acts collectively are 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 indefi- nitely, and the said Acts shall be construed accordingly. It is therefore an infringement of the copyright given by the Engraving Acts to copy by photography, or sell a photographic copy of a print in which a copyright has been acquired under these Acts (&). The question arose not long since. (a) Newton v. Cowie, per Best, C.J., 4 Bing. 246 ; Martin v. Wright, 6 Sim. 297. (b) Oambart v. Ball. 14C.E (N.S.) 306 ; 9 Jur. (N.S.) 1059 ; 11 W. K. 699 ; 32 L. 3. (C.P.) 166 ; Graves v. Ashford, 15 W. B. 495 ; L. E. 2 C. P. 410; 16 L. T. (N.S.) 98; 36 L. J. (CP.) 139. PKINTS, AND LITHOGKAPHS. 371 It was in an action for the infringement by the defendant Cap. XII. of the plaintiff's copyright in two engravings, the one from Eosa Bonheur's ' Horse Fair,' the other from Holman Hunt's 'Light of the World.' It was proved that the plaintiff was the proprietor of these two engravings, and that the defendant had copied them on a very reduced scale by means of photography, and sold a great number of copies. The point was argued before the Court of Common Pleas, and it was unanimously decided that all processes for the indefinite multiplication of copies, whether mechanical or otherwise, were within the Acts for the protection of artists and engravers ; and that when they declare mechanical processes of multiplying copies to be within them, no doubt they would have also thus declared the multiplication by means of photography, if the art of photography had then been known. If the object of the Acts of Parliament on the subject were, not simply to protect the reputation of the artist or the engraver, but to protect him against the invasion of his substantial commercial property in the work of his genius or of his industry, it is plain that he sustains an injury by another offering a photographic copy which is capable of exciting in the mind of the beholder the same or some- what similar pleasurable emotions as would be com- municated by a copy of the engraving itself. The value of the artist's property would be sensibly diminished were the multiplication of copies by means of photography held to be lawful. In the case above referred to, Chief Justice Erie, in passing judgment, said : " In the repre- sentation of ' The Horse Fair,' we feel the same degree of pleasure in looking at the forms and attitudes of the beautiful animals there portrayed, whether we see them in the size in which they are drawn in the original picture, or in the reduced size of the engraving, or in the still more diminished form in which they appear in the photo- graph. . . . The object of the statute, to my mind, was, not merely to prevent the reputation of the artist from being lessened in the eyes of the world, but to secure to 2 b 2 372 COPYRIGHT IN ENGRAVINGS, Cap, xii. him the commercial value of his property, to encourage the arts, by securing to the artist a monopoly in the sale of an object of attraction. ... It seems to me that the making of copies in that way and selling them is within the words as well as the meaning of the Act " (a). Though the language of the statute includes, as we have seen, copies made by mechanical or chemical process, and capable of being multiplied indefinitely, yet it has been doubted whether it would include copies made by hand or designs transferred to an article of manfacture. At the date of the first edition of this work it had not been decided whether the words of the statute would include designs transferred to an article of manufacture (b). The point however arose in the recent case of Dicks v. Brooks (c). Plaintiffs were the publishers and proprietors of a weekly periodical called ' Bow Bells.' Defendants were the proprietors by assignment of the copyright of a print called ' The Huguenot,' engraved from Millais' picture, and of a photograph taken from the print. The plaintiffs had published for their Christmas number of 1877 a chromo- printed pattern for wool-work, called ' The Huguenot,' taken, as they stated, from a Berlin wool pattern which had been imported by a German warehouse. The leading incident of Millais' picture, the farewell of two lovers of different creeds on the eve of the massacre of St. Bar- tholomew, was to be found in the Berlin wool pattern, but a different backgronnd had been introduced, and the colours were not the same as those of the picture. In December, 1877, the defendants issued a circular contain- ing a warning against the sale of any copy of the subject, ' The Huguenot,' without the stamp or imprint of their firm, in whom the sole subsisting copyright existed, and that all such unstamped copies were imitations and unlawfully made. The plaintiffs, alleging that the pub- lication of this circular was a false and malicious libel on (a) This judgment was confirmed on appeal by the Court of Exchequer Chamber. (fc) See remarks of Byles, J., in Gambart v. Ball, 32 L. J. (N.S.) (C.P.) 166, 168. (, c. 13, not applying to an action on the cose brought under 17 Geo. 3, u. 57, see Graves v. Mercer, 16 W. E. 790. DRAWINGS, AND PHOTOGRAPHS. 405 became the proprietor of the copyright in Frith's ' Kail- Cap. xiv. way Station ' and other paintings, and the designs thereof, and also in the copyright in the engravings of such pic- tures. Photographic copies of these engravings were then fraudulently made, and sold for about one-twentieth of the price at which the copies of Mr. Graves's prints were sold. Such photographic copies were exact reproductions of the engravings and of a large size. Upon the 16th of May, 1868, a man named William Banks Prince was convicted by a magistrate at Lambeth of having sold no less than nineteen of the fraudulent photographic copies in question. He was adjudged to pay a penalty of £5 in re- spect of each of the copies sold ; and in default of payment the magistrate, under powers given him by the Small Penalties Act, 1865, sentenced Prince to fourteen days' imprisonment in respect of each of the nineteen offences he had committed by selling the photographic copies. While the magistrate was giving his judgment Prince exe- cuted a deed of composition with his creditors, which con- tained a release from them. That deed was assented to by certain creditors of Prince, and then registered in due form. Not having paid the penalties in which he was convicted he was taken into custody upon a magistrate's warrant, and imprisoned pursuant to his sentences. Thereupon he applied to the Bankruptcy Court for his discharge from custody, upon the ground that the penalties in which he had been convicted were debts, from the payment of which he had been released by the deed of composition executed between him and his creditors. The court held that Prince was entitled to his discharge. From this decision Mr. Graves appealed to the Lords Justices, upon the ground that penalties recovered under the Copyright (Works of Art) Act, 1862, were in the nature of a punishment, and consequently were not released by the composition deed which had been executed between Prince and his creditors. On the contrary, it was argued for the respondent that, inasmuch as under the Copyright (Works of Art) Act the penalties were payable to Mr. 406 COPYRIGHT IN PAINTINGS, Cap. XIV. Graves, they amounted in the aggregate to nothing more — than a debt, which would have been provable under bank- ruptcy, and was therefore released by the deed. But Lord Justice Page Wood held that what Prince had done in selling the photographic copies was throughout the Copy- right (Works of Art) Act treated as an offence, as a fravr dulent act, for which a punishment was to be inflicted. The penalty provided by the Act was not meant to be the measure of damage sustained by the proprietor of the copy- right work which had been pirated, because he was expressly permitted to recover damages by action (in addition to the penalties) under the 11th section of the Act. The object of the Small Penalties Act was merely to provide a simple method of enforcing the payment of penalties not exceeding £5. The penalty given by the Copyright (Works of Art) Act was, in his Lordship's opinion, a punishment for what was in the nature of a criminal offence, and the debtor was therefore not entitled to his discharge from custody unless the penalties were paid. The Lord Justice Selwyn was also of opinion that whether the words or the spirit of the Copyright (Works of Art) Act, under which the penalties had been incurred, were looked at, the order in bankruptcy was wrong, and must therefore be dismissed with costs. By section 10 of the Act, the importing of piratical copies is expressly prohibited, and by the 11th section, besides the penalties and forfeitures to which we have already referred, a remedy by action for damages is given to the injured owner of the copyright ; no limitation as to time within which actions are to be brought is pre- scribed by the Act. The provisions of the International Copyright Act, 7 & 8 Vict. c. 12, are extended to paintings, drawings and photo- graphs, by section 12 of the Copyright (Works of Art) Act, 1862. The Koyal Commissioners in their Copyright report, 1876, felt some difficulty on the subject of photographs. They doubted whether the copyright should be assimi- DRAWINGS, AND PHOTOGKAPHS. 407 lated to that in paintings and pass to a purchaser, or cap. xiv. whether it should remain with the photographer. " When photographs," said they, " are taken with a view to copies being sold in large numbers, it is practically impossible that the copyright in the negative should pass to each purchaser of a copy, and it must remain with the photo- grapher, or cease to exist. On the other hand, the same reasons exist for vesting the copyright of portraits in the purchaser or person for whom they are taken, as in the case of a painting. " Indeed, considering the facility of multiplying copies, and the tendency among photographers to exhibit the portraits of distinguished persons in shop windows, it may be thought that there is even greater reason for giving the persons whose portraits are taken the control over the multiplication of copies than there is in the case of a painting. It therefore becomes a question whether it is not necessary to make that distinction between photo- graphs that are portraits and those that are not, and between photographs taken on commission and those taken otherwise, which we have deprecated in the case of paintings. We suggest that the copyright in a photograph should belong to the proprietor of the negative, but in the case of photographs taken on commission, we recommend that no copies be sold or exhibited without the sanction of the person who ordered them." The Commissioners further thought that the same questions arose in respect of engravings, lithographs, prints, and similar works, and were of opinion that, so far as regards the transfer and vesting of the copyright, these arts should be placed upon the same basis as photographs. In concluding their general report upon the fine arts Artists' they referred to a matter as to which artists say the law fetches'" 1 is disadvantageous to them. Before the artist paints a picture, he frequently finds it necessary to make a number of sketches or studies, which, grouped together, make up the picture in its finished state. These works may be studies expressly made for the picture about to be painted, or 408 COPYEIGHT IN PAINTINGS, ETC. Cap. XIV. they may be sketches which have been made at various times, and kept as materials for future pictures. If after a picture is so composed, the copyright is sold, the artists are afraid that they are prevented from again using or selling the same studies and sketches, as they have been advised that such user or sale would be an infringement of the copyright they have sold (a). The Commissioners doubted whether this fear was well- founded, but as the use of such studies and sketches as they had described could not, in their opinion, result in any real injury to the copyright owner, who has copies of them in his picture in a more or less altered shape, and combined with other independent work, they thought the doubt should be removed, and that the author of any work of fine art, even though he may have parted with the copyright therein, should be allowed to sell or use again his bona fide sketches and studies for such works and compositions, provided that he does not repeat or colour- ably imitate the design of the original work (&). Where an artist has painted a picture on commission, as the copyright is in the commissioner, he may not paint a replica, but where this is not the case, and there is no agreement as to the copyright within the 25 & 26 Vict, c. 68, the artist is at liberty so to do. As to photographs, the copyright in non-commissioned works belongs to the photographer, if reserved in writing, and in commissioned works the negative and the glass on which it is, is usually considered to belong to the photographer, while the copyright belongs to the person who gives the commission. (a) The doubt exists by reason of the terms of the 6th section of the 25 & 26 Viet. c. 68. (6) Par. 118-124. Kcplicas. Copyright in photographs and property in negatives. ( 409 ) CHAPTER XV. COPYRIGHT IN DESIGNS. Calico-printing, the art of dyeing woven fabrics of cotton Copyright in with variegated figures and colours more or less permanent, esl & na - has been practised from time immemorial in India. The art was known to the ancient Hindus and Egyptians. Pliny describes it with sufficient precision. " Eobes and white veils are painted in Egypt," says he, " in a wonder- ful way ; being first imbued, not with dyes, but with dye- absorbing drugs, by which they appear to be unaltered, but when plunged for a little in a cauldron of the boiling dye-stuff they are found to be painted. Since there is only one colour in the cauldron, it is marvellous to see many colours imparted to the robe in consequence of the modifying agency of the excipient drug. Nor can the dye be washed out. Thus the cauldron, which would of itself undoubtedly confuse the colours of cloths previously dyed, is made to impart several dyes from a single one, painting while it boils " (a). Anderson, in his ' History of Commerce,' places the origin of English calico-printing as far back as the year 1676 ; but Mr. Thomson, a better authority, assigns the year 1696 as the date of the commencement of the prac- tice of this art in England, when a small print-ground was established on the banks of the Thames, at Richmond, by a Frenchman. Linen was long ago, and silks and woollen fabrics also have recently been, made the subject of topical dyeing, (a) Pliny, 'Natural History,' lib. sxxv. u. 2. 410 THE LAW OF COPYRIGHT. Cap. XV. upon principles analogous to those of calico-printing, but Avith certain peculiarities arising from the nature of their textile materials. The first Act The first Act granting protection to the inventor of de- o f r des£t i0n si g ns was P assed in 1787 ( the 27 Ge °- 3 > c - 38 )- This Act was followed by the 29 Geo. 3, c. 19, and the 34 Geo. 3, c. 23. But these Acts did not extend to Ireland, nor to fabrics other than linen and cotton, and did not afford any protection to designs on fabrics composed of animal pro- ducts, as wool, silk, or hair, or mixtures of those materials with flax and cotton. The printing on fabrics of animal and vegetable substances, and on mixed fabrics, having subsequently grown up into an important branch of manu- facture, an Act of Parliament was introduced in 1839 (2 Vict. c. 13), by which the same protection was given to designs printed on fabrics of animal substances, or a mixture of animal and vegetable substances, as was afforded to designs printed on fabrics of vegetable sub- stances ; and the provisions of the existing Acts were extended to Ireland. We followed the French in establishing any design rights at all ; and it would be well if we adopted their simple, sensible arrangement for securing them. In the early part of the last, century the French enter- tained more correct notions of the rights of property in designs than the British, and so convinced were they that great benefits would flow from rejecting the claim of the copyist to reap the original designer's profits, that, in 1737 and 1744, laws established a property in designs for the manufacturers of Lyons, and in 1787 the benefits of legal protection were fully established. The basis of the pre- eminence of the French, and the means by which they have attained their unrivalled position in taste, is efficient pro- tection, and it is certainly singular that this fundamental element and primary cause of superiority should have been so long overlooked in this country. Division of We have in England two distinct rights, founded upon the right. different Acts of Parliament, in the application of designs COPYRIGHT IN DESIGNS. 411 — copyright in the application of designs for ornamental Cap xv. purposes, and copyright in the application of designs for the shape and configuration of articles of utility. The former, of which we shall first treat, is regulated by the 5 & 6 Vict. c. 100, amended by 6 & 7 Vict. c. 65, 13 & 14 Vict. c. 104, 21 & 22 Vict. c. 70, and 24 & 25 Vict. c. 73. The 5 & 6 Vict. c. 100, repeals all the previous Designs Copyright in Acts, and enacts that the proprietor of every new and J^™n°*i original design not previously published (a), whether such purposes, design be applicable to the ornamenting of any article of manufacture, or of any substance, artificial or natural, or partly artificial and partly natural, and whether such, design be so applicable for the pattern or for the shape or configuration, or for the ornament, or for any two or more of such purposes, or by whatever means such design may be so applicable, whether by printing or by painting or by embroidery, or by weaving, or by sewing, or by modelling, or by casting, or by embossing, or by engrav- ing, or by staining, or by any other means whatsoever, natural, mechanical, or chemical, separate or combined, shall have the sole right of applying the same to any article of manufacture or to any such substance as afore- said during the respective terms thereinafter men- tioned. The statute does not mention " any article of manufac- ture " being a design, but considers the design to be protected as applicable to the ornamenting of any article of manufacture. The design is always considered different from the "article of manufacture, or the substance to which it is to be applied." (a) As to what amounts to publication, see Cornish v. Keene, Webst. Pat. Ca. 50], 508. See Anon. 1 Chitt. 24; Carpenter v. Smith, 9 M. & W. 300 ; S. C. Webst. Pat. Ca. 530, 536 ; Jones v. Berger, ibid. 550 ; The Howehill Co. v. Neilson, ibid. 718, n. ; Stead v. Williams, 7 Man. & Gran. 818 See Prince Albert v. Strange, 1 H. & Tw. 1 ; Dalglish v. Jarvie, 14 Jur. 945 ; S. C. 2 Mac. & G. 231 ; 2 H. & Tw. 437. In the last cited case it was queried whether the nine months' copyright given by the Act in any designs for ornamenting articles of manufacture dates from the publication of the manufacture or from the publication of the design. 412 THE LAW OF COPYEIGHT. Cap. XV^ Duration of the right. The terms are to be computed from the time of the design being registered. v. VI. vii'i. Class I. Articles of manufacture composed wholly or chiefly of any metal or mixed metals. II. Articles of manufacture composed wholly or chiefly of wood. III. Articles of manufacture composed wholly or chiefly of glass. IV. Articles of manufacture composed wholly or chiefly of earthenware, bone, papier-mache, and other solid substances. Articles of ivory not comprised above (a). Paper-hangings. Carpets. Oil-cloths (6). Shawls to which the design is not applied solely by printing, or by any other process by which colours are or may be produced upon tissue or textile fabrics (c). XI. Woven fabrics composed of linen, cotton, wool, silk, or hair, or of any two or more of such materials, if the design be applied by printing, or by any other process by which the colours are or may hereafter be produced upon tissue or textile fabrics, such woven fabrics being or coming within the description technically called fur- nitures, and the repeat of the design whereof shall be more than twelve inches by eight inches. VII. Shawls, if the design be applied solely by print- ing, or by any other process by which colours are or may hereafter be produced upon tissue or textile fabrics. IX. Yarn, thread, or warp, if the design be applied by printing, or by any other process by which colours are or may hereafter be produced. X. Woven fabrics composed of linen, cotton, wool," silk, or hair, or of any two or more of such materials, if the design be applied by printing, or by any other process by which colours are or may hereafter be produced upon tissue or textile fabrics, excepting the woven fabrics enumerated above (d). XII. Woven fabrics not comprised above (e). XIII. Lace, and any article of manufacture or substance not comprised above. > Five years. The period of three years. The period of nine months. The period of three years. The period of twelve calendar months. (a) By the 13 & 14 Vict. c. 104, s. 8. (fc) By the 6 & 7 Vict. c. 65, s. 5. (c) Norton v. Nicholls, 5 Jur. (N.S.) 1203 ; 7 W. B. 420. (d) Vide Lowndes v. Browne, 12 Ir. Law Bep. 293 ; time of protection extended by 21 & 22 Vict. c. 70. (e) Harrison v. Taylor, 4 H. & N. 815 ; 5 Jur. (N.S.) 1219 ; 29 L. J. (Ex.) 3. Copyright in designs for damasks after the 5th of November, 1850, under the power conferred on the Board of Trade (now the Com- missioners of Patents), by the 9th section for the period of two years, in addition to the term of one year given by the Act. COPYRIGHT IN DESIGNS. 413 By the 13 & 14 Vict. c. 104, s. 9, as amended by the Cap. xv. 38 & 39 Vict. c. 93, the Commissioners of Patents are The commis- empowered from time to time, to order that the copyright sioners of „ , j- i ■ j. i i - - , i Patents em- oi any class oi designs or any particular design registered powered to or which may be registered under the Designs Act, 1842, extend tl,1K - shall be extended for such term, not exceeding the addi- tional term of three years, as the said Commissioners may think fit ; and the said Commissioners have power to revoke or alter any order as may from time to time appear necessary. Whenever any order is made by the said Com- missioners under this provision it must be registered in the office for the registration of designs ; and during the ex- tended term the protection and benefits conferred by the said Designs Acts are to continue as fully as if the original term had not expired. No person is entitled to the benefit of the Act unless Registration the design in respect of which he seeks protection has, orntmentaf 01 previous to publication (a), been registered in accordance purposes. with the Act, and unless at the time of such registration such design has been registered in respect of the application thereof to some or one of the articles of manufacture or substances comprised in the above-mentioned classes, by specifying the number of the class in respect of which such registration is made, and unless the name of such person shall be registered according to the Act as the pro- prietor of such design (b), and unless after publication of such design every such article or substance to which the design is applied has thereon, at the end or edge (a) In Dalglish v. Jarvie, 1 Sim. (N.S.) 336, it is queried whether the term " publication " here used is limited to publication after the design has been embodied and introduced into Bome fabric. (6) The author of any new and original design is to be considered its proprietor, unless lie has executed the work for another person for a good or a valuable consideration, in which case such person is to be considered the proprietor, and is entitled to be registered in place of the author. Every person acquiring for a good or a valuable consideration a new and original design or the right to apply the same to the above-mentioned articles or substances, either exclusively of any one else or otherwise, and every person upon whom the property in a design or the right to its application may devolve, shall be considered the proprietor of the design in the respect in and to the extent to which such property may have been acquired, but not otherwise (5 & 6 Vict. c. 100, «. 5). 414 THE LAW OF COPYRIGHT. Cap. xv. thereof (a) or other convenient place, the letters " Rd.,' together with such number or letter, and in such form as shall correspond with the date of the registration of such design according to the registry in that behalf; and such marks may be put on any such article or substance, either by making the same in or on the material itself, or by attaching thereto a label containing such marks. what suffi- it was formerly held not sufficient registration under the cient rcgistia- , . „ ., .,., no • tion. 17th section, ot an article comprised in class © 01 section 3, to leave with the registrar an article manufactured ac- cording to the combinations relied upon, with an intimation that it was to be applied to class 8, though it might he sufficient as regards articles comprised in class 5. Thus, in a case where the plaintiff had registered a shawl, the component parts of the composition of which were all old, but the combination itself new, by leaving with the registrar one of his shawls, Lord Campbell said : " Take the example of paper-hangings, class 5. A section of the paper having the design impressed upon it would clearly disclose the claim of the inventor, and would fully put the registrar in possession of all the information he ought to have to enable him to perform the duties imposed upon him. But the plaintiff, by leaving one of his shawls with the registrar, gives no information of the nature of his claim, and cannot, we think, he said to have registered his ' design ' " (6). When the question came before Sir W. P. Wood (c) in the previous year he was of opinion that the registration was valid and that the provisions of the Act had been suffi- ciently complied with, but in referring to this judgment in Norton v. Nieholls (d). Lord Campbell, C.J., said : " If the facts before his Honour had been the same as those which were proved at the trial, and upon which we have to (. (JOPYBIGHT IN DESIGNS. 417 Accordingly, directions for registering and for facilitating Cap. XV. searches have been issued (a). Persons proposing to register a design for ornamenting Mode of an article of manufacture must deliver at the Designs re g istration - Office : two exactly similar copies, drawings (or tracings), photographs, or prints thereof, with the proper fees : the name and address of the proprietor or proprietors, or the title of the firm under which he or they may be trading, together with their place of abode or place of carrying on business, distinctly written or printed ; and the number of the class in respect of which such registration is intended to be made, except it be for sculpture. By the 21 & 22 Vict. c. 70 (a), it was declared that Permissible to the registration of any pattern or portion of an article pattern. y of manufacture to which a design is applied, instead or in lieu of a copy, drawing, print, specification, or description in writing, should be as valid and effectual to all intents and purposes as if such copy, drawing, print, specification, or description in writing had been furnished to the registrar under " The Copyright of Designs Acts." The advisability of registering under this section by When advis- sample, or following the former mode of registration, will to d " so ' of course depend upon the nature of the design to be pro- tected. There is a risk either way. There is a risk on the one hand of misdescription of the claim, for though the same nicety is not required in registering patterns or designs, as in describing inventions sought to be protected under the patent laws, yet it is necessary that the party should properly explain the nature of the design he is desirous of protecting, and on the other hand, where the party exercises the option of silence, and merely pro- duces the pattern of his invention, he is exposed to this : — that as by the registration of the sample he has claimed protection in respect of the entirety of what is exhibited on the face of that pattern ; if only a part is used in a (a) These will he found in the Appendix. 2 E 418 THE LAW OP COPYRIGHT. Cap. xv. different combination, he is without the protection which he would otherwise have had (a). When not When a piece of manufacture with a design impressed upon it is registered without any explanation or addition in writing, and that design consists of several parts not necessarily united in configuration, but capable of being severed into independent integral parts, then the design registered is the entire thing, exactly as it is described in the pattern furnished to the registrar ; and such registra- tion is therefore not open to the objection of uncertainty, but is valid according to the foregoing provision. The designer, however, is, as we have already pointed out, under this disadvantage, that when he registers a pattern of material, there is no infringement unless it is exactly copied. If the designer be content with putting a design, which is composed of several parts placed together, but capable of being severed and used in a separate form, upon the register without limitation and without explanation, he claims simply to be the inventor of the entire thing, exactly as it is described in the drawing or pattern which he has exhibited, and all that he can claim to protect against imitation is, that thing in its exact form and relative position and proportions as they appear upon his pattern. Anything, therefore, which is a facsimile of that drawing, any other pattern which is a reproduction of that in its integrity, becomes an infringement. But that which is different in shape and form, or in the relative positions of its several parts, which is not a reproduction of it, as a replica or copy of a picture, would not be an infringement of the thing specified (b). When sample Thus where a sample of an article had been registered Sired, under the 21 & 22 Vict e - 79 > s - 5 > Vice-Chancellor design not Wickens was of opinion that the design so registered would articJepro- n °t be infringed by an article produced upon the same (iucedonsame p r i nc ipl e , if different in style. In the case referred to (e), principle, if r r . J , . , v " different in two patterns, in respect ot which the minngement was style. (a) Eoldsworth v. M'Crea, Law Eep. 2 H. L. 390. (6) Per Lord Westbury in Holdsworth v. M'Crea, L. R. 2 H. L. 388. (el Thorn v. Syddall, 20 W. E. 291. COPYKIGHT IN DESIGNS. 419 claimed, were registered by the plaintiff by the registration cai. X V. of samples in accordance with the above provision, without any written description or specification. These patterns, similar in character, but differing slightly in the water- figure, or moire, consisted of a species of moire or water- pattern, formed by the intersection of two series of bands of lines, which left interstices in a constantly varying manner, through which the white calico was seen, which patterns could be printed in one colour, or in two colours, or in different shades of the same colour. By the crossing or intersection of the two series of bands variable white spaces were left, which formed a moire, or water-figure ; whilst the dark lines of which the bands were composed on crossing one another formed another dark moire, or water-figure, and the whole formed a complete and constantly recurring pattern. The designs of the defendants, the subject of the motion then before the court, which was for an injunction, were formed in a similar manner by the interlacing or inter- section of two series of bands of lines, leaving in places the white calico to be seen through, and by means of the interstices and of the darker parts of the bands, the double moire or water-pattern was produced, exactly in the same manner as in the plaintiff's patterns. The general appear- ance of the patterns of the plaintiff and defendants were similar as respects the method in which the white and dark spaces were left ; but while 'the configuration of the water- figure in the designs of the plaintiff was wavy, the water- figure in the defendants' designs represented a succession of chevrons, or Vandykes, thus forming a visible distinction. For the defendants it was objected that, as the plaintiff had registered his patterns by sample only, without claiming by specification novelty for any particular part, the use of the same principle, producing a different style of design, was no infringement. The Vice-Chancellor thought that the registration of a pattern by registering a sample could not in any degree whatever give the person registering it a monopoly of the mode of producing a 2 E 2 420 THE LAW OF COPYRIGHT. Cap. XV. certain effect, and that plaintiff might have been in a ~ different position if he had specified that the intersection of the bands of lines was the gist of his invention. After referring to the case of M'Crea v. Eoldsworth he con- tinued : " The precise question which was determined after, so much litigation, was that a design, however complex, might become private property by the registration of a sample. It was strongly urged that if a design consist- ing of various parts, new and old, is registered by sample, without anything to disclaim what is old and point out what is new, future designers are put to a most unfair and unreasonable disadvantage, since they cannot tell what is sought to be protected, and have thus the unfair onus thrown upon them of finding out what is really claimed, and avoiding that in future designs. To this all the courts successively seem to have given the same answer : ' It is not thrown upon you to find out what is or is not claimed ; all is claimed, not the separate parts, of which nine-tenths may be new or not, but the whole as one thing.' No exclusive right is claimed to any design which is not as one design substantially connected with that shewn by the sample registered. It seems to me, I confess, that the difficulties raised about the registration of a complex design could have been solved in no other way. After the application, which was to enter a verdict for the defendant, on the ground that the registration of such a complex design was bad in point of law, had failed before three courts, it was discovered that a very minute difference existed between the designs. What was claimed was the particular collocation of the shaded and bordered stars upon the ornamental chain surface. In the defendant's design the star was shifted or moved round, but so that the outward appearance remained exactly the same, and the two things were, for the purpose for which they were manufactured, identical. That the defendant's design was an infringement had been found by the jury without objection, or indeed contest, and the ob- jection that there was no infringement in consequence of COPYKIGHT IN DESIGNS. 421 a small variation between the designs, was never raised cap. XV. till an equity suit, which had stood over to await the ~ result of the proceedings at law, was brought to a hearing. It was then argued, but surely not hopefully, that the defence never insisted upon before through the very long proceedings to try the right, was to be treated at the very last stage as shewing that the plaintiff had no case from the beginning. Lord Justice James, then Vice-Chancellor, disregarded this, as might have been expected ; and the Lord Chancellor on appeal took the same view without hesitation. " But the Lord Chancellor in giving judgment proceeded to point out the futility of the contention if it had been then raiseable. He stated that the words of some of the noble lords who addressed the House on the appeal were to be taken with due reference to the question before them, not in the most literal strictness; but nothing whatever was said by him to throw doubt on the general proposition, common alike to the judgments of the Ex- chequer Chamber, and to the speeches of Lord Chelmsford and Lord Westbury in the House of Lords, that the whole design is claimed when the registration is by sample, and that when there is no reproduction of the whole design there is no infringement ; but that there may be a repro- duction of the whole design, notwithstanding small varia- tions in particular parts of it. " Supposing a design- in stars, arranged in a complicated series of interlacing and recurring curves, so as to produce a striking and pleasing effect to the eye, and the design to be registered by a sample shewing the design in five pointed blue stars on a white ground, a design with six pointed stars in the same arrangement would probably be an infringement, a design with black stars instead of blue might perhaps be an infringement, but a design of rose- buds in the very same arrangement, or of mere circular rings in the very same arrangement, would, I am inclined to think, be no infringement (a), (a) Compare the words in italics of the Lord Chancellor, pp. 424, 425, 422 THE LAW OF COPYRIGHT. Cap. XV. " The proprietor of the registered design might say, ' The real merit, attraction, and novelty in my design is in the series of curves in which the elements of the design, whatever they may be, are arranged ; everything else in my design is well known, obvious, and unattractive.' The answer would be : 'If you had claimed that you might possibly have protected it. But you have claimed a great deal more, and you cannot now disclaim the rest of it for the purpose of putting a subsequent design in the wrong.' I am now dealing with the motion only, and express no final or conclusive opinion, but I am bound to say that the designs complained of seem to me different as wholes from those of the plaintiff, substantially and not colourably different; so different, indeed, that I can fancy an un- biassed person considering them as very much prettier and more attractive than those of the plaintiff. It is said that the principle on which the defendants' effects are produced is precisely the same as that on which the plaintiff's are produced ; that when the plaintiff's design was once known it required taste only, and not inventive- ness or original power of design, to develop it into the defendants' ; that, in fact, the defendants finding the plain- tiffs design attractive determined to work on it, as a thing from which a design different but having analogous attractions, might be developed. Whether these conten- tions are or are not well-founded, I express no opinion, but I may take the fact almost as admitted, I mean to say by the defendants, with reference to their working on the plaintiff's design, but still they constitute in my opinion no case to shew that the plaintiff's patterns registered by sample only ha\ e been infringed by the defendants. The motion therefore fails, and but for the unfortunate and inconvenient rule (derived from another state of practice) that the plaintiff must make such a motion if he intends to ask a perpetual injunction at the hearing, I should dis- miss it : as it is, I can only order it to stand to the hearing." Great care must betaken not to be misled by the above opinion expressed by the learned Vice-Chancellor. The COPYRIGHT IN DESIGNS. 423 latter part expresses more correctly the true ground of his cap. XV. decision, namely, that the designs complained of were different as wholes from those of the plaintiff, substantially and not colourably different; some expressions in the former part of the judgment apparently go beyond that which is warranted by the opinions of the law lords in M'Crea v. Holdsworth, and it is somewhat to be regretted that they even went so far. The true test of the infringement of a design registered by sample is stated by perhaps the highest living authority in the appeal from the decree of Vice-Chan cell or James in M'Crea v. Holdsworth (a). " It is said that because you register a design of this kind for some useful purpose or other in connection with furni- ture, or whatever it may be, and instead of describing your design in words you choose to place your design, for which you seek protection, upon the register in the shape of a part of the article designed, that then you are tied down to that identical article so exhibited, and to the design so exhibited, and are not at liberty to complain of any person making a thing which shall be to all outward appearance exactly the same, and which shall for all purposes for which the thing is manufactured be identical, if the person who has determined to exhibit a design for all practical purposes identical with yours is astute enough to turn a star, or what is called a star in this case, of exactly the same number of foliages or points, in the opposite direction. On the other fabric it is apparently of exactly the same dimensions and effect to the eye, but if looked at by a microscope — which is not the way in which people regard furniture generally — or if looked at with a pair of spectacles very carefully, or looked at closely, not for the purpose of ascertaining its general effect, but so as to see how far a person might escape who was said to have pirated the design, it will be found that he has merely altered the position of the star by two hairs' -breadths. The thing seems to me to be perfectly idle, and it seemed to me once or twice during the course (a) 23 L. T. (U.S.) 445. 424 THE LAW OP COPYRIGHT. Cap. XV. of the argument, that Mr. Ince put the case as it ought ~ to be put, although he did not apparently do so for that purpose. He said, twice or thrice, that it cannot be said to be the same or to the same effect. ' The same effect ' is a very proper mode of describing it. . . . With the un- erring judgment of their own eyes, the judge held and the jury held that these two articles were manufactured of the same stuff, manufactured of the same cloth, manufactured with the star and the chain, in exactly the same situation, as distinguished from position; that they were placed in the same part of the pattern, between the two links of the chain, as it were, the only difference being that the star was a little turned round, so that the point of the link would come between the intervals in the one case and would come upon the spur or projecting part in the other. That being the only difference, and that not being in the least a difference of effect in what was intended to be produced and used for the particular purposes for which it was used, the two tilings were identical, and I do not imagine that anything that was sajd by their lordships in the House of Lords means that if a person simply makes a thing which shall to the outward eye, and for every purpose for which it is usable, be identical with the other, that can possibly be protected. What was said, and very reasonably said, if I may be allowed to say so with respect, in the judgment of the House of Lords, was this : If you choose to protect your chain and star, and the other things which you have here, you must protect them just as they are represented, and you can only protect your pattern as representing exactly what is exhibited, and if there is the least difference of effect in that which is produced by your putting the star in a different situation, or putting it at a wider distance, or the like, which may easily be done with the identical pattern so as to produce an . entirely different effect, all that will be left to the jury, and the jury will have to say whether or not the two things are the same. I do not think it was intended hy their Lord- ships to say that you shall do that ivhich shall have to every COPYRIGHT IN DESIGNS. 425 eye exactly the same effect as that produced in the one case by cap. xv. the plaintiff which may be produced by the defendant, as long as he can slieiv you by a very minute examination, such as is never usual nor desirable, nor in any way likely to be had with reference to those who are purchasing the articles, that you produce by an infinitesimal variation of that hind a difference of pattern which will allow you to escape from doing that which it is just and right to do, namely, assuming the pattern which has been exhibited to be another pattern. This seems to me simply an attempt t to stretch these observations, thrown out as they were by Lord Chief Justice Erie in the first instance, and afterwards by several noble lords in the House of Lords, to a purpose totally and entirely distinct from any possible purpose to which they were meant to be applied. It seems to me all that was meant was, you are not bound, as you are in pateDt cases, to distinguish the new from the old. In this particular case you have part of the pattern, namely the chain, which is altogether old ; you have another part of it which is found by the jury, in combination with this chain pattern, to be new ; and you are allowed to have this new pattern without distinguishing what is new and what is old; but if you choose to put it in that way and present it to the public without distinguishing what is new and what is old, you cannot expect to be protected as against the public in case they choose to use the portion you use in any manner substantially differing from your use of it. If they are used in exactly the same manner, as I hold they are in this case, and have the same effect, or nearly the same effect, then of course the shifting or turning round the spurs of the stars in this particular case cannot be allowed to protect the defendant from the consequences of the piracy." The appointment and duties of the registrar are set The appoint- forth in the 5 & 6 Vict. c. 100, ss. 14, 15, and the 6 & 7 ^'orthe Vict. c. 65, ss. 7-9. Under this last section a discre- registrar. tionary power is conferred upon him of refusing to register under the latter Act if it should appear to him that the 426 THE LAW OF COPYRIGHT. Cap. XV. design brought to him for that purpose would more pro- perly be registered under the former ; and further, he is at liberty to exercise his discretion in refusing to register any design which is not intended to be applied to any article of manufacture, but only to some label, wrapper, or other covering in which such article might be exposed for sale, or any design which is contrary to public morality or order ; subject, however, to an appeal to the Privy Council. Power to If in any case in which the registration of a design is drawhi^s^&o 1 1 * e( l uire d to be made under either of the Designs Acts, it in certain appears to the registrar that copies, drawings, or prints, as ' ; required by those Acts, cannot be printed, or that it is unreasonable or unnecessary to require them, he may dispense with such copies, drawings, or prints, and may allow in lieu thereof such specification or description, in writing or in print, as may be sufficient to identify and render intelligible the design in respect of which registra- tion is desired. Whenever registration shall be so made in the absence of such copies, drawings, or prints, the registration is to be valid and effectual to all intents and purposes as if such copies, drawings, or prints had been furnished (a). After the design has been registered, one of the two copies, drawings (or tracings), or prints, will be filed at the office, and the other returned to the proprietor with a certificate annexed, on which will appear the mark to he placed on each article of manufacture to which the design shall have been applied (b). ,, ,.„ . , This certificate, in the absence of evidence to the con- Oi'tificate ol ' registration, trary, shall be sufficient proof of the design, and of the name of the proprietor therein mentioned, having been duly registered ; of the commencement of the period of registry ; of the person named therein as proprietor being the proprietor ; of the originality of the design, and of the provisions of the Copyright Designs Act, and of any rule under which the certificate appears to be made having (a) 13 & 14 Vict. c. 104, s. 11. See 38 & 39 Vict. c. 93. (b) 5 & 6 Vict. c. 100, ss. 15, 16. COPYRIGHT IN DESIGNS. 427 been complied with. And such certificate may be received Cap. XV. in evidence without proof of the handwriting of the signa- ture thereof, or of the seal of the office affixed thereto, or of the person signing the same being the registrar or deputy registrar (a). If the design is for an article registered under class 10, The registra- no mark is required, but there must be printed on such tion mark ' article, at each end of the original piece thereof, the name and address of the proprietor, and the word " Kegis- tered," together with the years for which the design is registered (b). This alteration in the mode of marking the design for articles registered under class 10, was effected by the 4th section of the 21 & 22 Vict. c. 70. If the design is for sculpture, no mark is required to be placed thereon 'after registration, but merely the word " Registered " and the date of registration. If the design is for provisional registration, no mark is required to be placed thereon after registration, but merely the words "Provisionally registered " and the date. Any person putting the registration mark on a design penalty for not registered, or after the copyright thereof has expired, wrong 1 " 1 or when' the design has not been applied within the United registration Kingdom, is liable to forfeit for every offence £5 (e). m The provisions of the Copyright of Designs Act will be construed strictly, and should any copies of a registered design be sold without bearing the registration mark when necessary, and the name, address and date as provided by the Acts — protection will be lost. This case arose under the 6 & 7 Vict. c. 56, on a bill being filed by Mr. Pierce, described as the proprietor of a newly invented chair called " the registered royal step chair," against the defendants, who were furniture manufacturers, to restrain (a) 5 & 6 Viet. u. 100, s. 16. See 13 & 14 Viet. c. 104, ss. 12-14, and 38 & 39 Viet. c. 93. And an action lies for false representation as to the registry of a design : Barley v. Walford, 9 (J. B. 197. (b) Harrison v. Taylor, 3 H. & N. 301, reversed (Ex. Ch.) 4 H. & N. 815 ; 29 L. J. (Ex.) 3 ; 5 Jur. (SS.) 1219. (c) 5 & 6 Vict. c. 100, s. 11 ; Barley v. Walford, 9 Q. B. 197. See Rodgers v. Nowell, 5 C. B. 109. £10 by 21 & 22 Vict. c. 70, s. 7. 428 THE LAW OF COPYKIGHT. Cap. XV. the sale of certain articles of furniture described as improved combined chair and steps, used principally for , library purposes. The defendants, by their answer and the evidence, contended that the article was not a new invention, but that similar articles of furniture had been made and sold by them and others in the trade long before the registration of this particular article. In addition, they said that the plaintiff had sold some of the articles without having the word " registered " attached to them with the date of registration. It was given in evidence by a person who had been in the employ of the plaintiff, that he was his foreman at the time of the registration of the design, the 13th Nov. 1867. That, as such foreman, he had forwarded on the 15th Nov. 1867, an order to a die- cutter at Sheffield for a die to be made for stamping oval metal plates which should have on them the words "Alfred E. Pierce, 109 Hatton Garden, London," and also the word " registered " and the date of the registration, the " 13 Nov.- 1867," and also for the striking off and stamping 2000 of such plates to be delivered to plaintiff in London. That none of the said plates were delivered to the plaintiff until the 31st January 1868, when a packet containing 100 of such oval metal plates was delivered to him. That before the delivery of the said 100 plates there were not on the business premises of plaintiff any similar plates. That between the date of the said plaintiffs registration of his said design and the 31st Jan. 1868, a large number of combined chairs and steps made according to said plaintiff's said registered design, and amounting to upwards of fifty, were sold by plaintiff and delivered to various customers [the names of several of such customers were set out], and that they had not on them the word " registered " or the date of registration, but that all the said combined chairs and steps had on them an oval metal plate having on it the words " Alfred E. Pierce, patentee, 109 Hatton Garden, London," with the royal arms in the centre. The question was whether, under the circumstances, the COPYRIGHT IN DESIGNS. 429 plaintiff could obtain the relief prayed. For him it cap. XV. was contended that the spirit of the Act had been fully complied with, but the Vice-Chancellor Giffard said he considered the words of the 3rd section of the Act too clear for argument. It was a statute which must be rendered strictly ; and therefore from the fact contained in the evidence, which was not denied, that plaintiff had sold many of these articles without the word " registered " or the date of registration attached to them, he must dismiss the plaintiff's bill with costs (a). But although a bill to prevent an infringement did not allege that the requirements of the Acts had been com- plied with, yet the Master of the Bolls held, that the bill was not on that ground alone open to demurrer (6). And it has been held that the copyright of a registered design is lost if the proprietor (whether English or foreign) sells the registered article even abroad without the letters, " Ed." being attached thereto, as required by the 5 & 6 Vict. c. 100, s. 4, and 24 & 25 Vict. c. 73 ; and so the benefit of the Acts is forfeited unless the proper registra- tion marks are attached to all articles and substances to which the design is applied, whether the same are sold abroad or in the British dominions (e). All designs of which the copyright has expired may be The registra- inspected at the Designs Office (d) on the payment of the '™ t ° ° proper fee ; but no design, the copyright of which is inspection, existing, is, in general, open to inspection. Any person, however, may, by application at the office, and on produc- tion of the registration mark of any particular design, be furnished with a certificate of search, stating whether the copyright be in existence, and in respect of what particular article of manufacture it exists ; also the term of such copyright, the date of registration, and the name and address of the registered proprietor thereof (e). (a) Pierce, v. Worth, 18 L. T. (N.S.) 710. (6) Sarazin v. Hamel, 32 Beav. 145 ; 9 Jur. (N.S.) 192 ; 32 L. J. (Ch.) 378—380 (e) Sarazin v. Hamel, 32 Beav. 151 ; 9 Jur. (N.S.) 192 ; 32 L. J. (Ch.) 380. (d) No. 1 Whitehall, S.W. (e) 5 & 6 Vict. c. 100, s. 17. Et vide 6 & 7 Vict. c. 65, B . 10. 430 THE LAW OF COPTEIGHT. Cap. XV. Any person may also, on the production of a piece of the manufactured article with the pattern thereon, toge- ther w ith the registration mark, be informed whether such pattern, supposed to be registered, is really so or not. As this mark is not applied to a provisional registered design, or to articles registered under class 10, certificates of search for such designs will be given on production of the design, or a copy or drawing thereof, or other necessary information, with the date of registration. The transfer In case of transfer of a registered design, whether pro- to register 17 visionally or completely, a copy of the certified copy same. thereof must be transmitted to the registrar, together with the form of application properly filled up and sigDed. The transfer will then be registered, and the certified copy returned. The following may be the form of transfer and authority to register : — " I, A.B., author [or proprietor] of designs No. having transferred my right thereto [or, if such transfer he partial], so far as regards the orna- menting of [describe the articles of manu- facture or substances, or the locality, with respect to which the right is transferred], to B.C., of , do hereby authorize you to insert his name on the register of designs accordingly " (a). The following may be the form of request to the regis- trar : — " I, B.C., the person mentioned in the above transfer, do request you to register my name and property in the said design as entitled [if to the entire use] to the entire use of such design [or, if to the partial use], to the partial use of such design, as far as regards the application thereof [describe the articles of manufacture, or the locality, in relation to which the right is transferred]." (a) The form of transfer may be varied at pleasure ; no particular form is imperative. COPYRIGHT IN DESIGNS. 431 The transfer of the copyright of a design must be in Cap. XV. writing, as must also any partial assignment or licence (a). Transferor The tith section of the Act provides that every person licence to be purchasing or otherwise acquiring the right to the entire or partial use of any design may enter his title in the register, and any writing purporting to be a transfer of of such design, and signed by the proprietor, shall operate as an effectual transfer, and it is further provided that the registrar shall on request aud the production of such writing, or in the case of acquiring such right by any other mode than that of purchase, on the production of any evidence to the satisfaction of the registrar, insert the name of the new proprietor in the register. Upon this section and the 3rd and 5th sections of the Act it was that the Master of the Eolls, in the case of Jewitt v. Echhardt (a), decided that an assignment must be in writing. " My reason," says Sir George Jessel, " is, that when you come to look at the framing of the Act of Parliament it stands in this way : the 3rd section provides that the proprietor of a design shall have the sole right to apply the same to any articles of manufacture for a certain term of years. Then when you come to the 5th section it makes the proprietor who is to have this sole right not merely a sole proprietor but a limited pro- prietor including, as I read it, a licensee. The words are : ' Every person acquiring for a good or a valuable con- sideration a new and original design, or the right to apply the same,' which is the same thing for the purpose of the Act of Parliament, 'to any one or more of the articles registered, or any one or more substances,' — you can divide it in that way, and can give a right to apply it to certain articles and not to others — 'every person upon whom the property in such design or such right to the application thereof shall devolve ' — it may devolve on an executor and so on — ' shall be considered the proprietor of the design.' Therefore a licensee does acquire the right to a design as well as an assignee, so that a partial assignee, or a total assignee, or any person upon whom the right (a) Jewitt v. Eckhardt, 8. Oh. Div. 404; 2G W. E. 415. 432 THE LAW OP COPYRIGHT. Cav, xv. may devolve, whether executor or administrator, is also within the Act. Then it gives the person the right, not as proprietor according to the 3rd section, but to the extent to which his right may have been acquired, but not other- wise. It is a kind of supplement to, or interpretation of, the 3rd section. He shall have the sole limited right, or the limited sole right. It is not absolutely exclusive, but only to the extent of excluding other persons who have not any share of the right at all, and no further. But as I read the 6th section it provides that the person purchasing or otherwise acquiring the right to use any such design ' may enter his title in the register hereby provided, and any writing purporting to be a transfer of such design and signed by the proprietor thereof, shall operate as an effectual transfer ; and the registrar shall, on request and the production of such writing, or in the case of acquiring such right by any other mode than that of purchase, on the production of any evidence ' — that is, devolution, such as death or administration — 'to the satisfaction of the registrar,' enter it on the register. Now what is the entering on the register ? ' 'I, A.B., author or proprietor of design No. , having transferred my right thereto, &c.' That shews it is a design already registered. You cannot enter on the register a transfer of any design not registered, and that transfer must obviously be in writing, because the writing is produced to the registrar. So that whenever you get a partial assign- ment, or a licence, or a devolution by law after the registra- tion, it obviously must be in writing." No time should be allowed to elapse between a transfer and its registration ; for, in case of the bankruptcy of the registered proprietor of a design, after the execution of a transfer and before registration of such transfer, the copy- right of the design would probably be considered in the order and disposition of the bankrupt, and would therefore pass to his trustee (a). An original A new combination of old patterns may be a new and combination a proper subject („) s ee Longman v. Tripp, 2 Bos. & Pul. New E. 67 ; Hesse v. Slevemon, of registration. 3 b os . & p u l. 565 ; Re Dilworth, 1 Dea. & Chitt. 411. COPYRIGHT IN DESIGNS. 433 original design, and as such would be a proper subject of Oaf. XV. registration. This was determined in the Exchequer Chamber, on appeal from the Court of Exchequer, in the case of Harri- son v. Taylor (a). The plaintiff registered, under the 5 & 6 Vict. c. 100, a design for ornamenting woven fabrics. The design was applied to a fabric woven in cells, called " The Honeycomb Pattern," and it consisted of a combination of the large and small honeycomb, so as to form a large honey- comb stripe on a small honeycomb ground. Neither the large honeycomb nor the small honeycomb was new, but they had never been used in combination before the plain- tiff registered his design. Other fabrics had been woven with a similar combination of a large and small pattern. In an action against the defendant for infringing the plaintiffs copyright it was held that the plaintiff's design was a " new and original design " within the meaning of the 5 & 6 Vict. c. 100. But where four old designs were respectively applied to three ribbons and to a button, and the three ribbons were then united by the button so as to form a badge, it was held that such union did not amount to a new design within the above statute (&). A. registered as " a design " within class 12, sect. 3, of the 5 & 6 Vict. c. 100, a pattern of a woven fabric. He gave no written description of his claim. The design con- sisted of six pointed stars on an Albert chain arranged in a particular manner, and shaded, and he claimed " the particular collocation of the shaded and borrowed stars upon the ornamental chain surface, as shewn in the registered pattern, thus forming together the ornamenta- tion of the woven fabric." B. slightly altered the com- (o) 3 H. & N. 301, reversed (Ex. Ch.) i H. & N. 815 ; 29 L. J. (Exch.) 3 ; 5 Jur. (N.S.) 1219. (6) Mwlloney v. Stevens, 10 L. T. (N.S.) 190. A claim to a monopoly in a design registered under the 6 & 7 Vict. c. 65, for the shape or con- figuration of the body of a four-wheel dog-cart was rejected, because the design consisted only of an arch in the fore part of the carriage, made a little higher than that in ordinary use, to permit the convenience of larger fore wheels : Windover v. Smith, 11 W. E. 323 ; 32 Beav. 200 ; 32 L. J. (Ch.) 561 ; 9 Jur. (N.S.) 397 ; 7 L. T. (N.S.) 776. 2 P 434 THE LAW OF COPYRIGHT. Cap. XV. bination, but not so as to affect the general appearance of the pattern, and it was adjudged that this was an infringe- ment of the pattern registered (a). But the com- In the Queen v. Firman (b) it was decided that the result beone design °^ simultaneously applying two old and known designs to and not a the ornamenting of a button might be a new and original combination to b8 protected as a design ; but the result of the combination to be protected as a " design " must be one design and not a multiplicity of designs (c). Therefore where a claim was made in respect of a design of a shawl, and it was contended that there were five points in respect of which the shawl was new and entitled to protection — first, a reversible cloth, with the two sides of different texture and colours ; secondly, a scollop pattern in parts of the shawl ; thirdly, a particular border round the shawl ; fourthly, a particular configuration of the corners of the shawl ; fifthly, a newly invented fringe to surround the shawl ; and the evidence clearly shewed that all these five points, or " designs," had been in public use and had been applied to shawls before the registration of the plaintiff's shawl, but that the combination of them in the plaintiff's shawl was new ; the court held that such a combination was not a " design" within the meaning of the Act of Parliament. " The five points relied upon," said Lord Campbell, C.J., " being all old, no distinction is to be made between them and any other in the texture, configuration, or ornaments of the shawl. Therefore the combination supposed to constitute the design which the plaintiff now seeks to protect comprehends all that is to be discovered on both sides of the shawl, colour as well as shape. . . . The design is always to be considered different from the ' article of manufacture or the substance to which it is to be applied.' This is particularly to be observed in sect. 3, in which the articles of manufacture are enumerated to which the design is to be applied. Among these (a) M'Crea v. Boldsworth, 23 L. T. (N.S.) 444. (6) Cited in Harrison v. Taylor, 3 H. & N. 304. (c) Norton v. Nicholls, 5 Jur. (N.S.) 1202, 1205. COPYEIGHT IN DESIGNS. 435 (classes 7 and 8) are ' shawls,' the ' shawl ' is not the Cap. XV. ' design,' but ' the article of manufacture to which the design is to be applied.' An ornament for a lady's gown may well be a ' design,' to be protected, although the ornament be the result of a new combination of lace and ribands; but the gown itself could hardly be such a ' design,' although it be granted that the component parts and ornaments, before well known separately, are arranged according to a fashion entirely new. Such an extension of the statute is quite unnecessary for the object which the legislature seems to have had in view, and we need not point out the great public inconvenience which would arise if we were to put such a construction upon it " (a). The mere copy of a photograph of a well-known public Copy of character, which is common to all the world, is not "a new oJ^eiTtnown and original design " within the meaning of the Act. public Thus where, in the case of Adams v. Clementson (&), the a „ ew design. plaintiff, who was a manufacturer of earthenware, claimed an injunction to restrain the defendant, who was in the same line of business, from infringing his copyright in a design which he had registered under the 5 & 6 Vict. c. 100, and it appeared that the design consisted of a portrait of General Martinez de Campos, Captain General of Cuba, copied from a photograph which had been sent to the plaintiff from Cuba, and which had been applied by him to plates and other articles of earthenware which had been sent out to Cuba for sale ; and that the defendant had received an order for a supply of earthenware and been furnished with a similar photograph of the General, an injunction was refused. The 7th section of the 5 & 6 Vict. c. 100, enacts, for Remedies for preventing the piracy of registered designs, " that during the right in the period of any such right to the entire or partial use of de3 is ns f ° r any such design, no person shall either do or cause to be purposes. done (c) any of the following acts, with regard to any articles (a) Norton v. Niclwlls, 5 Jur. (N.S.) 1203 ; 1 El. & E. 761 ; 7 W. R. 420. (b) W. N. (1879) 32. (e) Mallet v. Howiti, W. N. (1879) 107. 2 Y 2 436 THE LAW OF COPYKIGHT. Cap .XV. of manufacture or substance, in respect of which the copy- right of such design shall be in force, without the licence or consent in writing of the registered proprietor thereof" (that is to say) : — No person is to apply any registered design, or any fraudulent imitation thereof, for the purpose of sale, to the ornamenting of any article. No person is to publish, sell, or expose for sale, any article to which a pirated design, or any fraudulent imitation of a registered design, shall haye been applied, after the person has received verbally or in writing, or otherwise, from any source other than the proprietor, notice that his consent has not been given to such application, nor after the person has been served with or had left at his premises a written notice signed by the pro- prietor or his agent. Under this section it has been held that a manufacturer of an article within the provisions of the Act is bound to inquire whether the design has been already registered. In the case referred to (a) the defendant was not a manu- facturer, but a lace merchant, who bought the undressed lace from manufacturers and then caused it to be dressed and completed ready for sale. He had received a pattern of lace sent him by letter of the plaintiff's registered design, which he had sent with other designs to the manu- facturer. He had only sold one parcel of the lace com- plained of when he received notice that the same was registered, and stopped the sale. The court being of opinion that the defendant's design was an imitation of the plaintiff's, the only question was, whether what had been done by the defendant came within the section under con- sideration, and the Master of the Eolls held, that the de- fendant, though not the actual manufacturer, had " caused to be applied " the plaintiff's design within the meaning of the 7th section, and that this amounted to piracy. (a) Mallet v. Howitt, W. N". (1879) 107. COPYKIGHT IN DESIGNS. 437 The words of the old Act rendered it necessary that the Cap. XV. proprietor should prove that the offending party exposed the pirated goods for sale, knowing that the proprietor had not given his consent ; and the proof by the proprietor of this knowledge on the part of the offending party was more than the proprietor could, in general, adduce. The objectionable words are omitted in the above clause, and in their stead are substituted the words relative to notice. A notice under this section is not sufficient unless it expressly state that the proprietor of the design has not given his consent to the application of the design ; and whether he intends to sue either for- the application of the design to an article of manufacture or for the sale of such article with the design applied. It should also specify the real claim intended to be made. Thus where a notice was addressed to the defendants, both as manufacturers who had applied the design to articles of manufacture, and as retail dealers who had sold articles of manufacture to which the design had been applied by others, and stated, that if the defendants either applied the design to an article of manufacture, or sold an article of manufacture with the design applied to it, the plaintiff would sue them; it was held that a sufficient notice had not been given under this section, the court being of opinion that it was not tantamount to a notice that he had not given his consent to the application of his design to the manufactured article, and that such notice was perfectly consistent with the fact of his having actually given his consent, and could not be considered the per- formance of a condition introduced to save retail dealers from very serious liability (a). In order to establish a case of piracy under these provi- sions, the plaintiff must prove that the alleged piracy is an application or a fraudulent imitation of his registered design. In a late case (b), it was contended by the defendant (a) Norton v. Nicholls, 5 Jur. (N.S.) 1203. (6) M'Crea v. Holdsworth, 2 De G. & Sm. 496 ; 2 Jur. 820. 438 THE LAW OF COPYEIGHT. Cap. XV. As to what is a subject proper for registration under the Designs Act. that this 7th section must be taken in conjunction with the 3rd section, and must be held to restrict the expression, "sole right to apply the same," to an application for the purpose of sale during the pei-iod of the protection afforded by the Act, and in answer to this contention on the part of the plaintiff it was argued that if the privilege were thus restricted, it would lose a great part of its value, in- asmuch as the period during which protection is afforded by the Act might be employed in preparation for the purpose of selling piracies at the very moment when the period expired. The Vice-Chancellor, however, thought that the manufacture, although without the intention of selling within the period, was a piracy within the meaning of the Act. The 3rd section conferred the title. The 7th section must be read in conjunction with the 8th, which provided for the recovery of penalties in the cases specified. He did not consider the legislature intended the Act to be construed according to the argument of the defendant. Ignorance of the registration of the design does not excuse the piracy. The above section is extended by 6 & 7 Vict. c. 65, s. 2, to designs for articles of manufacture having reference to some purposes of utility, so far as the design shall be for the shape and configuration of such article. Where the design was of a new ventilator, consisting of an oblong pane of glass fixed in a frame, which was inserted into an ordinary window-frame, and was hinged at the top, so as to open and admit the air, by means of a screw acted upon by cords passing over its head, and having a half- pane of glass fixed in the lower portion of the frame in which the ventilating frame ended, so as to prevent a downward draught, the claim of the inventor was said to be for the general configuration and combina- tion of the parts, some of which were not original. This was held not to be a design for the shape and configuration of an article of manufacture within the 6 & 7 Vict. c. 65, and therefore not the subject of registration ; and a convic- COPYRIGHT IN DESIGNS. 439 tion for the infringement of such a registered design was Cap. XV. quashed for want of jurisdiction (a). Erie, J., in giving his opinion that the invention was not within the meaning of the statute, said : " It is a combination of means for the purpose of easily admitting air and avoiding a downward draught, and there is a skilful combination of means to produce this result. But the particular shape or configura- tion is accidental and wholly unimportant, and unconnected with the purpose to be attained. An oblique pane is of no particular use ; a square or circular pane, and a straight or curved screen, would produce the same result. If the prosecutor relies on the shape or configuration as producing a useful result, he fails in making out that the defendant has infringed his right, because there is no doubt that the shape of the defendant's invention varies materially from that registered by the prosecutor: in the one the pane being nearly square and in the other oblong, and the screw being straight in the one, and crooked in the other. The prosecutor intended to protect a combination of means producing a useful result, and that is within the law relating to patents, and not within statute 6 & 7 Vict. c.65" (6). Again, the design of a " protector label," which consisted in making in the label an eyelet-hole, and lining it with a ring of metallic substance, through which a string attach- ing the label to packages passed, was held not to be within the protection of this statute (c). But the design of a newly invented brick, the utility of which consisted in its being so shaped that when several bricks were laid together (o) Beg. v. Bessell, 15 Jur. 773 ; 20 L. J. M. 0. 177 ; 16 Q. B. 810. (b) The contrary was held in Heywood v. Potter, 1 E. & B. 439 ; 17 Jur. S28 ; 22 L. J. (Q.B.) 133 ; but subsequently the 21 & 22 Vict. c. 70, „. 4, enacted that nothing in the 4th section of the 5 & 6 Vict. c. 100, should extend, or to be construed to extend, to deprive the proprietor of any new and Original design applied to ornamenting any article of manufacture contained in the said 10th class of the benefits of the Copyright of Designs Act or of this Act; provided there shall have been printed on such articles at each end of the original piece thereof the name and address of such proprietor, and the word " Registered," together with the year for which such design was registered. (c) Margetsou v. Wright, 2 De G. & Sin. 420. 440 THE LAW OF COPYRIGHT. Cap. XV. i Q building a series of apertures were left in the wall through which the air might circulate, and a saving in the number of bricks effected, was held to form the proper subject of registration under this Act (a). The inventor of a design for a "dog-cart phaeton" claimed four things as new and as conducive to the utility of the design, the specified purpose of utility being that " higher front wheels could be used, or closer coupling effected, and a saving in horse power." Three of the things claimed as new (the seat, the opera board, and the boot) were not new, and did not contribute to the utility. The fourth (the curved arch under which the wheels turned) did contribute to the utility, but it was not new. It was held that the design did not come within the pro- tection of 6 & 7 Vict. c. 65. Neither was it protected under the 5 & 6 Vict. c. 100, as an ornamental design, not having been registered under that Act (b). The subject of registration must not be an article of manufacture, but a design ; that is, a combination of lines producing pattern, shape, or configuration, by whatever means such design may be applicable to the manufacture. The " design " is always considered different from the "article of manufacture, or the substance to which it is to be applied." This is particularly to be observed in section 3 of the Act in course of examination, where the articles of manufacture are enumerated to which the design is to be applied. Among these are "shawls." The "shawl" is not the " design," but the article of manufacture to which the design is to be applied. Mr. Carpmael, of the Eepertory of Patent Inventions, Lincoln's Inn, has thus endeavoured to make the dis- tinction clear : " In registering any new design for a table lamp, all which could be secured under such registration would be some peculiarity of form -of an ornamental (a) Sogers v. Driver, 20 L. J. (Q.B.) 31 ; 1G Q. B. 102. See Millingen v. Picken, 1 Coin. Ben. Bep. 799 ; 14 L. J. (N.S.) (C.P.) 251 ; 9 Jur. 714. (6) Windover v. Smith, 32 Beav. 200^ 32 L. J. (Ch.) 561 ; 7 L. T. (N.S.) 776. OOPYEIGHT IN DESIGNS. 441 character in the stem or oil vessel, or in the glass shade, Cap. XV. or some ornament applied thereto, if under the first men- tioned statute, or some novelty in the shape or configura- tion, without reference to ornament, if under the second statute ; — no new mode of supplying oil to the wick, nor any new mode of raising the wick, nor any new apparatus for supplying air to support combustion, could become the subject-matter of a registration. The simple configuration, or contour, or ornament of the lamp, or some particular part of the lamp, would be the only subject for regis- tration ; and any person might, without infringing the registration, make the same description of lamp, all parts acting mechanically in the same manner to produce the same end, so long as the outer configurations were not imitated. A patent, on the contrary, can scarcely ever be said to depend on shape ; supposing a patent be taken for any improved construction of lamp — such, for instance, as an improved means of raising the oil from the stem or pillar of a table lamp, — the patent would be equally infringed whether the external figure or design be re- tained or not so long as the means of raising the oil were preserved." There are several methods by which redress may be obtained in cases of infringement of copyright in designs. It is provided by the 9th section of the 5 & 6 Vict. c. 100, Action for that notwithstanding the remedies given by the Act for ama ° es - the recovery of penalties, it shall be lawful for the pro- prietor in respect of whose right such penalty shall have been incurred (if he shall elect to do so) to bring such action as he may be entitled to, for the recovery of any damages which he shall have sustained, either by the application of any such design or of a fraudulent imitation thereof, for the purpose of sale, to any article of manu- facture or substance, or by the publication, sale, or ex- posure to sale as aforesaid, by any person, of any article or substance to which such design or any fraudulent imitation thereof shall have been so applied, such person 442 THE LAW OF COPYRIGHT. Gap. XV. knowing that the proprietor of such design bad not given his consent to such application. A remedy is given by the 8th section of the 5 & 6 Vict. c. 100, which provides that in cases of infringement the offender shall be liable to forfeit a sum of not less than £5, nor exceeding £30, to the proprietor of the design, who may recover such penalty as follows : — In England. In England, either by an action of debt or on the case against the party offending, or by summary proceeding before two justices having jurisdiction where the party offending resides. If the proprietor proceed by summary proceeding, any justice of the peace acting for the county, riding, division, city, or borough where the party offending resides, and not being concerned either in the sale or manufacture of the article of manufacture, or in the design to which such summary proceeding relates, may issue a summons re- quiring such party to appear on a day, and at a time and place to be named in such summons, such time not being less than eight days from the date thereof; and every such summons shall be served on the party offending, either in person or at his usual place of abode ; and either upon the appearance or upon the default to appear of the party offending, any two or more of such justices may proceed to the hearing of the complaint, and upon proof of the offence, either by the confession of the party offend- ing, or upon the oath or affirmation of one or more credible witnesses, may convict the offender in a penalty of not less than £5 or more than £30 for each offence, as to such justices may seem fit ; but the aggregate amount of penalties for offences in respect of any one design com- mitted by any one person up to the time at which any of the proceedings shall be instituted, shall not exceed the sum of £100 ; and if the amount of such penalty or of such penalties, and the costs attending the conviction, so assessed by such justices, be not forthwith paid, the amount of the penalty or of the penalties and of the costs, COPYRIGHT IN DESIGNS. 443 together with the costs of the distress and sale, shall be Cap, xv. levied by distress and sale of the goods and chattels of the offender wherever the same happen to be in England ; and the justices before whom the party has been convicted, or on proof of the conviction, any two justices acting for any county, riding, division, city, or borough in England, where goods and chattels of the person offending happen to be, may grant a warrant for such distress and sale ; and the overplus, if any, shall be returned to the owner of the goods and chattels on demand. Every information and conviction in any summary proceedings before two justices under the Act may be in the forms or to the effect given in the Act, mutatis mutandis as the case may require. In Scotland the proprietor may proceed by action before Scotland, the Court of Session in ordinary form, or by summary action before the sheriff of the county where the offence may be committed, or the offender resides, who, upon proof of the offence or offences, either by confession of the party offending, or by the oath or affirmation of one or more credible witnesses, shall convict the offender and find him liable in the penalty or penalties aforesaid, as also in expenses. And the sheriff in pronouncing judgment for the penalty or penalties and costs, may insert in the judgment a warrant in the event of such penalty or penalties and costs not being paid, to levy and recover the amount of the same by pounding. And it is provided that in the event of the sheriff dismiss- ing the action, and assoilzieing the defender, he may find the complainer liable in expenses ; and any judgment so to be pronounced by the sheriff in such summary application shall be final and conclusive, and not subject to review by advocation, suspension, reduction, or otherwise. In Ireland, the proprietor may proceed either by action Ireland. in a superior court of law at Dublin, or by civil bill in the civil bill court of the county or place where the offence • was committed. It is provided that no action or other proceeding for 444 THE LAW OF COPYEIGHT. Cap, xv. an y offence or injury under the Act shall be brought after Limitation of the expiration of twelve calendar months from the com- 11 " mission of the offence ; and in every such action or other proceeding the party who shall prevail shall recover his full costs of suit, or of such other proceeding (a). This provision seems to apply as well to summary proceedings as to actions for damages referred to in the 9th section. Justices may In the case of summary proceedings before any two order payment j us tices in England, they may award payment of costs to cases of the party prevailing, and grant a warrant for enforc- proeeedmgs. ™g payment thereof against the summonsing party, if unsuccessful, in the like manner as provided by the Act for recovering any penalty with costs against any offender (&). The above By the 6th section of the 6 & 7 Vict. c. 65, the above applyto^fseful P rov i s i° ns as to the mode of recovering penalties, actions designs. for damages, limitation of actions, and awarding of costs are made applicable to designs having reference to some purpose of utility ; and by the 15th section of the 13 & 14 Vict. c. 104, they are also extended to works provisionally registered under that Act. Proceedings By the 8th section of the 21 & 22 Vict. c. 70, pro- irTtho touT 1 cee( iings for the recovery of damages for infringement court. may be brought in the county court, provided in any such proceeding the plaintiff shall deliver with his plaint a statement of particulars as to the date and title or other description of the registration whereof the copyright is alleged to be pirated, and as to the alleged piracy ; and the defendant, if he intends to rely as a defence on any objection to such copyright, or to the title of the pro- prietor therein, shall give notice in the manner provided in the 76th section of the 9 & 10 Vict. c. 95, of his in- tention to rely on such special defence, and shall state in such notice the date of publication and other particulars of any designs whereof prior publication is alleged, or of any objection to such copyright, or to the title of the proprietor (a) Sect. 12. (fc) Sect. 13. COPYRIGHT IN DESIGNS. 445 to such copyright ; and it shall be lawful for the judge of Cap. xv. the county court, at the instance of the defendant or plaintiff respectively, to require any statement or notice so delivered by the plaintiff or by the defendant re- spectively to be amended in such manner as the said judge may think fit. And further, the proceedings in any plaint, and those in appeal and in writs of prohibition, provided by the 9 & 10 Vict. c. 95, and the 12 & 13 Vict. c. 100 (a), shall be applicable to any proceedings for piracy of copyright of designs under the Copyright of Designs Act. In selecting the mode of proceeding the effect ofConsider- publicity in deterring others, the moral weight of the the remedy to decision of the court in which the action or suit is brought, select - and the probability of the judge or magistrate going more or less into the minutiae of the case, should be thought- fully regarded. In some cases, either from the fact of the defendant being in such a position that the moral effect of so doing would be more effectual in preventing similar thefts for the future, or from the fact that the defendant may be a man of straw, it may be advisable to place him in the police court, while in others the more costly and efficient remedy provided by the Superior Courts of Judicature may be adopted. There is no provision in the Designs Acts analogous to No provisions that of the 23rd section of the Literary Copyright Act, *$$%*!? " P 1842, as to the delivery up of unsold copies of a pirated designs. book to the proprietor of the copyright without his making any compensation for the cost of production and publica- tion ; but in the case of M'Crea v. Holdsworth (b), Lord Justice Knight Bruce made an order under the Designs Act for the delivery up to the plaintiff, " for the purpose of being destroyed, the drawing or drawings, point paper, and the several cards used in applying his design, and also of the articles manufactured by the defendants to which the plaintiff's design had been applied." (a) So printed by the Queen's printers, but it is clearly a mistake. It is evidently intended for 12 & 13 Vict. c. 101, which amends the County Court Act, 9 & 10 Vict. c. 95. (6) 2 De Gex & Sm. 497. 446 THE LAW OF COPYRIGHT. gap. xv. Proceedings may also be taken in the Chancery Division of the High Court of Justice in all cases. In a statement of claim under the Designs Act the following allegations should be inserted in their proper places ; first, that previously to publication of the design the plaintiff caused a proper entry thereof to he made in the registry ; and that he duly caused the letters Rd. &c, to be duly marked on each piece of the said fabrics, and duly complied in all respects with all the provisions of the statute and all the requisitions required by law in such cases ; secondly, there should also be special allegations that the design is new and original, and has not been previously published in the United Kingdom or elsewhere. It should also be shewn that the infringer had notice of the piracy when he disposed of the articles complained of, as if part of the articles were sold previously to a direct notice pursuant to the 7th section of 5 & 6 Vict. c. 100, the plaintiff would not be entitled to the costs of the suit, unless the defendant then had notice of the plaintiffs copyright by other means. The articles alleged to be piracies should be produced to the court, in order that they may be compared with the original design and the articles to which it has been applied by the proprietor (a). But where the alleged piracies were proved to have been stolen out of the possession of the plaintiff, the uncontradicted testimony of a witness as to their nature has been held sufficient (&). The court, or a jury, will then be able to pronounce, on the comparison, whether the registered design has been applied or not. But if what is complained of is a fraudu- lent imitation, and not an application of the exact design, it will be convenient, if possible, to shew by direct evi- dence that the defendant's design has been taken from the plaintiff's (e). Copyright in With regard to any new or original design for any designs of utility. ' (a) Sheriffs. Coates, 1 Euss. & My. 159. (6) Fradella v. Weller, 2 Russ. & My. 247. (c) Lowndes v. Browne, 12 Ir. L. Rep. 293 ; cited Norman on 'Designs,' p. 51. COPYRIGHT IN DESIGNS. 447 article of manufacture having reference to some purpose Cap. XV. of utility, so far as such design shall be for the shape or configuration of such article, and that, whether it be for the whole of such shape or configuration or only for a part thereof, it has been enacted by the 6 & 7 Vict. c. 65, that the proprietor of such design not previously pub- lished in the United Kingdom of Great Britain and Ireland, or elsewhere, shall have the sole right to apply such design to any article, or make or sell any article according to such design, for the term of three years, to be computed from the time of such design being registered according to the Act. But it is provided that this enactment shall not extend to such designs as are within the 5 & 6 Vict. c. 100, 38 Geo. 3, c. 71, or the 54 Geo. 3, c. 56. It appears to be the received opinion that under this what neces- clause may be registered designs, the subjects of which t^^"^ 61 could, in many cases, have obtained a patent (a). protection. To obtain the protection of the Act it is necessary : — 1st. That the desigu should not have been published, either within the United Kingdom or elsewhere, previous to registration (J). 2nd. That after registration every article of manu- facture made according to such design, or to which such design is applied, should have upon it the word " Kegistered," with the date of registration. Persons proposing to register a design for purposes of utility must furnish the registrar with two exactly similar drawings or tracings, photographs or prints of such design, made on a proper geometric scale on two separate sheets of paper or parchment not exceeding the size of twenty-four by fifteen inches, and with a blank space in front of each sheet six inches long, by four inches broad, upon which the certificate of registration (a) 16 Q. B. 108 ; see 1 0. B. 812. (6) 6 & 7 Vict. c. 65, s. 3. 448 THE LAW OP COPYRIGHT. Cap. XV. will be placed (a). All registered designs must have a title and be accompanied by such description in writing as may be necessary to render the same intelligible, according to the judgment of the registrar, together with the name of every person claiming to be proprietor, or of the style or title of the firm under which such proprietor may be trading, with his place of abode, or place of carrying on business, or other place of address (&). But by the 5th section of the Copyright of Designs Act, 1858, it is declared that the registration of any pattern or portion of an article of manufacture to which a design is applied, instead or in lieu of a copy, drawing, print, specification, or description in writing, shall be valid and effectual to all intents and purposes as if such copy, drawing, print, specification, or description in writing had been furnished to the registrar under the above Act. Amending or The registration of any design, whether for purposes of "^^tratkm ornament or utility, may be amended or cancelled by decree or order of a judge in equity, where it is made to appear to him that the design has been registered in the name of a wrong person. Section 10 of the 5 & 6 Vict. c. 100, enacts, " that in any suit in equity which may be instituted by the proprietor of any design, or the person lawfully entitled thereto, relative to such design,' if it shall appear to the' satisfaction of the judge having cognizance of such suit, that the design has been registered in the name of a person not being the proprietor or lawfully entitled thereto, it shall be competent for such judge, in his discretion, by a decree or order in such suit, to direct either that such registra- tion be cancelled (in which case the same shall thence- forth be wholly void), or that the name of the proprietor (a) It is well when " provisional " registration is applied for, to leave an additional blank space of six inches by four for the future complete registration to be placed on, in order to save the additional expense of having new drawings prepared for that purpose. (6) The drawings are of course prepared at the expense of the person registering, and vary according to their intricacy ; they cost on an average two guineas per sheet. COPYRIGHT IN DESIGNS. 449 of such design, or other person lawfully entitled thereto, Cap. XV. be substituted in the register for the name of such wrongful proprietor or claimant, in like manner as is hereinbefore directed in case of the transfer of a design, and to make, such order respecting the costs of such cancellation or sub- stitution, and of all proceedings to procure and effect the same, as he shall think fit; and the registrar is hereby authorized and required, upon being served with an official copy of such decree or order, and upon payment of the proper fee, to comply with the tenour of such decree or order, and either cancel such registration of substitute such new name as the case may be " (a). As this Act affords protection only to the shape or con- Protection figuration of articles of utility, and not to any mechanical * S f^ e °" ly action, principle, contrivance, application, or adaptation configuration, (except in so far as these may be dependent upon and inseparable from the shape or configuration), or to the material of which the article may be composed ; no design will be registered the description of or statement respect- ing which shall contain any expressions suggestive of the registration being for any such mechanical action, principle, contrivance, application, or adaptation, or for the material of which the article may be composed (b). A discretionary power is vested in the registrar, either Discretionary to register any design under the 5 & 6 Vict. c. 100, or the ^jj™ 6 & 7 Vict. c. 65 ; and a further power is given him to reject such designs as are simply labels, wrappers, or other coverings in which any article of manufacture may be exposed for sale, or such designs as may appear to him to be contrary to public morality or order. From the exercise of this latter power there is an appeal to the Privy Council. All the clauses and provisions contained in the 5 & 6 Vict. c. 100, with reference to the transfer of designs, to their piracy, to the mode of recovering penalties, to actions for damages, to cancelling and amending registrations, to (a) See also 6 & 7 Vict. c. 65, s. 6. (6) See Millingen v. Picken, 1 0. B. 799 ; 14 L. J. (N.S.) (O.P.) 254 ; 9 Jur. 714. 2 G 450 THE LAW OF COPTEIGHT. Cap. XV. the limitation of actions, to the awarding of costs, to the certificate of registration, to the fixing and application of fees for registration, and to the penalty for extortion, are extended and applied to this Act (a). In addition to the penalties imposed by virtue of the in- corporation of the penal clauses of the 5 & 6 Vict. c. 100, is imposed a penalty of not more than £5 nor less than £1, upon all persons marking, selling, or advertising for sale any article as "registered," unless the design for such article has been registered under one of the above- mentioned Acts. This penalty may be recovered by any person proceeding for the same (b). Provisional Provisional registration is permitted by the 13 & 14 designs! 10n ° Vict, c. 104, the 1st section of which provides that any design registered in accordance with that Act shall be deemed "Provisionally registered," and the registration shall continue in force for the term of one year (which may be further extended for six months by the Com- missioners of Patents) from the time of such registration, during which period the proprietor shall have the sole right and property in such design, and be protected in the enjoyment of this right by the penalties and provisions enumerated in the Designs Act, 1842. During the term for which protection is afforded by this provisional registration, the proprietor of any design may sell or transfer the right to apply the same to an article of manu- facture, but should he sell, expose, or offer for sale, any article to which the design has been applied until after complete registration, the provisional registration shall be deemed null and void (c). Exhibition of Neither the exhibition nor the exposure of any design visionally provisionally registered, or of any article to which such registered not d es jg n may have been applied, in any place, whether future public or private, in which articles are not sold, or exposed, registration. Q] , q^]^]^^ f or sa i e; an( j to whjeh t j ie public are not admitted gratuitously, or in any place which shall have (a) Sect. 6. (6) Sect. 4. (c) 13 & 14 Viet. c. 104, s. 4. COPTEIGHT IN DESIGNS. 451 been previously certified by the Board of Trade to be a Cap. XV. place of public exhibition within the meaning of the 13 & 14 Vict. c. 104, shall prevent the proprietor thereof from registering such design: provided that every article to which such design shall be applied and which shall be exhibited or exposed by or with the consent of the pro- prietor of such design, shall have thereon or attached thereto the words "Provisionally registered," with the date of the registration (a). The government fee for the " provisional " registration Fees for of designs of utility, or for registering and certifying j^Xatioi. transfers, is ten shillings ; and for the provisional registra- tion of ornamental designs in all classes, one year, the sum of one shilling for each design, and for their transfer the sum of five shillings each. By the 14 Vict. c. 8, provision was made for the protec- tion of those exhibiting in the Exhibition of 1851, the 8th section of that Act declaring that, notwithstanding any- thing contained in the Designs Act, 1850, and those of 1842 and 1843, the protection intended to be by them extended to the proprietors of new and original designs should be extended to the proprietors of all new and original designs which should be provisionally registered and exhibited in such place of public exhibition as afore- said, notwithstanding that such designs might have been previously published or applied elsewhere than in the United Kingdom of Great Britain and Ireland : provided such design or any article to which the same had been applied had not been publicly sold or exposed for sale previously to such exhibition thereof (b). The 24 & 25 Vict. c. 73, declares that the various Acts on the subject of copyright of designs shall be construed as if the words " provided the same be done within the United Kingdom of Great Britain and Ireland " had not been contained in the said Acts ; and that they shall apply to every design as therein referred to, whether the appli- cation thereof be within the United Kingdom or else- (a) Ibid. s. 3. (V) Since extended by 15 Vict. c. 6. 2 G 2 452 THE LAW OF COPYRIGHT. Cap. XV. where, and whether the inventor or proprietor be or be not a subject of Her Majesty. And that the said Acts shall not be construed to apply to the subjects of Her Majesty only (a). Alljpowers by By the Copyright of Designs Act, 1875 (b), all powers, given to Board duties, and authorities vested in, or to be exercised by the of Trade now Board of Trade, are transferred to, vested in, and imposed missioned of on the Commissioners of Patents for Inventions. And it Patents. j g provided that the Commissioners may from time to time make, revoke, and alter general rules for regulat- ing registrations under the Designs Acts, and any dis- cretion or power vested in the registrar under such Acts shall be subject to the control of the Commissioners and shall be exercised by him in such manner, and with such limitations and restrictions (if any) as may be prescribed by the general rules, and any provisions contained in the said Acts as to the copies, drawings, prints, descriptions, information, matters and particulars to be furnished to the registrar, and generally as to any act or thing to be done by the registrar, may be modified by such general rules, in such manner as the Commissioners may think expedient. General rules are to be laid before Parliament within a limited time. By the 4th section of the Copyright of Designs Act, 1875, it is provided that the office of registrar under the previous Acts shall cease to exist as a separate paid office, and the Commissioners may from time to time make arrangement as to the mode in which, and the person or persons by whom the duties of registrar, and other duties under the said Acts are to be performed, and may from time to time delegate to any such person or persons, all or any of the duties of the registrar, and any person or persons to whom such duties may be delegated shall, in so far as delegation extends, be deemed to be the registrar within the meaning of the said Acts. (a) 24 & 25 Viet. c. 73, s. 2. (b) 38 & 39 Viet. c. 93. ( 453 ) CHAPTEK XVI. NEWSPAPERS. Papers for circulating news were first used in England in Newspapers, the reign of Queen Elizabeth (a). It was not until the reign of Queen Anne that any notice appears to have been taken of them by the legislature. The Acts of Parliament on the subject of the press are 36 Geo. 3, c. 8 ; 39 Geo. 3, c. 79 ; 51 Geo. 3, c. 65 ; 55 Geo. 3, c. 65 ; 55 Geo. 3. c. 101 ; 60 Geo. 3 & 1 Geo. 4, c. 9 ; 11 Geo. 4 & 1 Wm. 4, c. 73 ; 6 & 7 Wm. 4, c. 76 ; 2 & 3 Vict. c. 12 ; 5 & 6 Vict. c. 82 ; 9 & 10 Vict. c. 33 ; 16 & 17 Vict. c. 59. They were, with the exceptions here- after enumerated, repealed by " The Newspapers, Printers, and Eeading Booms Kepeal Act, 1869 " (the 32 & 33 Vict. c. 24). Every person printing any paper, except bills, bank Name and notes, bonds, deeds, agreements, receipts, &c, or any ™{°nter°to paper printed by the authority of any public board or appear, public office (b), for profit, must keep one copy at least of such paper, and write or print thereon the name (c) and abode of his employer, and, if required, produce and shew the same to any justice of the peace within six months next after the printing, on penalty, in case of neglect or refusal, of the sum of £20 (d). (a) The oldest newspaper extant is dated July 23, 1588, ' The English Mereurie, published by authoritie for the prevention of false reports.' It is among the state papers in the British Museum : Godson on Patents, &c. 249. (o) 51 Geo. 3, u. 65, s. 3. (c) See Bensley v. Bignold, 5 B. & Aid. 335. (d) 39 Geo. 3, c. 79, s. 29 ; 32 & 33 Vict. c. 24 ; 33 & 34 Vict. c. 99. 454 THE LAW OF COPYRIGHT. Cap. xvi. K any person file a bill for the discovery of the name of any person concerned as printer, publisher, or proprietor of any newspaper, or of any matters relative to the printing or publishing of any newspaper, in order the more effectually to bring or carry on any suit or action for damages alleged to have been sustained by reason of any slanderous or libellous matter contained in any such news- paper respecting such person, it is provided by the 19th section of the 6 & 7 Wm. 4, c. 76, that it shall not be lawful for the defendant to plead or demur to such bill. He may be compelled to make the discovery required, which discovery, however, cannot be used in any proceeding against the defendant except in that for which the dis- covery is made. In the late case of Dixon v. Enoch (a), a general demurrer was filed to a bill for discovery brought under the provision of this section. The bill was filed against the printer and publishers of the ' Pall Mall Gazette ' and ' Pall Mall Budget ' for the purpose of obtaining discovery as to the names of the proprietors of these newspapers at the time when certain articles or paragraphs were inserted which, as the plaintiff alleged, contained libellous matter with reference to himself. It appeared that these articles or paragraphs occurred in some or one of these newspapers on the 18th May, 1870, and on the 7th and 9th and 12th of August, 1871, and it was alleged that the plaintiff had sustained great loss and damage by reason of them, but the bill did not set out the alleged libels, though the pages of the publications in which they had occurred, seemed to have been pointed out to the defendant's advisers, neither was it distinctly alleged that the plaintiff intended to bring an action of libel, or that he was ignorant of the proprietors' names. The bill charged that the plaintiff was entitled, under the circumstances, to a full discovery from the defendant of the names or name of the proprietors or proprietor of the papers on the days of the above mentioned issues and publications, containing the alleged (a) 20 W. K. 359. NEWSPAPERS. 455 libellous matter, in order the more effectually to enable Cap. XVI. him to bring and carry on an action for the damages sustained by him therefrom, and it then prayed relief ac- cordingly. It was contended in support of the demurrer that by the statute the legislature only intended to give the right of filing a bill of discoyery subject to the ordinary rules of the court, and that such a bill as that could therefore only be maintained against a party to the record at law ; the defendant in that case at the most would be only a witness in the action. Further it was argued that if the demurrer were not allowed, it must be considered that any person complaining of libellous matter in a newspaper may file a bill against any other person in the world, for the purpose of discovering the name of the proprietor, if the plaintiff should think that it might be accidentally known to such other person. Vice-Chancellor Wickens in over- ruling the demurrer said : " The statements in the bill shew that the plaintiff instructed his solicitor to bring an action for the libels complained of, against the proprietors or pro- prietor of the newspaper; that the plaintiff's solicitor applied to a person whom he supposed to be the proprietor, and was referred to a solicitor, who declined to state, or at least did not state when asked to do so, the name of the pro- prietor or proprietors, but suggested, as the usual and proper course, that the action should be brought against the publisher (the present defendant) on whose behalf he was willing to meet it. The bill does not set out the alleged libels, and, in fact, contains no more distinct allegation as to their nature or character than what I have already mentioned, though it appears incidentally, from the correspondence stated in it, that the pages of the publications in which the alleged libels occur have been pointed out to the defendant's advisers. There is also no distinct statement of the plaintiff's intention to bring an action, or of his ignorance of the proprietors' names. The deficiency of allegation in those respects was, however, not strongly insisted on at the hearing ; probably because it would be obviated by amendments. The 456 THE LAW OF COPYRIGHT. Cap. XVI. f* 1 " 8 * 0I> them might be of some general importance, as a matter of pleading, but for the anomalous and unusual nature of the suit. If the defence were the legitimate one, that the alleged libel is not a libel, the mode of pleading here adopted might place the defendant at considerable disadvantage. It is to be gathered, however, from the correspondence, that this is not the objection intended to be insisted on in this court, and as a matter of fact it was not pressed in the argument. Under these circumstances, and not without considerable hesitation, I hold that there are in the present case just sufficient allegations in the bill to save it from a general demurrer, if in substance the plaintiff has a right to the discovery he asks. The objection to his right, as I understand it, is thus put : It is said that when the legislature gave the right of filing a bill of discovery in certain cases, it must be taken to authorize a bill which shall be subject to the ordinary rules governing such bills, in this, the natural court for filing them, one of which is, that the bill can only be maintained against a person who is, or is to be, a party to the record at law, and not against a witness whose evidence may go to charge some third person. And it is said that any other construction would enable a person complaining of a libel in a newspaper to file a bill against any human being, whether connected with the newspaper or not, for the purpose of discovering the names of the pro- prietors if accidentally known to him. It seems to me that those objections cannot succeed. In the first place it is to be observed that this is a bill of discovery to be filed ' in any court ' ; when the clause was first enacted, the Court of Exchequer in Equity (in which, it may be observed, witnesses were, for some purposes, considered proper defendants to bills of discovery) was in existence as a general court of equity. But the expression, ' in any court,' can hardly be cut down to the Court of Chancery and Exchequer, since, when the clause was re-enacted, the latter was not a general court of equity. The legislature can, perhaps, have hardly intended to give a person com- NEWSPAPERS. 457 plaining of a libel a right to file a bill of discovery for the Cap, xvi. purpose in question in courts having no practice, and no machinery appliable to such bills. Still, to read the expression, ' bill of discovery,' as importing into the clause the special rules of the Court of Chancery, would seem a little unreasonable where the bill may be filed in any court. Moreover, the Act seems to presume that the bill authorized by it would be pleadable or demurrable, if not pr'otected by the enactment, and in any case the very object of it must have been to enable the plaintiff to extract from the defendant the name or names of some person or persons, other than himself, who might be sued at law, though, according to the defendant's contention here, not alone, or otherwise than in conjunction with the defendant in equity. The supposition that if the plaintiff knows the name of one proprietor he can make him tell the names of all the others, but that not knowing one name he cannot get the information from the printer and publisher, who is the agent of the proprietors, and is put forth to stand between them and the public, is one that does not commend itself to one's common sense, and is not to be accepted without absolute necessity. It is not necessary to consider whether the enactment would cover the case of a mere witness in the strictest sense of the word ; that is, of a person accidentally knowing the names of the proprietors, but wholly unconnected with the news- paper. I merely decide that by force of this enactment a person complaining of a libel in a newspaper may file a bill against the printer and publisher to ascertain the names of the proprietors, for the purpose of bringing his action against the proprietors alone ; and I do so, because any other conclusion seems to me inconsistent with the spirit and intention, as well as with the words, of the statute. I therefore overrule the demurrer." By the 2 & 3 Vict. c. 12, s. 2, it is provided that every person who shall print any paper or book whatsoever which shall be meant to be published or dispersed, and who shall not print upon the front of every such paper, if the 458 THE LAW OF COPYRIGHT. Cai\ XVI same shall be printed on one side only, or upon the first or last leaf of every paper or book consisting of more than one leaf, in legible characters, his or her name and usual place of abode or business, and every person who shall publish or disperse, or assist in publishing or dis- persing any printed paper or book on which the name and place of abode of the person printing the same shall not be printed as aforesaid, shall, for every copy of such paper so printed by him or her, forfeit a sum of not more than £5 (a). In the case of books or papers printed at the University Press of Oxford or the Pitt Press of Cambridge, the printer, instead of printing his name thereon, is to print the following words: "Printed at the University Press, Oxford," or, " The Pitt Press, Cambridge," as the case may be (b). These enactments do not extend to impressions of en- gravings, or the printing of the name and address or business or profession of any person, and the articles in which he deals, or to any papers for the sale of estates or goods by auction or otherwise (c). Prosecutions Prosecutions must be commenced within three months menoed within 'after the penalty is incurred ; and where the penalty three months, incurred does not exceed £20 it may be recovered before any justice of the peace for the county or place where the same may have been incurred, or where the offending party may happen to be (d) ; one moiety of such penalty to the informer and the other to Her Majesty. All proceed- Bv the 4th section of the 2 & 3 Viet. c. 12, and 9 & 10 ings to be Vict. c. 33, s. 2, no action for penalties may be com- the name of menced except in the name of the Attorney- or Solicitor- the Attorney- G. ene ral in England, or the Queen's Advocate in Scotland ; General. and every action, bill, plaint, or information which may (a) And a printer whose name does not thus appear cannot recover in an action for work and labour for printing it: Marchant v. Evans 2 B. Moore, 14. (6) 2 & 3 Vict. c. 12, s. 3. (c) 39 Geo. 3, c. 79, s. 31. (d) 39 Geo. 3, c. 79, ss. 35, 36. NEWSPAPEKS. 459 be commenced or prosecuted in the name or names of cap. XVI. any other person or persons, and any proceeding thereon, are thereby declared null and void to all intents and purposes (a). Whether copyright exists at all in the case of newspapers has been doubted by Lord Chelmsford (b), who referred to ,the language of Knight Bruce, L.J., in Ex parte Foss (e), as seeming to imply a doubt in the mind of that learned judge also whether there was such a thing as copyright in a newspaper. There cannot, however, be much doubt as to the existence of the copyright. In Cox v. The Land and Water Company (d) it was con- Copyright in tended that newspapers being but ephemeral productions, °hou 8 ?h Per ' seldom, if ever, reprinted, could not properly be the subject registration of copyright. But Vice-Chancellor Malins decided other- wise, remarking that the idea of there being no copyright at all in newspaper articles was repugnant to common sense and common honesty. At the same time the Vice- Chancellor decided that it was not necessary to register a newspaper under the 5 & 6 Vict c. 45. The case is the only one on the subject, and the decision is somewhat remark- able. The learned Vice-Chancellor considered that the object of the 5 & 6 Vict. c. 45, in requiring registration was to let the public know when the copyright in a work would expire. Eegistration was clearly unnecessary for this purpose in the case of a newspaper, which, therefore, was not within the policy of the Act ; neither was it within the words. By the 2nd section " book " was to include " every volume, part, or division of a volume, pamphlet, sheet of letter-press, sheet of music, map, chart, or plan separately published." A newspaper, he considered, was not within any one of those words ; it was a well-known species of publication, and would have been inserted by name if intended to be included (e). (a) 32 & 33 Vict. u. 24. (6) Piatt v. Walter, 17 L. T. (N.S.) 159. (c) 2 De G. & J. 230. (d) 18 W. K. 206 ; L. E. 9 Eq. 324 ; 39 L. J. (Ch.) 152 ; 21 L. T. (N.S.) 548 ; Kelly v. Hutton, L. K. 3 Oh. App. 703. (e) Ibid. 460 THE LAW OP COPYEIGHT. Cap, xvi. " For the purposes of the argument," says Malins, V.-C, " it must be assumed that the article complained of was a copy of the article of the plaintiff: and upon that ground the defendant takes the objection that there can be no copyright in any article published in this newspaper, because it is not registered under the Act 5 & 6 Vict. c. 45, commonly called the Copyright Act. Now suppose, for instance, the proprietor of a newspaper employs a correspondent abroad, and that correspondent being employed, and sent abroad at great expense, makes communications to a newspaper which are highly appre- ciated by the public, can it be said that another news- paper, published perhaps in the evening of the same day, may take and publish those communications in extenso with or without acknowledgment ? If the contention of the defendants is right, the paper which copied might say : ' But they are common property. True it is, I admit, that you have paid for them. I admit you have given a great deal of money for them, and they are so very valuable that I desire to turn them to account by publishing them in my newspaper; but you have no property in them, although you pay for them ; you cannot sue for your news- paper as a book, for then the copyright must be registered, and as you have not registered the book, nothing in the newspaper is protected.' If that is the law, it is a monstrous state of law, repugnant to common sense and common honesty, because that there is a property in those articles there can be no shadow of doubt. Still, however clear the right of property may be, if the case falls within the Act of Parliament, I must follow the same course which I took in the ' Brighton Directory ' case (Mathieson v. Harrod) (a). That was clearly admitted to be a book within the Copy- right Act, and it had been registered at Stationers' Hall, but instead of entering the day of publication, according to the requisition of the Act, the month only was entered ; and I considered, as other judges had done before, that the object of registration was to ascertain at what time (a) L. E. 7Eq. 270. NEWSPAPERS. 461 the publication took place, in order that the public might Cap. XVI. know when the copyright expired, and when they would be at liberty to publish it in a separate form ; therefore though everything else was complied with except the statement of the day of the month, I held that the omission was fatal, and the bill was dismissed with costs. So, in this case, however clearly I am of opinion that this is a property that ought to be protected, if a newspaper is a book within the 2nd section of the Copyright Act, and it being admitted that the 'Field' was not registered, that would be equally fatal to the plaintiff's suit. Now I have put the case of letters from correspondents abroad. With foreign papers we all know it is the practice to publish novels, and in some English newspapers it is also done. Supposing a newspaper proprietor were to engage the first novelist of the day to write for him a novel to be published in his newspaper, part every day, and pay him highly, is the proprietor of such a newspaper to lose all property because the paper is not registered ? What information would it give, if it were registered ? Would the registration of a paper called the ' Field,' registered twenty years ago, give information as to when the copy- right would commence and end ? Not the slightest ; and therefore it is not within the policy of the Act, and I am of opinion that it is not within the words of the Act. The question depends, first, upon the 2nd section of the Act. What is a book ? because every book must, by the 24th section, be registered. We find that ' book ' under the 2nd section ' shall be construed to mean and include every volume, part or division of a volume, pamphlet, sheet of letter-press, sheet of music, or dramatic piece,' and so forth. Now certainly a newspaper does not fall within any of those descriptions, and if it was intended that this Act should be applied to newspapers, it would have been inserted, as the word 'newspaper' is well understood ; and that word not being inserted, I must take it as advisedly omitted, because it was not the in- tention of the legislature that newspapers should be 462 THE LAW OF COPYRIGHT. Cap. XVI. included within the Act. Then comes the section which prescribes what is to be done with regard to periodical publications. Section 19 provides : ' That the proprietor of the copyright in any encyclopaedia, review, magazine, periodical work, or other work published in a series of books or parts, shall be entitled to all the benefits of the registration at Stationers' Hall, under this Act, of entering in the said book of registry the title of such ency- clopaedia, review, periodical work, or other work, published in a series of books or parts, the time of the first publication of the first volume, number, or part thereof, or of the first number or part thereof, or of the first number or volume first published after the passing of this Act, in any such work which shall have been published heretofore, and the name and place of abode of the proprietor thereof, and of the publisher thereof, when such publisher shall not also be the proprietor thereof.' That, again, does not mention newspapers, and I must come to the same con- clusion, that a newspaper was not mentioned because it was not intended to be included. Then can a person have any copyright or property in that which is not registered under the Act? This depends, I apprehend, upon the construction of the 18th section, which enacts that when any publisher or other person shall .... have projected, conducted and carried on ... . any encyclopaedia, review, magazine, periodical, work, or work published in a series of books, or parts, or any book whatsoever, and shall have employed any person to compose the same, or any volumes, parts, essays, articles, or portions thereof, for publication or as part of the same, and such work, &c, shall be com- posed on the terms that the copyright shall belong to such proprietor, and be paid for by him, then the proprietor of such work shall be entitled to copyright (except that after the term of twenty-eight years the copyright shall revert to the author) and shall be entitled to sue upon registering the same at Stationers' Hall. Now must every right included in this section be registered accord- ing to the Act? The present Lord Chancellor decided NEWSPAPERS. 463 that question in Mayhem v. Maxwell (a). Mr. Mayhew Cap. XVI. wrote a certain article or series of articles in a periodical called the ' Welcome Guest,' and the proprietor proceeded to publish them in a separate form. The plaintiff filed his bill to restrain him from publishing them in any other form than in that for which he wrote the work. The same point arose in Strahan v. Graham, where Mr. Graham had sold the right of publishing photographs of the Holy Land in a publication called ' Good Words,' in which Dr. McLeod was publishing a work with regard to the Holy Land, and the proprietors of ' Good. Words ' had given him permission to use the photographs, but Mr. Graham contended that Mr. Strahan had no right to give it to Dr. McLeod. I decided in that case, and my decision was confirmed by Lord Chancellor Chelmsford, that there was no right to publish in a separate form that which he had authority only to use in ' Good Words ' and that Mr. Graham had a good right of action. But these cases are distinct authorities to shew that there is a property in a publication, although it is not registered. That is the ground upon which Vice- Chancellor Wood commented on the 24th section in Mayhew v. Maxwell (b). He says: 'The plaintiff has not registered under the 24th section, now I have been referred to the case of Sweet v. Benning (c), which was a case between Mr. Sweet, the proprietor of the ' Jurist,' and Mr. Benning, a bookseller. Sweet brings an action against Benning for copying the marginal notes of cases in a separate publication. This was the subject of the action. I suppose the ' Jurist ' had been published" before this Act of 5 & 6 Vict., and there- fore it was not registered at all. If so, the question whether these reports published in the 'Jurist' were subject to the provisions of the Act did not arise. Now in deciding that case Jervis, C.J., said (d) : 'I think that under the circumstances stated there is an implied (a) U. & H. 312. (6) Ibid. 312, 314. (c) 16 C. B. 459. v (d) 16 C. B. 480, 481. 464 THE LAW OF COPYRIGHT. Cap. XVI. Copyright in a newspaper included in the term " goods and chattels " in the Bank- ruptcy Act. condition, understanding or arrangement between the proprietors of the 'Jurist' and the gentlemen who furnished them with reports, that the former shall acquire a copyright in the articles so written.' Now, therefore, it appears to me that a 'newspaper,' which is the best possible and only definition of such a publication as the ' Field,' not being within any of the provisions of this Act, I must infer that it was not the intention of the legisla- ture to apply the Act to newspapers (for it was absolutely impossible that it should have missed insertion in some of the sections), and that the circumstance of non-regis- tration throws no difficulty in the way of the plaintiff maintaining his right in law or equity ; and though it is seldom worth the while of proprietors to assert the copy- right in articles in a newspaper, I am of opinion that whether it be the letters of a correspondent abroad, or the publication of a tale, or a treatise, or the review of a book, or whatever else, he acquires — I will not say as copyright, but as property — such a property in every article for which he pays, under the 18th section of the Act, or by the general rules of property, as will entitle him, if he thinks it worth while, to prohibit any other person from publishing the same thing in any other newspaper, or in any other form." The copyright in a newspaper was held to be included in the words " goods and chattels," in the 125th section of the Bankruptcy Law Consolidation Act, 1849. The registered proprietor of a newspaper mortgaged the copyright of the newspaper, and also the type and machinery used in printing it, to the petitioner. The proprietor remained in possession and no change was made in the registration. Afterwards the sheriff seized the type and machinery under a judgment obtained by a creditor. While he was in possession the proprietor filed a declaration of insolvency and was made bankrupt. It was held on a petition by the mortgagee to have the benefit of his security, that the type and machinery, having been seized by the sheriff, were not in the " order NEWSPAPERS. 465 and disposition " of the bankrupt at the time of the Cap. XVI. bankruptcy, but that the copyright of the newspaper could not be seized by the sheriff, and therefore remained in the order and disposition of the bankrupt as registered proprietor (a). In thus deciding Turner, L.J., said : " The case in the argument before us was very properly divided into two considerations — first, as it affects the newspapers, and, secondly, as it affects the plant. As to the news- papers, it was, in the first place, contended that they are not goods and chattels within the meaning of the 125th section of the Bankrupt Act, which provides for goods and chattels of which the bankrupt is reputed owner passing to the assignee. It was said that the right in the newspaper is a mere right to publish the paper under that name, and that such a right could not be considered as goods and chattels within the meaning of the Act. But, to say nothing of the copyright in the newspapers, which undoubtedly exists, the right to publish the news- papers is a right to which an interest is attached. It is a right protected by courts of law and by courts of equity, and therefore a proprietary right ; and the statutes — the very Newspaper Acts on which the argument before us proceeds — treat the matter as a matter of property and as being a proprietary right. I feel, therefore, that the property in these newspapers must be considered as goods and chattels within the meaning of the Bankrupt Act- These words, 'goods and chattels,' are words of verv extensive signification, and undoubtedly comprise both property tangible and property which is not tangible. If there had been any doubt in my mind on that point, it would have been removed by the case of Longman v. Tripp (b), which seems to me to be a decisive authority upon the subject, and to be well founded in point of law. The case was argued further as to the question of the copyrights on this ground — it was said that the News- (a) Ex parte Foss, Be Baldwin ; Ex parte Baldwin, Be Baldwin, 6 W. E. 417 ; Longman v. Tripp, 2 Bos. & Pul. (New K.) 67 ; see also Kelly v. Button, L. E. 3 Oh. App. 703. (6) 2 Bos. & P. N. E. 67. 2 H 466 THE LAW OP COPYRIGHT. Cap. XVI. Mortgage of share of newspaper not assign- ment of copy- right requir- ing registra- tion. paper Acts were Acts that were merely passed for fiscal purposes ; that they had nothing to do with the rights of property, and therefore could not be considered as at all affecting the question whether the property was in the nature of goods and chattels within the meaning of the Bankrupt Act. But the case of Longman v. Tripp governs that point also ; and independently of the case of Longman v. Tripp I think that the argument derived from the newspaper statutes is not well founded: for whether these statutes are for fiscal purposes or not, they at all events furnish the means by which the ownership of the property may be made known to the world. The declarations which are made under the Newspaper Acts are indicia of the property, and where such indicia exist I apprehend they must be attended to for the purpose of taking the property out of the disposition of the bank- rupt, and removing them out of the operation of the reputed ownership clauses. The declaration is evidence of the ownership, and what may be effectual to remove that evidence must be resorted to." A mortgage of a share in a newspaper and the copy- right and right of publication thereof, and all profits arising therefrom, is not an assignment of copyright which requires registration at Stationers' Hall, but merely an assignment of a chattel interest in the publishing adventure, which derives no additional efficacy from the registration \a). During the progress of a suit instituted by Mr. Beeton against Mr. Hutton in reference to the proprietorship of the : Sporting Life,' in which it was ultimately decided that the parties were entitled in equal shares, Mr. Beeton assigned by way of mortgage his share in the newspaper " and the copyright and right of publication thereof and all profits arising therefrom," to Messrs Wrigley & Son, the assignment reciting certain chancery proceedings, and containing a power of sale. (a) Kelly v. Button, L. E. 3 Oh. App. 703 ; 38 L. J. (Ch.) 917 ; 19 L. T. (N.S.) 228. NEWSPAPEKS. 4g7 Mr. Beeton subsequently mortgaged his same share to Cap XVI his partner Mr Hutton, to secure two sums of £2000 and £512, with interest at 7J per cent. ; the former sum being the amount Beeton had been overpaid in a settlement of accounts with Hutton, the latter being the balance of Beeton's purchase-money for his moiety of the newspaper. Messrs Wrigley & Son registered the assignment to them at Stationers' Hall, under the provisions of the Copyright Act, and subsequently sold the mortgaged share to the plaintiff Kelly, who filed a bill for a declaration that he was entitled to a moiety of the newspaper. Both Wrigley & Son and the plaintiff had permitted the newspaper to be carried on as formerly by Beeton and Hutton. It was held by the Lords Justices that the plaintiff could only take Beeton's share in the newspaper subject to the equities subsisting between the parties. "Many points have been raised before us," said Wood, L.J., " as regards the property which was the subject of the mortgage to Wrigley & Son It appears to us that Beeton & Hutton were engaged in a joint adventure, namely, the publishing of the paper in question. Capital was required for the adventure, and the co-partners or co- adventurers possessed leasehold premises and type, and other chattels necessary for carrying it on. The mort- gage to Wrigley & Son assigned to them Beeton's share in the newspaper, whatever it might be, and all profits , belonging thereto or arising therefrom. In the habendum the deed speaks of the copyright of the newspaper, and the right of continuation and publication thereof. Now it appears to us that there is nothing analogous to copyright in the name of a newspaper, but that the proprietor has a right to prevent any other person from adopting the same name for any other similar publica- tion ; and that this right is a chattel interest capable of assignment was held in Longman v. Tripp (a), and Esc parte Foss (b). The mortgage, then, to Wrigley & Son was that of Beeton's share of a chattel, which formed the (a) 2 Bos. & P. 67. (6) 2 De G. F. & J. 230. 2 n 2 468 THE LAW OF COPYRIGHT. Cap. XVI. principal subject of the co-adventure between Beeton and Hutton. Considerable stress has been laid in argu- ment, on the part of the appellants, on the necessity of notice being given of such an assignment, either by direct notice to Hatton, or by an entry at the Inland Bevenue Office ; and much controversy has arisen in evidence as to whether Hutton had or had not in fact such notice previously to the 9th of March, 1866. The entry of their mortgage by Wrigley & Son at Stationers' Hall was clearly futile ; but we do not pause to consider the question further, because it is clear on the face of their mortgage deed that Wrigley & Son were aware of the litigation between Beeton and Hutton. They allowed the joint adventure to be worked jointly, whether with or without notice, and it is impossible that they can now take to themselves the subject of that adventure and the profits arising there- from without being subject to every equity of the co- adventurer. A judgment creditor in execution against one partner, his debtor, takes only the interest of the debtor, subject to his co-partner's equities ; and Wrigley & Son could not claim the asset without satisfying in the first place the lien of £512 for the unpaid purchase-money of Beeton's moiety, nor without satisfying the balance of accounts due from Beeton to his co-adventurer Hutton. The lien of Hutton as quasi partner in the adventure must be satisfied before the subject-matter of the adven- ture can be passed over to any person claiming under an assignment from Beeton ; and this lien must continue so long as Wrigley & Son, as the assigns of Beeton by way of mortgage, allow the business to be carried on in co-partnership by Beeton and Hutton. Irrespective of the doctrine of notice, they cannot take the benefit of Hutton's capital in carrying on the concern (whether they have given him notice or not) and then ask to have the share of Beeton in the chattel, and still less in the profits of the concern, handed over to them without first satisfy- ing the lien of the co-adventurer for what may be due to him on taking the accounts of the adventure. The same NEWSPAPERS. 469 reasoning applies to the plaintiff as purchaser. His letter cap. XVI. of the 27th of December, 1866, to Hutton the elder, set — out in the amended bill, shews that he, at least up to that time, acquiesced in the arrangement under which the newspaper was to be carried on. In fact, having acquired the interest of Beeton in the newspaper, his mortgagees allow Beeton to conduct the business, and he must be taken to act as their agent and on their behalf. They do not advance any capital, and ask no question as to how it is to be provided. They must therefore take the business as they found it, at least up to the time of the actual exclusion of the plaintiff by Hutton from the concern, and even after that time profits cannot be claimed with- out making all just allowances in respect of such moiety. Hutton, therefore, wholly irrespective of his mortgage of the 9th of October, 1866, would be entitled to a lien on Beeton's share in the newspaper for £512, the unpaid purchase-money. He would also, we think, be entitled to the balance on the account settled on the 9th of March, 1866, with Beeton (which account came down to the 30th of September, 1865), and to the £2000 due to Hutton as the result of that account and the arrangement subsequent on it. We think, also, that interest at the rate of 7 \ per cent, per annum must be allowed on those two sums : for Hutton was clearly entitled to decline carrying on the business, whether with or without the knowledge of Wrigley & Son's mortgagee, except in the terms of being allowed interest on his capital. It is in fact advanced to the plaintiff. .... As to the whole case, therefore, we conclude that the plaintiff has become entitled to the interest of Beeton in the newspaper. We see no reason why that interest should not be dealt with as on former occasions, by directing the defendants to concur in pro- curing the plaintiff's name to be registered at the office of Inland Bevenue as such owner, subject to the lien before mentioned " (a). (a) Kelly v. Hutton, L. E. 3 Ch. App. 703 ; 38 L. J. (Oh.) 917 ; 19 L. T. (N.S.) 228. 470 THE LAW OF COPYRIGHT. C ap. X VI. Newspaper articles. Wrongfully assuming name of newspaper. In a case which came before Lord Curriehill, in November, 1875, wherein Mr. Charles Reade brought an action against the 'Glasgow Herald' for damages for infringement of copyright by the publication of his sketch called ' A Hero and Martyr ' which appeared originally in the ' Pall Mall Gazette,' and which the ' Herald ' had transmitted daily from London by its special wire for the next day's paper; his Lordship, in giving judgment, so far as concerned the plea of irrele- vancy set up by the defendants against the plaintiff's action, said : " The defenders maintain that as the London newspaper is not registered as copyright, they are entitled to copy and publish in their journal any thing which appears in it, and that even if its proprietor might have a title to sue for damages for such appropria- tion of matter published, the author, who has been paid by the proprietors for the right to publish such matter, has no action against the journal so appropriating. This raises a question of great importance both to authors and journalists. I am of opinion that the defence is not relevant, and that the counter-issues proposed by the defenders must be disallowed. I know of no principle or authority holding that the author loses his copyright by permitting third parties to print and publish his work. To hold such a doctrine would, I think, be analogous to holding that a patentee loses his monopoly on licensing a third party to manufacture his patented invention." An injunction will be granted against assuming the name of a newspaper published by the plaintiff, for the purpose of deceiving the public and supplanting the goodwill of such paper (a), or against publishing a maga- zine in the name of one who no longer authorizes it (b). (a) Bell v. Locke, 8 Paige (Amer.) 75. See Snowden v. Noah, Hopk. (Amer.) 347. (b) Sogg v. Kirby, 8 Yes. 215. 47 L CHAPTER XVII. INTERNATIONAL COPYRIGHT. Non erit alia lex Romx, alia Athenis ; alia nunc alia posthac, sed et apud omnes gentes et omnia tempora una eademque lex obtinebit. — Cicero. International law is entirely the offspring of modern international civilization, and is the latest important discovery in qS^„ * e political science. of modern The origin and progress of international law is itself a remarkable step in the march of civilization. Nations now begin to acknowledge their subjection to laws in conformity with natural justice and reason, as in the very origin of society individuals acknowledged themselves so bound. And the development of international law will proceed amongst the civilized nations of the earth, until citizens can enjoy in foreign countries all the rights which they enjoy in their own. Commerce, the influence of which unites the human family by one of its strongest ties, the desire of supplying mutual wants, demands an international code for the civilized nations of the earth. Art demands that the property in its inventions should be secured by an international law of patents. Literature, that the property in its works should be secured by inter- national copyright. " The actual law of nations," observes Mr. Curtis (a), '" knows no exclusive right of an author to the proceeds of his work, except that which is enforced by the municipal law of his own country, which can operate nowhere but in its own jurisdiction. As soon as a copy of a book is (a) ' Copyright,' p. 22. 472 THE LAW OP COPYRIGHT. Cap, xvii. landed in any foreign country, all complaint of its re- publication is, in the absence of a treaty, fruitless, because no means of redress exist, except under the law of the author's own country. It becomes public property, not because the justice of the case is changed by the passage across the sea or a boundary, but because there are no means of enforcing the private right." International International copyright is regulated by the 7 Vict. c. 12, re°!Sb y explained by the 15 Vict. c. 12. 7 Vict. o. 12, The former repealed the 1 & 2 Vict. c. 59, which had c. 12. ' been found " insufficient to enable Her Majesty to confer upon authors of books first published in foreign countries copyright of the like duration, and with the like remedies for the infringement thereof, which were conferred and pro- vided by the said Copyright Amendment Act (5 & 6 Vict. c. 45), with respect to authors of books first published in the British dominions." Formerly, if a book were written by a foreigner and published abroad, a person who purchased the right to publish here could not enjoy the right exclusively (a). In the case of Guichard v. Mori (b), the defendant published a piece of music called ' The Charms of Berlin,' about a third of which consisted of a piece of music sold by the composer in 1820 to the plaintiff. The music had been published in France in 1814, six years before the sale to the plaintiff. " The policy of our law," observed Lord Lyndhurst, " recognises by statutes, express in their wording, that the importation of foreign inventions shall be encouraged in the same manner as the inventions made in this country and by natives. This is founded as well upon reason, sense, and justice, as it is upon policy. It appears that this piece of music was published in France by Kalkbrenner, or some one to whom he sold it, so long ago as 1814, six years before the sale to the plaintiff." There can be no question, then, of the right of the defendant, or any one else, to publish it in this country." (a) Guichard v. Mori, 9 L. J. (Ch.) 227. (b) 9 L. J. (Ch.) 237. INTERNATIONAL COPYEIGHT. 473 To remedy this, and to afibrd protection in this Cap. XVII. country to the authors of books first published in foreign countries, in cases where protection should be afforded in such foreign countries to the authors of books first published here, the International Copyright Act, 1837, was passed. This Act, however, did not empower Her Majesty to The Act of confer any exclusive right of representing or perform- re f ere „ce ing dramatic pieces or musical compositions first pub- solelytobooke. lished in foreign countries upon the authors thereof, nor to extend the privilege of copyright to prints and sculpture first published abroad ; it merely had reference to books. In order to confer such power an Act of Parliament was Enlargement passed in 1844 to amend the law. By this Act (a) Her eonfeTZn Majesty was empowered by any Order in Council to direct Her Majesty that as respects all or any particular class of the following international works (namely) books, prints, articles of sculpture, and copyright i V i i i conventions. other works of art to be defined in such order, which should, after a future time to be specified in such order, be first published in any foreign country to be named in such order, the authors, inventors, designers, engravers, and makers thereof respectively, should have the privilege of copyright therein during such period as should be defined in such order, not exceeding, however, as to any of the above-mentioned works, the term of copyright which authors, inventors, designers, engravers, and makers of the like works respectively first published in the United Kingdom might be entitled to. If the order applied to books, the copyright law as to books first published in this country should apply to the books to which the order related, except so far as might be excepted in any order, and except as to the delivery of copies of books at the British Museum and the other libraries. And if the order applied to prints, articles of sculpture, or to any such other work of art as aforesaid, the copy (o) 7 Vict. c. 12. 474 THE LAW OF COPYRIGHT. Cap. XVII. right law as to print, sculptures, and such other works of art first published in this country should apply to the prints, sculptures, and other works of art to which such order related, except as might be provided in any order. The 5th section of the Act enacts that it shall be lawful for Her Majesty, by Order of Her Majesty in Council, to direct that the authors of dramatic pieces and musical compositions which shall after a future time, to be specified in such order, be first publicly represented or performed in any foreign country, to be named in such order, shall have the sole liberty of representing or performing in any part of the British dominions such dramatic pieces or musical compositions during such period as shall he defined in such order, not exceeding the period during which authors of dramatic pieces and musical compositions first publicly represented or performed in the United Kingdom may for the time be entitled by law to the sole liberty of representing and performing the same : and from and after the time so specified in any such last- mentioned order the enactments of the said Dramatic Literary Property Act and of the said Copyright Amend- ment Act, and of any other Act for the time being in force with relation to the liberty of publicly representing and performing dramatic pieces or musical compositions, shall, subject to such limitations as to the duration, of the right conferred by any such order as shall be therein contained, apply to and be in force in respect of the dramatic pieces and musical compositions to which such order shall extend, and which shall have been registered as thereinafter pro- vided in such manner as if such dramatic pieces and musical compositions had been first publicly represented and performed in the British dominions, except such of the said enactments or such parts thereof as shall be excepted in such order. Registration. The provisions in regard to registration under the Inter- national Copyright Act are contained in the 6th section, which requires that every author, to entitle himself to the INTERNATIONAL COPYRIGHT. 475 protection thereby afforded, shall, within a time to be Cap. XVII. prescribed in each Order in Council made in pursuance of the Act, register the same at Stationers' Hall. It is necessary to register the title to the copy thereof, the name and place of abode of the author or composer thereof, the name and place of abode of the proprietor of the copyright, the time and place of the first publication, representation, or performance, as the case may be, in the foreign country. One printed copy of the whole of any book, and of any dramatic piece or musical composition, in the event of the same having been printed, and of every volume, shall be delivered to the officer of the Company of Stationers. The copy delivered to Stationers' Hall must be on the Delivery of best paper upon which the largest number or impression copies ' of the work has been printed for sale, and must contain all maps and prints. The officer of the Stationers' Company to whom the delivery of a copy is made, is to give a receipt in writing for the same, and such delivery is to be to all intents and purposes a sufficient delivery under the provisions of the Act. As to editions, after the first, unless such subsequent editions contain additions or alterations, it is not necessary to deposit another copy. If the dramatic piece or musical composition be in Dramatic manuscript, all that is required is that the title, the name ^^ °J com . and place of abode of the author or composer, the name position. and place of abode of the proprietor of the right of per- forming or representing, and the time and place of the first representation or performance in the foreign country, shall be entered in the register. No copy is required to be deposited. As to engravings and prints, the title, the name, and Engravings place of abode of the inventor, designer, or engraver, the and P nnts - name of the proprietor of the copyright, and the time and place of the first publication in the foreign country, must be entered on the register, and a copy of such print upon the best paper upon which the largest number of 476 THE LAW OF COPYRIGHT. Cap. X VII. impressions shall have been printed for sale, must be delivered to the officer of the Company of Stationers. Articles of As to any article of sculpture or other work of art, the register must contain a descriptive title thereof, the name and place of abode of the maker of it, the name of the proprietor of the copyright, and the time and place of its first publication in the foreign country. Mode of entry. The task of making and also of construing the statu- table entries is rendered somewhat difficult owing to the circumstances, first, that the statute does not require, or the book of registry in form provide for, any description of the thing to be registered apart from its title ; and, secondly, that the register in its actual form is framed with headings applicable only to the registration of a book or other printed matter. In Wood v. Boosey (a), tbe registration of the pianoforte arrangement of an opera was held to be invalid, because the name of the composer of the opera had been entered iu the registry, instead of the name of the person who had made the arrangement. In the opinion of the court, the latter, and not the former was the author of what was registered. In Boosey v. Fairlie (&), the plaintiffs claimed the exclusive right of representing a comic opera known as ' Vert-vert,' composed by Offenbach, of which a pianoforte arrangement made by Soumis, but not the orchestral parts, had been published in print. There had been entered in the registry the title of the opera, the name and place of abode of Offenbach as composer and owner, and the time and place of the first representation of the opera, and the time and place of the first publication of the pianoforte arrangement. A copy of the pianoforte arrangement, but not of the opera itself, had been delivered to the officer of the Stationers' Company. Vice-Chancellor Bacon ruled that the pianoforte arrangement, and not the opera itself, was the thing registered, and that, as the name and place of abode of Soumis, the author of the arrangement, had not (a) L. E. 2 Q. B. 340 ; 3 Q. B. 223. (b) 7 Oh. Div. 307. INTERNATIONAL COPYRIGHT. 477 been entered, the registration, according to Wood v. Cai\ XVII. Boosey, was not valid. The Court of Appeal, however, held that all the facts required for the registration of the opera itself had been duly entered, and that the additional entry of the time and place of the first publication of the pianoforte arrangement, and the delivery of a copy of it, were superfluous acts, which did not affect the registration of the original opera. There was, therefore, a good regis- tration of the unpublished opera, but not of the pianoforte arrangement. The 7th section of the International Copyright Act pro- Registration vides for the registration of books published anonymously, p Ub jj^g,j it being sufficient in such case to insert in the entry the anonymously, name and place of abode of the first publisher, instead of the name and place of abode of the author, together with a declaration that such entry is made either on behalf of the author, or on behalf of such first publisher, as the case may require. The provisions of the Copyright Amendment Act as Effect of regards entries in the register book of the Company of re s lstration - Stationers, inspection, searches, false entries, expunging, and varying entries, are made to apply to entries under the International Copyright Act, except that the forms of entry may be varied to meet the circumstances of the case, and the sum to be demanded by the officer of the Stationers' Company for making any entry shall be one shilling only (a). And it is further provided (h), that every entry made in As to ex- pursuance of the Act of a first publication shall be prima vary?ng g e°trv facie proof of a rightful first publication ; but if there be a grounded in" » t /. x i?- A ' j 4. i. -i ir wrongful first wrongful first publication, and any party have availed him- publication. self thereof to obtain an entry of a spurious work, no order for expunging or varying such entry shall be made unless it be proved to the satisfaction of the court or of the judge taking cognisance of the application for expunging or varying such entry, first, with respect to a wrongful pub- lication in a country to which the author or first publisher (a) Sect. 8. (6) Sect. 9. 478 THE LAW OF COPYRIGHT. Cap. XVII. does not belong, and in regard to which there does not subsist with this country any treaty of international copy- right, that the party making the application was the author or first publisher as the case requires ; secondly, with respect to a wrongful first publication, either in the country where a rightful first publication has taken place, or in regard to which there subsists with this country a treaty of international copyright, that a court of competent jurisdiction in any such country where such wrongful first publication has taken place has given judgment in favour of the right of the party claiming to be the author or first publisher. Order may By the 13th section it is provided that the respective ent^nod^" terms *° be specified in any Order of Council for the con- for different tinuance of the privilege to be granted in respect of works countries and to be first published in foreign countries may be different for different f or WO rks first published in different foreign countries and works. for different classes of works : and that the times to be prescribed for the entries to be made in the register book of the Stationers' Company, and for the deliveries of the books and other articles to the said officer of the Sta- tioners' Company as thereinbefore mentioned, may be different for different foreign countries, and for different classes of books or other articles. No order to No Order of Council is to have any effect unless it shall be of effect j,e therein stated as the ground for issuing the same that reciprocal due protection has been secured by the foreign power so secured 1011 named in such order in council for the benefit of parties interested in works first published in the dominions of Her Majesty, similar to those comprised in such order (a). Orders to be Provision is made that every order made under the powers published in conferred by the Act should be published in the ' London . . Gazette ' as soon as may be after the making thereof, and from the time of such publication shall have the same effect as if every part thereof were included in the Act. Proposal of The Royal Commissioners, in their recent report on Copyright Copyright, propose that registration of foreign works in (a) Sect. 14. INTERNATIONAL COPYRIGHT. 479 this country should not be required for the purpose of cap. XVII. securing copyright here, or the right of representation or Commis- performance of musical and dramatic works, and that the """^jX^ production of a copy of the foreign register, attested by a British diplomatic or consular officer, should in all legal proceedings be prima facie evidence of title to the copyright of the foreign work, but they suggest that this should not apply to English translations of foreign works and adaptations of foreign plays to the British stage, if pub- lished in this country. They also propose that the obli- gation to deposit copies of foreign books and other works for which authors may desire to obtain copyright in the British dominions should be abandoned ; foreign govern, ments being, of course, requested to give up their rights to the deposit of English books. In order to meet the difficulty of how the people of one state are to know what works of the other are protected and what not, the Commissioners recommend that a presumption should be allowed that every book has copy- right and is protected in the country of production ; but, in case of legal proceedings, if the copyright in the country of production is disputed, proof of copyright should be re- quired, and, as already proposed, such proof should be supplied by the production of an attested copy of the foreign register. The 18th section provided that nothing in the Act Translations, should be construed to prevent the printing, publication, or sale of any translation of any book the author whereof and his assigns might be entitled to the benefit of the Act. But this section has been repealed by the 1st section of the 15 Vict. c. 12, so far as it is inconsistent with the provisions of that Act. And the 2nd section of that Act provides that Her Majesty may by Order in Council direct that the authors of books which are, after a future time to be specified in such order, published in any foreign country to be named in such order, their executors, ad- ministrators, and assigns, shall, subject to the provisions 480 THE LAW OF COPYRIGHT. Cap. XVII. thereinafter contained or referred to, be empowered to prevent the publication in the British dominions of any translations of such books not authorized by them, for such time as may be specified in such order, not extending beyond the expiration of five years from the time at which the authorized translations of such books thereinafter mentioned are respectively first published, and, in the case of books published in parts, not extending as to each part beyond the expiration of five years from the time at which the authorized translation of such part is first published. The 15 Vict. c. 12, further provides that, subject to any provisions or qualifications contained in such order, and to the provisions in the Act contained or referred to, the laws and enactments for the time being in force for the purpose of preventing the infringement of copyright in books published in the British dominions shall be applied for the purpose of preventing the publication of translations of the books to which such order extends which are not sanctioned by the authors of such books, except only such parts of the said enactments as relate to the delivery of copies of books for the use of the British Museum, and for the use of the other libraries (a). But it is provided that nothing shall prevent any article of political discussion which has been published in any newspaper or periodical in a foreign country from being republished or translated in any newspaper or periodical in this country, if the source from which it is taken be acknowledged : and that any article relating to any other subject which has been so published as aforesaid may, if the source from which the same is taken be acknowledged, be republished or translated in like manner, unless the author has signified his intention of preserving the copy- right therein, and the right of translating the same, in some conspicuous part of the newspaper, or periodical in which the same was first published, in which case the same shall, without the formalities required by the 8th section, (a) Sect. 3. Articles of political discussion. INTERNATIONAL COPYRIGHT. 481 receive the same protection as is by virtue of the Inter- cap. xvii. national Copyright Act or that Act extended to books (a). By the 4th section of the 15 Vict. c. 12, power is given Dramatic by Order in Council to grant a further right to the authors works - of dramatic pieces first represented in a foreign country. It is enacted that Her Majesty may by Order in Council direct that authors of dramatic pieces which are, after a future time to be specified in such order, first publicly represented in any foreign country, to be named in such order, their executors, administrators, and assigns, shall, subject to the provisions thereinafter mentioned or re- ferred to, be empowered to prevent the representation in the British dominions of any translation of such dramatic pieces not authorized by them for such time as may be specified in such order, not extending beyond the expira- tion of five years from the time at which the authorized translations of such dramatic pieces thereinafter mentioned are first published or publicly represented. And further, that thereupon the law for protecting the representation of such pieces shall extend to prevent unauthorized translation (6). Then follows a short, but most important provision Fair imita- that nothing in the Act shall be so construed as to prevent adaptations fair imitations or adaptations to the English stage of any not prohibited, dramatic piece or musical composition published in any foreign countries (e). The case of Wood v. Chart (d) thus illustrates principles by which the court will be guided in questions respecting translations and imitations of foreign works under the above Act. The provisions of the International Copyright Act, so far as they came in question in this case, were these : the authors of foreign plays (i.e., plays first published abroad) may prevent the representation in the British dominions of any unauthorized translation, for a period not exceeding (a) Sect. 7. (&) Sect. 5. (c) Sect. 6, but see amending Act 38 & 39 Vict. c. 12, post p. 485. (d)L. R. 10 E^. 193; 18 W. R. 822; 22 L. T. (N.S.) 432; 39 L. J. (N.S.) Ch. 641. 2 I 482 THE LAW OF COPYRIGHT. Cap. XVII. four years from the first publication or representation of an authorized translation, but nothing in that Act, as we have already seen, was to prevent "fair imitations or adaptations to the English stage " of a foreign play. The facts of the case were as follows : — ' Frou-frou] a French comedy, was registered in England ; an English version was made, published, and registered. Mr. Wood, the plaintiff, became assignee of all English rights, both of the authors and translators. An unauthorized version was made and publicly acted by the defendants. Thereupon the plaintiff filed a bill for an injunction and an account. The authorized English version of the plaintiff was entitled ' Like to Like,' the scene transferred to England, the names of the characters changed to English names, and certain alterations and omissions made in the dialogue, but the plot and the main incidents continued the same. The Vice-Chancellor dismissed the bill, holding that the requisitions to entitle the plaintiff to the benefit of the Act had not been complied with, for ' Like to Like ' was not a " translation " within the meaning of the Act, but rather " an imitation or adaptation to the English stage." " With respect to the representation of the English play," said Sir W. M. James, when Vice-Chancellor, " the plaintiff has got to make out his title, which depends upon the convention, and upon the Act. Now the Act of Parliament for some reason or other — I suppose a sufficient reason, but I do not know what it may be — has required, in order to give an author, or the assignee of that author, the particular copyright in question, that the original work shall be deposited in the United Kingdom ; and then with regard to works other than dramatic works, it says, ' The translation sanctioned by the author, or part thereof, must be published in the British dominions not later than one year after the registration and deposit in the United Kingdom of the original work.' That is, the translation of part thereof; and the whole of such translation must be published within three years of such registration and deposit. It contemplates and requires INTERNATIONAL COPYRIGHT. 483 that the whole work shall be translated. But it would cap. XVII. not be a compliance with that to translate a quarter, or ~~ half, or three-quarters of a work that is protected, and then say, ' That is all I want protected, that is my authorized translation ; and I have published the whole of that part which I have thought right to have trans- lated.' The whole work must be translated, and the translation must be published in this country. Then, for some other sufficient reason, it is provided that in the case of dramatic pieces the translation sanctioned by the author must be published within three calendar months of the registration of the original work. Now, I do not think it is possible to say that this means that anything which the author shall sanction as a translation must be published within three calendar months; but that the translation which has been authorized and sanctioned by the author must be published within that time. It appears to me that the plaintiff has gone out of his course to dig a pitfall for himself ; for that which he says he has done is, the original thing being called ' Froufrou,' lie has published in England' a comedy called 'Like to Like ' ... he has introduced English characters ; he has transferred the scene to England; he has made the alterations necessary for making it an English comedy and not a translation of a French comedy ; and he has left out a great number of speeches and passages, especially in the first act, which would seem to imply at first he was merely making an imitation or adaptation, and afterwards was minded more completely to make a translation. "The first two acts seem particularly to be what is referred to in a the Act of Parliament itself as ' an imita- tion or adaptation.' Whether it be a fair adaptation is another question ; but if one wanted to have an example of what is an imitation or adaptation to the English stage, I should have said that this is exactly the thing. This is an imitation and adaptation to the English stage ; that is, you transfer the scene to England, you make the 2 I 2 484 THE LAW OF COPYRIGHT. ' Cap. XVII. characters English, you introduce English manners, when our manners differ from French manners, and you leave out things which you say would not be suitable for repre- sentation on the English stage. But what the Act required for some sufficient reason, as I have said before, when it required that a translation should be made acces- sible to the English people, was that the English people should have the opportunity of knowing the French work as accurately as it was possible to know a French work by the medium of a version in English. That seems to me to be what was intended, and having come to the con- clusion that this is not a translation, I am of opinion that the plaintiff has failed to comply with the condition precedent which the Act has imposed upon him to entitle him to sustain this suit. It is said that one ought to give a liberal interpretation, that one ought not to strain the meaning of the word ' translation ' or any other word, for the purpose of depriving a foreign author of the benefit of the Act. Of course not. Of course, one ought to take a liberal view, and one ought not to strain any word, but one must at the same time give a real and natural mean- ing to those words, and, according to my view of the case, there never would have been the slightest difficulty what- ever in the plaintiff's obtaining the full benefit of his assignment, and putting himself in a position to prevent any representation of the French play, or of any English translation of it, if he had simply employed Mr. Suther- land Edwards to do what he could very well have done, namely, have made a translation. If he had said to him, ' Now make a translation of this ; do not be thinking of an adaptation to the English stage, but make me a transla- tion,' he could have made a translation which could have been published in this country ; and then it would have been quite open to the author, or the person claiming under the author, to have represented that, with any excision, with any alteration, with any adaptation he might have thought fit for the purpose of making it more suitable for the English stage. I have no doubt whatever INTERNATIONAL COPYRIGHT. 485 if he had published a translation, he could then have Cap. XVII. acted the thing which Mr. Sutherland Edwards has called a version, and that nobody could have acted anything like that — anything approaching to it, because (although I say this is not a translation, but an imitation and adaptation to the English stage) I have no hesitation in saying that if the authors, or any other persons claiming under them, had complied with the condition required by the Act of Parliament, I should at once have restrained the acting of this very thing as not being a fair imitation or adaptation, but as being a piratical translation of the original work. That would have been the proper thing for me to have done in that case; but the plaintiff having brought his suit, and not having a title, must fail, with the usual consequences — he must pay the costs." The scope of the 6th section of the International Copy- right Act as to fair imitations or adaptations to the English stage of any dramatic piece or musical composition pub- lished in any foreign country has been restricted since the first edition of this work, the 38 & 39 Vict. c. 12, providing that the Queen by Order in Council may direct that the 6th section of the said Act shall not apply to dramatic pieces to which protection is so extended; and thereupon the said recited Act shall take effect with respect to such dramatic pieces, and to the translations thereof, as if the said 6th section of the said Act were thereby repealed. As to what is a translation some difficulty has arisen. What is a Dryden reduces translations to three heads: first, that f trans]ation? metaphrase, or turning an author word by word, and line by line, from one language into another. Thus, or near this manner, was ' Horace, his Art of Poetry,' translated by Ben Jonson. The second way is that of paraphrase, or translation with latitude, where the author is kept in view by the translator, so as never to be lost, but his words are not so strictly followed as his sense ; and that, too, is admitted to be amplified, but not altered. Such is Mr. Waller's translation of ' Virgil's fourth ^Eneid.' The 48(3 THE LAW OP COPYRIGHT. Gap. XVII. third way is that of imitation, where the translator (if now he has not lost that name) assumes the liberty, not only to vary from the words and sense, but to forsake them both as he sees occasion; and taking only some general hints from the original, to run divisions on the groundwork, as he pleases. Such is Mr. Cowley's prac- tice in turning two odes of Pindar, and one of Horace, into English (a). It is, however, clear that the meaning of what are called in the convention " piratical translations," are all translations not authorized by the foreign author. A version must be distinguished from a translation, as will be presently seen. Requisites in The following are the requisites in order to entitle an protection 1 !'^ author to the benefit of the Act or of an J 0rder in Council as to any translation or dramatic piece : — 1. The original work from which the translation is to be made must be registered, and a copy thereof deposited in the United Kingdom in the manner required for original works by the International Copyright Act, within three calendar months of its first publication in the foreign country. 2. The author must notify on the title-page of the original work, or if it is published in parts, on the title-page of the first part, or if there is no title- page, on some conspicuous part of the work, that it is his intention to reserve the right of trans- lating it. 3. The translation sanctioned by the author, or a part thereof, must be published, either in the country mentioned in the Order in Council by virtue of which it is to be protected, or in the British dominions, not later than one year after the regis- tration and deposit in the United Kingdom of the original work, and the whole of such translation must be published within three years of such registration and deposit. (a) Dryden's Works (Scott's Ed.) xii. II. INTERNATIONAL COPYRIGHT. 487 4. Such translation must be registered and a copy cap. XVII. thereof deposited in the United Kingdom within a time to be mentioned in that behalf in the order by which it is protected, and in the manner provided by the International Copyright Act for the registration and deposit of original works. 5. In the case of books published in parts, each part of the original work must be registered and de- posited in this country in the manner required by the International Copyright Act within three months after the first publication thereof in the foreign country. 6. In the case of dramatic pieces the translation sanctioned by the author must be published within three calendar months of the registration of the original work. 7. The above requisitions shall apply to articles originally published in newspapers or periodicals if the same be afterwards published in a separate form, but shall not apply to such articles as originally published. In pursuance of the powers conferred by the 7 Vict. Convention c. 12, a convention was signed between this country and ^Jand 2 " 12 " France at Paris the 3rd of November, 1851, and sub- France, sequently ratified by Act of Parliament (a). In order to obtain protection in either country the work Eegistration. must be registered in the following manner : — If the work first appear in France it must be regis- tered at Stationers' Hall, London. If it appear first in England, at the Bureau de la Libraire of the Ministry of the Interior at Paris, within three months after the first publication in England. As to works published in parts, they must be registered within three months after the publication of the last part ; but in order to preserve the right of translation each part must be registered within three months after its publication. A copy (a) 15 & 16 Vict. o. 12. 488 THE LAW OF COPYRIGHT. Cap. XVII. Pees for registration. of the work must also be deposited within the same time as registration is to be made either at the British Museum in London, or in the National Library at Paris, as the case may be. In Cassell v. Stiff (a), Sir W. P. Wood, V.O., held that a French newspaper published weekly, and not intended to be completed in any definite number of parts, must be registered within three months after its commencement, or if it had commenced before 1852, within three months after the date of the Order in Council (10th January, 1852) ; and, semble, the registration of a number of such a periodical, in 1855, long after its commencement, did not extend to the succeeding numbers the protection of the International Copyright Acts. The charge for registration is in France one franc twenty-five centimes, and in England one shilling ; and the further charge for a certificate of such registration must not exceed the sum of five shillings in England nor six francs twenty-five centimes in France ; and the certified copy of the entry in either case is evidence of the exclusive right of publication in both countries, until the contrary is proved. With regard to articles other than books, maps, prints, and musical compositions, in which protection may be claimed, any other mode of registration which may be applicable by law in one of the two countries to any work or article first published in such country for the purpose of affording protection to copyright in such article, is extended on equal terms to any similar article first pub- lished in the other country. Little difference is discernible between the treaty and the Act, with the exception that the latter explains clearly one or two passages in the former that might otherwise have been disputed. But as the convention had been concluded under the provisions of the 7 Vict. c. 12, the 15 Vict. c. 12, went on to provide that during the continuance of the convention, (a) 2 K. & J. 279. INTERNATIONAL COPYRIGHT. 489 and so long as the Order in Council already made under cap. xvn. the International Copyright Act remained in force, the provisions contained in the 15 Vict. c. 12, should apply to the said convention, and to translations of books and dramatic pieces which were after the passing of the 15 Vict. c. 12, published or represented in France, in the same manner as if Her Majesty had issued her Order in Council in pursuance of such Act for giving effect to such convention, and had therein directed that such transla- tions should be protected as is mentioned in the 15 Vict. c. 12, for a period of five years from the date of the first publication or public representation thereof respectively, and as if a period of three months from the publication of such translation were the time mentioned in such order as the time within which the same must be registered, and a copy thereof deposited in the United Kingdom (a). Authors of works in France claiming copyright in this country are not exempt from the conditions affecting authors of works in this country (6). By analogy it follows that to obtain the benefit of the International Copyright Act, the proprietor of a foreign print must comply with the provisions of the Engravings Acts and the proprietor's name must be printed on it (c). The 19th clause of the 7 Vict. c. 12, which enacts that no author of any book or dramatic piece, which shall be first published out of Her Majesty's dominions, shall have copyright therein, otherwise than under the provisions of that Act, applies to British subjects first publishing in a country with which no international convention exists. It has been held that this section applies to native as well as to foreign authors, and to works first published in any foreign country, whether the provisions of the International Copyright Acts have or have not been (a) 15 Vict. c. 12, s. 11. (b) Cassell v. Stiff, 2 K. & J. 279. (c) Avanzo v. Mudie, 10 Ex. 203. 490 THE LAW OF COPYEIGHT. Cap. svii. extended to that country ; and accordingly that no author, whether a British subject or an alien, is entitled to any other protection for a work first published abroad than that which he may claim under the International Copy- right Acts. Therefore where a British subject first pro- duced for representation a dramatic piece of which he was the author, at New York, and he subsequently produced it in London, Vice-Chancellor Sir W. P. Wood held that as he had not complied with the provisions of the 7 Vict. c. 12, and there being no ■ international treaty or arrangement (which was alluded to by the above section), he had not obtained the copyright to such piece in England (a), nor the exclusive right to the representation of his drama, though he could not, by any possibility, have complied with the provisions of the said Act, no regulation having been made according to the course pointed out by the Act as to International Copy- right between the two countries. It was contended by the plaintiff that this Act could not annihilate the privileges enjoyed by British subjects under the former Acts. That the word " author " must mean an author in a country affected by the Act, and that the simple performance of a piece in manuscript abroad was not contemplated by the term " publication." However, the contention failed, the Vice-Chancellor saying :— " The 19th clause says, in effect, that this Act having been made, if any person, whether a British subject or not, chooses to deprive this country of the advantage of the first representation of his work, then he may get the right, if he thinks fit, under the arrangements which may have' been come to with that country he so favours with his representation, pursuant to the 7 & 8 Vict. c. 12. If, however, he does not get it, if he chooses to publish his performance in a country which has not entered into any treaty or made any arrangement for that purpose, he may (a) Boucicault v. BelafieU, 9 Jur. (N.S.) 1282; 33 L. J. (Ch.) 3S; 12 W. R. 101 ; 1 H. & M. 597. INTERNATIONAL COPYRIGHT. 491 do so, but this country has nothing more to say to him, oap. XVII. and he must be taken to have elected under which of the ~~ statutes, which have been made respecting similar sub- jects, he wishes to come, and by performing his work in one country instead of the other, he is thereby excluded from all advantage of publishing in the other. I cannot see anything to justify me in restraining the provision, or to say that it applies to foreigners, and does not apply to British subjects, because if I did so, I should be bound, by parity of reasoning, to say, that any foreigner pub- lishing first in this country, and acquiring a right under the existing law, would have to be deprived of that right by this Act, whilst a British subject would not be deprived of the benefit. The object of the legislature seems to have been in these cases to secure, in this country, the benefit of the first publication, and to extend to any other country the same benefit, only on certain conditions, namely, that reciprocity shall be afforded, and that the representation shall take place for the first time in England, which may be published afterwards in another country." The same plaintiff in a subsequent case again tried to restrain the performance of a play of his, which had been first introduced in New York, but failed to establish his claim (a). The Boyal Commissioners in their recent report on Suggestions of copyright made some important suggestions as to the commission as right of translation, copyright in translations, and adapta- to translations tion of foreign plays to the English stage. They thought tions of that instead of simply extending the periods for partial foreigI1 plays - and complete translation, as was suggested to them, the better course would be that an unconditional right of translation should be reserved to every .foreign author belonging to any state with which this country had entered into a copyright convention, for three years after publication of the original work. Under the treaty with France, the period for the right (a) Bowicault v. Chatterton, 5 Oh. Div. 267. 492 THE LAW OF COPYEIGHT. Suggestions as to dramatic pieces and right of performance. Cap. XVII. °f translation is at present five years, the Commissioners considered that this period must in many instances be in- sufficient to secure a fair remuneration for the labour and outlay attendant upon the publication of a translation, and they therefore proposed that if an author publish an English translation of his work in this country within the three years during which they had proposed to reserve the right of translation for him, his work should be protected against unauthorized translations for a period of ten years from the date of publication of such translation (a). As to the right of translation and adaptation of dramatic pieces, and the right of performance of transla- tions and adaptations, they recommended that there should be no obligation to publish a literal translation in order to acquire these rights, but that, in countries with which international treaties exist, a right to translate and adapt to the English stage should be reserved to the foreign dramatist, for a period of three years from publication, or first public representation of the original work. And they further recommended that if an authorized transla- tion or adaptation were published in this country within the three years, the dramatist's work should be protected against unauthorized translations, adaptations, and imita- tions, for a period of ten years from publication or first public representation in this country of the translation or adaptation (b). They thought that translators, whether of plays or books, and adapters of dramatic works to the English stage, should have the same rights as authors of original works ; and that the right of representation on the stage of a translation or adaptation should endure for the same term as if the translation or adaptation were an original work. Copies of books wherein copyright is subsisting printed in foreign countries, other than those wherein the book was first published, are prohibited to be imported, (o) Par. 279-283. (b) Par. 290. Importation of copies prohibited. INTERNATIONAL COPYEIDHT. 493 The 10th section of the 7 Vict. c. 12, provides that no cap. xvii. copies of books wherein there shall be any subsisting copyright under or by virtue of that Act, or of any Order in Council made in pursuance thereof, printed or re- printed in any foreign country, except that in which such books were first published, shall be imported into any part of the British dominions, except by or with the consent of the registered proprietor of the copyright or his agent authorized in writing, and if imported contrary to such prohibition, the same and the importers thereof are made subject to the enactments in force relating to goods prohibited to be imported by any Act relating to the customs ; and as respects any such copies so prohibited to be imported, and also as respects any copies unlawfully printed in any place whatsoever of any books wherein there shall be any subsisting copyright as aforesaid, any person who shall in any part of the British dominions import such prohibited or unlawfully printed copies, or, who knowing such copies to be so unlawfully imported or unlawfully printed, shall sell, publish, or expose to sale or hire, or shall cause to be sold, published, or exposed to sale or hire, or have in his possession for sale or hire, any such copies so unlawfully imported or unlawfully printed, such offender shall be liable to a special action on the case at the suit of the proprietor of such copyright, to be brought and prosecuted in the same courts and in the same manner, and with the like restrictions upon the proceedings of the defendant, as are respectively prescribed in the Copyright Amendment Act with relation to actions thereby authorized to be brought by proprietors of copyright against persons importing or selling books unlawfully printed in the British dominions. And by the 9th section of the 15 Vict. c. 12, these Extended to provisions are extended, that section enacting that all " nau | ll0 , riz ed copies of any works of literature or art wherein there is any subsisting copyright by virtue of the Inter- national Copyright Act and the 15 Vict. c. 12, or of any Order in Council made in pursuance of such Acts or 494 THE LAW OF COPYRIGHT. Cap. XVn. Provision of the5&6Vict. c. 45, as to for- feiture, &c, to extend to works prohi- bited to be imported under this Act. either of them, and which are printed, reprinted, or made in any foreign country except that in which such work shall be first published, and all unauthorized translations of any book or dramatic piece, the publication or public representation in the British dominions of translations whereof not authorized as in the Act 15 Vict. c. 12, mentioned, shall for the time being be prevented under any Order in Council made in pursuance of such Act, shall be absolutely prohibited to be imported into any part of the British dominions, except by or with the consent of the registered proprietor of the copyright of such work, or of such book or piece, or his agent authorized in writing. And it is further provided that the provision of the 5 & 6 Vict. c. 45, for the forfeiture, seizure and destruc- tion of any printed book first published in the United Kingdom wherein there shall be copyright, and reprinted in any country out of the British dominions, and im- ported into any part of the British dominions by any person not being the proprietor of the copyright, or a person authorized by such proprietor, shall extend and be applicable to all copies of any works of literature and art, and to all translations, the importation whereof into any part of the British dominions is prohibited under the 15 Vict. c. 12 (a). International Copyright with America. An English author or publisher has no right as against an American publisher who reprints and issues his work in America. Therefore, immediately on publication of a work in this country, it may be with impunity reproduced on the other side of the Atlantic ; and there is no legal obligation on the part of the American reproducer to pay a single farthing in respect of the copyright. The British author or publisher has of course power to prevent the importation of these piratical copies into this country, but (a) Sect. 9. INTERNATIONAL COPYRIGHT. 495 the real hardship (if so it may be called) is that by reason Cap. XVII. of the reproduction in America, by the American pub- lisher, be loses that profit which would otherwise accrue from the sale of copies in which he had an interest to tbe American public. ( The American readers are infinitely more numerous than the English, and the English author frequently finds that, whereas in this country he has realised perhaps next to nothing, the American publisher, who has merely reproduced his work abroad, has made large profits thereby. There appears to be a growing feeling, both in America and in this country, that something should be done for the protection of authors and publishers, and the eyes of the public are opening to the justice and policy of effecting a settlement of this question, which has recently been, and still is, so much discussed. However, there is no disguising the fact that there is a strong disinclination to an arrangement for international copyright on the part of certain publishing houses in the United States. Nor is this repugnance on their part unnatural. The United States have many advantages over this country from the absence of an inter- national law of copyright, and the great disparity of interest which the two countries would respectively reap from such an arrangement is one of the greatest difficulties in the way of any arrangement and settlement of the question being come to. The works of American authors are, generally speaking, far less in demand in England than those of British writers in the United States ; and in addition to this, the reproducer in America has a wider public to provide for than his rival in this country. The American publishers axe themselves sufficiently protected by their custom in the publishing trade that the man who first re-issues any work of an English author retains a monopoly of future productions from the same pen. No other publisher will interfere with him, and the amount he pays as acknowledgment depends wholly upon his sense of honour. In the case of publishers of reputation perhaps no great evil results from this arrangement, yet the 496 THE LAW OF COPYRIGHT. Cap. XVII. English author is left completely at the mercy of the American publisher. A bill was introduced in Congress by Mr. Cox, dated December 6, 1871, which would have required reciprocal action on the part of our Government ; and another in the publishers' interest by Mr. Appleton, and a third was presented by the executive committee of the International Copyright Association of the United States, in the interest of the copyright owners (a). As a compromise between these interests of authors and publishers a fourth bill was presented on the 20th February, 1872, which was as follows : — An Act to secure a Copyright to Foreign Authors and Artists. Be it enacted by the Senate and House of Bepresenta- tives of the United States of America, in Congress assembled : Sect. 1. That any author and artist who is not a citizen of the United States may secure a copyright for his or her work, in accordance with the regulations of the United States Copyright Act, provided such author and artist shall manufacture and publish said works in the United States. This seems only a fair protection to the American people generally, for otherwise they would be seriously affected. In the bills presented to Congress in the interest of the authors this provision was omitted, and (a) The brevity of the bill admits of its introduction here : — An Act to secure Authors the Bight of Property in, their Works. Be it enacted by the Senate and House of Representatives of the United States in Congress assembled : 1. All rights of property secured to citizens of the United States of America by existing copyright laws of the United States are hereby teemed to the citizens and subjects of every country the Government of which secures reciprocal rights to citizens of the United States. 2. This Act shall take effect two years from the date of its passage. This bill was forwarded to Washington with the sanction of William Cullen Bryant, Henry W. Longfellow, Richard Grant White, Francis Lieber, Professor Barnard of Columbia College, and other literary men of distinction ; and of George P. Putman, and Henry Holt, publishers of high respectability. INTERNATIONAL COPYEIGHT. 497 it was always alleged by the American publishers that Cap. xvir. the treaty was sought primarily in the interests of the English publisher, and yet when the bill introduced by Mr. Appleton contained a similar provision, it was urged that if it were conceded that English publishers could in any way, direct or indirect, extend their copyrights to that country, it would be a matter of comparatively small importance to American publishers, who were not them- selves manufacturers, whether the books were made there or in England, since iu that case the protection of the English publisher, which would be in the copyright, would be absolute, and shield him from all competition. Sect. 2. — That any author who is not a citizen of the United States may secure the right of translation of his or her work, whether the original work be published in a foreign country or in the United States, provided that upon the first publication of such original work, the author shall have announced on its title-page his intention of translating it, and the original work shall have been registered in the office of the librarian of the Congress of the United States, and a copy of it shall have been deposited in the library of Congress within one month after its first publication in a foreign country, for copyright in accordance with the regulations of the United States Copyright Act, and provided also that the author shall manufacture and publish the translation of his or her work in the United States. Sect. 3. — This Act shall take effect from the date of its passage. A report adverse to the bill was made to the Senate in February, 1873, by Mr Morrill from the joint committee on the library, to whom the subject had been referred, and thus the question has been shelved for the time. The report closed as follows : — " Your committee are satisfied that no form of international copyright can fairly be urged upon Congress, upon reasons of general equity or of con- stitutional law. That the adoption of any plan for the purpose which Las been laid before us would be of very 2 K 498 THE LAW OF COPYRIGHT. Colonial copyright. Cap. XVir. doubtful advantage to American authors as a class, and would be, not only an unquestionable and permanent injury to the manufacturing interests concerned in producing books, but a hindrance to the diffusion of knowledge among the people and to the cause of universal education ; that no plan for the protection of foreign authors has yet been devised which can unite the support of all, or nearly all, who profess to be favourable to the general object in view, and that, in the opinion of your committee, any project for an international copyright will be found upon mature deliberation to be inexpedient." By the 5 & 6 Vict. c. 45, the copyright of books, &c, printed in the United Kingdom is extended to all the British dominions ; the words " British dominions," meaning "all parts of the United Kingdom of Great Britain and Ireland, the islands of Jersey and Guernsey, all parts of the East and West Indies, and all the colonies, settlements, and possessions of the Crown wliich now are or hereafter may be acquired ;" and the 8 & 9 Vict. c. 93, concerning the trade of the colonies, absolutely prohibited these dependencies from importing pirated editions of copyright works. Practically, this last enact- ment was unavailing. Large quantities of cheap reprints of British copyright books continued to be imported from the United States into the British American possessions. Bemonstrances against these irregularities at length led to some special legislation. In 1847 the 10 & 11 Vict. c. 95, was passed for enabling Her Majesty by Order in Council to suspend the enactment contained in the Copyright Act, 1842, against the importation into any part of Her Majesty's colonies, &c, of " foreign reprints " of English copyright works. The Act provides that in case the legislative authorities in any British possession shall be disposed to make due provision for securing or protecting the rights of British authors in such possession, and shall pass an Act to make Ordinance for that purpose, and shall transmit the an same in the proper manner to the Secretary of State, in INTERNATIONAL COPYRIGHT. 499 order that it may be submitted to Her Majesty, and cap. XVII. in case Her Majesty should be of opinion that such Act or Ordinance is sufficient for the purpose of securing to British authors reasonable protection within such possession, it shall be lawful for Her Majesty, if she think fit so to do, to express her royal approval of such Act or Ordinance, and thereupon to issue an Order in Council declaring that so long as the provisions of such Act or Ordinance continue in force within such colony, the prohibitions contained in the aforesaid Acts (i.e. the Copyright Act, 1842, and a certain Customs Act) and therein before recited, and any prohibitions contained in the said Act, or in any other Acts, against the im- porting, selling, letting out to hire, exposing for sale or hire, or possessing, foreign reprints of books first com- posed, written, printed or published in the United King- dom, and entitled to copyright therein, shall be sus- pended so far as regards such colony ; and thereupon such Act or Ordinance shall come into operation, except so far as may be otherwise directed by such Order in Council. Every such Order in Council to be published in the London Gazette, and Orders in Council and the colonial Acts or Ordinances to be laid before Parliament within a certain specified time. Accordingly, the following colonies have placed themselves within its pro- visions, viz. : Canada, December 12, 1850 ; St. Vincent, August 18, 1852 ; Jamaica, December 29 and June 25, 1857; Mauritius, April 1, 1853; Nevis, Grenada, New- foundland, July 30, 1849 ; St. Christopher, November 6, 1849; St. Lucia, November 13, 1850; New Brunswick, August 11, 1848 ; St. Kitts, British Guiana, October 23, 1851 ; Prince Edward's Island, October 31, 1848 ; Barba- does, December 16, 1848 ; Bermuda, February 13, 1849 ; the Bahamas, May 21, 1849 ; Cape of Good Hope, March 10, 1851; Nova Scotia, August 11, 1848; Antigua, June 19, 1850 ; and Natal, May 16, 1857. In fact, all the important colonies with the exception of Australia. The understood arrangement is, that English publishers shall 2 k 2 000 THE LAW OF COPTBIGHT. Cap. XVII. furnish catalogues of their copyrights to the custom-house authorities in the different colonies, as a guide for exacting what is termed the protective duties (amounting in Canada to 12^ per cent, ad valorem). These measures are next to inoperative, and the whole thing is little better than a delusion ; so little is collected, that British authors and publishers reap either nothing or some paltry and insignificant amount, and they have now (a) generally ceased to give themselves any concern in the matter. In Canada the evil is experienced to a greater extent than in other colonies. Its proximity to the United States need only be recalled to mind to suggest the quarter from which the unauthorized reproductions of British works cbiefly proceed. In short, unauthorized cheap reprints of British copyright works may be said to be freely imported into and sold in Canada and the adjacent provinces, this kind of trade in itself tending to ' indispose the United States to enter into an international treaty with the United Kingdom. These statements are confirmed by a letter dated the 11th of June, 1868, from Mr. John Lovell (a Montreal publisher) to Mr. Bose, which appears in the correspond- ence carried on between the Canadian Government and the Imperial authorities upon the subject of " Copyright Law in Canada," and lately published. Mr. Lovell says : " At present only a few hundred copies pay duty, but many thousands pass into the country without registration, and pay nothing at all ; thus having the effect of seriously injuring the publishers of Great Britain, to the consequent advantage of the United States. I may add that, on looking over the custom-house entries to-day, I have found that not a single entry of an American reprint of (a) A ludicrous but significant illustration of the value of colonial copy- right to English authors is furnished in a document sent in 1875 to Archbishop Trench from Her Majesty's Treasury. It announced that the sum of elevenpence was in the hands of the Paymaster-General, and would be paid to Dr. Trench on presentation of a signed receipt. It appears that the elevenpence represented the whole amount the colonial authorities in Canada had levied on the Archbishop's behalf during nearly as many years, that is, at the rate of a penny a year. Yet it is well known that Dr. Trench's books had there a large and constant sale. INTERNATIONAL COPYRIGHT. 501 an English copyright (except the reviews and one or two Cap. XVII. magazines) has been made since the 3rd day of April last, ~~ though it is notorious that an edition of 1000 of a popular work coming under this description has been received and sold within the last few days by one book- seller in this city." The Eoyal Copyright Commissioners in their report in The Copy- June, 1878, referring to the operation of the Foreign mfssioneraon Eeprints Act, say, " So far as British authors and owners the "Foreign of copyright are concerned, the Act has proved a complete failure. Foreign reprints of copyright works have been largely introduced into the colonies, and notably American reprints into.the Dominion of Canada ; but no returns, or returns of an absurdly small amount, have been made to the authors and owners. It appears from official reports that during the ten years ending in 1876, the amount received from the whole of the nineteen colonies which have taken advantage of the Act, was only £1155 13s. 2^d., of which £1084 13s. 3%d. was received from Canada ; and that, of these colonies, seven paid nothing whatever to the authors, while six now and then paid small sums amounting to a few shillings." In 1875, the Dominion Parliament passed an Act giving The Canadian copyright for twenty-eight years to any person domiciled in Canada, or in any part of the British dominions, or being the citizen of any country having an international copyright treaty with Great Britain. To secure copy- right, the book must be published or republished in Canada. Section 15 of the Act provides that " works of which the copyright has been granted and is subsisting in the United Kingdom, and copyright of which is not secured or subsisting in Canada under any Canadian or Provincial Act, shall upon being printed and published, or reprinted and republished in Canada, be entitled to copyright under this Act ; but nothing in this Act shall be held to prohibit the importation from the United Kingdom of copies of such works legally printed there." By the 38 & 39 Vict. c. 53, the Queen was authorized 502 THE LAW OP COPYRIGHT. Cap, xvh. to assent to the Canada bill, and by the 4th section of this Act it was further provided that " where any book in which, at the time when the said reserved bill comes into operation, there is copyright in the United Kingdom, or any book in which thereafter there shall be such copyright becomes entitled to copyright in Canada, in pursuance of the provisions of the said reserved bill, it shall be unlawful for any person, not being the owner, in the United Kingdom, of the copyright in such book, or some person authorized by him, to import into the United Kingdom any copies of such book reprinted or repub- lished in Canada." By section 5, the Order in Council of 1868 is continued in force, " so far as relates to books which are not entitled to copyright for the time being, in pursuance of the said reserved bill." Under this law it appears the Canadian publishers considered themselves free to republish English copy- right books in Canada without any consideration what- ever. Accordingly, on the appearance of Mr. Samuel Smiles's ' Thrift ' in England at the end of 1875, Messrs. Belford of Montreal at once proceeded to reprint and republish the book without any communication with Mr. Smiles, the author, or Mr. Murray, the publisher of the book. The Copyright Association, assuming this to be a test case, then proceeded to dispute the right of the Canadian publishers to print and publish English copy- right books without permission. The case of Smiles v. Belford was accordingly argued before Vice-Chancellor Proudfoot, upon which he gave his judgment, which was in favour of the plaintiff on all points. Messrs. Belford then appealed to the Canadian publishers, and they raised among them a considerable subscription to enable the case to be tried before the highest Canadian Court. The appeal was argued before the Chancellor, Mr. Justice Burton, Mr. Justice Paterson, and Mr. Justice Moys, and their decision was again in favour of the plaintiff, Messrs. Belford's appeal being unanimously dismissed with costs. INTERNATIONAL COPYEIGHT. 503 The suggestions of the Royal Copyright Commissioners cap. xvii. on the subject of colonial copyright are numerous. They Suggestions of recommended that the difficulty of securing a supply Copyright of English literature at cheap prices for colonial readers sionera as to should be met in two ways : first, by the introduction oop^^ht. of a licensing system in the colonies ; and, secondly, by con- tinuing, though with alterations, the provisions of the Foreign Reprints Act. In proposing the introduction of a licensing system, they did not intend to interfere with the power now possessed by the colonial legislatures of dealing with the subject of copyright, so far as their own colonies are concerned. They recommended that in case the owner of a copyright work should not avail himself of the provisions of the copyright law (if any) in a colony, and in case no adequate provision be made by republication in the colony or otherwise, within a reasonable time after publication elsewhere, for a supply of the work sufficient for general sale and circulation in the colony, a licence might, upon an application, be granted to republish the work in the colony, subject to a royalty in favour of the copyright owner, of not less than a specified sum per cent, on the retail price, as might be settled by any local law. Effective provision for the due collection and transmission to the copyright owner of such royalty should be made by such law (a). The Commissioners could not recommend the simple Not reoom- repeal of the Foreign Eeprints Act. They believed that poreign Pea although the system of republication under a licence, Reprints Act. might be well adapted to some of the larger colonies which have printing and publishing firms of their own, and which could reprint and republish for themselves with every prospect of fair remuneration, it would be practically inapplicable in the case of many of the smaller colonies. These latter at present depend almost wholly on foreign reprints for a supply of literature ; and to sweep away the Foreign Reprints Act without establishing some other system of supply would be to (a) Par. 207. 504 THE LAW OF COPYRIGHT. Cap. XVII. deprive them in a great measure of English books (a). The Commissioners considered that it had been proved that the existing law in the different colonies had failed to secure remuneration to proprietors of copyright, and therefore they suggested that power should be given to Her Majesty to repeal the existing Orders in Council, and that no future Order in Council should be made under the Foreign Keprints Act until sufficient provision had been made by local law for better securing the payment of the duty upon foreign reprints to the owners of copyright works (b). It appeared to the Commissioners that possibly some arrangement might be effected by which all foreign re- prints should be sent to certain specified places in the colony, and should be there stamped with date of admission upon payment of the duty, which could then be transmitted here to' the Treasury or Board of Trade for the author. All copies of foreign reprints not so stamped, they thought should be liable to seizure, and possibly some penalty might be also affixed to the dealing with unstamped copies. And having regard to the power which they had contemplated, for authors to obtain colonial copyright by republication in the colonies, and to the licensing system which they had suggested, they recommended that when an Order in Council for the admission of foreign reprints has been made, such reprints should not, unless with the consent of the owner of the copyright, be imported into a colony— 1. Where the owner has availed himself of the local copyright law, if any. 2. Where an adequate provision, as pointed out above, has been made ; or, 3. After there has been a republication under the licensing system (c). And, lastly, the Commissioners were of opinion that colonial reprints of copyright works first published in the United Kingdom should not be admitted into the United Kingdom without the conse.it of the copyright owner; (o) Par. 211. (6) Far. 213 (c) Par. 216, 216. INTERNATIONAL COPYRIGHT. 505 and conversely, that reprints in the United Kingdom of cap. XVII. copyright works first published in any colony, should not be admitted into such colony without the consent of the copyright owners (a). In the late case of Boutledge v. Low, Lords Cairns, Cranworth, Chelmsford, Westbury, and Colonsay, unani- mously held that to acquire a copyright under 5 & 6 Vict. c. 45, the work must be first published in the United Kingdom. The law now, therefore, is, that if a literary or musical work be first published in the United Kingdom, it may be protected from infringement in any part of the British dominions ; but if, on the other hand, any such work be first published in India, Canada, Jamaica, or any other British possession not included in the United Kingdom, no copyright can be acquired in that work, excepting only such (if any) as the local laws of the colony, &c, where it is first published may afford. This opinion has caused great and general dissatisfaction in the colonies and India ; it has either destroyed all copy- right property in the numerous works since 1842, which have been first published there, or rendered such property comparatively worthless ; and this hardship is increased by the fact that, since 1842, it has been, and still is, com- pulsory upon all publishers in the British dominions, gratuitously to send one copy of every book published by them to the British Museum, and on application four to the libraries of Oxford, Cambridge, &c. (jb). The German Diet introduced a convention on the subject International of international copyright between the different members conventions of the Confederation in 1837. Austria and Prussia gave in their adherence on behalf of those portions of their territories which did not belong to the Confederation. Austria and Sardinia had a convention in 1840, to which the other states of Italy, and one of the cantons, adhered. In 1837, Prussia passed a law of reciprocity in this matter with all foreign states. (a) Par. 225, 226. (6) See an able article in the Athenxum, Nov. 1820, 69. 506 THE LAW OF COPYRIGHT. Cap. XVII. The following conventions have been entered into by Great Britain : Copyright in India. Anhalt . . Feb. 8, 1853. Hamburg . . Aug. 16, 1853. Belgium . . Aug. 13, 1851 Prussia (additional) June 14, 1855. Spain (a) . . July 7, 1857. Sardinia . . Nov. 30, 1860. Prussia . . May 13, 1846. Saxony . . Aug. 24, 1846. Brunswick . March 30, 1847. Thuringian Union July 1, 1847. Hanover . . Aug. 4, 1847. Oldenburg . Dec. 28, 1847. French Republic Nov. 3, 1851. An Act of the Legislative Council of India was passed on the subject of Copyright in the year 1847. 'After reciting that doubts might exist whether copyright could be enforced by the common law, or by virtue of the principles of equity, in the territories subject to the government of the East India Company, and whether the Act of 5 & 6 Vict. c. 45, had made provision for the enforcement of the right against persons not being British subjects, it enacts that copyright in every book published in India in the author's lifetime, after the 28th of August, 1833, shall endure for the natural life of the author, and seven years after, or for forty years if the seven years sooner expire : and copyright in any book published after the death of the author shall endure for forty-two years, and shall be the property of the proprietor of the author's manuscript. The enactments are almost in every respect similar to those contained in the 5 & 6 Vict. c. 45. The book of registry is to be kept in the office of the Secretary to the Government of India for the Home Department, and may be inspected at any time on payment of eight annas for every entry searched lor or inspected ; and certified copies of entries may be obtained on payment of two rupees. A like sum must be paid on registering any work. A like power to that vested in the Judicial Committee of the Privy Council by the 5th sect, of the 5 & 6 Vict, c. 45, is as to books in India vested in the Governor- General in Council. (a) Notice has been given by the Spanish Government for the termi- nation of the International Copyright Treatv, and it expired therefore on March 17, 1880. COPYRIGHT IN FOREIGN COUNTRIES. 507 CHAPTER XVIII. COPYRIGHT IN FOREIGN COUNTRIES. France. The infringement of copyright was formerly visited with Copyright in far heavier penalties in France tnan in this country. France - The printing a work, the sole right to which belonged to another, was regarded as little better than theft ; indeed, it was said that such conduct was worse than to enter a neighbour's house and steal his goods ; for, in the latter case, negligence might be imputed to him for permitting the thief to enter, whereas in the former, it was stealing a thing confided to the public honour (a). The protection afforded by the various edicts of the French kings to the authors of literary works was, how- ever, taken away by the famous decree of the National Assembly, by which all privileges of whatever kind were abolished (b). Before entering into any details of the law of copyright under the different heads of literature, the drama, music and art, it will tend to make the subject clearer, and will be more useful for reference, first, to give an account of the principal laws on the subject in their order of date, and then touch upon the application of these laws. The first decree on copyright is that of 13th to Decree of 13 19th January, 1791, concerning public performances The'drama. (spectacles). Art. 1. Gives a right to all citizens to open a theatre. («) Lowndes on Copy. (6) 4th of August, 1789 ; Lowndes on Copy., App. 116. 508 THE LAW OF COPYRIGHT. Cap. XVIII. Art. 2. The works of authors dead five years or more before the date of this decree are public property, and may, notwithstanding all ancient privileges which are abolished, be represented in any theatre. Art. 3. The works of living authors cannot be repre- sented in any public theatre throughout France without the formal consent in writing of such author under penalty of confiscation of the gross receipts (du produit total) from such representations for the benefit of the authors. Art. 4. The provision of article 3 applies to works already represented, whatever the former rule may have been ; nevertheless agreements which may have been made (les aetes qui auraient ete passes) between comedians and living authors or authors dead within five years before the date of this decree, shall be performed. Art. 5. The heirs or assigns of authors shall be the proprietors of their works for the period of five years after the death of the author. The drama. Then follows a further decree on the same subject July, e< 1791. dated 19th Jul y t0 6th August, 1791. Art. 1. Conformably to the provisions of articles 3 and 4 of the decree of 13th January last, concerning public performances (spectacles), the works of living authors, although represented before that date, whether engraved or printed or neither, cannot be represented in any public theatre throughout the kingdom without the formal written consent of the authors, or in the case of authors dead within five years before the 13th day of January, that of their heirs or assigns, under penalty of confiscation of the gross receipts from such representations for the benefit of the author, his heirs or assigns. Art. 2. Agreements between authors and managers (entrepreneurs de spectacles) shall be perfectly free, and no municipal or other public functionaries may tax any play, nor diminish nor increase the price agreed upon; the remuneration of authors, agreed upon between them or their representatives and such managers, can neither COPYRIGHT IN FOREIGN COUNTRIES. 509 be seised nor held back (arretee) by the creditors of such Cap. XVIII. manager. Then follows the decree of the National Convention of Literary 19th to 24th July, 1793, relating to the right of property dS?19 of authors in works of literature (eerits) of all kinds, of Jul 7i 1793 - composers of music, of painters and designers (des- smateurs). This may be looked upon as the fundamental law on copyright although the majority of its provisions have been modified by subsequent legislation. They are as follows : Art. 1. The authors of writings (eerits) of all kinds, composers of music, painters and designers, who engrave pictures or drawings, shall enjoy during their whole life the exclusive right to sell, cause to be sold, and distribute their works within the territory of the Republic, and to assign their property in such right in whole or in part. Art. 2. Their heirs or assigns shall , enjoy the same right for the space of ten years after the death of the author. Art. 3. The magistrates (offieiers de joaix) shall be bound to confiscate for the benefit of the authors, composers, painters or designers and others, their heirs or assigns, all copies of editions printed or engraved without the formal permission in writing of the authors. Art. 4. Every infringer (contrefaetewr) shall be bound to pay to the true proprietor a sum equivalent to the price of 3000 copies of the original edition. Art. 5. Every seller of a pirated edition, if not con- victed of being the infringer, shall be bound to pay to the true proprietor a sum equivalent to the price of 500 copies of the original edition. Art. b". Every citizen who produces a work whether of literature or engraving (gravure) of whatever kind, must deposit two copies, for which he will get a receipt duly signed, failing which he can have no right of action against an infringer. Art. 7. The heirs of an author of a work of literature or engraving, or of every other production of the in- 510 THE LAW OF COPTEIGHT. Cap, xviii. tellect or genius which can be classed as a work of art, shall have the exclusive property of such work during ten years (a). Posthumous Proprietors by descent, or any other title, of posthumous, literary and dramatic works have the same rights as the author ; and the provisions of the law concerning the exclusive property of authors and its duration are applicable to such proprietors (b). Procedure and The "Code Civil," articles 544, 1382, the Code de Procedure Civile, articles 59 and 1036, and the Code d 'in- struction criminelle, articles 637 and 638, define property in general, indicate the remedies and procedure of injured parties, and limit the time during which actions may be (a) These provisions embrace "les auteurs d'ecrits en tout genre," and upon this expression M Merlin has made the following commentary: " Mais il ne faut pas separer, dans cet article, les mots ecrits en tout genre de l'expression auteurs ; et la propriete, dont cet article declare que les ecrits en tout genre sont susceptibles, ne peut e'videmment §tre reclamee que par ceux qui en sont auteurs, dans la veritable acception de ce terme. " Or, le mot auteurs, quel sens a-t-il en general ? Quel sens a-t-il re- lativement aux ecrits ? Quel sens a-t-il dans la loi du 19 juillet 1793 ? " En general, le mot auteurs designe, suivant la de'finition qu'en donne le Dictionnaire de l'Academie franchise, celui qui est la premiere cause de quelque chose ; et il est aussi, suivant la nieme definition, synonyme d'inventeur. " Applique aux ecrits, le mot auteur se dit (toujours suivant le meme Dictionnaire) de celui qui a compose un lime, qui a fait quelques ouvrages cV 'esprit en vers ou en prose ; et il est bien clair qu'en ce sens, le mot auteur est oppose a copiste. " Enfin, la loi du 19 juillet 1793 ne permit pas de douter qu'elle n'exclue egalement les copistes de la denomination d'auteurs. Lesheritiers de V auteur d'un ouvrage de litterature o» de gravure, dit-elle, art. 7, ou de toute autre production de VespHt ou du genie, qui appartient aux beaux- arts, en auront la propriete exclusive pendant dix annees. Ces termes, ou de toute autre production de Vesprit ou du genie, qui appartient aux beaux- arts, ne sont ni obscurs ni equivoques. lis signiflent clairement que les productions de l'espritou du genie sont de deux sortes ; que les unes con- sistent en ouvrages de litterature ; que les autres appartiennent aux beaux- arts ; mais que nul ne peut etre repute auteur soit d'un ouvrage de littera- ture, soit d'un ouvrage d'arts, si ce n'est pas a son esprit ou a son genie qu'en est due la production. "Done, les expressions d 'ecrits en tout genre ne sont employees, dans l'art. 1" de la meme loi, que pour designer tous les genres . de com- positions litteraives. " Done, elleB n'y deagnent pas les ecrits qui ne seraient pas de com- positions, mais de simples copies. " Done, celui qui ne fait que copier une composition litteraire ne peut jamais etre repute auteur de la copie de cette composition, ni par conse- quent en avoir la propriete, dans le sens attache - i, ce mot par la loi du 19 juillet 1793, et par le code penal 1810." Merlin, •Bepertoire de Jurisprudence, titre ' Contrefacon,' § xi. (6) Decrees, 8 Dec., 1805, 8 June, 1806 ; see also decree of 15 Oct. 1812. COPYRIGHT IN FOREIGN COUNTRIES. 511 brought. These general provisions are also applicable Cap. XVIII. to copyright. The Code Penal of March 1810, articles 425 to 429, Penal Code makes piracy a misdemeanor (delit). These articles are as on P 1 ™ ?- follows : " Toute edition d'ecrits, de composition musieale, de dessin, de peinture, ou de toute autre production, imprimee ou gravee en entier ou en partie, au mepris des his et reglemens relatifs a la propriete des auteurs, est une contre- faqon ; et toute contrefagon est un delit. " Le debit d'ouvrages contrefaits, V introduction sur le territoire francais d'ouvrages qui, apres avoir ete imprimes en France, ont ete contrefaits chez I'etranger, sont un delit de la mime espece. "La peine contre le.contrefacteur, oucontre Tintrodueteur, sera une amende de cent francs au mains et de deux mille francs au plus ; et contre le debitant, une amende de vingt- cinq francs au moins et de cinq cents francs au plus. La confiscation de I'edition contrefaite sera prononcee tant contre le contrefacteur que contre Tintrodueteur et le debitant. Les planches, moules, ou matrices des objets contrefaits, seront aussi confisques. " Tout directeur, tout entrepreneur de spectacle, tout asso- ciation d 'artistes, qui aura fait representer sur son theatre des ouvrages dramatiques au mepris des his et reglemens relatifs a la propriete des auteurs, sera pmd d'une amende de einquante francs au moins, de cinq cents francs au plus, et de la confiscation des recettes. " Dans les cas prevus par les quatre articles precedens le produit des confiscations, ou les recettes confisquees, seront remis au proprietaire, pour Vindemniser d'autant du pre- judice qu'il aura souffert ; le surplus de son indemnite, ou I'entiere indemnite, s'il n'y a eu ni vente d'objets con- fisques ni saisie de recettes, sera regie par les voies ordi- naires" (a). The law of 3rd August, 1844, provides that the widows The Drama, and children of the authors of dramatic works shall have ^44° ug '' (a) Code Penal, lib. iii. tit. ii. art. 425-429. 512 THE LAW OF COPTEIGHT. Cap. XVIII. from that date the right during twenty years to authorize the representation and to confer the advantages arising from such works (d'en conferer la jouissanee) in conformity with the provisions of articles 39 and 40 of the imperial decree of the 5th February, 1810. Reciprocity. By the decree of 28th March, 1852, it is made unlawful Decree 28 March,' 1852. without the permission of the author to publish a work already published in a foreign country with which no copy- right convention exists. .The provisions of this decree are as follows : — Art. 1. Piracy on French territory of works published abroad and comprised in article 425 of the Penal Code constitutes a misdemeanor (delit). Art. 2. The same holds good with regard to the sale, export, and consignment of pirated works. The export and consignment of such works are offences of the same kind as the introduction into French territory of works, which after having been printed in France have been pirated abroad. Art. 3. The offences defined by the preceding articles are punished in accordance with articles 427 and 429 of the Penal Code, and article 463 is also applicable. Art. 4. Nevertheless a prosecution can only take place under the conditions imposed with respect to works published in France by article 6 of the law of 19th July, 1793, which relates to the formalities of deposit. Copyright. By the law of 8th April, 1854, the twenty years term of 1854' 8 n1 ' copyright vested in the children of the author was extended to thirty years. This law contains only one article, which is to the following effect : " The widows of authors, com- posers, and artists shall enjoy during life, the rights guaranteed by the laws of 13th January, 1791, and 19th July, 1793, the decree of 5th February, 1810, the law of 3rd August, 1844, and all other laws and decrees relating to this subject. The duration of the benefit given to children by the same laws and decrees, is increased to thirty years, dating either from the death of such author, composer, or artist, or from the cessation of the rights of his widow. COPYRIGHT IN FOREIGN COUNTRIES. 5] 3 Lastly, we have the law of the 14th July, 1866, by cap. xviri. which protection of copyright is given to all heirs of an copyright author for fifty years after his death. The provisions of Law - 14 July, this law are as follows : " The duration of the rights 1866 ' given by former laws to the heirs, irregular successors (successeurs irreguliers), donees, and legatees of authors, composers, or artists, is extended to fifty years from the death of the author. "During this term of fifty years the widow of such author, whatever may be the provisions of the marriage contract (le regime matrimonial), aud independently of her rights under the regime de la eommunaute, has a life interest in the rights which her deceased husband has not alienated by assignment during life, or by will. " Nevertheless if the author leave heritiers a reserve such life interest is reduced in favour of such heirs in accordance with the provisions of articles 913 and 915 of the Civil Code (a). "This interest is not given if at the time of the author's death there be a decree of separation (separation de corps) in force against his widow : it ceases as soon as the widow remarries. " The rights of heritiers a reserve and of other heirs or successors during this period of fifty years are in other respects regulated by the provisions of the Civil Code. " When the succession falls to the state, the exclusive right is extinguished, without prejudice to the rights of creditors, and contracts for assignment which may have been entered into by the author or his representative." The above laws for the most part deal with the duration of copyright and its mode of descent. In other respects the provisions are general and somewhat difficult (a) " Heritiers a reserve " are those heirs of a man who, by articles 913-915 of the Civil Code, are entitled to a certain share of bis property, and whom he cannot disinherit either by act inter vivos or by will. M. Fliniaux remarks on this article : " C'est par une erreur de droit qu'il a e'te declare' reductible conformement aux articles 913 et 915 du Code Civil ; c'est 1'article 1094 du mdme code, relatif au droit du conjoint, qu'il aurait fallu viser. (Fliniaux, Prop, industrielle et prop. litt. et art. en France et a l'etranger : Paris, 1879. An excellent work, of which free use has been made in this chapter.) 2 i. 514 THE LAW OF COPYKIGHT. Cap, xvm. to apply in particular cases. Hence it will be advisable to refer to the cases which have been decided in the French Courts of Law for information on many points. Literary copyright. What pro- tected. Duration. Eights of author's widow. Literary Copyright The works of literature protected by the copyright laws are comprised in the terms " eerits en tout genre" which occur in the law of 19th July, 1793. The following are a few of the principal decisions on the meaning of this expression. A compilation effected by an author by means of analysis and classification, such as a descriptive catalogue, a nautical almanac, or a dictionary, and having a scien- tific or literary character, is entitled to protection. A newspaper may reproduce news, whether telegraphic or not, received and published by another newspaper (a). But literary articles and romances in a newspaper remain the property of the author, provided it be duly registered (b). Public dissertations and lectures of professors cannot be published without the consent of the authors (c). The publication of private correspondence is not allowed without the consent of the writer or his heirs (d). Manuscripts form a distinct category, and can only be published by the heirs or assigns, and not by the cre- ditors of the author (e). A translation is the property of the translator and cannot be copied (/), but it cannot be made without the consent of the author of the original or his legal representatives (g). The duration of literary copyright is regulated by the law cited above of the 14th July, 1866. By this law the surviving widow has a right of survivorship over the works left by her husband, even when by the marriage settlement and the law of succession she has no such right in respect of other property of her husband : if the (a) Cass. 8 Aug., 1861, Havas. (6) Cass. 29 Oct. 1830, Le Pirate. (c) Paris, 18 June, 1840, He'rit. Cuvier ; Lyon, 17 July, 1845, Marie. (d) Paris, 11 June, 1875, Gentil. (e) Dijon, 18 Feb. 1870, de Chapuys. (/) Cass. 25 July, 1824, Ladvocat. (3) Paris, 17 July, 1847, Leclerc. COPTEIGHT IN FOREIGN COUNTRIES. 515 author have assigned his rights the widow has no right of cap. xvill. survivorship over the purchase-money (a). The widower of an authoress has the same rights in Rights nf respect of her literary works as the widow of an author, authoress? an The proprietors of posthumous worts who publish them Poethumous have the same rights as authors, on condition that they works ' do not publish such works in a collection with the other works of the author (b). The state enjoys copyright in perpetuity over works The state, published by its order or by its agents (e). In order that an author may be fully protected, and Registration have a right of action in cases of piracy, he must an ep0!>1 ' deposit two copies of his work at the Ministry of the Interior at Paris, and at the Prefecture in the departments, in conformity with the law of 19th July, 1793 (art. 6), the decree of 3rd Feb. 1810 (art. 48), and the orders of 24th Oct. 1814 (arts. 4, 8), and of 9th Jan. 1828 (art. 1). A receipt is given as evidence. The copyright of a MS., even of a play already per- formed, is protected without the deposit of copies, so long as it has not been made public by printing. But once printed, the author or publisher who neglects the formality of deposit in accordance with the provisions of the law, cannot prosecute infringers of his rights (d). Assignment of literary copyright is regulated by the Assignment, generallawof assignmentof property. Heirscan assign their rights like an author, either in whole, or in part, for a con- sideration or not. An author who has assigned the right to publish an edition of one of his works, is bound not to pub- lish a fresh edition before the former one is exhausted (e). The assignment without any reserve of a work to which an author has put his name, does not give the person to whom it is assigned the absolute disposal of it to such an extent that he can alter it by changes or additions (/). (o) Fliniaux, 1. c. p. 98. (b) Fliniaux, 1. c. p. 98. (c) Oass. 27 May, 1842, Gros ; Paris, 5 May, 1877, Peigne. (d) Prop. litt. et art. : Pouillet, Paris, 1879. (e) Cass. 22 Feb. 1847, Laurent. ('/) Paris, 14 Aug. 1860. Peigne\ Seine, Tr. Civ. 12 Jan. 1875, Vve. Michelet. 2 L 2 516 THE LAW OF COPYRIGHT. Cap. XVIII. In those cases where an alteration in the law extends the term of copyright granted to the heirs of an author, the extended term is considered to belong to the family of the author in preference to his assigns, and the term vested in the persons to whom it has been assigned, is that existing at the date of the assignment in conformity with the Civil Code, art. 1153. Hence the extension of the term of copyright granted by the laws of 8th April, 1854, and the 14th July, 1866, is for the benefit of the author's heirs, and not of the publishers to whom he may have assigned his works (a). Piracy. Piracy under the French law is the illegal reproduction of the works of another, literary or musical, not yet public property, and which reproduction is made publicly with the intention to injure, whether by printing or public representation. Piracy gives rise, as a misdemeanor, to an " action eorrectionnelle " ; if the intention to injure be not proved, the author of the work reproduced may bring a civil or commercial action for compensation in respect of the damage done to him. Piracy is committed although the offender may not have completed the printing of the work. A literal copy (la eopie servile) of about one-fourth of a work constitutes the offence of partial piracy. H y a egalement contrefacon, quelle que soit la matiere de la re- production ou la qualite de I'autew ou du proprietaire de Vouvrage eontrefait. Elle est independante des moyens a I'aide desquels elle est produite (b). The following are a few decisions on cases of piracy. 1. Piracy is committed from the moment there is a violation of the absolute right of property given by law, no matter what be the merit or importance of the work pirated (e). 2. It is piracy to copy without authorization a work even of small extent and to annex it to another work (a) Paris, 12 July, 1852; Cass. Ch. Crim. 29 April, 1876, Pradier; Cass. Ch. req. 20 Nov. 1877, Degorce— Cadot. (6) Code du Theatre, &c. C. Le Senile, Paris, 1878. (c) Paris, 11 March, 1869, aff. Godchau. COPYRIGHT IN FOREIGN COUNTRIES. 517 of a different author (a). 3. The composers of airs or of cap. XVIII. musical works can prevent such airs from being inserted without their consent in other works, even though they may have tolerated such insertion for a longer or shorter period. The law prohibits piracy whether total or partial. Piracy, There is no doubt that the protection of the law is ex- ^p^for- tended to every work in its entirety, and to all its parts, bidden. It therefore follows that partial piracy is an offence of the same order as total piracy. The law has taken care expressly to provide for this, as may be seen from the words, " en entier ou en partie," in art. 425 of the Code Penal (&). M. Eenouard is of opinion that unauthorized translation Unauthorized is not piracy, because, first, the law is silent on this point, translatlon ' and, secondly, " La difference de forme exterieure du langage," says the learned author, " empeche qu'il ne s'etablisse ni confusion, ni rivalite. Les lecterns ne seront probablement pas les memes. Quiconque sera capable de comprendre T original ne manquera pas de le preferer a une traduction plus ou moins intparfaite. La gloire de Tauteur et la propagation de ses idees, la popularite de ses productions et leurs chances de debit, ont tout a gagner par Texistence des traductions et n'ont Hen a y perdre." But at the same time he thinks that the question is not without difficulty. M. Eenouard's views are strongly opposed by M. Pouillet (c), who says, "La contrefagon, en effet, est pour nous Tatteinteportee au droit privatif I' usurpation de lapropriete ; c'est le fait de s'emparer, de profiter du travail d'autrui, sans son autorisation. 11 y a contrefagon, toutes les fois qu'on prend une ceuvre qu'on na point faite soi-meme, et que, sans permission de I'auteur, on la fait toumer a son propre profit. Si cela est, n'est-il pas certain que la traduction est une contrefagon ? " Owing to their generality the provisions of the law of (a) Paris, 27 June, 1812, aff. St. Georges. (6) Traits, Prop. litt. et art. : Pouillet, Paris, 1879. (c) Prop. litt. et art. : Pouillet, Paris, 1879. 518] THE LAW OF COPYRIGHT. Cap. XVIII. 1793, apply to every sort of reproduction which infringes the right of property of another. The translation of a French book into a foreign tongue is such a reproduction (a). The following points have also been decided : Points of note 1. That it is piracy to borrow from a published work, been decided ** s su bject, general plan, and the development of its episodes (b) ; 2. That it is piracy to publish in the form of a pamphlet the analysis of a play, even when accom- panied with critical remarks, if such publication would clearly interfere with the sale of the original work (c) ; 3. That it is piracy for a newspaper to give literally an analysis of all the chapters of a romance, even when accompanied by critical remarks, if it is clear that such reproduction will interfere with the sale of the original, by revealing the plan and most important details of the work- (d) ; 4. That it is a piratical reproduction to publish and sell a faithful resume of a play so as to injure its sale (e) ; 5. That it is piracy on the part of an author to give his work a title analogous to that of another work already published, when he follows the plan and borrows passages from it (/). Dramatic and Musical Works. Dramatic and The publication of dramatic and musical works is musical copy- regulated by the same laws as those relating to literary works. Operas, &c. A work which consists of words and music by different authors is the joint property of the two, and cannot become public property until the rights of the heirs of each have expired: the unexpired rights of the heirs of one of the authors prolongs the existence of the rights of the heirs of the other author (g). (a) Paris, 17 July, 1847, aff. Lecointe. (6) Paris, 20 Feb. 1872, aff. Sarlit. (c) Nimes, 25 Feb. 1864, aff. Offray. (d) Paris, 13 July, 1830, aff. Dartheuay, Dall. 30, 2, 235. (e) Paris, 12 March, 1845, aff. Durand. (/)Oass. 26 Nov. 1853, Laurent de Villedenil, Roland de Villargues, art. 425, Code Pe'nal. (g) Palis, 27 June, 18U0, Gerard. COPYEIGHT IN FOREIGN COUNTRIES. 519 It is lawful to appropriate the plot of a novel for the Cap. xviii. purposes of a drama, but the characters, situations and episodes, must be changed (a). Published dramatic works must be deposited like other Registration literary works — and the same with regard to music with a deposit- text. In the case of music without words there is no law compelling deposit, but in practice it is generally made. The exclusive right of representation of dramatic and Eepresenta- musical works is by the law of 14th July, 1866, secured to tl0D- the author for life, and to his heirs for fifty years after his death, exactly as in the publication of works of literature. The right of representation is distinct from the right of publication, each being guaranteed by different enact- ments, the former by the law of 1791 and art. 428 of the Penal Code, the latter by the law of 1793 and art. 425 of the Penal Code. Before being represented every dramatic work must be submitted to authorities for approval (censure). Every work intended for public performance is pro- tected, as plays, operas, and musical compositions, whether vocal or instrumental. The right of representation comprises as regards the author merely the right to authorize the representation of his work : the right of publication comprises the right of reproduction (le droit de copie) properly so called, the right to reproduce the work by copies (exemplaires) printed, engraved, or written by hand for circulation from one person to another. Hence it follows that the granting of one of these rights does not include the granting of the other. Therefore the director of a theatre authorized to 'represent a dramatic work cannot contend that he is invested with the right of publication, and, consequently, with the right of copying it for the purpose of representing it (et par consequent du droit de la copier pour I'executer) (b). An author who publishes his dramatic work does not Eight of lose thereby the exclusive right of representation, as the ff^nT l^t (a) Paris, 20 Feb. 1872, Delagrave. (6) Traite, Prop. litt. et art. : Pouillot, Paris, 1879. 520 THE LAW OF COPYRIGHT. by publica tiou. Musical works. Piracy. Cap. xviil. law of July-August, 1791, provides that the works of living authors, whether engraved or printed or not, cannot be represented without their consent (a). The publisher of the music of an opera is not im- plicitly authorized by his contract with the composer alone, to print the words with the music (&). The grant of the right to publish a work does not give the grantee the right to represent or execute it. This question was raised in regard to barrel organs. A law has authorized the reproduction on these instruments of pieces of music which are still private property (c). As regards French plays not yet public property, their plan, subject, characters, arrangement of scenes and action, are of capital importance, independently of style, language, and composition. It is therefore piracy to write a similar work, even in a foreign language, without the sanction of the author of the original, and any such imitation maybe confiscated and the performance stopped. The right which belongs to the author of a dramatic work of preventing the representation of an imitation of his work in a foreign language, is distinct from and inde- pendent of the right to prosecute for piracy committed by printing. Consequently, loss by prescription of the right of action against the person committing piracy, does not involve loss of the right to forbid the representation of such work (d). The following cases have been decided as to adaptations : 1. That it is piracy to adapt a romance for the theatre without the consent of the author (e) ; 2. That the trans- formation of a dramatic work in prose into an opera is also an act of piracy (/) ; 3. That it is piracy to modify a theatrical piece, so as to adapt it for use as an opera libretto, if the plot and arrangement of the scenes (la disposition des scenes et la marche generate de Touvrage) have not been altered (g). (a) Prop. litt. V. Oappellemarjs : Bruxelles et Paris, 1S54. (6) Trib. Corr. de la Seine, 2 August, 1826. (e) Traite' Prop. litt. et. art. . Pouillet, Paris, 1879. (d) Code du Theatre:' C. Le Seune, Paris, 187S. (c) Paris, 27 Jan. 1840, aff. de Musset ; Dall. V. Prop. litt. No. 187. i /) Paris, 6 Nov. 1841, aff. Victor Hugo. (g) Paris, 30 Jan. 18G5, .iff. Scribe. Adaptations. COPYRIGHT IN FOREIGN COUNTRIES. 521 This principle applies also to unpublished works, and Cap. XVIII. it has been decided that, it is piracy to take down by short- piracy f a n hand during representation an unpublished play, for the unpublished purpose of having it printed (a). When a piece has been printed or engraved without the Right of formality of deposit, it does not follow that the author iXpeMent° n loses his right to control the representation. He can ° f deposit. always prosecute those who in contravention of his rights represent his works, whether printed or engraved, although no deposit has taken place (l). The combined effect of the laws of 13th of January and Combined 6th August, 1791 — 1 9th July and 1st September, 1793, f 1791 and is to guarantee to the aut'hors of dramatic works the right 1793- of property in such works, and the right to dispose of them during their lives, either for the double purpose of publica- tion by printing and representation, or separately for either of these purposes (e). Every infringement of the right of public representation Penalties, is punishable by confiscation of the gross receipts for the benefit of the author. This principle is established by the law of July-August, 1791, and art. 428 of the Code Penal (d). Artistic Copyright. The law of 19th July, 1793, puts " les peintres et Artistic_copy- dessinateurs qui font graver des tableaux ou dessins " on the same footing with " les auteurs d'eerits en tous genres." In subsequent laws this equality has only been maintained in the case of engravers, no mention being made of sculptors or other descriptions of artists ; but the law courts have decided that the law is by analogy equally applicable in all cases (e). The duration of copyright in works of art is for the life Duration. (a) Paris, 18 Feb. 1836, aff. Fred. Lemaitre, Dall. V. Prop, litt, No. 345. (6) Code du Theatre, &c : C. Le Seune, Paris, 1878. (c) Etude sur la Prop, des (Buvres posthumes : B. Oollett & C. Le Seune, Paris, 1879. (d) Code du Theatre, Lois, Eeglements, Usages, Jurisprudence, par C. Le Seune, Paris, 1878. (e) Fliniaux, I.e. p. 1 1 1 522 THE LAW OF COPYRIGHT. What pro- tected. Cap. XVIII. of the artist and fifty years after his death, exactly as in works of literature. Artists have a latitude which is not allowed to others. They may utilise the ideas and works of other people on condition that their work is not a servile reproduction, and that it possesses a certain amount of originality. It is not lawful to reproduce for sale an engraving or picture which belongs to another, by sculpture, drawing, painting on porcelain, or by needlework, even though in the case of a picture the colours be omitted (a). Photographs. A photograph is not necessarily a work of art, never- theless it may have the character of such a work, and then is protected against piracy like any other work of art (&). Works of art which have become public property maybe photographed ; but to photograph for sale any work of art in which copyright exists without the consent of the owner thereof is an act of piracy (c). The proprietor of a work of art has the sole right of engraving it. By the laws of the 19th July, 1793, and 9th January, 1828, engravings, lithographs, and other printed works of art must be deposited at the national library ; and those artists who omit this formality cannot prosecute any one for piracy (d). On the other hand, no such formality is required in the case of works of art executed on wood, marble, metal, and ivory (e). Piracy of works of art is punishable in the same manner as literary piracy, and the pirated work is liable to seizure and confiscation. Eight of engraving. Registration and deposit. Penalties for piracy. Reciprocity The decree of 28th March, 1852, protects the works of dramatic, and all foreigners published out of France on the sole con- artistic dition that the formality of deposit in France be duly complied with. It is not necessary that any reciprocity (o) Fliniaux, I.e. p. 111. (b) Fliniaux, I.e. p. 112. (o) Ibid. (t-; by printing or any other analogous process, the author or publisher shall in order to secure himself the copyright, deposit at the latest within the year of publication at the Ministry of the Interior a copy bearing on the title, first page, or in some other conspicuous position, declarations in conformity with the model forms appended to this law, one signed by the author or publisher, and the other by the printer. A receipt shall be given for this deposit. In case of works in several volumes, or brought out in numbers, each volume, or number, shall be deposited within the period fixed above. An author may cede his rights for the whole or a part of the term of Alienation of copyright. In the latter case his legal representatives only enjoy the right copyright, during the portion of the period not comprised in the cession. Whoever shall in violation of the rights guaranteed by this law, publish, print, Piracy and engrave, or reproduce, in whole, or in part, writings or works of any kind, infringement, drawings, pictures, sculptures, engravings, musical compositions, or other literary or artistic productions, shall be guilty of piracy, and any one who shall knowingly announce, sell, expose for sale, or introduce upon Belgian soil, pirated works, shall be guilty of the same crime (dglit). Newspapers and periodicals are allowed to reproduce articles and extracts published in another newspaper or periodical, provided the source from which they are obtained be indicated ; this provision does not apply to 5281 THE LAW OP COPYRIGHT. Cap. XVIII. transmission to heirs or assigns for ever. By the law of the 25th of January, 1817, literary copyright was limited to the author for his life, and to his heirs or representatives for twenty years after his death. The penalty inflicted for infringement of copyright was con- fiscation of all the unsold pirated copies in the kingdom • also a fine, equivalent in value to 2000 copies of the original edition, to the use of the proprietor; besides a fine of not more than 1000, nor less than 100 florins, to be given to the poor of the district where the offender resided ; and in case of a second offence, the offender was to be disabled from the exercise of his trade of printer or bookseller, the whole without prejudice to the pro- visions and penalties imposed, or to be imposed, by the general laws respecting piratical printing (a). Both Nationality and reciprocity. Representation of dramatic and musical works. Infringement. articles or extracts, the reproduction of which is expressly reserved. Infringers of this law will be prosecuted by the public prosecutor, but in addition to this the author or party injured has a right to sue for damages in a civil action. The author or introducer of a pirated work is punished with a fine, varying from 50 to 2000 francs, and the edition or article will be confiscated. The usurpation of the name of an artist for a work of art, or the fraudu- lent imitation of his signature, shall be punished with imprisonment for a period varying from three months to two years, a fine ranging from 100 to 2000 francs, and the confiscation of the works forming the subject of the fraud, and the introduction of any such works shall receive the same punishment. The rights guaranteed by this law are assured alike to native and foreign authors, and to each only for the period of the duration of their rights in the country of the original publication of their works, and in no case can duration of protection exceed the period fixed by the present law. ' Representation of Dramatic and Musical Works. The author of a dramatic or musical work shall enjoy during his life the right of causing it "to be publicly represented or rendered. His heirs enjoy the same right for ten years from the death of the author ; where the work is the joint production of several authors the consent of all is required to the representation, and the proprietors of posthumous or pseudonymous dramatio or musical works, have the exclusive right to cause them to be represented for ten years from the first representation. Any representation or rendering of a musical or dramatic work, whether partial or entire, without the author's consent, is an infringement of his rights. Nevertheless after the author's death, any person may, oh paying an indemnity, publicly represent or render a dramatic or musical work already published, represented, or rendered. In case of disagree- ment as to the indemnity the person interested shall appeal to the president of the court of first instance. The above provisions also apply to translation of dramatic works. (a) Lowndes on Copyright, App. 121. COPYRIGHT IN FOREIGN COUNTRIES. 529 works of literature and art (except sculptures) are now Cap. XVIII. protected for the term mentioned in the above law. Only such works are protected as are printed in the country, and the publisher must also reside there, but the name of a foreign publisher may be coupled with that of the native one. The deposit of three copies with the communal authorities, and a declaration by a Dutch printer that the work has been printed by him, is necessary to secure protection. Dutch authors are protected against pirated works being imported from abroad. In 1877 a new draft law on copyright was laid before the Dutch parliament, but it does not appear to have yet become law. By this law it was proposed to confer the right of protection upon the author for the period of fifty years from the first publication, and in the event of his surviving this period, then during the remainder of his life. The German Empire. Copyright in works of literature and art, in all > the Literary states of the German Empire, is now regulated by the "Xteman three laws of the 11th June, 1870, the 9th January, Empire. 1876, and the 10th January, 1876. There is also a law protecting industrial designs and models dated the 11th January, 1876. The first of these laws was enacted by the Federal Council and Parliament of the North German Confederation, before the establishment of the German Empire, and came into operation on the 1st January, 1871. It did not, therefore, originally apply to Bavaria, Baden, Hesse, and Wiirtemberg. But by the constitu- tion of the empire, on 16th April, 1871, this law was adopted by these four states also, and is now in force in the whole of the German Empire. In Alsace-Lorraine, it took effect from 23rd January, 1873. This law relates what works to copyright in works of literature, technical drawings P rotecte ). Copyright lasts for the life of the author and fifty years after his death. In a joint work, not consisting of several distinct articles, the fifty years begin to run from the death of the last surviving author. The remainder of the year in which the author dies is not reckoned in the above fifty years. Works published by learned societies or other associa- tions, also works first published after the death of their author, are protected for fifty years from date of first publication; and the same with regard to anonymous and pseudonymous works, the authors of which, how- ever, on making themselves known before the expira- (a) Ann. de le"g. (Strang, vii. p. 658 : Paris, 1878. Lag angaende egan- der'att till skrif t. (6) This is different from the corresponding provision in the Norwegian law of 8 June, 1876. Publishers of periodicals. Duration. COPYRIGHT IN FOREIGN COUNTRIES. 551 tion of the fifty years, in the manner provided by the Cap. XVIII. law, acquire the full author's term of protection. The ~~ period of fifty years in all the above cases dates from the 1st January following the first publication. There are no provisions as to registration in this Registration, law. An author can transfer to others the rights given him Alienation of by this law with or without conditions or restrictions. oop y rlg Failing such transfer, the right passes to his heirs at his death. The person to whom an author grants the right to publish a work may not publish more than one edition of it, nor more than 1000 copies in that edition. It is forbidden as piracy, but subject to any provisions Piracy and to the contrary in this and in the law on liberty of the m m 'g emen • press, to print any work, in whole or in part, before the expiration of the term of copyright, without the consent of the owner of such copyright. Changes, abbreviations, or additions of no importance to a work, do not legalize such piracy. The publication of a translation of an unprinted work, Piratical without the consent of the author, or of a translation rans atlons - of his work from one dialect into another of the same language (and for the purposes of this provision, Swedish, Norwegian, and Danish, are all considered as different dialects of one language) is an act of piracy. It is no piracy to reproduce passages from another what is not work in a new and original work, whether in full or P ua °y- abridged, for purposes of proof or illustration, provided the source be acknowledged. Neither is it piracy to reproduce in a periodical publication extracts from another periodical, provided the source be acknowledged. But scientific articles and ouvrages d'esprit of consider- able extent are excepted, if the reservation of copyright be expressed at the head. Whoever is guilty of the offence of piracy, is punishable Penalties, by a fine of from 20 to 1000 crowns. Moreover, the 552 THE LAW OF COPYRIGHT. Nationality and recipro- city. Cap. XVIII. pirated edition is confiscated for the benefit of the plaintiff, and the value of the copies parted with (if any) are to be paid for by the offender. All objects exclusively destined for the illicit printing of a work may be seized, and, subject to any agreement between the parties to the contrary, may be made so that they cannot be used again. The penal provisions of this law, are equally applicable to persons who expose for sale or import into Sweden for purposes of sale a work which they know to be pirated. Actions for infringement of the provisions of this law can only be brought by the party injured. The present law applies to the works of Swedish citizens. Every anonymous or pseudonymous work is considered as emanating from a Swedish author until proof to the contrary. The provisions of this law can be extended, in whole or in part, and on condition of reciprocity, to the works of foreign authors. Eepresenta- No dramatic or musical dramatic work can be repre- dramatic and sented without the consent of the author or his representa- musical ^ive. But the reading or public performance of a work is permitted if there be no scenic accompaniments. The person authorized may give as many representa- tions as he likes, but may not transfer his privilege to another. The proprietor of such work may grant the same authorization to others if there be no agreement to the contrary. When a proprietor has granted the exclusive right of representation to another, and such grantee has failed to make use of his privilege for five consecutive years, the proprietor is again at liberty to grant the right of representation to others. Duration. The above rights of the author or translator over representation last for his life and five years after his death, the remainder of the year in which he dies not being reckoned in the five years. If the author or translator COPYRIGHT IN FOREIGN COUNTRIES. 553 has not made himself known the representation becomes Cap. XVIII. free to every one at the end of five years from the first representation or the first publication. Whoever represents a work in violation of this law is Penalties, liable to a fine of from 20 to 1000 crowns ; moreover, he will be compelled to hand over by way of compensation to the injured party the whole of his receipts, without deducting anything for costs, or for that part of such receipts which might be considered as arising from any piece represented at the same time. All copies of a work destined to be illegally performed may be seized. When there are several proprietors of a work the con- General sent of each is necessary for publication or representation. P roTlslons - Moreover, in the case of a musical dramatic work the consent of the author suffices if the text forms the prin- cipal part, and of the composer if the music forms the principal part. In the session of the Swedish parliament, 1876, two changes were made in the constitutional laws. One, which does not concern the subject of copyright. The other a modification in form, as follows: all provisions relative to literary property were expunged from these constitutional laws and remodelled into an ordinary law, so as to make it possible to amend or alter it, without the necessity of recurring to the procedure necessary to alter the constitution (Annuaire de legislation etrangere, vi. p. 619, Paris, 1877). This remodelled law was replaced in the following year by the more complete one on literary copy- right given above. An additional law on literary property of 10th August Additional is as follows : The provisions relating to literary copyright having Artistic been expunged from the constitutional law on liberty of eo ^ ng • the press, piracy of works of art by means of printing will in future be subject to the general rules of the law of 3rd May, 1867, on artistic works and the rights thereto belonging. 554 THE LAW OF COPYBIGHT. Cap. XVIII. Denmark. Literary copyright. What pro- tected. Duration. Works out of print. The laws regulating literary copyright in Denmark are those of 29th December, 1857, 23rd February, 1865, and 21st February, 1868. Besides ordinary works of literature, protection is afforded to speeches, lectures, and sermons : but speeches at public political meetings are excepted. An author's manuscripts are protected for thirty years after his death. On condition of giving the author's name, it is lawful to make quotations and extract detached passages from any work for insertion in other works, but it is forbidden to reproduce a work by the free use of extracts. Copyright lasts for the life of the author and fifty years after his death. In case of intestacy the copyright passes to the widow first, and then to the children and other heirs according to the Danish law of succession. If the author has bequeathed the copyright and the legatee die before the expiration of thirty years from the death of the author, such copyright passes to the widow of the author or other legatees, unless the author have made provision to the contrary: the widow or such legatees are not allowed to alienate the copyright if there be any heirs of the author to whom it can descend. If it has not been possible to procure a copy of the last edition of any work during five successive years, the author loses his rights, but they may be recovered so long as a third person has not published or announced a new edition. For anonymous and pseudonymous works copyright lasts for thirty years from the date of the last edition published within thirty years after the first edition, but the whole term from the date of the first edition cannot exceed fifty years. The copyright of a work which consists of articles by different authors, belongs to the publishers, but any author, COPYRIGHT IN FOREIGN COUNTRIES. 555 unless agreed to the contrary, may publish separately Cap. XVIII. his article after the lapse of one year. No registration or deposit of copies is required. Registration. All actions for piracy or infringement must be brought Remedies. by the party injured within a year and a day from the commission of the offence. Pirated copies may be confiscated, and if the injured Penalties. party do not wish to have them, they are to be destroyed. With regard to the publication of musical and Dramatic and •ill k musical dramatic works the rules are the same as lor other works. works of literature. With regard to representation, the exclusive right to Representa- authorize it belongs to the author and his representatives for thirty years. But it is no infringement of an author's rights to represent a play without scenery, or to perform at a concert overtures or extracts from musical works. When an author gives permission for the representation of his work, it does not confer the exclusive right of representation, and he may therefore authorize a third person to give representations. Where he has granted the exclusive right the contract becomes void if no repre- sentation has been given for five years. Artistic copyright is regulated by the law of 31st Artistic March, 1864. copyright " The reproduction of a work of art by any process is What forbidden, unless sanctioned by the artist. Architectural *" designs are the property of the architect, unless he publish them. Works of art in public galleries and places are con- sidered public property: any one who reproduces such works enjoys the copyright of his work, but any other person is at liberty to make a copy of the original by the same process. The exclusive right of reproduction belongs to the Duration- artist for his life, and to his heirs or assigns for thirty years after his death, on the same conditions as the copy- right of works of literature. 556 THE LAW OF COPYRIGHT. Cap. XVIII. Spain. Literary copyright, "What protected. Persons protected, Copyright in Spain has lately occupied the attention of the legislature, and is now regulated by the new law on intellectual property, the draft of which was reported on to the Cortes on 4th January, 1877, and by previous laws of 1834 and 10th June, 1847. The term of copyright before the passing of the new law was for life of the author and fifty years after his death. The new law protects all scientific, literary, and artistic works which are capable of being published by printing or any similar process. The persons protected are authors, translators, authorized publishers, musical composers, painters and sculptors, and the legal representatives of all these people. The publishers of anonymous and pseudonymous works have the rights of authors. But on proof of the identity of the real author, such author shall regain his rights of ownership. Proprietors of newspapers may assimilate their publica- tions to literary works, by annually presenting two com- plete files to the Eegistry of Intellectual Property. The authors of works published in periodicals have the right to publish such writings in a collected shape, unless there be an agreement to the contrary. And the author of various literary works may publish them in a collected shape, even after he has sold one of them to a third party, unless a stipulation to the contrary shall exist. Intellectual property lasts for life both in the case of authors and translators, and of other persons to whom it may pass by donation inter vivos. It then passes to their heirs-at-law, or testamentary heirs, for a period of eighty years from the death of the owner. Eegistration. A general registry of intellectual property is provided, and a book is kept in every prefecture in which the works protected by the present law are to be inscribed in order of date. Copies of these entries are to be sent periodically Duration. COPYRIGHT IN FOREIGN COUNTRIES. 557 to the office of the Minister of Public Instruction, and two Cap. XVIII. copies of each work must be deposited. Works must be registered within one year from their publication. Every work published without indication of place, date, and selling firm, will be considered fraudulent, and can- not be inscribed on the register. Every work not duly registered becomes public property. The subjects of a foreign state, whose law recognises the Reciprocity, right of intellectual property, enjoy in Spain the rights recognised by the present law, on condition of observing its provisions. Spain has treaties on copyright with England, France, Belgium, Italy, Portugal, and Holland. The proprietor of a foreign work can exercise his right of property over it in accordance with the laws of his own country. He has the right of property in translations of such work, as long as he possesses the original work in the country where it was published, and for the time during which it is protected by the laws of such country. A translation authorzied by the owner of a work, and printed abroad, is subject to the law of that country ; if printed in Spain, it is governed by Spanish law. No dramatic or musical work can be represented in Dramatic and whole or in part in any public place whatsoever, without mus ' cal previous consent of the author or his legal representative. The rate of remuneration must be fixed by the author at the time of giving such consent, otherwise he must accept the scale fixed by government. No one may, without the author's permission, make a copy of an unprinted dramatic or musical work after representation in public, nor sell or hire out such copy. Joint authors of musical or dramatic works have equal shares, unless otherwise stipulated. In a musical dra- matic work half the profits belong to the author of the libretto, and the other half to the author of the music. The consent of one of the authors shall suffice to authorize the representation. The author of the libretto and the 558 THE LAW OF COPYRIGHT. Cap, xviii. composer of the music, have each the right of publish- ing separately their part of the work. The persons who give representations of such works may not change its title in announcing it, or make changes or additions without consent of the author. The fraudulent repre- sentation of a dramatic or musical work in any public place, is, independently of the penalties prescribed by the code, punished by the loss of the entire receipts, which must be handed over to the author of the work. The duration of the right of representation is the same as that of copyright in works of literature. When a work is represented before publication, regis- tration and deposit of a manuscript copy are necessary. Works of art. The law of copyright in works of art is the same as for literary property, but no deposit need accompany the registration. Duration. Registration. Literary copyright What protected. Duration. Registration. Assignment. Piracy. Portugal. Literary copyright in Portugal is regulated by the law of the 8th July, 1851, and the penal code. Under literary works are included public speeches, lectures, sermons, and translations ; but speeches in par- liament, courts of justice, and academies may be published in the reports of proceedings. Quotations from a book or a newspaper are permitted, provided the source be acknowledged. The publication of a work in a newspaper does not deprive the author of the right of separate publication. Copyright lasts for the life of the author, and thirty years after his death. Six copies of every book must be deposited at the Lisbon Library. Certificates are given on payment of a small fee. An author may alienate his rights during his lifetime or by testament. An author may obtain an injunction stopping the pub- lication of a pirated work until the courts have decided the case. COPYRIGHT IN FOREIGN COUNTRIES. 559 The penalty of piracy is confiscation of the pirated Cap. XVIII. work, fine, and compensation to the injured party. Penalties. The same rules apply to the publication of dramatic Dramatic and and musical works as to other works of literature, except wor k 3 . that the six copies must be deposited at the " Conservatoire Eoyal." The author's exclusive right of representation lasts for Representa- life, and for thirty years after his death. In the case of lon ' works published but not represented in the lifetime of the author, the term of thirty years commences with the first representation. Any person representing a piece without the sanction Penalties. of the author is liable to the same penalties as a person who pirates a work of literature, and must pay, by way of compensation, the gross receipts resulting from such representation, and in addition the nett profits of one representation. Artistic copyright is protected by the law of 1851 and Artistic the code of procedure of 3rd November, 1876. c °py"g The works protected are paintings, drawings, engravings, What ,.,, i n i , protected. lithographs, and sculptures. r Six copies must be deposited at the Academy of Arts Registration. iu Lisbon of every kind of drawing, but of works of sculp- ture, and others of a similar character, only two copies need be deposited. An artist may alienate his right of reproduction without Assignment. parting with the work itself, but if he alienate the work, the copyright passes also, unless specially reserved. All pirated works of art are liable to seizure and Piracy, confiscation. Article 32 of the law of 1851 gives protection to Reciprocity. foreigners on condition of reciprocity. Italy. By the law of 25th June, 1865, article 8, copyright lasts Copyright in for the life of the author and forty years after his death. If duration, the author die before the lapse of forty years from the first 560 THE LAW OF COPYRIGHT. Translations. Works of academies and public bodies. Cap, xviii. appearance of the work, his heirs or representatives enjoy the copyright for the remainder of that period: then begins a second period of forty years, during which the same work may, subject to certain regulations, be repro- duced without the consent of the proprietors, but on condition of paying to them 5 per cent, on the published price of each copy, which price must be plainly printed on each. By article 11 of the same law the author has the exclusive right of authorizing translations of his works for ten years from the date of their first publication. A translator has the same rights as an author. By article 10 copyright in works published by aca- demies, universities, scientific and other societies, and government and public functionaries, is protected for twenty years from date of first appearance, and the author of any separate articles published in such works, can make free use of his contributions for publication, &c, provided he state the name of the collective work in which such contribution first appeared. Eegistration. The author of every work must deposit three copies at the prefecture of his province, and make a declaration that he intends to reserve his rights. An author may alienate his rights, but a mere authori- zation to publish a work does not transfer the copyright. After the death of an author, the state may on public grounds, and on payment of compensation to the parties entitled, declare any work to be the property of the state, or of any particular province or commune. Any person who publishes a work without the consent of the author, is guilty of illegal publication. It is accounted piracy (1) to reproduce any work over which the author's rights shall still extend, or to sell such reproduction without his consent ; (2), when a publisher produces and sells a greater number of copies than his agreement with the author allows ; (3), to translate with- out consent any work during the ten years reserved to the anthor ; (4), to publish a work during the second period of Assignment. Piracy. COPYRIGHT IN FOREIGN COUNTRIES. 561 forty years after the death of the author, without com- cap. xviii. plying with the regulations laid down by the law. Illegal publication and piracy are punishable by fine up Penalties. to 5000 francs; confiscation of the illegal copies, and implements for producing the same, follows in most cases, and damages may be awarded to the author in addition. A special law relating to dramatic and musical works, Dramatic and and modifying the law of 25th June, 1865, was passed on ™" r s ^ 10th August, 1875. With regard to publication the term of copyright is limited in the same manner as in the case of ordinary works of literature, but if no deposit of the work has been duly made within three months, either from date of publication or first representation, the author has no remedy against those who during such three months, or before he has deposited the work, may have reproduced his work or imported copies from abroad. Copies of musical works must also be deposited, and in all cases it is necessary to state whether the work has been publicly represented before publication, and to give the date of such representation. By the law of 10th August, 1875, the duration of the Representa- right of representation, is not as in the case of publication, divided into two periods of forty years after the death of the author, but is simply limited to eighty years from the date of the .first publication, and is enjoyed by the author and his heirs or legal representatives. The composer of a musical work can prohibit any extracts from or arrangements or variations of his work. In works of art the duration of the artist's rights, is Artistic the same as in works of literature, i.e. for the life of the ^P 3 ™ 8 • author and eighty years. Three copies of every work must be deposited to secure copyright, and such copies may be made by photography or any other method, so long as the identity of the work be made certain. The work of an artist cannot be copied or reproduced by any process without his consent, during the ten years immediately following the publication. After this period a picture may be engraved or a statue drawn, these cases being put on 2 o 562 THE LAW OF COPYRIGHT. Cap. XVIII. the same footing as the translation of a work of literature. Copyright in Switzerland. Works protected. Duration. Piracy and infringement. Penalties. Switzerland. The law of copyright in Switzerland is laid down by a concordat entered into by fourteen separate cantons and approved 3rd December, 1856, by the Federal Council. Its provisions are as follows : authors and artists have the exclusive right of publishing or authorizing publication of their works. This right extends to all works of literature or art printed or published iu any canton. Swiss citizens who publish works abroad may acquire the rights of an author in Switzerland, by sending a copy of the work to their government, and by declaring themselves as the authors (art. 1). Copyright lasts for the life of the author, and if he die before the end of thirty years from the date of publication, then for the remainder of this period the copyright vests in his heirs or assigns. If no publication of the work took place during the life of the author, his heirs or legal representatives have the exclusive right of publishing the work during the ten years immediately following his death : if they avail themselves of this right the work is protected for thirty years dating from the death of the author (art. 2). Reproductions which require intellectual work are not considered infringements of an author's rights : they are, on the contrary, equally protected with the original (art. 3). It is not an infringement of copyright (1.) To print the transactions and Acts of government and public authorities, unless they have pre- viously been entrusted for publication to some person. (2.) To print speeches made in public. (3.) To reproduce newspaper articles. (4.) To insert extracts from a work in a collection of passages from different authors (art. 4). The penalty for illegal publication of a work of litera- COPYRIGHT IN FOREIGN COUNTRIES. 563 ture or art, or for knowingly selling a pirated work is, by cap. XVIII. fine up to 1000 francs, and the confiscation of the unsold copies for the benefit of the author (art. 5). The author is also entitled to damages (art. 6). Cases of piracy are tried in the courts of the canton in which such piracy takes place (art. 7). The protection afforded to literary and artistic property Reciprocity, may be extended by treaty to the productions of foreign states who exercise reciprocity, and who by moderate duties on the productions of Swiss literature and art facilitate their sale ; but such treaties will only bind the separate cantons in so far as they agree to them (art. 8). Turkey. Before the year 1872 the copyright of authors was Former and protected by two decrees of January, 1850, and 19th April, present law " 1857. The first applied only to authors paid by govern- ment, the second was general. These measures were very imperfect, and merely made a publisher liable to damages for issuing more copies of a work than had been agreed upon between himself and the author. The right was also reserved to the state of publishing any work which it should think proper on payment of an indemnity, the amount to be fixed by the state itself, to the author. In the year 1872, however, a copyright law was sanctioned by the Sultan. The provisions of the new law are simple but comprehensive. The exclusive property in an original Duration, work, with the right of translation, is conferred on the author, his heirs or assigns, for forty years ; for transla- tions the privilege is to be for only half that period. All rights can be sold for the whole, or any part of the term. For publishing a translation of any work belonging to the government, permission must be obtained from the Ministry of Public Instruction. Piracy of copyright will Piracy. be punished under article 141 of the penal code, and every author or translator must conform to the press regulations. 2 o 2 564 Cap. XVIII. THE LAW OF COPYRIGHT. Literary copy right. What protected Duration. In Eussia literary copyright is regulated by the pena code of 1832, and the ukases of 26th January, 1846, and of 7th May, 1857. Speeches and lectures are comprised in works of litera- ture. Translations are protected like original works, and an author cannot prevent another person from publishing a translation of his work, but an exception is made in favour of authors of scientific works involving research. They may reserve the right of translation but must make use of it within two years. Private letters cannot be published without the mutual consent of the writer and receiver. The copyright of musical compositions is the same as for literary works, and no musical composition can be arranged for or adapted to another instrument without the consent of the composer. Copyright lasts for the life of the author, and after his death is enjoyed by his heirs or assigns for fifty years. In the case of posthumous works this term only commences to run from the date of publication. Learned societies have the exclusive right of reproduction for fifty years from date of publication. Authors must register their works in order to secure the copyright, but no deposit of a copy is required. Every assignment of copyright must be in writing. Assignment. The assignment of a work to a publisher gives him the right to publish only one edition, unless a stipu- lation to the contrary be expressly made. Five years after the Censure Office has authorized the sale of this edition, the author or his heirs can publish a new one. The author can also publish a new edition before the expiration of these five years if he has made changes in or additions to his work equivalent to two-thirds of the whole. The author of articles in reviews and periodicals retains the right to publish them in a separate form Registration. COPYRIGHT IN FOREIGN COUNTRIES. 565 unless there be an agreement to the contrary. Manu- Cap. xviit. scripts cannot be seized by creditors. No prosecution for piracy can take place except on the Remedies of complaint of the injured party, and this complaint must aKa i ns t be formulated within two years from the commission of the P irac 7- offence, or within four years if the plaintiff reside abroad. The trial is held in the courts of the province in which the defendant is domiciled. Besides confiscation of pirated copies, damages may be Penalties, awarded to the plaintiff in cases of piracy. Any person guilty of the fraudulent publication in his own name of the work of another, or of selling a manu- script, or the right of publishing it, to several persons, was, by article 742 of the penal code of 1832, liable to deprivation of his civil rights, to corporal punishment, and to transportation into Siberia in addition to the pecuniary penalties. But the penal code of 1857 does not contain this provision. There are no provisions regulating the right of repre- Dramatic and sentation of dramatic and musical works. work's^ The same laws which regulate literary copyright apply Artistic also to artistic copyright. Pictures, drawings, engrav- ^ y " ght " ings, maps, statues and other works of art enjoy the same protected. protection as works of literature. An architect's plans are also his property, and it is not lawful to construct a building on the lines of another designed by some one else. It is unlawful to reproduce a picture or any part of it piracy, by the same process without the. artist's consent, or to copy it by engraving or drawing. A sculptor's work may not be reproduced by a cast, nor in marble, nor in the form of a medallion, nor by an engraving, so long as the reproduction is on the same scale as the original. A sculptor is not allowed to copy portions of the work of another sculptor in order to introduce them in his own work. In any case a piece of sculpture may be reproduced by a painting, and vice versa. 566 THE LAW OF COPYRIGHT. Cap, xviil Works, of art belonging to the government may be reproduced without consent of the artist. The free use of works of art for application to indus- trial purposes is allowed by the law of 11th July, 1864. Portraits and family pictures cannot be reproduced, even by the artist without the consent of the owners. Assignment. All assignments of right of reproduction must be in writing ; on the death of an artist the assignee or legatee of the right of reproduction must give notice to the heirs within a year, or, if he reside abroad, within two years. When an artist assigns or bequeaths his artistic copy- right in a work, or the work itself, the copyright passes completely to such assignee and his heirs: but if the work be of such a nature that it can be reproduced in a complete collection of the artist's works, the law reserves to him the right to insert it in such collection. Works of art may be sold to pay the artist's creditors, but in such case the copyright does not pass. Registration. An artist in order to secure his copyright must, before pubhcation, duly register it in his district with a detailed description. The fact of registration is then gazetted by the Academy of Arts. Greece. Copyright in Greece. Duration. Reciprocity. Copyright of all kinds in Greece is regulated by the Penal Code of 1833. Its provisions are general, and make no distinction between literary, artistic, or industrial copy- right. The term of copyright in this country lasts only for fifteen years from the date of first publication. But the king can grant an extension in particular cases. Inventions are also protected under this law. Any foreigner is protected for fifteen years, provided the Greeks enjoy protection in the country of which he is a native. COPYRIGHT IN FOREIGN COUNTRIES. 567 Cap. XVIII. There is copyright in works of literature for the life Brazil, of the author and for ten years after his death. Foreign works have no protection whatever (a). Republic of Chili. Literary and artistic copyright lasts for the life of the Chili, author and for five years after his death — and the right of representation of dramatic and musical works is pro- tected for the same period — foreign works published out of Chili have no protection whatever (6). Japan. Literary copyright is secured to the author and his japan, heirs for thirty years, which period may be extended to forty-five years in the case of works of great utility. Translators are put on the same footing as authors (c). Literary copyright is perpetual, registration and deposit Mexico, of copies is obligatory. The right of representation of dramatic and musical works lasts for the life of the author, and for thirty years after his death. Artists are also protected against piratical reproductions of their works (d). The United States of Venezuela. Literary and artistic copyright lasts for the life of the Venezuela. author, and for fourteen years after his death. Deposit and registration are necessary (e). (a) Fliniaux, 1. o. p. 402. (6) 1. c. p. 405. (c) 1. c. p. 424. ()- In Sweet v- Lee (c), it appeared that the agreement for the publication of a dictionary of legal practice was contained in a memorandum, which was signed with the initials of the publisher and of the author, and was to the effect that the latter should receive £80 a year for five years, and £60 a year for the rest of his life if he should live longer than five years. This was held to be void under the Statute of Frauds ; because, being a memorandum of an agreement not to be performed within a year, no consideration was expressed on the face of it, and it was without any signature other than the initials of the parties. The plaintiff, therefore, was not entitled to damages claimed to have been sustained by the failure of the defendant to perform his agreement to prepare a new edition. Nor, although the contract was void, could the plaintiff, having paid for several years the sums mentioned in the memorandum, recover the money so paid on the ground of failure of consideration. Whatneoes- But the contract required to be in writing by the th^StetateTof Statute of Frauds need not appear from one document, (a) Speech in the Commons, April 25, 1838, 42 Pari. Deb. 560. (b) But a contract by a printer to print, and find the paper for printing a number of copies of a work is not a contract for the sale of goods within the 17th section of the Statute of Frauds as extended by the 9 Geo. 4, c. 14, s. 7 ; and the printer consequently may recover the price in an action for work, labour, and materials, where the contract is a verbal one : Clay v. Yates, 1 H. & N. 73. And a printer who is employed to print certain numbers, but not all consecutive numbers, of an entire work has a lien upon the copies not delivered for his general balance due for printing the whole of those numbers : Blake v. Nicholson, 3 M. & S. 167. But it seems that by the custom of trade a printer cannot recover for the printing of a work before the whole is completed and delivered : CHUett v. Mawman, 1 Taunt. 137; see also Adlard v. Booth, 7 C. & P. 108. (c) 3 Man. & Gr. 452. Frauds. AUTHORS AND PUBLISHERS. 579 it may be collected from any number of documents, cap. XIX. Thus, where a publisher proposed to publish by subscrip- — tion an illustrated edition of Shakespeare, to appear in numbers at the price of three guineas a number, two guineas to be paid at the time of subscribing, and the remaining guinea on the delivery of each successive number ; the prospectus stating " that one number at least should be published annually," and that the pro- prietors were confident that they should be able to " produce two numbers within the course of every year ;" and the defendant, wishing to become a subscriber, wrote his name in a book kept for the purpose in the plaintiff's shop, entitled ' Shakespearian subscribers, their signatures ;' printed copies of the prospectus lying at the same time in the plaintiff's shop* but neither prospectus nor book of subscribers containing any reference the one to the other, it was held that the contract of the defendant was not one to be performed within the space of a year from the making thereof, and therefore that, in order to be enforce- able by action, it must be writing. The defendant having refused to continue to take in the numbers of the book, an action was brought against him by the publisher ; but it was held that the action could not be maintained for want of a written agreement or memorandum signed by the party to be charged therewith, as required by the 4th section of the Statute of Frauds. The prospectus contained the terms of the agreement, and if it could be coupled with the book of subscribers in which the defendant had signed his name, it would be a sufficient memorandum of the agreement to satisfy the statute, but as it contained no reference to the book, nor the book to it, there was no connection in sense between them which would enable the court to couple them together, and treat them as one document; and parol evidence to establish such a connection was inadmissible (a). " If," said Le Blanc, J. " there had been anything in the book which had referred to the particular prospectus, that (a) Boydett v. Drumnwnd, 11 East, 142. 2 p 2 580 AEBANGEMENTS BETWEEN Cap. XIX. would have been sufficient ; if the title to the book had been the same with that of the prospectus, it might, perhaps, have done; but as the signature now stands, without reference of any sort to the prospectus, there was nothing to prevent the plaintiff from substituting any prospectus, and saying that it was the prospectus exhibited in his shop at the time, to which the signature related ; the case, therefore, falls directly within this branch of the Statute of Frauds." An action If an author agree in writing to supply a bookseller or ™r 1 not ai u ab i e -P u ^ s ' ier ^k a manuscript of a work to be printed by ing a work the latter, an action for damages can be maintained for furnished. 6 refusing to furnish the same (a), provided the work be one which, if published, would not be libellous (b), or would not subject the author to punishment (e). Should the Where, however, the author was engaged for a certain stopped the Bum *° wr ite an article to appear, among others, in a author must W ork called the ' The Juvenile Library,' and before he work already had completed his article, and before any portion of it had done. been published, the work in which it was to have appeared was discontinued, Lord Chief Justice Tindal held that the publishers were not entitled to claim the completion of the article in order that it might be published in a separate form for general readers, but were bound to pay the author a reasonable sum for the part which he had prepared (d). Payment to Where a work called the 'Elements of Mechanical £LT_lf.l)Or's TS — _ presentative ( a ) ^ a ^ e v - Leckie, 2 Stark, N. P. C. 107 ; the Court of Chancery, how- for part of eTer > cou ^ not compel him : Clarke v. Price, 2 Wills. C. C. 157. work finished. 00 Ly ne v - Sampson Low & Marston, ' Times,' 17th Feb., 1873. (e) Gale v. Leckie, supra, and see Brook v. Wentworth, 3 Anstr. 881 ; Cowan v. Milium, L. E. 2 Ex. 230 ; 36 L. J. (Ex.) 124 ; 16 L. T. (N.S) 290. A contract for the publication of a book which it is unlawful to publish is not valid. But where this defence is set up, and the work is not produced, and no evidence of its character is offered, the jury are not to pronounce that the book is obnoxious : Gale v. 'Leckie, supra. A printer cannot maintain an action against a publisher for money due for printing an obscene book : Poplett v. Stockdale, 1 Kyan & M. 337. But where a printer, after printing part of a book, received the manuscript of the other part and found it to be libellous, it was held that he was not bound to print the libellous part, and was entitled to recover for what he had printed: Clay v. Yates, 1 Hurl. & N. 73; Lyne v. Sampson Low & Marston, supra, (d) Planche~ v. Colburn, 5 Car. & Pay. 58 ; on ap. 8 Bing. 14. AUTHORS AND PUBLISHERS. 581 Philosophy ' was published in parts, the agreement between Cap. xix. the author and publisher being that each part should be ~~ paid for when issued, and after the publication of a complete part the progress of the work was interrupted by the death of the author, it was held that the repre- sentatives of the deceased author were entitled to payment of the stipulated price of the published part (a). A Court of Equity will not, however, decree specific No specific performance of an agreement to write a book (&). It has a^e°e™ent°to no power to go so far, and were it capable of such an write book, order, there would be no means of enforcing it. In the case of Clarke v. Price (e), the defendant, Mr. Price, entered into an agreement with the plaintiffs, dated the 27th of April, 1814, " to compose and write the cases in the Court of Exchequer, commencing with Easter Term, 1814, and to be published periodically," on the terms of sharing the profits ; and it was agreed that the plaintiffs should be at liberty to relinquish the under- taking if they should think it advisable. As the first and second volumes were published, the defendant, for certain considerations, assigned the copyright in them to the plaintiffs. Afterwards, in 1817, the terms of the arrange- ment were altered, and the following agreement was executed : — " Memorandum, Mr. Price agrees with Messrs. Clarke to receive for his interest in the agreement for the Exchequer Keports, dated the 27th of April, 1814, com- mencing at the third volume, the sum of, &c. Mr. Price agrees to give any further assignment of the copyright and future interest to Messrs. Clarke at their expense." The defendant having subsequently entered into an agree- ment with other publishers, who were made defendants, to report the cases in the Exchequer ; the bill was filed, (a) Constable v. Robinson's Trustees, 14 Fac. Dec. 166, 1 June, 1868. One judge, however, dissented, thinking the contract was one for the entire work, and that the object of partial payment was the accommodation of the author, and not any qualification of the original obligation. (6) Specific performance of an agreement for the sale of copyright (even though personal chattels, such as stereotype plates, printed sheets, &c, are included in the contract) will be decreed : Thombleson v. Black, 1 Jur. 198 (e) 2 Wills. 0. 0. 157. 582 ARRANGEMENTS BETWEEN Oap, xix. praying to have a specific performance of the agreements of 1814 and 1817, by permitting the plaintiffs to print and •publish the reports of cases in the Exchequer so long as he should continue to compose and write them, upon the terms of those agreements, and by executing an assignment of the copyright ; and also praying an injunction. Morris v. Colman (a), was relied upon. Lord Eldon, C, dissolved an injunction which had been obtained ex parte, apparently assuming that the agreement bore the construction con- tended for by the plaintiffs. His lordship said : " The case of Morris v. Colmcm is essentially different from the present. In that case Morris, Colman, and other persons were engaged in a partnership in the Haymarket Theatre, which was to have continued for a very long period, as long, indeed, as the theatre should exist. Oolman had entered into an agreement which I was very unwilling to enforce — not that he would write for the Haymarket Theatre, but that he would not write for any other theatre. The court could not compel him to write for the Haymarket Theatre, but it did the only thing in its power — it induced him indirectly to do one thing by prohibiting him from doing another. There was an express covenant on his part contained in the articles of partnership. But the terms of the prayer of this bill do not solve the difficulty, for if this contract is one which the court will not carry into execution, the court cannot indirectly enforce it by restraining Mr. Price from doing some other act. This is an agreement which expressly provides that Mr. Price shall write and compose reports of cases to be published by the plaintiffs. In Morris v. Colman there was a decree directing the partnership to be carried on, it could not be put an end to, and it was the duty of the parties to interfere. But I have no jurisdiction to compel Mr. Price to write reports for the plaintiffs ; I cannot, as in the other case, say that I will induce him to write for the plaintiffs by preventing him from writing for any other person, for that is not the nature of the agreement. The only means , (a) 18 Ves. 437. ATJTHOKS AND PUBLISHERS. 583 of enforcing the execution of this agreement would be to Cap. XIX. make an order compelling Mr. Price to write reports for the plaintiffs, which I have not the means of doing. If there be any remedy in this case, it is at law. If I cannot compel Mr. Price to remain in the Court of Exchequer for the purpose of taking notes, I can do nothing. I cannot indirectly, and for the purpose of compelling him to perform the agreement, compel him to do something which is merely incidental to the agree- ment. It is also quite clear that there is no mutuality in this agreement." But an author may bind himself not to write upon a An au . t K°i' . particular subject, or only for a particular person ; for a 8 elf not to bond or covenant to that effect would not resemble one in wrl *? u f on a particular restraint of trade. subject. Thus, in the case quoted in Clarke v. Price, where Colman had contracted with the proprietors of the Hay- market Theatre not to write dramatic pieces for any other theatre, the Lord Chancellor maintained that such a contract was not unreasonable upon either construction, whether it was that Mr. Colman should not write for any other theatre without the licence of the proprietors of the Haymarket Theatre, or whether it gave to those pro- prietors merely a right of pre-emption. If, said he, Mr. Garrick were now living, would it be unreasonable that he should contract with Mr. Colman to perform only at the Haymarket Theatre, and Mr. Colman with him to write for that theatre alone ? Why should they not thus engage for the talents of each other? I cannot see anything unreasonable in this; on the contrary, it is a contract which all parties may consider as affording the most eligible, if not the only, means of making this theatre profitable to them at all as proprietors, authors, or in any other character which they are by the contract to hold (a).- (o) Morris v. Colman, 18 Ves. 437. In Montague v. Fkokton, L. E. 16 Eq. 189, it was held that a contract between a manager of a theatre and an actor must be understood to be for the exclusive services of the latter duriDg the period for which he had been engaged, though there was no express agreement that he should not act elsewhere. 584 AHRANGEMENTS BETWEEN Cap, xix. But in Brooke v. Chitty (a), where the defendant had But court will undertaken not to write or edit any work upon the criminal untiUherebe ^ aw » exce pt a work of which the plaintiff had purchased an actual the copyright, and an advertisement of an edition of pu ica ion. g urn ' s i j ug ti ce f the Peace,' hy the defendant, had ap- peared, Lord Brougham refused to grant an injunction, observing that the defendant was at liberty to write in his closet what he pleased, and that the court would not interfere until there was a violation of the alleged under- taking by actual printing and publication. So, where an author sells the copyright of a work (6) published under his own name, and covenants with the purchaser not to publish any other work to prejudice the sale of it, it seems that another publisher, who has no notice of this covenant, may be restrained from publishing a work subsequently purchased by him from the same author, and published under his name, on the same subject, but under a different title, and though there be no piracy of the first book (e). independent But where no such covenant had been entered into and to the e con- n the publisher had agreed with an author for an edition of t M r -h' Y* 1 } 01- a history to be written by the latter, in four volumes, and publish a had obtained subscriptions for all that could fall within ofhiTwork" his edition, the court held that the author was at liberty to publish a continuation of the history which embraced part of the period and also much of the matter contained in the last of the four volumes (d). 1 The An arrangement was entered into between Dr. Brewster PhiksophLl and Professor Jameson, on the one part, and an Edinburgh Journal.' publishing firm on the other part, for the publication of a (a) 2 Cooper's Cases, 216 ; see Brook v, Wentworth, 3 Anstr. 881. (ft) A contract for sale of a copyright is enforceable in equity : Thombleson v. Slack, 1 Jur. 198. (c) Barfield v. NiclwUon, 2 Sim & Stu. 1 ; 2L.J. (Ch.) 90. But where, in an action by several plaintiffs for piracy of copyright, it appeared that the defendant, the author, had published the work in question pursuant to the conditions of a cognovit given by him to one of the plaintiffs and another person, in an action for not performing an agreement to write the work in question, it was held that this was a sufficient defence : Sweet et al. v. Archbold, 10 Bing. B. 133 ; cited Curtis on Copy. 231. (d) Blackie & Co. v. Aikman, May 26, 1827 ; 5 Ses. Cass. 719 (N.E.) 671. ACTHOBS AND PUBLISHERS. 585 work to be edited by the former, called ' The Edinburgh Gap. XIX. Philosophical Journal,' the agreement to be binding for five years, or till the termination of the twentieth number of the journal. On the title-page the journal was stated to be " conducted by Dr. Brewster and Professor Jameson." After the twentieth number had appeared, Dr. Brewster, having differed with the firm, published a prospectus of " No. 1 of the ' New Series of the Edinburgh Journal,' conducted by Dr. Brewster," whereupon the firm presented a bill of sus- pension and interdict of a work under this title, on the ground that they were the proprietors of the original journal, the publication of which they intended to continue, and that the proposed work was an inyasion of their property. The Lord Ordinary; on the ground that the copyright of the publication iu question was the property of the com- plainers, passed the bill, and granted the interdict. The Court of Session recalled the interlocutor as deciding the question to be discussed on the passed bill ; but at the same time remitted to pass the bill and continue the interdict (a). Where, in 1857, the defendant, being the proprietor of ' The London a weekly publication, ' The London Journal,' the price of ourna ' which was Id., assigned his copyright and interest therein to the plaintiff for £24,000, and entered into a covenant with the plaintiff that he would not directly or indirectly, alone or in partnership with any other person or persons, engage himself or be concerned in bringing out or publishing any weekly periodical of a nature similar to 'The London Journal,' selling at Id. per copy, or com- mit any act or default which might tend to lessen or diminish the sale or circulation of the said periodical, or the profit to be derived by the plaintiff from the future printing or publishing thereof, and in May, 1859, the defendant issued an advertisement announcing the publication by him, on the 1st of June following, of a daily newspaper, to be called the ' The Daily London Journal,' and to be sold at Id., the plaintiff obtained an . (a) Constable v. Brewster, 3 Scotch Ses. Cass. 215. 586 ARRANGEMENTS . BETWEEN Society.' Cap. XIX. injunction. The injunction was appealed against, but without effect. Sir J. L. Knight Bruce, L.J. (dissentiente Sir G. J. Turner, L.J.), confirming the order, upon the plaintiff undertaking to abide by any order the court might make as to damages, and to bring an action against the defendant within one week (a). 1 London So also in the case of Clowes v. Hogg (b), an injunction was applied for on behalf of Messrs. Clowes and Messrs. Wrigley, the proprietors of a magazine called ' London Society,' to restrain the defendant, Mr. James Hogg the younger, from publishing a magazine under the name of ' English Society,' or with a cover only colourably differing from that used for the plaintiffs' magazine. It was only sought to restrain the defendant from selling the Christmas number of his intended magazine with a cover similar to that used by the plaintiffs. 'London Society' was brought out by the defendant in its present form in 1863, but some time afterwards Messrs. Hogg, of whose firm the defendant was a member, became indebted to Messrs. Wrigley, paper makers, and a mortgage of the magazine was executed as part of an arrangement to pay the debt, the defendant at the same time entered into a covenant not at any time to do, or eause to be done, anything which might injure the said publication or decrease its value. The copyright in the magazine was subsequently assigned to the plaintiffs absolutely, subject to the before- mentioned mortgage. The magazine continued to be edited by the defendant, and was published at 217 Pic- cadilly. In May, 1870, the plaintiffs, under the terms of their agreement with the defendant, gave him three months' notice of dismissal, and informed him that the magazine, ' London Society,' would in future be published by Messrs. Bentley, and would be edited by Mr. Black- burn. Upon this intimation the defendant proceeded to make arrangements for bringing out another magazine, (a) Ingram v. Stiff, 5 Jur. (N.S.) 947 ; 33 L. T. (N.S.) 195. (6) W. N. (1870) V.-C. M. 268; see Hogg v. Kirby,8 Ves. 115. And see Sedan v. Serrate, cited 2 V. & B. 220. AUTHORS AND PUBLISHERS. 587 entitled ' English Society,' and upon the termination of Cap. XIX. his notice of dismissal, he issued a circular in terms almost identical with the circular issued when the plaintiffs' magazine was first published, and which, it was alleged, contained expressions indicating that the defendant's magazine was a substitute for, or a continuation of, the plaintiffs' magazine ; and the defendant further threatened that he should endeavour to drive the rival publication out of the field. The defendant stated in his circular that he had ceased to be connected with ' London Society,' but proposed to carry into the new magazine whatever knowledge and spirit he had been able to impart into the old work, and announced that, with the aid of the well- known masters of the pen and pencil with whom he had so long been associated, he proposed "to continue all those sketches of London society and those studies of English life for which we have won some reputation." The covers of the two magazines had a general resemblance in colour, but the defendant's cover exhibited the picture of a lady in the place where a coat of arms appeared upon the plaintiffs' magazine. Vice-Chancellor Malins said, if the question had arisen between two independent pub- lishers, he should have had some difficulty in deciding that the cover of the defendant's magazine was so close an imitation of that of the plaintiffs' as to entitle him to an injunction ; but as the defendant had entered into a covenant not to do anything to injure the magazine entitled ' London Society/ which covenant he thought was still in force so long as there was any money due upon the mortgage, and as the whole course of conduct pursued by the defendant evinced, in his opinion, an evident intention on the part of the defendant to injure the sale of the plaintiffs' magazine, and to lead the public to believe that his magazine was a continuation of, or a substitute for, the magazine of the plaintiffs', he had no hesitation in granting the injunction. But since there had been some amount of delay by the plaintiffs, in consequence of which the defendant had been induced, as 588 AKKANGEMENTS BETWEEN Cap. XIX. he alleged, to expend a large sum of money in preparing the January number for publication, he thought it would be right to allow that number to appear in its intended form. As to the alte- When a publisher is the absolute owner of the copyright, author's work he is entitled, without the consent of the author, to by another, publish successive editions of the work with additions and corrections ; and, in bringing out new editions, may make such omissions and other changes in the original as will not injure the reputation of the author. But such revision when done by another, cannot lawfully be represented as having been made by the author of the original : and if the publisher issues a new edition under the author's name so incorrect as to be injurious to the author's reputation, he renders himself liable to an action for damages (a). When, however, a portion of the work is written to be published under the name of another, the author would have no remedy in case of its alteration or variation (b). This was decided in Cox v. Gox (e). The defendant, a house agent, having prepared a book on the sale of estates, applied to the plaintiff, a barrister, to correct the work, and to supply the legal matter necessary to complete it, for which the plaintiff was to be paid a certain remuneration, according to the number of pages the work might contain. " No agreement," said the Vice-Chancellor in passing judg- ment, " was come to as to the name under which the work was to appear. The case, therefore, stood thus : The defendant said, ' I am going to write a work, which you shall correct and put into shape, and a part of which you shall supply for a certain remuneration.' If that be so, the plaintiff was evidently in the subordinate position of assisting in the production of a work which was to come (a) See Archbold v. Sweet, 1 Moo. & Bob. 162 ; 5 Car. & Pay. 219. (6) The name of the editor appearing upon the title-page forms no part of the title ; and the Master of the Kolls refused to restrain by injunction the proprietors of a journal from omitting the publication of the editor a name on the title-page, although the agreement between the proprietors and editor provided tbat the title of the journal should not be altered without mutual consent : Crookes v. Tetter, 6 Jur. (N.S.) 1131. (c) 11 Hare, 118. AUTHORS AND PUBLISHERS. 589 out in the name and as the work of the defendant. The Cap. XIX. work would be partly the defendant's own composition, and it would be partly the work of the plaintiff; but it was to come out as one entire publication, and to be paid for at one uniform rate. The bulk of the matter was apparently to be supplied by the defendant. The plaintiff employed himself in the preparation of a treatise on the law of vendor and purchaser and landlord and tenant, the whole of which the defendant desired to have compressed into one printed sheet. The plaintiff, on the other hand, thought that no information of value on the legal incidents of the property treated of could be condensed within that compass, and he extended this portion of the work to three sheets and a half. The defendant then said : ' If you will reduce this matter to one-half of its present magnitude, I am willing to print it ; if not, I decline to print it at all.' This was an absolute rejection of the plaintiff's contribution, except upon the terms of reducing it in quantity to the extent which the defendant required. The plaintiff, on the other hand, was resolved that the whole should be printed or none. There was at this point of the transaction great difficulty in the way of any arrangement. The defendant said, 'I will have only one sheet and three-quarters of legal matter.' The plaintiff insisted that he should have three sheets and a half, or none. Then what followed ? The plaintiff looked over the manuscript again, but did not reduce it to the required dimensions ; and the defend- ant, although it had not been so reduced, took the manu- script in the state in which it had been left (which he could only have been entitled to do under the contract), and he began to print the work. The plaintiff proceeded to cor- rect the proof sheets ; but (as he states), when he began to find that the legal portion of the work was introduced in a mutilated form, he intimated his refusal to consent to any alteration ; and in this state of things the application is made for the injunction. I have stated what appears to me to be the substance of the contract between the parties, up to the time of the discussion as to the space which the 590 ARRANGEMENTS BETWEEN Cap. XIX. legal matter should occupy ; and that contract the plaintiff has, by the fourteenth paragraph of the bill, treated as subsisting, for he thereby claims £60 as the unpaid part of the remuneration on the whole contract. On the other hand, the defendant, having taken the manuscript and used it, cannot, I think, dispute his liability to pay for it, according to the terms of the contract. But that would be a question for a court of law. Something was said with regard to the possible effect of the alteration of the plain- tiff's portion of his work, as affecting his reputation ; but, as it was held in Sir James Clarke's case (a), the possible effect on reputation, unless connected with property, is not a ground for coming to this court, though it may be an ingredient for the court to consider when the question of a right of property also arises A serious question was then adverted to — but it is one which does not arise in this case — how far a party who had purchased a manu- script has a right to alter it, and produce it in a mutilated form P-^-how far, in a case in which the property has com- pletely passed, it is to be assimilated to a case of goods sold and delivered, and thenceforward in the complete dominion of the purchaser ? A qualified contract may be made ; an essay may be supplied to a magazine or an ency- clopaedia, on the understanding that it is to be published entire ; and it may be accepted by the editor, and paid for as what it purports to be. In the instance of an essay which had been accepted in that shape, the question might arise whether any curtailment could be allowed under that special contract. But here there is no such special con- tract. The contract is, that the plaintiff shall supply the defendant with the matter which is required, in such a form as to enable the defendant to publish it as his own. I can find no circumstances from which any such special con- tract as I have mentioned can be inferred. The plaintiff has, indeed, sought to make it a stipulation that his con- tribution of the legal materials shall not be published otherwise than entire ; but this stipulation has no founda- (a) Clarke v. Freeman, 11 Beav. 112. ATJTHOES AND PUBLISHERS. 591 tiori in the original contract, upon which his case rests. Cap. XIX. It may well be that this part of the work may suffer in value from the alterations made by the defendant, but no one will probably expect to find the law set forth with any great amount of precision in a work issued by a house agent for the guidance of his customers in dealings of a simple character. If any such mistakes should occur in the legal portion of the work, as the plaintiff apprehends, he will have the remedy in his own hands, by correcting the errors in a subsequent work, in which he may publish his treatise in a distinct form." The plaintiff would have had this right by analogy to the principle that a publisher acquiring from an author a right to publish a treatise in a particular work, such as in the ' Encyclopaedia Britannica,' would not be entitled to make the publication in another work not embraced in the contract, nor to publish generally beyond his licence (a). But it must be borne in mind that the opportunity of correcting the errors by separate publica- tion could not have arrived until the expiration of twenty- eight years from the first publication. Where the agreement is for the exclusive publication where a^ree- of a specified number of copies, that number only can be men * 1S for a printed and sold, and until their sale the author cannot number of revoke the authority given to the publishers, or himself C0 P ies - publish the work. An agreement that the publisher shall publish a second edition, if demanded by the public, and print as many copies as they can sell, gives them the right, when such demand arises, to publish and sell as many copies as can properly be considered to belong to that edition, and to prevent the author or any other person from publishing until such copies shall be sold (6). The publisher is bound to observe the terms of the Agreements contract between himself and the author as to the manner publication. (a) Stewart v. Black, 9 Sess. Oas. 2nd Series, 1026 ; cited Phillips on Copy. 178. As to bookseller's lien on the copyright for his disbursements, see Brook v. Wentworth, 3 Anstr. 881. (6) Pulte v. Derby, 5 McLean (Amer.) 328. 592 AKRANGEMENTS BETWEEN Cap. XIX. and style of the publication, and the price at which it shall be issued to the public, but if the price at which the work is to be sold is not fixed by the agreement or otherwise arranged by the author and publisher, the latter is the proper person to determine the same. At the same time he would not be permitted to fix upon a style, or sell at a price, which would be clearly injurious either to the literary reputation or the pecuniary interests of the author without his consent. When neither the time duriDg which the publication is to last, nor the number of editions or copies to be pub- lished, is specified, the publisher is not bound to publish more than the first edition ; and the author, by giving proper notice, may end the contract and prevent the publication of any further editions (a). But the pub- lisher is at liberty to continue publishing successive editions on the terms of the contract until the receipt of such notice : and the author is not entitled to restrain the publication or sale of any edition on which the publisher has incurred expense before receiving notice to end the agreement (h). After parting After an author has parted with the copyright in a right "author ^ °k> he is not at liberty to reproduce substantially the cannot re- same matter in another work. Even in the absence of matterlnany an y special agreement, the second publication would be other book. an infringement of the copyright in the first (e). A writer agreed with a publisher to edit a translation of Montaigne, adding notes and a biographical sketch of the author, for a particular sum, which was to be increased by other sums as further editions should be published. It was intended that the publisher should have the sole right of multiplying copies of the work, but there was no assignment to him of the copyright. After the pub- lisher's death, his widow and executrix, with the author's (a) Reade v. Bentley, 3 K. & J. 271 ; 4 Id. 656 ; Warne v. Boutledge, L. B.18Eq. 497. (fc) Beade v. Bentley, supra. (c) Booney v. Kelly, 14 Ir. Law Eep. (N.S.) 158 ; Colburn v. 2 Hare, 548. AUTHORS AND PUBLISHERS. 593 knowledge and assent, registered the copyright in her own .Cap. xix. name. On the publication of a fresh edition, the widow paid the author money, and gave him copies of the work on the same terms as were contained in the agreement made with her husband in his lifetime, and on three occasions, when the author claimed remuneration on those terms, she did not repudiate all liability, but dis- puted merely the amount. This was held to be evidence from which a jury might infer an agreement on the part of the widow to remunerate the author on the same scale as in the agreement with her husband, in consideration of the author assenting to her registering the copyright in her own name (a). Where the executor and son of a deceased author, in Warranty on reply to an offer from a publishing house relating to one y^ t ° f copy " of his father's works, replied that he would be happy to treat with them " respecting the copyright " in it ; and, in another letter, said he had accepted their offer " for the exclusive right of publishing it," and gave a receipt for the money paid " for permission to publish the work so long as the copyright may endure ; that right to be ex- clusively their own for ten years from this date," it was held that this amounted to an express warranty of title, and an equitable assignment of the copyright having, unknown to the executor, been previously made to another publisher, the executor was held liable to an action for breach of the warranty (&). A person may be the proprietor of a copyright in the Copyright of ■ t i ■ i i. e i. • articles in the separate parts of a periodical simply by reason ot ins pr0 prietor of employment of the writers (e). It appears but reasonable, periodicals. that where the proprietors of a periodical employ a gentle- man to write a given article, or a series of articles or reports, expressly for the purpose of publication therein, to imply that the copyright of the articles so expressly written for such periodical, and paid for by the proprie- (a) Hazlett v. Templemore, 13 L. T. (N.S.) 593. (6) Sims v. Marryatt, 17 Q. B. 281. (c) But see Jervis, C.J., in Shepherd v. Conquest, 25 L. J. (C.P.) 127 17 C. B. 427. 2 Q 594 ARRANGEMENTS BETWEEN Cap. XIX. tors and publishers, shall be the property of such pro- prietors and publishers; otherwise the author the day after his article had been published by the persons for whom he contracted to write it, might republish it in a separate form, or in another serial, and there would be no correspondent benefit to the original publishers for the payment they had made (a). How far pro- Without determining the extent to which the owners periodical can 0I " the copyright in a journal are justified in interfering interfere with w ith the editor in his editorial capacity, where the remu- neration of the editor depends upon the success of the journal, the court refused to restrain the proprietors from altering articles proposed to be inserted by the editor, or inserting others contrary to his wish, it being the province of a jury to determine the amount of damage, if any, which the editor sustained by reason of the conduct of the proprietors (6). Where an editor and publishers have formed a partner- ship for the publication of a magazine of which they are joint owners, the editor, having taken steps to dissolve the partnership with the view of establishing another period- ical, is not at liberty to advertise the discontinuance of the first magazine. The title of the latter and the right to publish it are partnership property, and may be sold for the benefit of the partners. But the editor may advertise its discontinuance by himself, or as far as he is concerned (e). Construction Should an author, in consideration of a sum of money b f etfetn menta P aid to him, agree that certain persons shall have the authors and go l e power of printing, reprinting, and publishing a par- pu is ers. t - cu j ar wor k f or a n time, that would be parting with the copyright ; but if the agreement be that the publishers, (a) Where publishers of a magazine employ and pay an editor, and the editor employs and pays persons for writing articles in the magazine,— Semble, the copyright in such articles is not vested in the publishers under 5 & 6 Vict. c. 45, s. 18 ; Brown v. Cooke, 11 Jur. 77 ; 16 L. J. (N.S ) Cli. 140. Printers have a lien on undelivered copies of a work printed by them, for the balance due in respect of the whole work : Blake v. Nicholson, 3 M. & S. 167. (6) Crookes v. Fetter, 6 Jur. (N.S.) 1131 ; 3 L. T. (N.S.) 225. (c) Bradbury v. Dickens, 27 Beav. 53 ; Sogg v. Kirby, 8 Ves. 215. AUTHORS AND PUBLISHERS. 595 performing certain conditions on their part, should, so Cap. XIX. long as they perform such conditions, have the right of printing and publishing the book, that is a very different agreement. In the case of Sweet v. Cater (a) the agreement, after reciting that the author had prepared a tenth edition of his work, which the publisher was desirous of purchasing, and that it had been agreed that a certain printer should print a given number of copies, and the publisher should pay to the author for the said tenth edition a certain sum, went on to direct that the work should be in a given number of volumes, and should be sold to the public for a given price. It was objected that the plaintiff, the pub- lisher, was not under this agreement the proprietor of the copyright within the meaning of the statute (54 Geo. 3, c. 156, s. 4), but a mere licensee to sell a given number of copies. The court overruled the objection, holding that the copyright was equitably vested in the publisher, on the ground that the contract was obligatory on both par- ties, that the plaintiff was bound to sell, and therefore the author was bound to abstain from doing anything which would interfere with the sale. The court, moreover, were of opinion that the equitable right to the copyright endured until the number of copies fixed by the terms of the agreement had been exhausted. It is to be regretted that the court did not advert to the question whether the words of purchase of the agreement — viz., that the pub- lisher was to pay for the edition — gave him, independently of the implied contract on the part of the author not to do any act which might interfere with the sale, an equit- able copyright in the work. Where there was an agreement in writing between an Agreements author and certain publishers, that they should print, profit™ 1 ™. ° f reprint, and publish his book, upon condition that the sonal. author should prepare it all before a certain day, and should correct the press, and that the publishers should direct the mode of printing, and pay all the expenses and (a) 5 Jur. 68; 11 Sim. 572. 2 Q 2 596 ARRANGEMENTS BETWEEN by publisher. Cap. XIX. take all risk of publishing, and out of the produce should first repay such expenses, and then divide the profits between themselves and the author equally ; and that if all copies should be sold and a new edition should be required, the author should prepare the same, and the publishers should print and publish it on the same con- ditions : and that, if all the copies of any edition should not be sold in five years from the time of publication, the publishers might sell the remaining copies by auction or otherwise, in order to close the account ; it was held to be a personal contract by the author, and not a contract for an assignment of the copyright ; and, consequently, the benefit thereof could not be assigned by the pub- lishers (a). The benefit of The case referred to is the leading case of Stevens v. lifh not PU Benning, in which the original contract was between Mr. transferable William Forsyth and Messrs Saunders & Benning, for the publication of a treatise on the ' Law relating to Com- position with Creditors.' After the issue of the second edition one of the parties became bankrupt, and there was an assignment by his assignees and a partner of the bankrupt to Messrs Stevens & Norton, who then endea- voured to restrain the issue of a third edition by 'William Granger Benning for the author. " The principal question then is," said Vice-Chancellor Wood, " whether this agreement is a personal engagement or not. It would be difficult for me to say, that in a contract of this kind, the author is utterly indifferent into whose hands his interests under such an engagement are to be intrusted. " It is not merely a question of his literary interests, but certain publishers undertaking to incur the expenses of bringing out the work, and fixing the price, the author is to have a share of the profits ; and they are to decide in what shape the book is to come out, and at what price it is to be sold, and are to account with him. I must say, (a) Stevens v. Benning, 1 K. & J. 168, affirmed, 6 D. M. & G. 223; 1 Jur. (N.S.) 74. See Pulte v. Derby, 5 McLean (Amer.) 332. AUTHORS AND PUBLISHERS. 597 that, in my opinion, these are peculiarly personal consider- Cap. XIX. ations ; and that this contract bears the impress of being a personal contract in all these respects. It could not be a matter of indifference to Mr. Forsyth that the assignees in bankruptcy of Mr. Benning should be at liberty to transfer the future right of fixing the price of this and subsequent editions, and the right to call upon him to fulfil his duty of preparing a new edition, and the risk which might be incurred in conducting it, and the other benefits and obligations of the agreement, to any one they might think proper ; possibly to some one not even carrying on the trade of a bookseller, as might happen in case of an absolute sale to the best bidder. Eegarding the agreement as a contract for the purchase of a limited right, according to the view of the Vice-Chan cellor of England in Sweet v. Cater (a), it is still impossible that it should be indifferent to Mr. Forsyth that it should pass from a respectable firm in London to booksellers residing in a remote part of the country, or to other persons unable to fulfil the engagements entered into with him. The contract, therefore, is one which involves personal con- siderations ; and framed as it is, I must regard it as a special kind of agency, under which the agents were bound to sell, and to take the risk of there being no profits upon themselves " (I). For similar reasons to those assigned above, a contract Nor whether whereby the author is to receive a royalty on the copies ^ft™™ sold is not transferable by the publishers, but it seems royalty. doubtful whether, where a definite sum has been agreed otherwise upon for the privilege of publication, the benefit of the ^^J^ contract could not be assigned by the publisher, for though sum down. the literary interests of the author might possibly be affected to some extent, yet the change of publishers could not, at least directly, cause him any pecuniary injury. This case of Stevens v. Benning was followed by Mr. (a) II Sim. 579. (b) 1 Kay & J. 174 ; on appeal, K Co G M. & G. 22T>. 598 AKRANGEMENTS BETWEEN Cap. XIX. Justice Fry in the recent case of Sole v. Bradbwy (a). The plaintiffs alleged themselves to be the owners of the copyright of a book called ' A Little Tour in Ireland,' and they brought the action to restrain the defendants, who were publishers, from publishing the book. The copy- right had not been assigned to the defendants by writing or by entry at Stationers' Hall. The book was composed by two joint authors, one of whom was a plaintiff, the other was dead. The personal representative of the deceased joint author was the other plaintiff. The defen- dants alleged that before the first publication of the book, which was first published by a firm to whose business the defendants had succeeded, an arrangement had been made between that firm and the deceased joint author, acting on behalf of himself and his co-author, that the firm should engrave the illustrations and print and publish the book. If there were a loss from the publication, the firm were to bear the whole of it. If there were a profit they were to pay half of it to the plaintiff and the de- ceased joint author. The profits were to be ascertained after debiting the costs of the engraving, printing, and publication. The defendants alleged that this was an agreement for the sale of the copyright, and that they, as successors of the original firm, were entitled by assign- ment from them to the benefit of the agreement. No member of the original firm was a partner in the defen- dants' firm. The defendants had in their possession the blocks from which the illustrations to the first edition of the book had been printed, the drawings on the block having been made by the deceased joint author himself. It was held that the alleged agreement was a mere pub- lishing agreement, and did not amount to a sale of the copyright, and that the benefit of the agreement was not assignable without the consent of the authors. Con- sequently, the defendants could derive no benefit from the agreement, and the injunction must be granted. And, (a) 12 Ch. Div. 886. AUTHOKS AND PUBLISHERS. 599 as by the terms of the agreement, the cost of engraving Cap. XIX. was to be paid out of the gross profits, the blocks were not the property of the defendants, and must be delivered up to the plaintiffs. An agreement similar to that in Stevens v. Benning, and Agreement without specifying a particular edition, constitutes a joint profitaa'joint adventure between the parties (a), which either party is ?f venture at liberty to terminate upon notice after the publication by notice, of a given edition, if at the date of such notice no fresh expense has been incurred by the party to whom such notice be given. By a memorandum of agreement made in November, 1852, between the plaintiff and the defendant, it was agreed that the latter should publish, at his own expense and risk, a work entitled ' Peg Woffington,' of which the former was the author ; and, after deducting from the produce of the sale thereof the charges for printing, paper, advertisements, embellishments (if any), and other inci- dental expenses, including the allowance of 10 per cent, on the gross amount of the sale for commission and risk of bad debts, the profits remaining of every edition that should be printed of the work were to be divided into two equal parts, one moiety to be paid to the plaintiff, and the other to the defendant. Subsequently the same parties entered into a similar agreement relative to the publication of another work entitled ' Christie Johnstone,' of which the plaintiff was also the^author ; and they signed for that purpose a memo- randum of agreement, which, except as to the date and the title of the work, was in the same words as the former. Two editions of the former work and four of the latter having been published by the defendant, and no fresh expenditure having been incurred by him since the publi- cation of those editions, the plaintiff claimed a right to terminate the joint adventure between them, and to pre- ( within the time limited by this Act, shall engrave, etch, or work as aforesaid, or in any other manner copy and sell, or cause to be engraved, etched, or copied and sold, in the whole or in part, by varying, adding to, or diminishing from the main design, or shall print, reprint, or import for sale, or cause to be printed, reprinted, or imported for sale, any such print or prints, or any parts thereof, without the consent of the proprietor or proprietors thereof first had and obtained in writing signed by him or them respectively in the presence of two or more credible witnesses, or, knowing the same to be so printed or reprinted without the consent of the proprietor or proprietors shall publish, sell, or expose to sale, or otherwise or in any other manner dispose of, or cause to be published, sold, or exposed to sale, or otherwise or in any other manner disposed of, any such print or prints, without such consent first had and obtained as aforesaid, then such offender or offenders shall forfeit the plate or plates on which such print or prints are or shall be copied, and all and every sheet or sheets (being part of or whereon such print or prints are or shall be so copied or printed), to the proprietor or proprietors of such original print or prints, who shall forthwith destroy and damask the same; and further, that every such offender or offenders shall forfeit five shillings for every print which shall be found in his, her, or their custody, either printed or published, and exposed to sale or otherwise disposed of, contrary to the true intent and meaning of this Act, the one moiety thereof to the King's most excellent Majesty, his heirs and successors, and the other moiety thereof to any person or persons that shall sue for the same, to be recovered in any of His Majesty's Courts of Eecord at Westminster, by action of debt, bill, plaint, or information, in which no wager of law, essoign, privilege or protection, or more than one imparlance, shall be allowed. 12 geo. ii. c. 36. 615 II. Provided nevertheless, That it shall and may be lawful for Not to extend any person or persons who shall hereafter purchase any plate or to purchasers plates for printing from the original proprietors thereof to print ^original and reprint from the said plates without incurring any of the proprietors, penalties in this Act mentioned. III. And be it further enacted by the authority aforesaid, Limitations of That if any action or suit shall be commenced or brought against actions for any person or persons whatsoever for doing or causing to be done ™L, Dlll( J anything in pursuance of this Act, the same shall be brought of Act. within the space of three months after so doing ; and the defendant and defendants in such action or suit shall or may plead the general issue, and give the special matter in evidence ; and if upon General issue. such action or suit a verdict shall be given for the defendant or defendants, or if the plaintiff or plaintiffs become nonsuited, or discontinue his, her, or their action or actions, then the defendant or defendants shall have and recover full costs, for the recovery whereof he shall have the same remedy as any other defendant or defendants in any other case hath or have by law. IV. Provided always, and be it further enacted by the authority Limitation of aforesaid, That if any action or suit shall be commenced or brought a c tlons for . against any person or persons for any offence committed against tnis Act this Act, the same shall be brought within the space of three months after the discovery of every such offence, and not after- wards, anything in this Act contained to the contrary notwith- standing. V. Eepealed by 30 & 31 Vict. c. 59. VI. And be it further enacted by the authority aforesaid, That Public Act. this Act shall be deemed, adjudged, and taken to be a Public Act, and be judicially taken notice of as such by all judges, justices, and other persons whatsoever, without specially pleading the same. 12 Geo. II. o. 36 (1739). An Act for prohibiting the Importation of Books reprinted abroad, and first composed or written in and printed in Great Britain ; and for repealing so much of an Act made in the Eighth Year of the Reign of her late Majesty Queen Anne as empowers the limiting the Prices of Books. Eepealed by 30 & 31 Vict. c. 59. 616 THE LAW OF COPYKIGHT. 7 Geo. III. o. 38 (1766). An Act to amend and render more effectual an Act made in the Eighth Year of the Beign of King George the Second, for En- couragement of the Arts of designing, engraving, and etching historical and other Prints ; and for vesting in, and securing to, Jane Sogarth, Widow, the Property in certain Prints. Preamble, re- Whbbeas an Act of Parliament passed in the eighth year of the j'g| Act reign of His late Majesty King George the Second, intituled "An Act for the Encouragement of the Arts of designing, engraving, and etching historical and other Prints, by vesting the Properties thereof in the Inventors and Engravers, during the Time therein mentioned," has been found ineffectual for the purposes thereby intended : Be it enacted by the King's most excellent Majesty, by and with the advice and consent of the Lords spiritual and temporal, and Commons, in this present Parliament assembled, and by the authority of the same, that from and after the first day of January, one thousand seven hundred and sixty-seven, all and every person and 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, such who shall etched, or worked in mezzotinto or chiaro-oscuro, any historical cause prints to print or prints, or any print or prints of any portrait, conversation, be done from landscape, or architecture, map, chart, or plan, or any other print their own ' or P r i nts whatsoever, shall have, and are hereby declared to have, invention, the benefit and protection of the said Act and this Act, under the restrictions and limitations hereinafter mentioned, and also such as II. And be it further enacted by the authority aforesaid, That shall engrave, from and after the said first day of January one thousand seven &c., any print null( jred an( j sixty-seven, all and every person and persons who picture, draw- shall engrave, etch, or work in mezzotinto or chiaro-oscuro, or ing, model, or cause to be engraved, etched, or worked, any print, taken from sculpture ; an y pj c t ure) drawing, model, or sculpture, either ancient or modern, the benefit and shall have, and are hereby declared to have, the benefit and pro- protection of _ tection of the said Act and this Act, for the term hereinafter mentioned, in like manner as if such print had been graved or drawn from the original design of such graver, etcher, or drafts- man ; and if any person shall engrave, print and publish, or import for sale, any copy of any such print, contrary to the true intent and meaning of this and the said former Act, every such person shall The original inventors, de- signers, or en- gravers, &c, of historical and other the recited and , present Act ; and those who shall engrave or import for such prints, are be liable to the penalties contained in the said Act, to be recovered liable to penal- as therein and hereinafter is mentioned. ties. 7 geo. in. o. 38. 617 III. and IV. repealed by 30 & 31 Vict. c. 59. V. And be it further enacted by the authority aforesaid, That all Penalties may and every the penalties and penalty inflicted by the said Act, and } e s V i ed fol i as , extended, and meant to be extended, to the several cases comprised Act is directed in this Act shall and may be sued for and recovered in like manner, and under the like restrictions and limitations, as in and by the said Act is declared and appointed ; and the plaintiff or common and be re- informer in every such action (in case such plaintiff or common in- covered with former shall recover any of the penalties incurred by this or the pl . vided the said former Act) shall recover the same, together with his full costs prosecution bo of suit. Provided also, that the party prosecuting shall commence co .™ men oed his prosecution within the space of six calendar months after the months after offence committed. the fact. VI. And be it further enacted by the authority aforesaid, That The right in- the sole right and liberty of printing and reprinting intended to be , ? ' secured and protected by the said former Act and this Act, shall and the former be extended, continued, and be vested in the respective proprietors, Act > vested in for the space of twenty-eight years, to commence from the day of f * thVter 'f the first publishing of any of the^ works respectively hereinbefore twenty-eight and in the said former Act mentioned. 7 ears fl ' om VII. And be it further enacted by the authority aforesaid, That ca tj on rs pu *" if any action or suit shall be commenced or brought against any Limitation of person or persons whatsoever, for doing, or causing to be done, any- actions, thing in pursuance of this Act, the same shall be brought within the space of six calendar months after the fact committed ; and the defendant or defendants in any such action or suit shall or may plead the general issue, and give the special matter in evidence ; General issue, and if, upon such action or suit, a verdict shall be given for the defendant or defendants, or if the plaintiff or plaintiffs become non- suited, or discontinue his, her, or their action or actions, then the defendant or defendants shall have and recover full costs ; for the Full costs, recovery whereof he shall have the same remedy as any other defendant or defendants, in any other case, hath or have by law. 618 THE LAW OF COPYRIGHT. Preamble. Universities, &c, in England and Scotland to have for ever the sole right of print- ing, kc., such books as have been, or shall be, bequeathed to them, unless the same. 15 Geo. HI. c. 53 (1775). An Act for enabling the two Universities in England, the four Universities in Scotland, and the several Colleges of Eton Westminster, and Winchester, to hold in perpetuity their Copy- right in Books, given or bequeathed to the said Universities and Colleges for the Advancement of useful Learning and other Purposes of Education ; and for amending so much of an Act of the Eighth Tear of the Beign of Queen Anne as relates to the Delivery of Boohs to the Warehouse-keeper of the Stationers' Company, for the Use of the several Libraries therein mentioned. Whereas authors have heretofore bequeathed or given, and may hereafter bequeath or give, the copies of books composed by them, to or in trust for one of the two universities in that part of Great Britain called England, or to or in trust for some of the colleges or houses of learning within the same, or to or in trust for the four universities in Scotland, or to or in trust for the several colleges of Eton, "Westminster, and Winchester, and in and by their several wills or other instruments of donation, have directed or may direct, that the profits arising from the printing and reprinting such books shall be applied or appropriated as a fund for the advancement of learning, and other beneficial purposes of education within the said universities and colleges aforesaid : And whereas such useful purposes will frequently be frustrated, unless the sole printing and reprinting of such books, the copies of which have been or shall be so bequeathed or given as aforesaid, be preserved and secured to the said universities, colleges, and houses of learning respectively in perpetuity : May it therefore please Your Majesty that it may be enacted, and be it enacted by the King's most excellent Majesty, by and with the advice and consent of the Lords spiritual and temporal, and Commons, in this present Parliament assembled, and by the authority of the same, That the said universities and colleges respectively shall, at their respective presses, have, for ever, the sole liberty of printing and reprinting all such books as shall at any time heretofore have been, or (having not been hereto- fore published or assigned) shall at any time hereafter be be- queathed, or otherwise given by the author or authors of the same respectively, or the representatives of such author or authors, to or in trust for the said universities, or to or in trust for any college or house of learning within the same, or to or in trust for the said four universities in Scotland, or to or in trust for the said colleges of Eton, Westminster, and Winchester, or any of them, for the purposes aforesaid, unless the same shall have been bequeathed or 15 gbo. in. c. 53. 619 given, or shall hereafter be bequeathed or given, for any term of have been, or years, or other limited term, any law or usage to the contrary * ^ fefj ^ en hereof in anywise notwithstanding. time. II. And it is hereby further enacted, That if any bookseller, After June 24, printer, or other person whatsoever, from and after the twenty- 17 . 75 >. persons fourth day of June one thousand seven hundred and seventy-five, ^"wf ^h shall print, reprint, or import, or cause to be printed, reprinted, or books shall imported, any such book or books ; or, knowing the same to be so forfeit tn f printed or reprinted, shall sell, publish, or expose to sale, or cause 1(i ^ r evel .„ to be sold, published, or exposed to sale, any such book or books ; sheet ; then such offender or offenders shall forfeit such book or books, and all and every sheet or sheets, being part of such book or books, to the university, college, or house of learning respectively, to whom the copy of such book or books shall have been bequeathed or given as aforesaid, who shall forthwith damask and make waste paper of them; and further, that every such offender or offenders shall forfeit one penny for every sheet which shall be found in his, her, or their custody, either printed or printing, published or exposed to sale, contrary to the true intent and meaning of this Act ; the one moiety thereof to the King's most excellent Majesty, his heirs one moiety to and successors, and the other moiety thereof to any person or His Majesty, persons who shall sue for the same ; to be recovered in any of His ? ,, e ^ r Majesty's Courts of Eecord at "Westminster, or in the Court of cutor. Session in Scotland, by action of debt, bill, plaint, or information, in which no wager of law, essoin, privilege, or protection, or more than one imparlance, shall be allowed. III. Provided nevertheless, That nothing in this Act shall extend Nothing in this to grant any exclusive right otherwise than so long as the books or ^ ot to extend . , , . ,,-,.-. . ■,. ,, . , -. , to grant any copies belonging to the said universities or colleges are printed only exclusive right at their own printing presses within the said universities or colleges longer than respectively, and for their sole benefit and advantage ; and that if ^inted^the any university or college shall delegate, grant, lease, or sell their press es of the copyrights, or exclusive rights of printing the books hereby granted, universities, or any part thereof, or shall allow, permit, or authorise any person or persons, or bodies corporate, to print or reprint the same, that then the privileges hereby granted are to become void and of no effect, in the same manner as if this Act had not been made ; but the said universities and colleges as aforesaid shall nevertheless Universities have a right to sell such copies so bequeathed or given as aforesaid, ma y se }^ Copy- in like manner as any author or authors now may do under the pro- mfnner^s'any visions of the statute of the eighth year of Her Majesty Queen Anne, author. IV. And whereas many persons may through ignorance offend No p erson SUD - against this Act, unless some provision be made whereby the ject to penalties Dronertv of every such book as is intended by this Act to be { or P rln t' n g> -T- -i- i, -it pi • ® Ct i books secured to the said universities, colleges, and houses of learning already be- 620 THE LAW OF COPYRIGHT. queathed, un- within the same, and to the said universities in Scotland, and to Ete • d b f ■ ^ e res P ec tive colleges of Eton, Westminster, and Winchester, may- June 24, 1775. he ascertained and known, be it therefore enacted by the authority aforesaid, That nothing in this Act contained shall be construed to extend to subject any bookseller, printer, or other person whatso- ever, to the forfeitures or penalties herein mentioned, for or by reason of the printing or reprinting, importing or exposing to sale, any book or books, unless the title to the copy of such book or books, which has or have been already bequeathed or given to any of the said universities or .colleges aforesaid," be entered in the register book of the Company of Stationers kept for that purpose, in such manner as hath been usual, on or before the twenty-fourth All books that day of June, one thousand seven hundred and seventy-five ; and of may hereafter all. and every such book or books as may or shall hereafter be be- t: b^en- 6 ' 1 uea th e< l or given as aforesaid, be entered in such register within tered within the space of two months after any such bequest or gift shall have two months come to the knowledge of the vice-chancellors of the said uni- beq e uest C shall versities, or the heads of houses and colleges of learning, or of the be known. principal of any of the said four universities respectively ; for every 6d. to be paid of which entries so to be made as aforesaid the sum of sixpence f° r £ ach e ?' Ty shall be paid, and no more ; which said register book shall and book which may, at all seasonable and convenient times, be referred to and may be in inspected by any bookseller, printer, or other person, without any TTfee Wlth " fee or reward > and tne clerk of tlle said company of Stationers shall, Clerk to give when and as often as thereunto required, give a certificate under a certificate, his hand of such entry or entries, and for every such certificate may being paid 6d. ^e a f ee na |. exce eding sixpence. V. And be it further enacted, That if the clerk of the said If clerk refuse Company of Stationers for the time being shall refuse or neglect to or neglect to re gister or make such entry or entries, or to give such certificate, make entry, ^.^ thereunto required by the agent of either of the said universities or colleges aforesaid, lawfully authorised for that purpose, then either of the said universities or colleges afore- Proprietor of said, being the proprietor of such copyright or copyrights as such copyright aforesaid (notice being first given of such refusal by an advertise- WfiTa's'if ment ™ the Gazette )> sha11 llaVe the like benefit as if such entr y 0I such entry entries, certificate or certificates, had been duly made and given; had been made, an a the clerk so refusing shall for every such offence forfeit twenty a h d uVrfeit k P oun ds to the proprietor or proprietors of every such copyright; 2(K. to be recovered in any of His Majesty's Courts of Record at Westminster, or in the Court of Session in Scotland, by action of debt, bill, plaint, or information, in which no wager of law, essoin, privilege, protection, or more than one imparlance, shall he allowed. VI. and VII. repealed by 24 & 25 Vict. c. 101. 17 gko. in. c. 57. 621 f III. And be it further enacted by the authority aforesaid, That Public Act this Act shall be adjudged, deemed, and taken to be a Public Act, and shall be judicially taken notice of as such, by all judges justices, and other persons whatsoever, without specially pleading the same. 17 Geo. III. c. 57 (1777). An Act for more effectually securing the Property of Prints to Inventors and Engravers, by enabling them to sue for and recover Penalties in certain Gases, Whereas an Act of Parliament passed in the eighth year of the Recital of Acts 8 G. 7 G. reign of His late Majesty King George the Second, intituled " An ® G - 2 - a " J Act for the Encouragement of the Arts of designing, engraving, and etching historical and other Prints, by vesting the Properties thereof in the Inventors and Engravers, during the Time therein mentioned : " And whereas, by an Act of Parliament passed in the seventh year of the reign of His present Majesty, for amending and rendering more effectual the aforesaid Act, and for other purposes therein mentioned, it was (among other things) enacted, That from and after the first day of January one thousand seven hundred and sixty-seven, all and every person or persons who should engrave, etch, or work in mezzotinto or chiaro-oscuro, or cause to be en- graved, etched, or worked any print taken from any picture, drawing, model, or sculpture, either ancient or modern, should have and were thereby declared to have the benefit and protection of the said former Act and that Act, for the term thereinafter men- tioned, in like manner as if such print had been graved or drawn from the original design of such graver, etcher, or draughtsman ; and whereas the said Acts have not effectually answered the purposes for which they were intended, and it is necessary for the encouragement of artists, and for securing to them the property of and in their works, and for the advancement and improvement of the aforesaid arts, that such further provisions should be made as are hereafter mentioned and contained: May it therefore please Your Majesty, that it may be enacted ; and be it enacted by the King's most excellent Majesty, by and with the advice and consent of the Lords spiritual and temporal, and Commons, in this present Parliament assembled, and by the authority of the same, That from and after the twenty-fourth day of June, one thousand seven After June 24, hundred and seventy-seven, if any engraver, etcher, print-seller, or 1777, if any other person shall, within the time limited by the aforesaid Acts, or g£f lT^tMn ' either of them, engrave, etch, or work, or cause or procure to be the time 622 THE LAW OF COPYRIGHT. limited by the afoiesaid Acts, engrave or etch, &c., any print without the consent of the proprietor, he shall be liable to damages and double costs. engraved, etched, or worked, in mezzotinto or chiaro-oscuro, or otherwise, or in any other manner copy, in the whole or in part, by varying, adding to, or diminishing from the main design, or shall print, reprint, or import for sale, or cause or procure to be printed, reprinted, or imported for sale, or shall publish, sell, or otherwise dispose of, or cause or procure to be published, sold, or otherwise disposed of, any copy or copies of 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, which hath or have been, or shall be engraved, etched, drawn, or designed, in any part of Great Britain, without the express consent of the proprietor or proprietors thereof first bad and obtained in writing, signed by him, her, or them respectively, with his, her, or their own hand or hands, in the presence of and attested by two or more credible witnesses, then every such proprietor or proprietors shall and may, by and in a special action upon the case, to be brought against the person or persons so offending, recover such damages as a jury on the trial of such action or on the execution of a writ of inquiry thereon, shall give or assess, , together with double costs* of suit. 27 Geo. III. c. 38 (1787). An Act for the Encouragement of the Arts of designing and printing Linens, Cottons, Calicoes, and Muslins, by vesting tlht Properties thereof in the Designers, Printers, and Proprietors for a limited Time. Eepealed by 5 & 6 Vict. c. 100, § 1. 29 Geo. III. o. 19 (1789). An Act for continuing an Act for the Encouragement of the Arts of designing and printing Linens, Cottons, Calicoes, and Muslins, by vesting the Properties thereof in the Designers, Printers, and Proprietors for a limited Time. Eepealed by 5 & 6 Vict. c. 100, § 1. * So much of this statute as relates to double costs is repealed by 24 & 25 Vict. u. 101. 51 geo. in. c. 56. 623 34 Geo. in. o. 23 (1794). An Act for amending and making perpetual an Act for the Encouragement of the Arts of designing and printing Linens, Cottons, Calicoes, and Muslins, by vesting the Properties thereof in the Designers, Printers, and Proprietors for a limited Period. Repealed by 5 & 6 Yict. e. 100, § 1. 38 Geo. in. c. 71 (1798). An Act for Encouraging the Art of making new Models and Casts of Busts, and other Things therein mentioned. Repealed by 24 & 25 Viet. c. 101. 41 Geo. HI. c. 107 (1801). An Act for the further Encouragement of Learning, in the United Kingdom of Great Britain and Lreland, by securing the Copies and Copyright of printed Books to the Authors of such Books, or their Assigns, for the time therein mentioned. Repealed by 5 & 6 Vict. c. 45, § 1. 54 Geo. in. c. 56. An Act to amend and render more effectual an Act of His present Majesty, for encouraging the Art of making new Models and Casts of Busts, and other Things therein mentioned ; and for giving further Encouragement to such Arts. [18th May, 1814.] Whereas by an Act, passed in the thirty-eighth year of the reign of His present Majesty, intituled "An Act for encouraging 38 Geo. 3, c. 71. the Art of making new Models and Casts of Busts, and other Things therein mentioned," the sole right and property thereof were Tested in the Original proprietors, for a time therein specified : And whereas the provisions of the said Act having been found ineffectual for the purposes thereby intended, it is expedient to amend the same, and to make other provisions and regulations for the encouragement of artists, and to secure to them the profits of and in their works, and for the advancement 624 THE LAW OF COPYRIGHT. The sole right and property of all new and original sculp- tures, models, copies, and casts, Tested in the proprietors for fourteen years. Works published under the re- cited Act, vested in the proprietors for fourteen years Persons put- of the said arts : May it therefore please your Majesty that it may be enacted, and be it enacted by the King's most excellent Majesty, by ' and with the advice and consent of the Lords spiritual and temporal, and Commons, in this present Parliament assembled, and by the authority of the same, That from and after the passing of this Act, every person or persons who shall make or cause to be made 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 animal or animals, or of any part or parts of any animal combined with the human figure 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 or representing any of the matters and things hereinbefore mentioned, whether separate or combined, shall have the sole right and property of all and in every such new and original sculpture, model, copy, and cast of the human figure or human figures, and of all and in every such bust or busts, and of all and in every such part or parts of the human figure, clothed in drapery or otherwise, and of all and in every such new and original sculpture, model, copy, and cast, representing any animal or animals, and of all and in every such work representing any part or parts of any animal combined with the human figure or otherwise, and of all and in every such new, and original sculpture, model, copy, and cast of any subject, being matter of invention in sculpture, and of all and in every such n/w and original sculpture, model, copy, and cast in alto or basso-reuevo, representing any of the matters or things hereinbefore mentioned, and of every such cast from nature, for the term of fourteen years from first putting forth or publishing the same : Provided, in all and in every case, the proprietor or proprietors do cause his, her, or their name or names, with the date, to be put on all and every such new and original sculpture, model, copy, or cast, and on every such cast from nature, before the same shall be put forth or published. II. And be it further enacted, That the sole right and property of all works, which have been put forth or published under the protection of the said recited Act, shall be extended, continued to and vested in the respective proprietors thereof for the term of fourteen years, to commence from the date when such last men- tioned works respectively were put forth or published. III. And be it further enacted; That if any person or persons 54 geo. in. c. 56. 625 shall, within such, term of fourteen years, make or import, or cause ting forth to be made or imported, or exposed for sale, or otherwise disposed pirated copies of, any pirated copy or pirated cast of any such new and original °* P lrated sculpture, or model or copy, or cast of the human figure or figures, prosecuted. or of any such bust or busts, or of any such part or parts of the human figure clothed in drapery or otherwise, or of any such work of any animal or animals, or of any such part or parts of any animal or animals combined with the human figure or otherwise, or of any such subject being matter of invention in sculpture, or of any such alto or basso-relievo representing any of the matters or things hereinbefore mentioned, or of any such cast from nature as aforesaid, whether such pirated copy or pirated cast 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 this Act, or of any works which have been put forth or published under the protection of the said recited Act, the right and property 1 whereof is and are secured, extended, and protected by this Act 'in any of the cases as aforesaid, to the detriment, damage, or loss of the original or respective proprietor or proprietors of any such works so pirated ; then and in all such cases the said proprietor or proprietors, or their assignee or assignees, shall and may, by land in a special action upon the case to be brought against the Iperson or persons so offending, receive such damages as a jury on Damages and "a trial of such action shall give or assess, together with double dou We costs, ■costs of suits. jr. IV. Provided nevertheless, That no person or persons who shall Purchasers of or may hereafter purchase the right or property of any new and C0 Py"ght se- original sculpture or model, or copy or cast, or of any cast from same . nature, or of any of the matters and things published under or protected by virtue of this Act, of the proprietor or proprietors, expressed in a deed in writing signed by him, her, or them respec- tively, with his, her, or their own hand, or hands, in the presence of and attested by two or more credible witnesses, shall be subject to any action for copying, or casting, or vending the same, anything contained in this Act to the contrary notwithstanding. V. Provided always, and be it further enacted, That all actions Limitation of to be brought as aforesaid, against any person or persons for any actions - offence committed against this Act, shall be commenced within six calendar months next after the discovery of every such offence and not afterwards. VI. Provided always, and be it further enacted, That from and An additional immediately after the expiration of the said term of fourteen years, * erm of fou ''~ .,,„,.,,. . * 'teen years, in the solte right of making and disposing of such new and original case the maker sculptilre, or model, or copy, or cast of any of the matters or things of the original hereinbefore mentioned, shall return to the person or persons who ^aU bTlivfn ' 2 s 626 THE LAW OP COPYRIGHT. originally made or caused to be made the same, if he or they shall be then living, for the further term of fourteen years, excepting in the case or cases where such person or persons shall by sale or otherwise have divested himself, herself, or themselves, of such right of making or disposing of any new and original sculpture, model, or copy, or cast of any of the matters or things hereinbefore mentioned, previous to the passing of this Act. 54 Geo. o. 156 (1814). An Act to amend the several Acts for the Encouragement of Learn- ing, by securing the Copies and Copyright of printed Books to the Authors of such Books or their Assigns. Repealed by 5 & 6 Vict. c. 45, § 1. 3 Will. IV. c. 15. An Act to amend the Laws relating to dramatic literary Property. [10th June, 1833.] Whereas by an Act passed in the fifty-fourth year of the reign of 54 G. 3, c. 156. His late Majesty King George the Third, intituled " An Act to amend the several Acts for the Encouragment of Learning, by securing the Copies and Copyright of printed Books to the Authors of such Books or their Assigns," it was amongst other things provided and enacted, that from and after the passing of the said Act the author of any book or books composed, and not printed or published, or which should thereafter be composed and printed and published, and his assignee or assigns, should have the sole liberty of printing and reprinting such book or booksvfor the full term of twenty-eight years, to commence from the day of first publishing the same, and also, if the author should belliving at the end of that period for the residue of his natural ike : And whereas it is expedient to extend the provisions of the idd Act : Be it therefore enacted by the King's most excellent Majesty, by and with the advice and consent of the Lords spiritual amd tem- poral, and Commons in this present Parliament assembled, and The author of by the authority of the same, That from and after the pai sing of any dramatic this Act the author of any tragedy, comedy, play, opera, farce or any piece shall ther dramatic piece or entertainment, composed, and not property the and published by the author thereof or his assignee, oi sole liberty of hereafter shall be composed, and not printed or published printed which the 41 bj 3 will. iv. c. 15. 627 author thereof or his assignee, or the assignee of such author, representing it shall have as his own property the sole liberty of representing, or ° v causing '*■ causing to be represented, at any place or places of dramatic sen ted at any entertainment whatsoever, in any part of the United Kingdom of place of dra- Great Britain and Ireland, in the Isles of Man, Jersey, and ™;'° en Guernsey, or in any part of the British dominions, any such pro- duction as aforesaid, not printed and published by the author thereof or his assignee, and shall be deemed and taken to be the proprietor thereof ; and that the author of any such production, printed and published within ten years before the passing of this Act by the author thereof or his assignee, or which shall hereafter be so printed and published, or the assignee of such author, shall from the time of passing this Act, or from the time of such pub- lication respectively, until the end of twenty-eight years from the day of such first publication of the same, and also, if the author or authors, or the survivor of the authors, shall be living at the end of that period, during the residue of his natural life, have as his own property the sole liberty of representing, or causing to be represented, the same at any such place of dramatic entertainment as aforesaid, and shall be deemed and taken to be the proprietor thereof : Provided nevertheless, that nothing in this Act contained Proviso as to shall prejudice, alter, or affect the right or authority of any person cases . where, to represent or cause to be represented, at any place or places of the^aSng of dramatic entertainment whatsoever, any such production as afore- this Act, a said, in all cases in which the author thereof or his assignee shall, f onsen ^ has been given, previously to the passing of this Act, have given his consent to or authorized such representation, but that such sole liberty of the author or his assignee shall be subject to such right or authority. II. And be it further enacted, That if any person shall, during Penalty on the continuance of such sole liberty as aforesaid, contrary to the p«' S0I > s Pe- nitent of this Act, or right of the author or his assignee, represent con ^ r I a 1 ? y P to CeS or cause to be represented, without the consent in writing of the this Act. author or other proprietor first had and obtained at any place of dramatic entertainment within the limits aforesaid, any such pro- duction as aforesaid, or any part thereof, every such offender shall be liable for each and every such representation to the payment of an amount not less than forty shillings, or to the full amount of the benefit or advantage arising from such representation, or the injury or loss sustained by the plaintiff therefrom, whichever shall be the greater damages, to the author or other proprietor of such production so represented contrary to the true intent and meaning of this Act; to be recovered, together with double costs of suit, by such author or other proprietors, in any court having jurisdiction in such cases in that part of the said United Kingdom or of the British dominions in which the offence shall be committed ; and in 2 s 2 628 THE LAW OP CQPYBIGHT. Limitation of actions. Explanation of words. every such proceeding where the sole liberty of such author or his assignee as aforesaid shall be subject to such right or authority as aforesaid, it shall be sufficient for the plaintiff to state that he has such sole liberty, without stating the same to be subject to such right or authority, or otherwise mentioning the same. III. Provided nevertheless, and be it further enacted, That all actions or proceedings for any offence or injury that shall be com- mitted against this Act shall be brought, sued, and commenced within twelve calendar months next after such offence committed, or else the same shall be void and of no effect. IV. And be it further enacted, That whenever authors, persons, offenders, or others are spoken of in this Act in the singular number or in the masculine gender, the same shall extend to any number of persons and to either sex. Authors of lectures, or their assigns, to have the sole right of publishing them. Penalty on other persons publishing, &c., lectures without leave. 5 & 6 Will. IV. c. 65. An Act for preventing the Publication of Lectures without Consent. [9th September, 1835.] Whereas printers, publishers, and other persons have frequently taken the liberty of printing and publishing lectures delivered upon divers subjects, without the consent of the authors of such lectures, or the persons delivering the same in public, to the great detriment of such authors and lecturers: Be it enacted by the King's most excellent Majesty, by and with the advice and consent of the Lords spiritual and temporal, and Commons, in this present Parliament assembled, and by the authority of the same, That from and after the first day of September one thousand eight hundred and thirty-five the author of any lecture or lectures, or the person to whom he hath sold or otherwise conveyed the copy thereof, in order to deliver the same in any school, seminary, institution, or other place, or for any other purpose, shall have the sole right and liberty of printing and publishing such lecture or lectures; and that if any person shall, by taking down the same in short-hand or otherwise in writing, or in any other way, obtain or make a copy of such lecture or lectures, and shall print or lithograph or other- wise copy and publish the same, or cause the same to be printed, lithographed, or otherwise copied and published, without leave of the author thereof, or of the person to whom the author thereof hath sold or otherwise conveyed the same, and every person who, knowing the same to have been printed or copied and published without such consent, shall sell, publish, or expose to sale, or cause to be sold, published, or exposed to sale, any such lecture or 5 & 6 will. iv. o. 65. 629 lectures, shall forfeit such printed or otherwise copied lecture or lectures, or parts thereof, together with one penny for every sheet thereof which shall be found in his custody, either printed, litho- graphed, or copied, or printing, lithographing, or copying, pub- lished or exposed to sale, contrary to the true intent and meaning of this Act, the one moiety thereof to His Majesty, his heirs or successors, and the other moiety thereof to any person who shall sue for the same, to be recovered in any of His Majesty's Courts of Eecord in Westminster, by action of debt, bill, plaint, or informa- tion, in which no wager of law, essoign, privilege, or protection, or more than one imparlance, shall be allowed. II. And be it further enacted, That any printer or publisher of Penalty on any newspaper who shall, without such leave as aforesaid, print and printers or publish in such newspaper any lecture or lectures, shall be deemed newspapers and taken to be a person printing and publishing without leave publishing within the provisions of this Act, and liable to the aforesaid for- lectures with feitures and penalties in respect of such printing and publishing. III. And be it further enacted, That no person allowed for Persons having certain fee and reward, or otherwise, to attend and be present at J eaTe to attend any lecture delivered in any place, shall be deemed and taken to be tnat account licensed or to have leave to print, copy, and publish such lectures licensed to Only because of having leave to attend such lecture or lectures. publish them. IV. Provided always, That nothing in this Act shall extend to Act not to pro- prohibit any person from printing, copying, and publishing any nibit . the lecture or lectures which have or shall have been printed and fe'ctures'lfter published with leave of the authors thereof or their assignees, and expiration of whereof the time hath or shall have expired within which the sole tne copyright. right to print and publish the same is given by an Act passed in the eighth year of the reign of Queen Anne, intituled " An Act for 8 Ann. c. 19. the Encouragement of Learning, by vesting the Copies of printed Books in the Authors or Purchasers of such Copies during the Times therein mentioned," and by another Act passed in the fifty- fourth year of the reign of King George the Third, intituled " An Act to amend the several Acts for the Encouragement of Learningj 54 G. 3, c. 156. by securing the Copies and Copyright of printed Books to the Authors of such Books, or their Assigns," or to any lectures which have been printed or published before the passing of this Act. V. Provided further, That nothing in this Act shall extend to Act not to any lecture or lectures, or the printing, copying, or publishing any extend to lecture or lectures, or parts thereof, of the delivering of which j^redV notice in writing shall not have been given to two justices living unlicensed within five miles from the place where such lecture or lectures shall places, &c. he delivered two days at the least before delivering the same, or to any lecture or lectures delivered in any university or public school or college, or on any public foundation, or by any individual in 630 THE LAW OF COPYKIGHT. virtue of or according to any gift, endowment, or foundation ; and that the law relating thereto shall remain the same as if this Act had not been passed. 6 & 7 Will. IV. c. 59. An Act to extend the Protection of Copyright in Prints and Engravings to Ireland. [13th August, 1836.] Whereas an Act was passed in the seventeenth year of the reign 17 G. 3, u. 57. of His late Majesty King George Third, intituled " An Act for more effectually securing the Property of Prints to Inventors and Engravers, by enabling them to sue for and recover Penalties in certain Cases : " And whereas it is desirable to extend the pro- visions of the said Act to Ireland : Be it therefore enacted by the King's most excellent Majesty, by and with the advice and consent of the Lords spiritual and temporal, and Commons, in this present Provisions of Parliament assembled, and by the authority of the same, That from recited Act ex- an( j a ^ er ^e passing of this Act all the provisions contained in the Ireland. sa id recited Act of the seventeenth year of the reign of His late Majesty King George the Third, and of all the other Acts therein recited, shall be and the same are hereby extended to the United Kingdom of Great Britain and Preland. Penalty on en- II. And be it further enacted, That from and after the passing graving or f this Act, if any engraver, etcher, printseller, or other person shall print S wUhou° y wr thin the time limited by the aforesaid recited Acts, engrave, consent of pro- etch, or publish, or cause to be engraved, etched, or published, any prietor. engraving or print of any description whatever, either in whole or in part, which may have been or which shall hereafter be published in any part of Great Britain or Ireland, without the express consent of the proprietor or proprietors thereof first had and obtained in writing, signed by him, her, or them respectively, with his, her, or their own hand or hands, in the presence of and attested by two or more credible witnesses, then every such proprietor shall and may, by and in a separate action upon the case, to be brought against the person so offending in any court of law in Great Britain or Ireland, recover such damages as a jury on the trial of such action or on the execution of a writ of inquiry thereon shall give or assess together with double costs of suit. 6 yict. c. 45. 631 1 & 2 Viot. c. 59 (1838). " The International Copyright Act." Eepealed by 7 Vict. c. 12. 2 Vict. c. 13 (1839. An Act for extending the Copyright of Designs for Calico-Printing to Designs for Printing other woven Fabrics. Eepealed by 5 & 6 Vict. c. 100, § 1." 2 Vict. o. 17 (1839). An Act to secure to Proprietors of Designs for Articles of Manufacture the Copyright of such Designs for a limited Time. Eepealed by 5 & 6 Vict. c. 100, § 1. 5 & 6 Viot. c. 45. An Act to amend the Law of Copyright. [1st July, 1842.] 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 : Be it enacted by the Queen's most excellent Majesty, by and with the advice and consent of the Lords spiritual and temporal, and Commons, in this present Parliament assembled, and by the authority of the same, That Repeal of for- from the passing of this Act an Act passed in the eighth year mer Acts : of Her Majesty Queen Anne, intituled " An Act for the Encourage- 8 Anlle > u - 19 - ment of Learning, by vesting the Copies of printed Books in the Authors or Purchasers of such Copies during the Time therein mentioned ; " and also an Act passed in the forty-first year of the reign of His Majesty King George the Third, intituled " An Act 41 g. 3 c. 107. for the further Encouragement of Learning in the United Kingdom of Great Britain and Ireland, by securing the Copies and Copy- right of printed Books to the Authors of such Books, or their Assigns, for the Time therein mentioned ; " and also an Act passed in the fifty-fourth year of the reign of His Majesty King George the Third, intituled "An Act to amend the several Acts for the 54 G. 3, c. 156. Encouragement of Learning, by securing the Copies and Copyright 632 THE LAW OF COPYRIGHT. of printed Books to the Authors of such Books, or their Assigns," be and the same are hereby repealed, except so far as the continuance of either of them may be necessary for carrying on or giving effect to any proceeding at law or in equity pending at the time of passing this Act, or for enforcing any cause of action or suit, or any right or contract then subsisting. Interpretation II. And be it enacted, That in the construction of this Act the of Act. wor( j "book" sna n b e construed to mean and include every volume, part or division of a volume, pamphlet, sheet of letter- press, sheet of music, map, chart, or plan separately published: that the words " dramatic piece " shall be construed to mean and include every tragedy, comedy, play, opera, farce, or other scenic, musical, or dramatic entertainment; that the word "copyright" shall be construed to mean the sole and exclusive liberty of printing or otherwise multiplying copies of any subject to which the said word is herein applied ; that the words " personal repre- sentative " shall be construed to mean and include every executor, administrator, and next of kin entitled to administration ; 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; that the words " British Dominions " shall be construed to mean and include all parts of the United Kingdom of Great Britain and Ireland, the Islands of Jersey and Guernsey, all parts of the East and West Indies, and all the colonies, settlements, and possessions of the Crown which now are or hereafter may be acquired ; and that whenever in this Act, in describing any person, matter, or thing the word importing the singular number or the masculine gender only is used, the same shall be understood to include and to be applied to several persons as well as one person, and females as well as males, and several matters or things as well as one matter or thing, respectively, unless there shall be something in the subject or context repugnant to such construction. Endurance of II. And be it enacted, That the copyright in every book which term of copy- ^h^n a ft er the passing of this Act be published in the lifetime of book hereafter ** s au t nor g h a ll endure for the natural life of such author, and for to be published the further term of seven years, commencing at the time of his death, in the lifetime an( j g^u b e the property of such author and his assigns : Provided ' always, that if the said term of seven years shall expire before the end of forty-two years from the first publication of suoh book, the copyright shall in that case endure for such period of forty-two years; and that the copyright in every book which shall be published after the death of its author shall endure for the term 5 & 6 viot. c. 45. 633 of forty-two years from the first publication thereof, and shall be if published the property of the proprietor of the author's manuscript from afte '' *^ e which such book shall be first published, and his assigns. IV. And whereas it is just to extend the benefits of this Act to In cases of sub- authors of books published before the passing thereof, and in s ; st "ig c°py- which copyright still subsists, be it enacted, That the copyright to be'extended which at the time of passing this Act shall subsist in any book except when it theretofore published (except as herein-after mentioned) shall be ^^ elo " g f *° extended and endure for the full term provided by this Act in ther consider- cases of books thereafter published, and shall be the property of ation than the person who at the time of passing of this Act shall be the na | M l 1 c 1 t " ve . proprietor of such copyright : Provided always, that in all cases in i n w hich case' which such copyright shall belong in whole or in part to a publisher it shall cease at or other person who shall have acquired it for other consideration ™« expiration r ^ or the present than that of natural love and affection, such copyright shall not be term, unless its extended by this Act, but shall endure for the term which shall extension be subsist therein at the time of passing of this Act, and no longer, ^^ th ° e *" unless the author of such book, if he shall be living, or the prietor and the personal representative of such author, if he shall be dead, and the author. proprietor of such copyright, shall, before the expiration of such term, consent and agree to accept the benefits of this Act in respect of such book, and shall cause a minute of such consent in the form in that behalf given in the schedule to this Act annexed to be entered in the book of registry herein-after directed to be kept, in which case such copyright shall endure for the full term by this Act provided in cases of books to be published after the passing of this Act, and shall be the property of such person or persons as in such minute shall be expressed. V. And whereas it is expedient to provide against the suppression Judicial com- of books of importance to the public, be it enacted, That it shall mittee of the be lawful for the judicial committee of Her Majesty's Privy may^en"^tL Council, on complaint made to them that the proprietor of the republication of copyright in any book after the death of its author has refused to books which republish or to allow the republication of the same, and that by re f U ses° to're- 1 reason of such refusal such book may be withheld from the public, publish after to grant a licence to such complainant to publish such book, in death of the such manner and subject to such conditions as they may think fit, and that it shall be lawful for such complainant to publish such book according to such licence. VI. And be it enacted, That a printed copy of the whole of every Copies of books book which shall be published after the passing of this Act, published after together with all maps, prints, or other engravings belonging thl ? s Aci'and'of thereto, finished and coloured in the same manner as the best all subsequent copies of the same shall be published, and also of any second or editions, to be subsequent edition which shall be so published with any additions 634 THE LAW OF COPYRIGHT. in certain times or alterations, whether the same shall be in letter-press, or in the at the British m aps, prints, or other engravings belonging thereto, and whether the first edition of such book shall have been published before or after the passing of this Act, and also of any second or subsequent edition of every book of which the first of some preceding edition shall not have been delivered for the use of the British Museum, bound, sewed, or stitched together, and upon the best paper on which the same shall be printed, shall, within one calendar month after the day on which any such book shall first be sold, published, or offered for sale within the bills of mortality, or within three calendar months if the same shall first be sold, published or offered for sale in any other part of the United Kingdom, or within twelve calendar months after the same shall first be sold, published, or offered for sale in any other part of the British dominions, be delivered, on behalf of the publisher thereof, at the British Museum. Mode of de- VII. And be it enacted, That every copy of any book which livering at the un( j er the provisions of this Act ought to be delivered as aforesaid Museum. sna ^ ' De delivered at the British Museum between the hours of ten in the forenoon and four in the afternoon on any day except Sunday, Ash Wednesday, Good Friday, and Christmas Day, to one of the officers of the said museum, or to some person authorized by the trustees of the said museum to receive the same, and such officer or other person receiving such copy is hereby required to give a receipt in writing for the same, and such delivery, to all intents and purposes, be deemed to be good and sufficient delivery under the provisions of this Act. A copy of every VIII. And be it enacted, That a copy of the whole of every book, book to be de- am j f an y second or subsequent edition of every book containing a'montlTafte'r additions and alterations, together with all maps and prints demand to the belonging thereto, which after the passing of this Act shall be officer of the published, shall, on demand thereof in writing, left at the place of Company 5 for a hode of the publisher thereof, at any time within twelve months the following next after the publication] thereof, under the hand of the officer of libraries : the ^e c om pany of Stationers who shall from time to time be appointed Oxford the *>j * ne sa ^ company for the purposes of this Act, or under the Public Library hand of any other persons thereto authorized by the persons or *t C p mb ^ dge J. bodies politic and corporate, proprietors and managers of the Advocates at libraries following, (videlicet,) the Bodleian Library at Oxford, the Edinburgh, and Public Library at Cambridge, the Library of the Faculty of (fit ° f Dublm Advocates at Edinburgh, the Library of the College of the Holy ° ' Undivided Trinity of Queen Elizabeth near Dublin, be delivered, upon the paper of which the largest number of copies of such book or edition shall be printed for sale, in the like condition as the copies prepared for sale by the publisher thereof respectively 5 & 6 vict. c. 45. 635 within one month after demand made thereof in writing as afore- said, to the said officer of the said Company of Stationers for the time being, which copies the said officer shall and he is hereby required to receive at the hall of the said company, for the use of the library for which such demand shall be made within such twelve months as aforesaid ; and the said officer is hereby required to give a receipt in writing for the same, and within one month after any such book shall be so delivered to him as aforesaid to deliver the same for the use of such library. IX. Provided also, and be it enacted, That if any publisher shall Publishers may be desirous of delivering the copy of such book as shall be demanded dell jer , the on behalf of any of the said libraries at such library, it shall be libraries in- lawful for him to deliver the same at such library, free of expense, stead of at the to such librarian or other person authorized to receive the same Stationers (who is hereby required in such case to receive and give a receipt in writing for the same), and such delivery shall to all intents and purposes of this Act be held as equivalent to a delivery to the said officer of the Stationers' Company. X. And be it enacted, That if any publisher of any such book, Penalty for de- or of any second or subsequent edition of any such book, shall fault mdehver- neglect to deliver the same pursuant to this Act, he shall for every tn g us ^ of the such default forfeit, besides the value of such copy of such book or libraries, edition which he ought to have delivered, a sum not exceeding five pounds, to be recovered by the librarian or other officer (properly authorized) of the library for the use whereof such copy should have been delivered, in a summary way, on conviction before two justices of the peace for the county or place where the publisher making default shall reside, or by action of debt or other proceeding of the like nature, at the suit of such librarian or other officer, in any court of record in the United Kingdom, in which action, if the plaintiff shall obtain a verdict, he shall recover his costs reasonably incurred, to be taxed as between attorney and client. XI. And be it enacted, That a book of registry, wherein may be Book of regis- registered, as herein-after enacted, the proprietorship in the copy- tx 7 '° be ke P t , . ,,i 1.1-n ,• -i at otationers right of books, and assignments thereof, and in dramatic and Hall musical pieces, whether in manuscript or otherwise, and licences affecting such copyright, shall be kept at the hall of the Stationers' Company by the officer appointed by the said company for the purposes of this Act, and shall at all convenient times be open to the inspection of any person, on payment of one shilling for every entry which shall be searched for or inspected in the said book ; and that such officer shall, whenever thereunto reasonably required, give a copy of any entry in such book, certified under his hand, and impressed with the stamp of the said company, to be provided by them for that purpose, and which they are hereby required to 636 THE LAW OP COPYKIGHT. Making a false entry in the book of regis- try, a mis- demeanor. Entries of copy- right may be made in the book of regis- try. Persons ag- grieved by any entry in the book of registry may apply to a court of law in term, or judge in vacation, who may order such entry to be varied or expunged. provide, to any person requiring the same, on payment to him of the sum of five shillings ; and such copies so certified and impressed, shall be received in evidence in all courts, and in all summary proceedings, and shall be prima facie proof of the proprietorship or assignment of copyright or licence as therein expressed, but subject to be rebutted by other evidence, and in the case of dramatic or musical pieces shall be prima facie proof of the right of represen- tation or performance, subject to be rebutted as aforesaid. XII. And be it enacted, That if any person shall wilfully make or cause to be made any false entry in the registry book of the Stationers' Company, or shall wilfully produce or cause to be tendered in evidence any paper falsely purporting to be a copy of any entry in the said book, he shall be guilty of an indictable misdemeanor, and shall be punished accordingly. HE. And be it enacted, That after the passing of this Act, it shall be lawful for the proprietor of copyright in any book heretofore published, or in any book hereafter to be published, to make entry in the registry book of the Stationers' Company of the title of such book, the time of the first publication thereof, the name and place of abode of the publisher thereof, and the name and place of abode of the proprietor of the copyright of the said book, or of any portion of such copyright, in the form in that behalf given in the schedule to this Act annexed, upon payment of the sum of five shillings to the officer of the said company; and that it shall be lawful for every such registered proprietor to assign his interest, or any portion of his interest therein, by making entry in the said book of registry of such assignment, and of the name and place of abode of the assignee thereof, in the form given in that behalf in the said schedule, on payment of the like sum ; and such assignment so entered shall be effectual in law to all intents and purposes whatsoever, without being subject to any stamp or duty, and shall be of the same force and effect as if such assignment had been made by deed. XIV. And be it enacted, That if any person shall deem himself aggrieved by any entry made under colour of this Act in the said book of registry, it shall be lawful for such person to apply by motion to the Court of Queen's Bench, Court of Common Pleas, or Court of Exchequer, in term time, or to apply by summons to any judge of either such courts in vacation, for an order that such entry may be expunged or varied ; and that upon any such appli- cation by motion or summons to either of the said courts, or to a judge as aforesaid, such court or judge shall make such order for expunging, varying, or confirming such entry, either with or with- out costs, as to such court or judge shall seem just; and the officer appointed by the Stationers' Company for the purposes of 5 & 6 vict. c. 45. 637 this Act shall, on the production to him of any such order for expunging or varying any such entry, expunge or vary the same according to the requisitions of such order. XV. And be it enacted, That if any person shall, in any part Remedy for the of the British dominions, after the passing of this Act, print or P ! ™ c c ^ b ° n ° ks cause to be printed, either for sale or exportation, any book in t he case. which there shall be subsisting copyright, without the consent in writing of the proprietor thereof, or shall import for sale or hire any such book, so having been unlawfully printed, from parts beyond the sea, or, knowing such book to have been so unlawfully printed or imported, shall sell, publish, or expose to sale or hire, or cause to be sold, published, or exposed to sale or hire, or shall have in his possession, for sale or hire, any such book so unlawfully printed or imported, without such consent as aforesaid, such offender shall be liable to a special action on the case at the suit of the proprietor of such copyright, to be brought in any court of record in that part of the British dominions in which the offence shall be committed : Provided always, that in Scotland such offender shall be liable to an action in the Court of Session in Scotland which shall and may be brought and prosecuted in the same manner in which any other action of damages to the like amount may be brought and prosecuted there. XVI. And be it enacted, That after the passing of this Act, in In actions for any action brought within the British dominions against any P n '» c y * he de- person for printing any such book for sale, hire, or exportation, not i ce f t [f e or for importing, selling, publishing, or exposing to sale or hire, objections to pr causing to be imported, sold, published, or exposed to sale or *jj? plaintiff's hire, any such book, the defendant, on pleading thereto, shall h e means to give to the plaintiff a notice in writing of any objections on which rely. he means to rely on the trial of such action ; and if the nature of his defence be, that the plaintiff in such action was not the author or first publisher of the book in which he shall by such action claim copyright, or is not the proprietor of the copyright therein, or that some other person than the plaintiff was the author or first publisher of such book, or is the proprietor of the copyright therein, then the defendant shall specify in such notice the name of the person who he alleges to have been the author or first publisher of such book, or the proprietor of the copyright therein, together with the title of such book, and the time when and the place where such book was first published, otherwise the defendant in such action shall not at the trial or hearing of such action be allowed to give any evidence that the plaintiff in such action was not the author or first publisher of the book in which he claims such copyright as aforesaid, or that he was not the proprietor of the copyright therein; and at such trial or hearing no other 638 THE LA.W OF COPYRIGHT. objection shall be allowed to be made on behalf of such defendant than the objection stated in such notice, or that any other person was the author or first publisher of such book, or the proprietor of the copyright therein, than the person specified in such notice, or give in evidence in support of his defence any other book than one substantially corresponding in title, time, and place of publi- cation with the title, time, and place specified in such notice. No person ex- XVII. And be it enacted, That after the passing of this Act cept the pro- it shall not be lawful for any person, not being the proprietor shallY'rt of the copyright, or some person authorized by him, to import intothe British into any part of the United Kingdom, or into any other part of dominions for the British dominions, for sale or hire, any printed book first booVfirst^cornl com POsed or written or printed and published in any part of the posed, &c, said United Kingdom, wherein there shall be copyright, and tt'' 111 !) tt B reprinted in any country or place whatsoever out of the British dom and re- dominions ; and if any person, not being such proprietor or person printed else- authorized as aforesaid, shall import or bring, or cause to be where, under i m p 0r t e d or brought, for sale or hire, any such printed book, into feiture thereof anv P ar * 0I " ^ ne British dominions, contrary to the true intent and and also of 101. meaning of this Act, or shall knowingly sell, publish, or expose and double the f. Q ga j e or j e ^. ^ j^^ or h ave { n jjjg possession for sale or hire, any such book, then every such book shall be forfeited, and shall he seized by any officer of customs or excise, and the same shall be destroyed by such officer; and every person so offending, being duly convicted thereof before two justices of the peace for the Books may be county or place in which such book shall be found, shall also for seized by offi- every such offence forfeit the sum of ten pounds, and double the n^J!.:.. 118 ° mS value of every copy of such book which he shall so import or cause to be imported into any part of the British dominions, or shall knowingly sell, publish, or expose to sale, or let to hire, or shall cause to be sold, published, or exposed to sale or let to hire, or shall have in his possession for sale or hire, contrary to the true intent and meaning of this Act ; five pounds to the use of such officer of customs or excise, and the remainder of the penalty to the use of the proprietor of the copyright in such book. As to the copy- XVIII. And be it enacted, That when any publisher or other right in ency- person shall, before or at the time of the passing of this Act, have od°icTlf ^ncT"' P r0 J ecte< *> conducted, and carried on, or shall hereafter project, works pub- conduct, and carry on, or be the proprietor of any encyclopaedia, lished in a 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, or any volumes) parts, essays, articles, or portions thereof, for publication in or as part of the same, and such work, volumes, parts, essays, articles, or portions shall have been or shall hereafter be composed under series, reviews, or magazines 5 & 6 vict. c. 45. 639 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 encyclopaedia, review, magazine, periodical work, and work published in a series of books or parts, and in 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, or 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, projector, publisher, or conductor shall not publish any such essay j article, or portion separately or singly, without the consent pre- viously obtained of the author thereof, or his assigns : Provided, proviso for also, that nothing herein contained shall alter or affect the right authors who of any person who shall have been or who shall be so employed as thlrfehTof aforesaid to publish any such his composition in a separate form publishing who by any contract, express or implied, may have reserved or * heir articles may hereafter reserve to himself such right ; but every author f ' r ^ epara e reserving, retaining, or having such right shall 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. XIX. And be it enacted, That the proprietor of the copyright Proprietors of in any encyclopaedia, review, magazine, periodical work, or other encyclopaedias, work published in a series of books or parts shall be entitled to wOTks'pub- 31 " all the benefits of the registration at Stationers' Hall under this lished in a Act on entering in the said book of registry the title of such se " es > ™ a y ' , . . ,. , , ,, , ,,. , 1 enter at once at encyclopedia, review, periodical work, or other work, published stationer& > in a series of books or parts, the time of the first publication of the Hall, and first volume, number, or part thereof, or of the first number or ^° r ^™ e jl ave f volume first published after the passing of this Act in any such the registration work which shall have been published heretofore, and the name of the whole. and place of abode of the proprietor thereof, and of the publisher thereof when such publisher shall not also be the proprietor thereof. XX. And whereas an Act was passed in the third year of the The provisions reign of His late Majesty, to amend the law relating to dramatic ^i^tt^d^ literary property, and it is expedient to extend the term of the tomu'siralTom- 640 THE LAW OF COPYRIGHT. positions, and sole liberty of representing dramatic pieces given by that Act to the term of ^ e f u jj y me ^y j.^ ^^ p rov j,jed f or the continuance of copyright : provided by And whereas it is expedient to extend to musical compositions this Act, ap- the benefits of that Act, and also of this Act, be it therefore libert t0 of h8 enacted » That the provisions of the said Act of His late Majesty, representing an( l °f this Act, shall apply to musical compositions, and that the dramatic pieces sole liberty of representing or performing, or causing or permitting and musical t ^ e 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 herein-before 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 con- struction of this Act, to the first publication of any book : Provided always, that in case of any dramatic piece, or musical composition in manuscript, it shall be sufficient for the person having the sole liberty of representing or performing, or causing to be represented or performed the same, to register only the title thereof, the name and place of abode of the author or composer thereof, the name and place of abode of the proprietor thereof, and the time and place of its first representation or performance. Proprietors of XXI. And be it enacted, That the person who shall at any time right of dra- ^ave ^ gQ j e ijt, er ty f representing such dramatic piece or musical sentations shall composition shall have and enjoy the remedies given and provided have all the in the said Act of the third and fourth year of the reign of His rT&l wT late Ma J est y King William the Fourth passed to amend the laws c. 15 ' relating to dramatic literary property, during the whole of his interest therein, as fully as if the same were re-enacted in this Act. Assignment of XXII. And be it enacted, That no assignment of the copyright copyright of a f an y book consisting of or containing a dramatic piece or musical noTto convey 6 composition shall be holden to convey to the assignee the right of the right of re- representing or performing such dramatic piece or musical corn- presentation, position, unless an entry in the said registry book shall be made of such assignment, wherein shall be expressed the intention of the parties that such right should pass by such assignment. Books pirated XXIII. And be it enacted, That all copies of any book wherein shall become there shall be copyright, and of which entry shall have been made the property of . ^ j^ re gj s t r y book, and which shall have been unlawfully the proprietor ° * .,, ' . , of the copy- printed or imported without the consent of the registered proprietor right, and may f SU ch copyright, in writing under his hand first obtained, shall lT "oSon™ 1 be deemed to be the property of the proprietor of such copyright, 5 & 6 vict. c. 45. 64.1 and who shall be registered as such; and such registered pro- prietor shall, after demand thereof in writing, be entitled to sue for and recover the same, or damages for the detention thereof, in an action of detinue, from any party who shall detain the same, or to sue for and recover damages for the conversion thereof in an action of trover. XXIV. And be it enacted, That no proprietor of copyright in No proprietor any book which shall be first published after the passing of this of c °pyrighi Act shall maintain any action or suit, at law or in equity, or any after'this^fct summary proceeding, in respect of any infringement of such copy- shall sue or right, unless he shall, before commencing such action, suit, or P™: eed for an y proceeding, have caused an entry to be made, in the book of before making registry of the Stationers' Company, of such book, pursuant to this entry in the Act : Provided always, that the omission to make such entry shall I""* of re S ls_ not affect the copyright in any book, but only the right to sue or proceed in respect of the infringement thereof, as aforesaid : Pro- vided also, that nothing herein contained shall prejudice the remedies which the proprietor of the sole liberty of representing Proviso for any dramatic piece shall have by virtue of the Act passed in the dramatic third year of the reign of His late Majesty King William the Fourth, piece to amend the laws relating to dramatic literary property, or of this Act, although no entry shall be made in the book of registry aforesaid. XXV. And be it enacted, That all copyright shall be deemed Copyright shall personal property, and shall be transmissible by bequest, or, in be P erl >°nal case of intestacy, shall be subject to the same law of distribution as other personal property, and in Scotland shall be deemed to be personal and moveable estate. XXVI. And be it enacted, That if any action or suit shall be General issue. commenced or brought against any person or persons whomsoever for doing or causing to be done anything in pursuance of this Act, the defendant or defendants in such action may plead the general issue, and give the special matter in evidence ; and if upon such action a verdict shall be given for the defendant, or the plaintiff shall become nonsuited, or discontinue his action, then the de- fendant shall have and recover his full costs, for which he shall have the same remedy as a defendant in any case by law hath ; and that all actions, suits, bills, indictments, or informations for Limitation of any offence that shall be committed against this Act shall be brought, actions ; sued, and commenced within twelve calendar months next after such offence committed, or else the same shall be void and of none effect ; provided that such limitation of time shall not extend or be not to extend construed to extend to any actions, suits, or other proceedings *° ^f™^ '' which under the authority of this Act shall or may be brought, the delivery of sued, or commenced for or in respect of any copies of books to be books. 2 T 642 THE LAW OF COPYRIGHT. Saving the rights of the universities, and the col leges of Eton, Westminster, and Win- chester. Saving all sub' sisting rights, contracts, and engagements. Extent of the Act. Act may be amended this Session. delivered for the use of the British Museum, or of any one of the four libraries hereinbefore mentioned. XXVII. Provided always, and be it enacted, That nothing in this Act contained shall affect or alter the rights of the two universities of Oxford and Cambridge, the colleges or houses of learning within the same, the four universities in Scotland, the college of the Holy and Undivided Trinity of Queen Elizabeth near Dublin, and the several colleges of Eton, Westminster, and Winchester in any copyrights heretofore and now vested or hereafter to be vested in such universities and colleges respectively, anything to the contrary herein contained notwithstanding. XXVIII. Provided also, and be it enacted, That nothing in this Act contained shall affect, alter, or vary any right subsisting at the time of passing this Act, except as herein expressly enacted ; and all contracts, agreements, and obligations made and entered into before the passing of this Act, and all remedies relating thereto, shall remain in full force, anything herein contained to the contrary notwithstanding. XXIX. And be it enacted, That this Act shall extend to the United Kingdom of Great Britain and Ireland, and to every part of the British dominions. XXX. And be it enacted, That this Act may be amended or repealed by any Act to be passed in the present session of Parliament. Schedule to which the preceding Act refers. No. 1. Foem of Minute of Consent to be entered at Stationers' Hall. We, the undersigned, A.B. of the Author of a certain Book, intituled Y.Z. [or the personal Eepresentative of the Author, as the case may be], and G.J), of do hereby certify, That we have consented and agree to accept the Benefits of the Act passed in the Fifth Year (a) of (a) Her Majesty's reign commenced on the 20th of June, 1837, and her royal consent was given to this Act on the 1st of July, 1842, consequently the Act was passed in the sixth year of the Queen, and should be so pleaded, or as having been passed " in the session held in the fifth and sixth vears of her Majesty Queen Victoria :" Bex v. Biers, 3 Nev. & M. 475 ; 'Gibbs v. Pike, 8 Mec. & W. 223. The Schedule was drawn in the fifth year of the Queen, and has not been corrected. It will be advisable in the minute of consent to state the year, by a reference to the session, which will include the words of the schedule. The form is inaccurate in another part by confining the date of consent to the present century, Note by Sweet to Bythewood and Jarman's Conveyancing, vol. vii. p. 618. 5 & 6 viot. o. 45. 643 the Reign of Her Majesty Queen Victoria, Cap. , for the Extension of the Term of Copyright therein provided by the said Act, and hereby declare that such extended Term of Copyright therein is the Property of the said A.B. or O.D. Dated this day of 18 (Signed) A.B. Witness C.D. To the Registering Officer appointed by the Stationers' Company. No. 2. FOEM of BEQCIBING EnTBY of PbOPEIETOESHIP. I, A.B. of do hereby certify, That I am the Proprietor of the Copyright of a Book, intituled Y.Z., and I hereby require you to make entry in the Register Book of the Stationers' Company of my Proprietorship of such Copyright, according to the Particulars underwritten. Title of Book. Name of Publisher, and Place of Publication. Name and Place of Abode of the Proprietor of the Copyright. Date of First Publication. T.Z. A.B. Dated this day of 18 Witness, C.D. (Signed) A.B. No. 3. Original Entby of Pbopbietobshif of Copybight of a Book. Time of making the Entry. Title of Book. Y.Z. Name of the Publisher and Place of Publication. A.B. Name and Place of Abode of the Proprietor of the Copyright. C.D. Date of First Publication. 2 t 2 644 THE LAW OP COPYEIGHT. No. i. Pobm of Concubbence of the Pabty assigning in any Book previously registered. I, A.B. of being the assigner of the Copyright of the Book hereunder described, do hereby require you to make entry of the Assign- ment of the Copyright therein. Title of Book. Assigner of the Copyright. Assignee of Copyright. T.Z. A.B. CD. Dated this of 18 (Signed) A.B. No. 5. Foem of Entby of Assignment of Copybight in any Book previously registered. Date of Entry. Title of Book. Assigner of the Copyright. Assignee of Copyright. [Set out the Title of the Book, and refer to the Page of the Registry Book in which the original Entry of the Copyright thereof is made.'] A.B. CD. 5 & 6 Vict. o. 47 (1842). An Act to amend the Laws relating to the Customs. Repealed by 7 & 8 Vict. c. 73. 5 & 6 vict. o. 100. 645 5 & 6 Viot. o. 100. An Act to consolidate and amend the Laws relating to the Copy- right of Designs for ornamenting Articles of Manufacture. [10th August, 1842.] Whereas by the several Acts mentioned in the Schedule (A.) to this Act annexed there was granted, in respect of the woven fabrics therein mentioned, the sole right to use any new and original pattern for printing the same during the period of three calendar months : And whereas by the Act mentioned in the Schedule (B.) to this Act annexed there was granted, in respect of all articles except lace, and except the articles within the meaning of the Acts hereinbefore referred to, the sole right of using any new and original design, for certain purposes, during the respective periods therein mentioned ; but forasmuch as the protection afforded by the said Acts in respect of the application of designs to certain articles of manufacture is insufficient, it is expedient to extend the same, but upon the con- ditions hereinafter expressed : Now for that purpose, and for the purpose of consolidating the provisions of the said Acts, be it enacted by the Queen's most excellent Majesty, by and with the advice and consent of the Lords spiritual and temporal, and Commons, in this present Parliament assembled, and by the authority of the same, That this Act shall come into operation on Commence- the first day of September one thousand eight hundred and forty- ment of Act two, and that thereupon all the said Acts mentioned in the said f" rm r e e r P Act° Schedules (A.) and (B.) to this Act annexed shall be and they are hereby repealed. II. Provided always, and be it enacted, That notwithstanding Proviso as to such repeal of the said Acts every copyright in force under the «™tmg copy- same shall continue in force till the expiration of such copyright ; and with regard to all offences or injuries committed against any such copyright before this Act shall come into operation, every penalty imposed and every remedy given by the said Acts, in relation to any such offence or injury, shall be applicable as if such Acts had not been repealed ; but with regard to such offences or injuries committed against any such copyright after this Act shall come into operation, every penalty imposed and every remedy given by this Act in relation to any such offence or injury shall be applicable as if such copyright had been conferred by this Act. III. And with regard to any new and original design (except for Grant of copy- sculpture and other things within the provisions of the several Acts n S nt ' mentioned in the Schedule (C.) to this Act annexed), whether such design be applicable to the ornamenting of any article of manu- facture, or of any substance, artificial or natural, or partly artificial 646 THE LAW OF COPYRIGHT. and partly natural, and that whether such design be so applicable for the pattern, or for the shape or configuration, or for the orna- ment thereof, or for any two or more of such purposes, and by whatever means such design may be so applicable, whether by printing or by painting, or by embroidery, or by weaving, or by sewing, or by modelling, or by casting, or by embossing, or by engraving, or by staining, or by any other means whatsoever, manual, mechanical, or chemical, separate or combined, be it enacted, That the proprietor of every such design, not previously published, either within the United Kingdom of Great Britain and Ireland or elsewhere, shall have the sole right to apply the same to any articles of manufacture, or to any such substances as afore- said, provided the same be done within the United Kingdom of Great Britain and Ireland, for the respective terms hereinafter mentioned, such respective terms to be computed from the time of such design being registered according to this Act: (that is to say,) In respect of the application of any such design to ornamenting any article of manufacture contained in the first, second, third, fourth, fifth, sixth, eighth, or eleventh of the classes following, for the term of three years : In respect of the application of any such design to ornamenting any article of manufacture contained in the seventh, ninth, or tenth of the classes following, for the term of nine calendar months: In respect of the application of any such design to ornamenting any article of manufacture or substance contained in the twelfth or thirteenth of the classes following, for the term of twelve calendar months : Class 1. — Articles of manufacture composed wholly or chiefly of any metal or mixed metals : Class 2. — Articles of manufacture composed wholly or chiefly of wood : Class 3. — Articles of manufacture composed wholly or chiefly of glass : Class 4. — Articles of manufacture composed wholly or chiefly of earthenware : Class 5. — Paper-hangings : Class 6. — Carpets : Class 7. — Shawls, if the design be applied solely by printing, or by any other process by which colours are or may here- after be produced upon tissue or textile fabrics : Class 8. — Shawls not comprised in class 7 : Class 9. — Tarn, thread, or warp, if the design be applied by 5 & 6 vict. o. 100. 647 printing, or by any other process by which colours are or may hereafter be produced : Class 10. — Woven fabrics composed of linen, cotton, wool, silk, or hair, or of any two or more of such materials, if the design be applied by printing, or by any other process by which colours are or may hereafter be produced upon tissue or textile fabrics; excepting the articles included in class 11 : Class 11. — Woven fabrics composed of linen, cotton, wool, silk, or hair, or of any two or more of such materials, if the design be applied by printing, or by any other process by which colours are or may hereafter be produced upon tissue or textile fabrics, such woven fabrics being or com- ing within the description technically called furniture, and the repeat of the design whereof shall be more than twelve inches by eight inches : Class 12. — Woven fabrics not comprised in any preceding class: Class 13. — Lace, and any article of manufacture or substance not comprised in any preceding class. IV. Provided always, and be it enacted, That no person shall be Conditions of entitled to the benefit of this Act, with regard to any design in copyright, respect of the application thereof to ornamenting any article of manufacture, or any such substance, unless such design have before publication thereof been registered according to this Act, and unless at the time of such registration such design have been Registration, registered in respect of the application thereof to some or one of the articles of manufacture or substances comprised in the above- mentioned classes, by specifying the number of the class in respect of which such registration is made, and unless the name of such person shall be registered according to this Act as a proprietor of such design, and unless after publication of such design every such article of manufacture, or such substance to which the same shall be so applied, published by him, hath thereon, if the article of manufacture be a woven fabric for printing, at one end thereof, or if of any other kind or such substance as aforesaid, at the end or edge thereof, or other convenient place thereon, the letters " B d ," Marks denot- together with such number or letter, or number and letter, and in »»g » registered such form as shall correspond with the date of the registration of eslgn " such design according to the registry of designs in that behalf; and such marks may be put on any such article of manufacture or such substance, either by making the same in or on the material itself of which such article or such substance shall consist, or by attaching thereto a label containing such marks. 648 THE LAW OF COPYRIGHT. The term V. And be it enacted, That the author of any such new and original " proprietor " design shall be considered the proprietor thereof, unless he have exp al executed the work on behalf of another person for a good or a valuable consideration, in which case such person shall be considered the proprietor, and shall be entitled to be registered in the place of the author ; and every person acquiring for a good or a valuable consideration a new and original design, or the right to apply the same to ornamenting any one or more articles of manufacture, or any one or more such substances as aforesaid, either exclusively of any other person or otherwise, and also every person upon whom the property in such design or such right to the application thereof shall devolve, shall be considered the proprietor of the design in respect of which the same may have been so acquired, and to that extent, but not otherwise. Transfer of "VI. And be it enacted, That every person purchasing or other- copyright, and wise acquiring the right to the entire or partial 'use of any such registei ere- (jggjgjj ma y en ter his title in the register hereby provided, and any writing purporting to be a transfer of such design, and signed by the proprietor thereof, shall operate as an effectual transfer ; and the registrar shall, on request, and the production of such writing, or, in the case of acquiring such right by any other mode than that of purchase, on the production of any evidence to the satis- faction of the registrar, insert the name of the new proprietor in the register ; and the following may be the form of such transfer, and of such request to the registrar : Form of Transfer, and Authority to register. " I, A. B., author {or proprietor] of design, No. having transferred my right thereto, [or, if such transfer be partial,"] so far as regards the ornamenting of [describe the articles of manufacture or substances, or the locality with respect to which the right is transferred,] to B. 0. of do hereby authorize you to insert his name ori the register of designs accordingly." Form of Bequest to register. '< I, B. C, the person mentioned in the above transfer, do request you to register my name and property in the said design as entitled [if to the entire use] to the entire use of such design, [or, if to the partial use,] to the partial use of such design, so far as regards the application thereof [describe the articles of manufacture or the locality in relation to which the right is transferred]." 5 & 6 viOT. c. 100. 649 But if such request to register be made by any person to whom any such design shall devolve otherwise than by transfer, such request may be in the following form : " I, O. D., in whom is vested by [state bankruptcy or otherwise] the design, No. [or, if such devolution he of a partial right, so far as regards the application thereof] to [describe the articles of manufacture or substance, or the locality in relation to which the right has devolved]." VII. And for preventing the piracy of registered designs, be it Piracy of de- enacted, That during the existence of any such right to the entire si S ns - or partial use of any such design no person shall either do or cause to be done any of the following acts with regard to any articles of manufacture, or substances, in respect of which the copyright of such design shall be in force, without the licence or consent in writing of the registered proprietor thereof; (that is to say,) No person shall apply any such design, or any fraudulent imita- tion thereof, for the purpose of sale, to the ornamenting of any article of manufacture, or any substance, artificial or natural, or partly artificial and partly natural : No person shall publish, sell, or expose for sale any article of manufacture, or any substance to which such design, or any fraudulent imitation thereof, shall have been so applied, after having received either verbally or in writing, or otherwise, from any source other than the proprietor of such design, knowledge that his consent has not been given to such appli- cation, or after having been served with or had left at his premises a written notice signed by such proprietor or his agent to the same effect. VIII. And be it enacted, That if any person commit any such Recovery of act he shall for every offence forfeit a sum not less than five P? naltles for pounds and not exceeding thirty pounds to the proprietor of the design in respect of whose right such offence has been committed ; and such proprietor may recover such penalty as follows : In England, either by an action of debt or on the case against the party offending, or by summary proceeding before two justices having jurisdiction where the party offending resides ; and if such proprietor proceed by such summary proceeding, any justice of the peace acting for the county, riding, division, city, or borough where the party offending resides, and not being concerned either in the sale or manufacture of the 650 THE LAW OF OOPYKIGHT. article of manufacture, or in the design, to which such summary proceeding relates, may issue a summons requiring such party to appear on a day and at a time and place to be named in such summons, such time not being less than eight days from the date thereof; and every such summons shall he served on the party offending, either in person or at his usual place of abode ; and either upon the appearance or upon the default to appear of the party offending, any two or more of such justices may proceed to the hearing of the complaint, and upon proof of the offence, either by the confession of the party offending, or upon the oath or affirmation of one or more credible witnesses, which such justices are hereby authorized to administer, may convict the offender in a penalty of not less than five pounds or more than thirty pounds, as aforesaid, for each offence, as to such justices doth seem fit ; but the aggre- gate amount of penalties for offences in respect of any one design, committed by any one person, up to the time at which any of the proceedings herein mentioned shall be instituted, shall not exceed the sum of one hundred pounds; and if the amount of such penalty or of such penalties, and the costs attending the conviction, so assessed by such justices, be not forthwith paid, the amount of the penalty or of the penalties, and of the costs, together with the eosts of the distress and sale, shall be levied by distress and sale of the goods and chattels of the offender, wherever the same happen to be in England; and the justices before whom the party has been convicted, or, on proof of the conviction, any two justices acting for any county, riding, division, city, or borough in England, where goods and chattels of the person offending happen to be, may grant a warrant for such distress and sale ; and the overplus, if any, shall be returned to the owner of the goods and chattels, on demand ; and every information and conviction which shall he respectively laid or made in such summary proceeding before two justices under this Act may be drawn or made out in the following forms respectively, or to the effect thereof, mutatis mutandis, as the case may require : Form of Information. " Be it remembered, that on the at in the county of A.B. of in the county of [or O.D. of in the county of at the instance and on the behalf of A.B. of in the county of ] cometh before us and two of Her 5 & 6 vict. o. 100. 651 Majesty's justices of the peace in and for the county of , and giveth us to understand that the said A.B. before and at the time when the offence hereinafter mentioned was committed, was the proprietor of a new and original design for [here describe the design], and that within twelve calendar months last past, to wit, on the at in the county of E.F. of in the county of did [here describe the offence], contrary to the form of the Act passed in the year of the reign of Her present Majesty, intituled 'An Act to consolidate and amend the Laws relating to the Copyright of Designs for ornamenting Articles of Manufacture.' " Form of Conviction. " Be it remembered, that on the day of in the year of our Lord at in the county of E.F. of in the county aforesaid is convicted before us and two of Her Majesty's justices of the peace for the said county, for that he the said E.F. on the day of in the year at in the county of did [here describe the offence] contrary to the form of the statute in that case made and provided ; and we the said justices do adjudge that the said E.F. for his offence aforesaid hath forfeited the sum of to the said A.B." In Scotland, by action before the Court of Session in ordinary form, or by summary action before the sheriff of the county where the offence may be committed or the offender resides, who, upon proof of the offence or offences, either by confession of the party offending or by the oath or affirmation of one or more credible witnesses, shall convict the offender and find him liable in the penalty or penalties aforesaid, as also in expenses ; and it shall be lawful for the sheriff, in pronouncing such judgment for the penalty or penalties and costs, to insert in such judgment a warrant, in the event of such penalty, or penalties or costs not being paid, to levy and to recover the amount of the same by poinding : Provided always, that it shall be lawful to the sheriff, in the event of his dismissing the action, and assoilzieing the defender, to find the complainer liable in expenses ; and any judgment so to be pronounced by the sheriff in such summary application shall be final and conclusive, and not subject to review by advocation, suspension, reduction or otherwise : 652 THE LAW OF COPYBIGHT. In Ireland, either by action in a superior court of law at Dublin or by civil bill in the Civil Bill Court of the county or place where the offence was committed. Proviso as to action for damages. Registration may in some cases be can- celled or amended. Penalty for wrongfully using marks denoting a registered design. IX. Provided always, and be it enacted, That, notwithstanding the remedies hereby given for the recovery of any such penalty as aforesaid, it shall be lawful for the proprietor in respect of whose right such penalty shall have been incurred (if he shall elect to do so) to bring such action as he may be entitled to for the recovery of any damages which he shall have sustained, either by the application of any such design or of a fraudulent imitation thereof, for the purpose of sale, to any articles of manufacture or substances, or by the publication, sale, or exposure to sale, as aforesaid, by any person, of any article or substance to which such design or any fraudulent imitation thereof shall have been so applied, such person knowing that the proprietor of such design had not given his consent to such application. X. And be it enacted, That in any suit in equity which may be instituted by the proprietor of any design or the person lawfully entitled thereto, relative to such design, if it shall appear to the satisfaction of the judge having cognisance of such suit that the design has been registered in the name of a person not being the proprietor or lawfully entitled thereto, it shall be competent for such judge in his discretion, by a decree or order in such suit, to direct either that such registration be cancelled (in which case the same shall thenceforth be wholly void), or that the name of the proprietor of such design, or other person lawfully entitled thereto, be substituted in the register for the name of such wrongful proprietor or claimant, in like manner as is hereinbefore directed in case of the transfer of a design, and to make such order respecting the cost of such cancellation or substitution, and of all proceedings to procure and effect the same, as he shall think fit; and the registrar is hereby authorized and required, upon being served with an official copy of such decree or order, and upon payment of the proper fee, to comply with the tenour of such decree or order, and either cancel such registration or substitute such new name, as the case may be. XI. And be it enacted, That unless a design applied to orna- menting any article of manufacture or any such substance as aforesaid be so registered as aforesaid, and unless such design so registered shall have been applied to the ornamenting such article or substance within the United Kingdom of Great Britain and Ireland, and also after the copyright of such design in relation to such article or substance shall have expired, it shall be unlawful 5 & 6 vict. c. 100. 653 to put on any such article or such substance, in the manner herein- before required with respect to articles or substances whereto shall be applied a registered design, the marks hereinbefore required to be so applied, or any marks corresponding therewith or similar thereto ; and if any person shall so unlawfully apply any such marks, or shall publish, sell, or expose for sale any article of manufacture, or any substance with any such marks so unlawfully applied, knowing that any such marks have been unlawfully applied, he shall forfeit for every such offence a sum not exceeding five pounds, which may be recovered by any person proceeding for the same by any of the ways hereinbefore directed with respect to penalties for pirating any such design. XLL And be it enacted, That no action or other proceeding for Limitation of any offence or injury under this Act shall be brought after the actions. expiration of twelve calendar months from the commission of the offence ; and in every such action or other proceeding the party who shall prevail shall recover his full costs of suit or of such Costs. other proceeding. xiii. And be it enacted, That in the case of any summary Justices may proceeding before any two justices in England, such justices are order payment hereby authorized to award payment of costs to the party prevail- of sum s mary ing, and to grant a warrant for enforcing payment thereof against proceeding, the summoning party, if unsuccessful, in the like manner as is hereinbefore provided for recovering any penalty with costs against any offender under this Act. XIV. And for the purpose of registering designs for articles of Registrar, &c, manufacture in order to obtain the protection of this Act, be it of designs to be enacted, That the Lords of the Committee of Privy Council for a PP° m the consideration of all matters of trade and plantations may appoint a person to be a registrar of designs for ornamenting articles of manufacture, and, if the Lords of the said Committee see fit, a deputy registrar, clerks, and other necessary officers and servants; and such registrar, deputy registrar, clerks, officers, and servants, shall hold their offices during the pleasure of the Lords of the said Committee; and the Commissioners of the Treasury may from time to time fix the salary or remuneration of such registrar, deputy registrar, clerks, officers, and servants; and, subject to the provisions of this Act, the Lords of the said Com- mittee may make rules for regulating the execution of the duties of the office of the said registrar; and such registrar shall have a seal of office. XV. And be it enacted, That the said registrar shall not register Registrar's any design in respect of any application thereof to ornamenting duties. any articles of manufacture or substances, unless he be furnished, 654 THE LAW OF COPYEIGHT. in respect of each such application, with two copies, drawings, or prints of such design, accompanied with the name of every person who shall claim to be proprietor, or of the style or title of the firm under which such proprietor may be trading, with his place of abode or place of carrying on his business, or other place of address, and the number of the class in respect of which such registration is made; and the registrar shall register all such copies, drawings, or prints, from time to time successively as they are received by him for that purpose ; and on every such copy, drawing, or print, he shall affix a number corresponding to such succession ; and he shall retain one copy, drawing, or print, which he shall file in his office, and the other he shall return to the person by whom the same has been forwarded to him; and in order to give ready access to the copies of designs so registered, he shall class such copies of designs, and keep a proper index of each class. Certificate of XVI. And be it enacted, That upon every copy, drawing, or "f^ 3 ' 1011 print of an original design so returned to the person registering as aforesaid, or attached thereto, and upon every copy, drawing, or print thereof received for the purpose of such registration, or of the transfer of such design being certified thereon or attached thereto, the registrar shall certify under his hand that the design has been so registered, the date of such registration, and the name of the registered proprietor, or the style or title of the firm under which such proprietor may be trading, with his place of abode or place of carrying on his business, or other place of address, and also the number of such design, together with such number or letter, or number and letter, and in such form as shall be employed by him to denote or correspond with the date of such registration ; and such certificate made on every such original design, or on such copy thereof, and purporting to be signed by the registrar or deputy registrar, and purporting to have the seal of office of such registrar affixed thereto, shall, in the absence of evidence to the contrary, be sufficient proof, as follows : Of the design, and of the name of the proprietor therein men- tioned, having been duly registered ; and Of the commencement of the period of registry ; and Of the person named therein as proprietor being the proprietor ; and Of the originality of the design ; and Of the provisions of this Act, and of any rule under which the certificate appears to be made, having been complied with : And any such writing purporting to be such certificate shall, in the 5 & 6 vict. o. 100. 655 absence of evidence to the contrary, be received as evidence, without proof of the handwriting of the signature thereto, or of the seal of office affixed thereto, or of the person signing the same being the registrar or deputy registrar. X VII. And be it enacted, That every person shall be at liberty Inspection of to inspect any design whereof the copyright shall have expired, registered paying only such fee as shall be appointed by virtue of this Act eslgns- in that behalf ; but with regard to designs whereof the copyright shall not have expired, no such design shall be open to inspection, except by a proprietor of such design, or by any person authorized by him in writing, or by any person specially authorized by the registrar, and then only in the presence of such registrar or in the presence of some person holding an appointment under this Act, and not so as to take a copy of any such design or of any part thereof, nor without paying for every such inspection such fee as aforesaid: Provided always, that it shall be lawful for the said registrar to give to any person applying to him, and producing a particular design, together with the registration mark thereof, or producing such registration mark only, a certificate stating whether of such design there be any copyright existing, and if there be, in respect to what particular article of manufacture or substance such copyright exists, and the term of such copyright, and the date of registration, and also the name and address of the registered proprietor thereof. XVIII. And be it enacted, That the Commissioners of the Application of Treasury shall from time to" time fix fees to be paid for the services l ^ es of registra- to be performed by the registrar, as they shall deem requisite, to defray the expenses of the said office, and the salaries or other remuneration of the said registrar, and of any other person employed under him, with the sanction of the Commissioners of the Treasury; in the execution of this Act; and the balance, if any, shall be carried to the Consolidated Fund of the United Kingdom, and be paid accordingly into the receipt of Her Majesty's Exchequer at Westminster ; and the Commissioners of the Treasury may regulate the manner in which such fees are to be received, and in which they are to be kept, and in which they are to be accounted for, and they may also remit or dispense with the payment of such fees in any cases where they may think it expedient so to do: Provided always, that the fee for registering a design to be applied to any woven fabric mentioned or comprised in classes 7, 9 or 10, shall not exceed the sum of one shilling; that the fee for registering a design to be applied to a paper-hanging shall not exceed the sum of ten shillings; and that the fee to be received by the registrar for giving a certificate relative to the existence or expiration of 656 THE LAW OF COPYRIGHT. Penalty for extortion. Interpretation of Act. Alteration of Act. any copyright in any design printed on any woven fabric, yarn, thread, or warp, or printed, embossed, or worked on any paper- hanging, to any person exhibiting a piece end of a registered pattern, with the registration mark thereon, shall not exceed the sum of two shillings and sixpence. XIX. And be it enacted, That if either the registrar or any person employed under him either demand or receive any gratuity or reward, whether in money or otherwise, except the salary or remuneration authorized by the Commissioners of the Treasury, he shall forfeit for every such offence fifty pounds to any person suing for the same by action of debt in the Court of Exchequer at Westminster ; and he shall also be liable to be either suspended or dismissed from his office, and rendered incapable of holding any situation in the said office, as the Commissioners of the Treasury see fit. XX. And for the interpretation of this Act, be it enacted, That the following terms of expression, so far as they are not repugnant to the context of this Act, shall be construed as follows : (that is to say), the expression "Commissioners of the Treasury" shall mean the Lord High Treasurer for the time being, or the Com- missioners of Her Majesty's Treasury for the time being, or any three or more of them; and the singular number shall include the plural as well as the singular number; and the masculine gender shall include the feminine gender as well as the masculine gender. XXI. And be it enacted, That this Act may be amended or repealed by any Act to be, passed in the present session of Parliament. Note. — So much of this Act as relates to the appointment of a registrar of designs, and other officers, as well as the fixing of the salaries for the payment of the same, repealed by 6 & 7 Vict. c. 65, § 7. [Schedules 5 it 6 vict. c. 100. 657 Schedules referred to by the foregoing Act. Schedule (A). DATE OF ACTS. TITLE. 27 Geo. 3, o. 38. (1787.) 29 Geo. 3, o. 19. (1789.) 34 Geo. 3, c. 23. (1794.) 2 Vict. c. 13. (1839.) An Act for the Encouragement of the Arts of de- signing and printing Linens, Cottons, Calicoes, and Muslins, by vesting the Properties thereof in the Designers, Printers, and Proprietors for a limited Time. An Act for continuing an Act for the Encouragement of the Arts of designing and printing Linens, Cottons, Calicoes, and Muslins, by vesting the Properties thereof in the Designers, Printers, and Proprietors for a limited Time. An Act for amending and making perpetual an Act for the Encouragement of the Arts of designing and printing Linens, Cottons, Calicoes, and Muslins, by vesting the Properties thereof in the Designers, Printers, and Proprietors for a limited Time. An Act for extending the Copyright of Designs for Calico Printing to Designs for printing other woven Fabrics. Schedule (B). DATE OF ACT. 2 Vict. c. 17. (1839.) An Act to secure to Proprietors of Designs for Articles of Manufacture the Copyright of such Designs for a limited Time. DATE OF ACTS. 38 Geo. 3, c. 71. (1798.) 54 Geo. 3, c. 56. (1814.) Schedule (C). title. An Act for encouraging the Art of making new Models and Casts of Busts and other Things therein mentioned. An Act to amend and render more effectual an Act for encouraging the Art of making new Models and Casts of BustB and other Things therein mentioned, and for giving further Encouragement to such Arts. 2 u 658 THE LAW OF COPYKIGHT. 5 & 6 Vict, c. 100. Commence- ment of Act. Grant of copy- right. Proviso. 38 G. 3, c. 71. 54 G. 3, t . 56, Conditions of copyright. 6 & 7 Vict. o. 65. An Act to amend the Laws relating to the Copyright of Designs. [22nd August, 1843.] Whekbas by an Act passed in the fifth and sixth years of the reign of Her present Majesty, intituled "An Act to consolidate and amend the Laws relating to the Copyright of Designs for ornamenting Articles of Manufacture," there was granted to the proprietor of any new and original design, with the exceptions therein mentioned, the sole right to apply the same to the ornamenting of any article of manufacture or any such substance as therein described during the respective periods therein mentioned : And whereas it is expedient to extend the protection afforded by the said Act to such designs hereinafter mentioned, not being of an ornamental character, as are not included therein : Be it therefore enacted by the Queen's most excellent Majesty, by and with the advice and consent of the Lords spiritual and temporal, and Commons in this present Parliament assembled, and by the authority of the same, That this Act shall come into operation on the first day of September, One thousand eight hundred and forty-three. II. And with regard to any new or original design for any article of manufacture having reference to some purpose of utility, so far as such design shall be for the shape or configuration of such article, and that whether it be for the whole of such shape or configuration, or only for a part thereof, be it enacted, That the proprietor of such design not previously published within the United Kingdom of Great Britain and Ireland or elsewhere, shall have the sole right to apply such design to any article, or make or sell any article accord- ing to such design, for the term of three years, to be computed from the time of such design being registered according to this Act : Provided always, that this enactment shall not extend to such designs as are within the provisions of the said Act, or of two other Acts passed respectively in the thirty-eighth and fifty-fourth years of the reign of His late Majesty King George the Third, and intituled respectively " An Act for encouraging the Art of making new models and Casts of Busts, and other things therein mentioned," and " An Act to amend and render more effectual an Act for encourag- ing the Art of making new Models and casts of Busts, and other things therein mentioned." III. Provided always, and be it enacted, that no person shall be entitled to the benefit of this Act unless such design have before publication thereof been registered according to this Act, and unless the name of such person shall be registered according to this Act as a proprietor of such design, and unless after publication of such 6 & 7 vict. c. 65. 659 design every article of manufacture made by him according to such design, or on which such design is used, hath thereon the word " registered," with the date of registration. IV. And be it enacted, that unless a design applied to any Penalty for article of manufacture be registered either as aforesaid or according wl ; on gf"l l y to the provisions of the said first-mentioned Act, and also after the denoting a copyright of such design shall have expired, it shall be unlawful to registered put on any such article the word " registered," or to advertise the desl S n - same for sale as a registered article ; and if any person shall so un- lawfully publish, sell, or expose or advertise for sale any such article of manufacture, he shall forfeit for every such offence a sum not exceeding five pounds nor less than one pound, which may be recovered by any person proceeding for the same by any of the remedies hereby given for the recovery of penalties for pirating any such design. V. And be it enacted, that all such articles of manufacture as are Floor or oil- commonly known by the name of floor-cloths or oil-cloths shall ? lot ^ s included 111 CloiSS SlXa henceforth be considered as included in class six in the said first- mentioned Act in that behalf mentioned, and be registered accordingly. VI. And be it enacted, that all and every the clauses and provisions Certain pro- contained in the said first-mentioned Act, so far as they are not re- ™ lons °J ° & 6 ■ ■ . Vict. e. 100, to pugnant to the provisions contained m this Act, relating respectively app iy to this to the explanation of the term proprietor, to the transfer of designs, Act. to the piracy of designs, to the mode of recovering penalties, to actions for damages, to cancelling and amending registrations, to the limitation of actions, to the awarding of costs, to the certificate of registration, to the fixing and application of fees of registration, and to the penalty for extortion, shall be applied and extended to this present Act as fully and effectually, and to all intents and purposes, as if the said several clauses and provisoes had been par- ticularly repeated and re-enacted in the body of this Act. VII. And be it enacted, that so much of the said first-mentioned Appointment Act as relates to the appointment of a registrar of designs for orna- of registrar, menting articles of manufacture, and other officers, as well as to the fixing of the salaries for the payment of the same, shall be and the same is hereby repealed; and for the purpose of carrying into effect the provisions as well of this Act as of the said first-mentioned Act, the Lords of the Committee of the Privy Council for the considera- tion of all matters of trade and plantations may appoint a person to be registrar of designs for articles of manufacture, and, if the Lords of the said Committee see fit, an assistant registrar and other necessary officers and servants ; and such registrar, assistant registrar, officers, and servants shall hold their offices during the pleasure of the Lords of the said C mmittee ; and such registrar shall have a seal of office ; 2 U 2 660 THE LAW OF COPYRIGHT. Registrar's duties. Drawings. and the Commissioners of Her Majesty's Treasury may from time to time fix the salary or other remuneration of such registrar, assistant registrar, and other officers and servants and all the provisions con- tained in the said first-mentioned Act, and not hereby repealed, rela- ting to the registrar, deputy registrar, clerks, and other officers and servants thereby appointed and therein named, shall be construed and held to apply respectively to the registrar, assistant registrar, and other officers and servants to be appointed under this Act. VIII. And be it enacted, that the said registrar shall not register any design for the shape or configuration of any article of manufacture as aforesaid, unless he be furnished with two exactly similar draw- ings or prints of such design, with such description in writing as may be necessary to render the same intelligible according to the judgment of the said registrar, together with the title of the said design and the name of every person who shall claim to be proprie- tor, or of the style or title of the firm under which such proprietor may be trading, with his place of abode, or place of carrying on business, or other place of address ; and every such drawing or print, together with the title and description of such design, and the name and address of the proprietor aforesaid, shall be on one sheet of paper or parchment, and on the same side thereof; and the size of the said sheet shall not exceed twenty-four inches by fifteen inches; and there shall be left on one of the said sheets a blank space on the same side on which are the said drawings, title, description, name, and address, of the size of six inches by four inches, for the certificate herein mentioned ; and the said drawings or prints shall be made on a proper geometric scale ; and the said description shall set forth such parts or part of the said design (if any) as shall not be new or original ; and the said registrar shall register all such drawings or prints from time to time as they are received by him for that purpose ; and on every such drawing or print he shall affix a number corresponding to the order of succes- sion in the register, and he shall retain one drawing or print which he shall file at his office, and the other he shall return to the person by whom the same has been forwarded to him ; and in order to give a ready access to the designs so registered, he shall keep a proper index of the titles thereof. IX. And be it enacted, that if any design be brought to the said power as to registrar to be registered under the said firstrmentioned Act, registry vested ^ ^ g jj a u a pp ea r to him that the same ought to be registered in the registrar. ^^ ^ pregent Actj j t g^u be i awful for the said registrar to refuse to register such design otherwise than under the present Act and in the manner hereby provided ; and if it shall appear to the said registrar that the design brought to be registered under the said first-mentioned Act or this Act is not intended to be Discretionary 6 & 7 vict. c. 68. 661 applied to any article ef manufacture, but only to some label, wrapper, or other covering in which such article might be exposed for sale, or that such design is contrary to public morality or order, it shall be lawful for the said registrar in his discretion wholly to refuse to register such design : Provided always, that the Lords Proviso, of the said Committee of Privy Council may, on representation made to them by the proprietor of any design so wholly refused to be registered as aforesaid, if they shall see fit, direct the said registrar to register such design, whereupon and in such case the said registrar shall be and is hereby required to register the same accordingly. X. And be it enacted, That every person shall be at liberty to Inspection of inspect the index of the titles of the designs, not being ornamental index of titles designs registered under this Act, and to take copies from the ° esl £ ns > same, paying only such fees as shall be appointed by virtue of this Act in that behalf; and every person shall be at liberty to inspect any such design, and to take copies thereof, paying such fee as aforesaid; but no design whereof the copyright shall not have expired shall be open to inspection except in the presence of such registrar, or in the presence of some person holding an appointment under this Act, and not so as to take a copy of such design, not without paying such fee as aforesaid. XL And, for the interpretation of this Act, be it enacted, That Interpretation the following terms and expressions, so far as they are not of Act - repugnant to the context of this Act, shall be construed as follows : (that is to say,) the expression " Commissioners of the Treasury" shall mean the Lord High Treasurer for the time being, or the Commissioners of Her Majesty's Treasury of the United Kingdom of Great Britain and Ireland for the time being, or any three or more of them; and the singular number shall include the plural as well as the singular number; and the masculine gender shall include the feminine gender as well as the masculine gender. XII. And be it enacted, That this Act may be amended Alteration of or repealed by any Act to be passed in the present session of Act - Parliament. 6 & 7 Vict. c. 68. An Act for regulating Theatres. [22nd August, 1843.] Whebbas it is expedient that the laws now in force for regulating theatres and theatrical performances be repealed and other pro- visions be enacted in their stead : Be it enacted by the Queen's 662 THE LAW OP COPYEIGHT. most excellent Majesty, by and with the advice and consent of the Lords spiritual and temporal, and Commons, in this same parliament Repeal of assembled, and by the authority of the same, That an Act passed 3 Jac. 1, u. 21. i n the third year of the reign of King James the First, intituled Part of an Act to restrain the abuses of players ; and so much of an 10 G. 2, c. 19. Act passed in the tenth year of the reign of Bang George the Second for the more effectual preventing the unlawful play- ing of interludes within the precincts of the two universities in that part of Great Britain called England, and the places adjacent, as is now in force ; and another Act passed in the tenth 10 G. 2, c. 28. year of the reign of King George the Second, intituled an Act to explain and amend so much of an Act made in the twelfth year of the reign of Queen Anne, intituled " An Act for reducing the Laws relating to Rogues, Vagabonds, Sturdy Beggars, and Vagrants into one Act of Parliament, and for the more effectual Punishment of such Rogues, Vagabonds, Sturdy Beggars, and Vagrants, and sending them whither they ought to be sent," as relates to common players or interludes; and ano'ther Act passed in the twenty-eighth year of the reign of King George the Third, intituled 28 G. 3, c. 30. An Act to enable Justices of the Peace to license theatrical represen- tations occasionally, under the restrictions therein contained, shall Proviso as to be repealed : Provided always, that any licence now in force licences now in g ran ted by the Lord Chamberlain, or granted by any justices of the peace under the provisions of the last-recited Act, shall continue in force for the times for which the same were severally granted, or until revoked by the authority by which they were severally granted. All theatres II. And be it enacted, That, except as aforesaid, it shall not be for the per- lawful for any person to have or keep any house or other place of plays' must be public resort in Great Britain, for the public performance of stage licensed. plays, without authority by virtue of letters patent from Her Majesty, her heirs and successors, or predecessors, or without licence from the Lord Chamberlain of Her Majesty's household for the time being, or from the justices of the peace as herein-after provided ; and every person who shall offend against this enactment shall be liable to forfeit such sum as shall be awarded by the court in which or the justices by whom he shall be convicted, not exceeding twenty pounds for every day on which such house or place shall have been so kept open by him for the purpose afore- said, without legal authority. What licences III. And be it enacted, That the authority of the Lord Chamber- shall be j am f or granting licences shall extend to all theatres (not being Lor^Cham-" 16 patent theatres) within the parliamentary boundaries of the cities berlain. of London and Westminster, and of the boroughs of Finsbury and Marylebone, the Tower Hamlets, Lambeth, and Southwark, and 6 & 7 vict. c. 68. b'63 also within those places where Her Majesty, her heirs and suc- cessors, shall, in their royal persons, occasionally reside : Provided always, that, except within the cities and boroughs aforesaid, and the boroughs of New Windsor in the county of Berks, and Brightelmstone in the county of Sussex, licences for theatres may be granted by the justices as herein-after provided, in those places in which Her Majesty, her heirs and successors, shall occasionally reside ; but such licences shall not be in force during the residence there of Her Majesty, her heirs and successors ; and during such residence it shall not be lawful to open such theatres as last afore- said (not being patent theatres) without the licence of the Lord Chamberlain. IV. And be it enacted, That for every such licence granted by Fee for Lord the Lord Chamberlain, a fee, not exceeding ten shillings for each Chamberlain's licsncs calendar month during which the theatre is licensed to be kept open, according to such scale of fees as shall be fixed by the Lord Chamberlain, shall be paid to the Lord Chamberlain. V. And be it enacted, That the justices of the peace within Licences may every county, riding, division, liberty, cinque port, city, and be g ranteci b y borough in Great Britain beyond the limits of the authority of J the Lord Chamberlain, in which application shall have been made to them for any such licence as is herein-after mentioned, shall, within twenty-one days next after such application shall have been made to them in writing signed by the party making the same, and countersigned by at least two justices acting in and for the division within which the property proposed to be licensed shall be situate, and delivered to the clerk to the said justices, hold a special session in the division, district, or place for which they usually act, for granting licences to houses for the performance of stage plays, of the holding of which session seven days notice shall be given by their clerk to each of the justices acting within such division, district, or place; and every such licence shall be given under the hands and seals of four or more of the justices assembled at such special session, and shall be signed and sealed in open court, and afterwards shall be publicly read by the clerk, with the names of the justices subscribing the same. VI. And be it enacted, That for every such licence granted by Fee for the iustices a fee, not exceeding five shillings for each calendar justices' month during which the theatre is licensed to be kept open, according to such scale of fees as shall be fixed by the justices, shall be paid to the clerk of the said justices, VII. And be it enacted, That no such licence for a theatre shall To whom be granted by the Lord Chamberlain or justices to any person l lcences shaI l except the actual and responsible manager for the time being of the theatre in respect of which the licence shall be granted : and 664 THE LA^V.OF COPYRIGHT. the name and place of abode of such manager shall be printed on every play bill announcing any representation at such theatre : and such manager shall become bound himself in such penal sum as the Lord Chamberlain or justices shall require, being in no case more than five hundred pounds, and two sufficient sureties, to be approved by the said Lord Chamberlain or justices, each in such penal sum as the Lord Chamberlain or justices shall require, being in no case more than one hundred pounds, for the due observance of the rules which shall be in force at any time during the currency of the licence for the regulation of such theatre, and for securing pay- ment of the penalties which such manager may be adjudged to pay for breach of the said rules, or any of the provisions of this Act. Rales for the VIII. And be it enacted, That in case it shall appear to the Lord theatres under Chamberlain that any riot or misbehaviour has taken place in any the Lord theatre licensed by him, or in any patent theatre, it shall be lawful Chamberlain, for him to suspend such licence or to order such patent theatre to be closed for such time as to him shall seem fit; and it shall also be lawful for the Lord Chamberlain to order that any patent theatre or any theatre licensed by him shall be closed on such public occasions as to the Lord Chamberlain shall seem fit ; and while any such licence shall be suspended, or any such order shall be in force, the theatre to which the same applies shall not be entitled to the privilege of any letters patent or licence, but shall be deemed an unlicensed house. Rules for en- IX. And be it enacted, That the said justices of the peace at a forcing order special licensing session, or at some adjournment thereof, shall make licensed by the suitable rules for ensuring order and decency at the several theatres justices. licensed by them within their jurisdiction, and for regulating the times during which they shall severally be allowed to be open, and from time to time, at another special session, of which notice shall be given as aforesaid, may rescind or alter such rules: and it shall be lawful for any one of Her Majesty's principal secretaries of state to rescind or alter any such rules, and also to make such other rules for the like purpose, as to him shall seem fit ; and a copy of all rules which shall be in force for the time being shall be annexed to every such licence ; and in case any riot or breach of the said rules in any such theatre shall be proved on oath before any two justices usually acting in the jurisdiction where such theatre is situated, it shall be lawful for them to order that the same be closed for such time as to the said justices shall seem fit ; and while such order shall be in force the theatre so ordered to be closed shall be deemed an unlicensed house. Proviso for the X. Provided always, and be it enacted, That no such licence universities of sna u k e m force within the precincts of either of the Universities Oxford and yf Oxford or Cambridge, or within fourteen miles of the city of Lomond gs. 6 & 7 vict. c. 68. 665 Oxford or town of Cambridge, without the consent of the Chan- cellor or Vice-Chancellor of each of the said Universities respectively ; and that the rules for the management of any theatre which shall be licensed with such consent within the limits aforesaid shall be subject to the approval of the said Chancellor or Vice-Chancellor respectively ; and in case of the breach of any of the said rules, or of any condition on which the consent of the Chancellor or Vice- Chancellor to grant any such licence shall have been given it shall be lawful for such Chancellor or Vice-Chancellor respec- tively to annul the licence, and thereupon such licence shall become void. XI. And be it enacted, That every person who for hire shall act Penalty on or present, or cause, permit, or suffer to be acted or presented, any persons pur- part in any stage play, in any place not being a patent theatre or i°! c ™"j nieces duly licensed as a theatre, shall forfeit such sum as shall be awarded by the Court in which or the justices by whom he shall be convicted, not exceeding ten pounds for every day on which he shall so offend. XII. And be it enacted, That one copy of every new stage play No new plays and of every new act, scene, or other part added to any old. stage or additions to play, and of every new prologue or epilogue, and of every new acte^until part added to an old prologue or epilogue intended to be produced submitted to and acted for hire at any theatre in Great Britain, shall be sent to *|je L ° rd the Lord Chamberlain of Her Majesty's household for the time am er ain " being, seven days at least before the first acting or presenting thereof, with an account of the theatre where and the time when the same is intended to be first acted or presented, signed by the master or manager, or one of the master or managers, of such theatre ; and during the said seven days no person shall for hire act or present the same, or cause the same to be acted or presented ; and in case the Lord Chamberlain, either before or after the expira- tion of the said period of seven days, shall disallow any play, or any act, scene, or part thereof, or any prologue or epilogue, or any part thereof, it shall not be lawful for any person to act or present , the same, or cause the same to be acted or presented, contrary to such disallowance. XIII. And be it enacted, That it shall be lawful for the Lord Fees to be paid Chamberlain to charge such fees for the examination of the plays, [" n e *f "J™" prologues, and epilogues, or parts thereof, which shall be sent to & c _ him for examination, as to him from time to time shall seem fit, according to a scale which shall be fixed by him, such fee not being in any case more than two guineas, and such fees shall be paid at the time when such plays, prologues, and epilogues, or parts thereof shall be sent to the Lord Chamberlain ; and the said period of seven days shall not begin to run in any case until the said fee 666 THE LAW OF COrYIUGHT. The Lord Chamberlain may forbid any play. Penalty for "" acting plays before they are allowed or after they have been dis- allowed. What shall be evidence of acting for hire. Proof of licence in certain cases to lie on the party accused. Proceedings begun before the passing of this Act may be discon- tinued. shall have heen paid to the Lord Chamberlain, or to some officer deputed by him to receive the same. XIV. And be it enacted, That it shall be lawful for the Lord Chamberlain for the time being, whenever he shall be of opinion that it is fitting for the preservation of good manners, decorum, or of the public peace so to do, to forbid the acting or presenting any stage play, or any act, scene, or part thereof, or any prologue or epilogue, or any part thereof, anywhere in Great Britain, or in such theatres as he shall specify, and either absolutely or for such time as he shall think fit. XV. And be it enacted, That every person who for hire shall act or present, or cause to be acted or presented, any new stage play, or any act, scene, or part thereof, or any new prologue or epilogue, or any part thereof, until the same shall have been allowed by the Lord Chamberlain, or which shall have been disallowed by him, and also every person who for hire shall act or present, or cause to be acted or presented any stage play, or any act, scene, or part thereof, or any prologue or epilogue, or any part thereof, contrary to such prohibition as aforesaid, shall for every such offence forfeit such sum as shall be awarded by the Court in which or the justices by whom he shall be convicted, not exceeding the sum of fifty pounds ; and every licence (in case there be any such) by or under which the theatre was opened, in which such offence shall have been committed, shall become absolutely void. XVI. And be it enacted, That in every case in which any money or other reward shall be taken or charged, directly or indirectly, or in which the purchase of any article is made a condition for the admission of any person into any theatre to see any stage play, and also in every case in which any stage play shall be acted or presented in any house, room, or place in which distilled or fer- mented exciseable liquor shall be sold, every actor therein shall be deemed to be acting for hire. XVII. And be it enacted, That in any proceedings to be insti- tuted against any person for having or keeping an unlicensed theatre, or for acting for hire in an unlicensed theatre, if it shall be proved that such theatre is used for the public performance* of stage plays, the burden of proof that such theatre is duly licensed or authorized shall lie on the party accused, and until the contrary shall be proved such theatre shall be taken to be unlicensed. XVIII. And be it enacted, That after the passing of this Act it shall be lawful for any person against whom any action or informa- tion shall have been commenced, for the recovery of any forfeiture or pecuniary penalty incurred under the said Act of the tenth year of the reign of King George the Second, to apply to the court 6 & 7 vict. c. 68. 667 in which such action or information shall have been commenced, if such court shall be sitting, or if such court shall not be sitting to any judge of either of the superior courts at Westminster, for an order that such action or information shall be discontinued, upon payment of the costs thereof incurred in the time of such application being made, such costs to be taxed according to the practice of such court; and every such court or judge (as the case may be), upon such application, and proof that sufficient notice has been given to the plaintiff or informer, or to his attorney, of the application, shall make such order as aforesaid ; and upon the making such order, and payment or tender of such costs as aforesaid, such action or information shall be forthwith discontinued. XIX. And be it enacted, That all the pecuniary penalties imposed Penalties how by this Act for offences committed in England may be recovered in *" recovel '" any of her Majesty's courts of record at Westminster, and for offences committed in Scotland by action or summary complaint before the Court of Session or justiciary there, or for offences committed in any part of Great Britain in a summary way before two justices of the peace for any county, riding, division, liberty, city, or borough where any such offence shall be com- mitted, by the oath or oaths of one or more credible witness or witnesses, or by the confession of the offender, and in default of payment of such penalty together with the costs, the same may be levied by distress and sale of the offender's goods and chattels, rendering the overplus to such offender, if any there be above the penalty, costs, and charge of distress ; and for want of sufficient distress the offender may be imprisoned in the common gaol or house of correction of any such county, riding, division, liberty, city, or borough for any time not exceeding six calendar months. XX. And be it enacted, That it shall be lawful for any person Appeal, who shall think himself aggrieved by any order of such justices of the peace to appeal therefrom to the next general or quarter session of the peace to be holden for the said county, riding, division, liberty, city, or borough, whose order therein shall be final. XXI. And be it enacted, That the said penalties for any offence Appropriation against this Act shall be paid and applied in the first instance of penalties, toward defraying the expenses incurred by the prosecutor, and the residue thereof (if any) shall be paid to the use of Her Majesty, her heirs and successors. XXII. Provided always, and be it enacted, That no person shall Limitation of be liable to be prosecuted for any offence against this Act unless actlons - such prosecution shall be commenced within six calendar months after the offence committed. 668 THE LAW OP COPYRIGHT. Interpretation of Act. Limits of the Act. Act may be amended this XXIII. And be it enacted, That in this Act the word " stage- play" shall be taken to include every tragedy, comedy, farce, opera, burletta, interlude, melodrama, pantomime, or other enter- tainment of the stage, or any part thereof: provided always, that nothing herein contained shall be construed to apply to any thea- trical representation in any booth or show which by the justices of the peace, or other persons having authority in that behalf, shall be allowed in any lawful fair, feast, or customary meeting of the like kind. XXIV. And be it enacted, That this Act shall extend only to Great Britain. XXV. And be it enacted, that this Act may be amended or repealed by any Act to be passed in this Session of Parliament. 1 & 2 Vict. .,. 59. 5 & 6 Vict, c. 45. 7 & 8 Vict. c. 12. An Act to amend the Law relating to International Copyrujht. [10th May, 1844.] Whbkeas by an Act passed in the session of Parliament held in the first and second years of the reign of Her present Majesty, intituled "An Act for securing to Authors in certain Cases the Benefit of international Copyright" (and which Act is herein- after, for the sake of perspicuity, designated as "The Inter- national Copyright Act "), Her Majesty was empowered by Order in Council to direct that the authors of books which should after a future time, to be specified in such Order in Council, be pub- lished in any foreign country, to be specified in such Order in Council, and their executors, administrators, and assigns, should have the sole liberty of printing and reprinting such books within the British dominions for such term as Her Majesty should by such Order in Council direct, not exceeding the term which authors, being British subjects, were then (that is to say, at the time of passing the said Act), entitled to in respect of books first published in the United Kingdom : and the said Act contains divers enactments securing to authors and their repre- sentatives the copyright in the books to which any such Order in Conncil should extend : And whereas an Act was passed in the session of Parliament held in the fifth and sixth years of the reign of her present Majesty, intituled " An Act to amend the Law of Copyright " (and which Act is hereinafter, for the sake of perspicuity, designated as " The Copyright Amendment Act") repealing various Acts therein mentioned relating to the copyright of printed books, and extending, defining, and securing to authors and their repre- 7 & 8 vict. c. 12. 6fi9 sentatives the copyright of books : And whereas an Act was passed in the session of Parliament held in the third and fourth years of the reign of His late Majesty King "William the Fourth, intituled : " An Act to amend the Laws relating to dramatic literary Pro- 3 & 4 W. 4, perty" (and which Act is hereinafter, for the sake of perspicuity, u - lo - designated as " The dramatic literary Property Act "), whereby the sole liberty of representing or causing to be represented any dramatic piece in any place of dramatic entertainment in any part of the British dominions, which should be composed and not printed or published by the author thereof or his assignee, was secured to such author or his assignee ; and by the said Act it was enacted that the author of any such production which should thereafter be printed and published, or his assignee, should have the like sole liberty of representation until the end of twenty- eight years from the first publication thereof: And whereas by the said " Copyright Amendment Act " the provisions of the said "Dramatic literary Property Act" and of the said "Copyright Amendment Act " were ma e applicable to musical compositions ; and it was thereby also enacted, that the sole liberty of representing or performing, or causing or permitting to be represented or performed, in any part of the British dominions, any dramatic piece or musical composition, should endure and be the property of the author thereof and his assigns for the term in the said " Copyright Amendment Act" provided for the duration of the copyright in books, and that the provisions therein enacted in respect of the property of such copyright should apply to the liberty of represent- ing or performing any dramatic piece or musical composition: And whereas under or by virtue of the four several Acts next hereinafter mentioned, (that is to say,) an Act passed in the eighth year of the reign of His late Majesty King George the Second, intituled " An Act for the Encouragement of the Arts of designing, 8 G. 2, u. 13. engraving, and etching historical and other Prints by vesting the Properties thereof in the Inventors or Engravers during the Time therein mentioned ;" an Act passed in the seventh year of His late Majesty King George the Third, intituled " An Act to amend and 7 G. 3, c. 38. render more effectual an Act made in the Eighth Year of the Reign of King George the Second, for Encouragement of the Arts of designing, engraving, and etching historical and other Prints ; and for vesting in and securing to Jane Hogarth, Widow, the Property in certain Prints ;" an Act passed in the seventeenth year of the reign of His late Majesty King George the Third, intituled " An Act for 17 G. 3, ,:. 57. more effectually securing the Property of Prints to Inventors and Engravers, by enabling them to sue for and recover Penalties in certain Cases ;" and an Act passed in the session of Parliament held in the sixth and seventh years of the reign of His late Majesty 670 THE LAW OP OOPYKIGHT. 6 & ? W. 4, King William the Fourth, intituled " An Act to extend the Protec- tion of Copyright inPrints and Engravings to Ireland;" (and which said four several Acts are hereinafter, for the sake of perspicuity, designated as " The Engraving Copyright Acts ;") every person who invents or designs, engraves, etches, or works in mezzotinto or chiaro-oscuro, or from his own work, design, or invention causes or procures to be designed, engraved, etched, or worked in mezzo- tinto 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 every person who engraves, etches, or works in mezzotinto or chiaro- oscuro, or causes to be engraved, etched, or worked, any print taken from any picture, drawing, model, or sculpture, either ancient or modern, notwithstanding such print shall not have been graven or drawn from the original design of such graver, etcher, or draftsman, is entitled to the copyright of such print for the term of twenty- eight years from the first publishing thereof; and by the said several Engraving Copyright Acts it is provided that the name of the pro- prietor shall be truly engraved on each plate, and printed on every such print, and remedies are provided for the infringement of such copyright : And whereas under and by virtue of an Act passed in the thirty-eighth year of the reign of His late Majesty King George 38 G. 3, u. 71. the Third, intituled "An Act for encouraging the Art of making, new Models and Casts of Busts and other Things therein men- tioned ;" and of an Act passed in the fifty-fourth year of the reign 54 G. 3, c. 56. of His late Majesty King George the Third, intituled " An Act to amend and render more effectual an Act of His present Majesty, for encouraging the Art of making new Models and Casts of Busts and other Things therein mentioned, and for giving further Encourage- ment to such Arts," (and which said Acts are, for the sake of perspicuity, hereinafter designated as "The Sculpture Copyright Acts,") every person who makes or causes to be made any new and original sculpture, or model or copy or cast of the human figure, any bust or part of the human figure clothed in drapery or otherwise, any animal or part of any animal combined with the human figure or otherwise, any subject, being matter of invention in sculpture, any alto or basso-relievo, representing any of the matters aforesaid or any cast from nature of the human figure or part thereof, or of any animal or part thereof, or of any such subject representing any of the matters aforesaid, whether separate or combined, is entitled to the copyright in such new and original sculpture, model, copy, and oast, for fourteen years from first putting forth and publishing the same, and for an additional period of fourteen years in case the original maker is living at the end of the first period ; and by the said Acts it is provided that the name of the proprietor, with the 7 & 8 vict. c. 12. 671 date of the publication thereof, is to be put on all such sculptures, models, copies, and casts, and remedies are provided for the infringe- ment of such copyright : And whereas the powers vested in Her Majesty by the said " International Copyright Act " are insufficient to enable Her Majesty to confer upon authors of books first pub- lished in foreign countries copyright of the like duration, and with the like remedies for the infringement thereof, which are conferred and provided by the said "Copyright Amendment Act" with respect to authors of books first published in the British dominions ; and the said " International Copyright Act " does not empower Her Majesty to confer any exclusive right of representing or performing dramatic pieces or musical compositions first published in foreign countries upon the authors thereof, nor to extend the privilege of copyright to prints and sculpture first published abroad ; and it is expedient to invest increased powers in Her Majesty in this respect, and for that purpose to repeal the said " International Copyright Act," and to give such other powers to Her Majesty, and to make such further provisions, as are hereinafter contained : Be it there- fore enacted by the Queen's most excellent Majesty, by and with the advice and consent of the Lords spiritual and temporal, and Commons, in this present Parliament assembled, and by the authority of the same, That the said recited Act herein designated Repeal of In- as the " International Copyright Act " shall be and the same is ternational hereby repealed. II. And be it enacted, That it shall be lawful for Her Majesty, Her Majesty, by any Order of Her Majesty in Council, to direct that, as respects b y Order in all or any particular class or classes of the following works, (namely,) jj""^ VhaT^ books, prints, articles of sculpture, and other works of art, to be authors, &c, defined in such order, which shall after a future time, to be specified of works first in such order, be first published in any foreign country to be f ". e jg n e C0U Q_ named in such order, the authors, inventors, designers, engravers, tries shall have and makers thereof respectively, their respective executors, ad- c °P5 rl ?S ht . it . , ,, , ,, . ., j. • i , therein within mimstrators, and assigns, shall have the privilege ot copyright Hel , Majesty's therein during such period or respective periods as shall be defined dominions, in such order, not exceeding however, as to any of the above-men- tioned works, the term of copyright which authors, inventors, designers, engravers, and makers of the like works respectively first published in the United Kingdom may be then entitled to under the hereinbefore recited Acts respectively, or under any Acts which may hereafter be passed in that behalf. III. And be it enacted, That in case any such order shall apply If the order to books, all and singular the enactments of the said " Copyright ^j^ 68 ^ Amendment Act," and of any other Act for the time being in force copyright law with relation to the copyright in books first published in this as to books first country, shall, from and after the time so to be specified in that P ubllshed m with certain exceptions. 672 THE HW OF COPYRIGHT. this country behalf in such order, and subject to such limitation as to the Jbalhpplyto duration of the copyright as shall be therein contained, apply to which the an d be in force in respect of the books to which such order shall order relates, extend, and which shall have been registered as hereinafter is provided, in such and the same manner as if such books were first published in the United Kingdom, save and except such of the said enactments, or such parts thereof, as shall be excepted in such order, and save and except such of the said enactments as relate to the delivery of copies of books at the British Museum, and to or for the use of the other libraries mentioned in the said "Copyright Amendment Act." If the order IV. And be it enacted, That in case any such order shall apply applies to ^ pjPjjtg^ articles of sculpture, or to any such other works of art tures,'&c, the as aforesaid, all and singular the enactments of the said " Engraving copyright law Copyright Acts," and the said " Sculpture Copyright Acts," or of any as to prmts or g^gj. ^. f or y^ y me ij e j n g jjj f orce w it n relation to the copyright published in in prints or articles of sculpture first published in this country, this country ari d of any Act for the time being in force with relation to the the prints 7 ° copyright ™ an y similar works of art first published in this country, sculptures', &c, shall, from and after the time so to be specified in that behalf in to which such guc h order, and subject to such limitation as to the duration of or er ie a es. ^ e CO pyrigiit as shall be therein contained respectively, apply to and be in force in respect of the prints, articles of sculpture, and other works of art to which such order shall extend, and which shall have been registered as hereinafter is provided, in such and the same manner as if such articles and other works of art were first published in the United Kingdom, save and except such of the said enactments or such parts thereof as shall be excepted in such order. Her Majesty V. And be it enacted, That it shall be lawful for Her Majesty, may, by Order ^ y an y Order of Her Majesty in Council, to direct that the authors direct that of dramatic pieces and musical compositions which shall after a authors and future time, to be specified in such order, be first publicly re- composers of presented or performed in any foreign country to be named in such and musical order, shall have the sole liberty of representing or performing in compositions any part of the British dominions such dramatic pieces or musical first publicly com p 0S itions during such period as shall be defined in such order, represented r . , , . ... ,, „, ,. . , and performed not exceeding the period during which authors of dramatic pieces and in foreign musical compositions first publicly represented or performed in the ' rave'sirnul 11 / 11 United Kingdom may for the time be entitled by law to the sole rights in the liberty of representing and performing the same ; and from and British a ft er the time so specified in any such last-mentioned order the dominions. enac tmerits of the said "Dramatic literary Property Act," and of the said " Copyright Amendment Act," and of any other Act for the time being in force with relation to the liberty of publicly 7 & 8 vict. c. 12. 673 representing and performing dramatic pieces or musical com- positions, shall, subject to such limitation as to the duration of the right conferred by any such order as shall be therein contained, apply to and be in force in respect of the dramatic pieces and musical compositions to which such order shall extend, and which shall have been registered as hereinafter is provided, in such and the same manner as if such dramatic pieces and musical composi- tions had been first publicly represented and performed in the British dominions, save and except such of the said enactments or such parts thereof as shall be excepted in such order. VI. Provided always, and be it enacted, That no author of any Particulars to book, dramatic pieee or musical composition, or his executors, observed as administrators, or assigns, and no inventor, designer, or engraver to delivery of of any print, or maker of any article of sculpture, or other work of copies, art, his executors, administrators, or assigns, shall be entitled to the benefit of this Act, or of any Order in Council to be issued in pursuance thereof, unless, within a time or times to be in that be- half prescribed in each such Order in Council, such book, dramatic piece, musical composition, print, article of sculpture, or other work of art, shall have been so registered, and such copy thereof shall have been so delivered as hereinafter is mentioned; (that is to say,) as regards such book, and also such dramatic piece or musical composition, (in the event of the same having been printed,) the title to the copy thereof, the name and place of abode of the author or composer thereof, the name and place of abode of the proprietor of the copyright thereof, the time and place of the first publication, representation, or performance thereof, as the case may be, in the foreign country named in the Order in Council under which the benefits of this Act shall be claimed, shall be entered in the register book of the Company of Stationers in London, and one printed copy of the whole of such book, and of such dramatic piece or musical composition, in the event of the same having been printed, and of every volume thereof, upon the best paper upon which the largest number or impression of the book, dramatic piece, or musical composition shall have been printed for sale, together with all maps and prints relating thereto, shall be delivered to the officer of the Company of Stationers at the hall of the said company; and as regards dramatic pieces and musical compositions in manuscript, the title to the same, the name and place of abode of the author or composer thereof, the name and place of abode of the proprietor of the right of representing or per- forming the same, and the time and place of the first representation or performance thereof in the country named in the Order in Council under which the benefit of the Act shall be claimed, shall be entered in the said register book of the said Company of 2 X 674 THE LAW OF COPYRIGHT. In case of books pub- lished anony- mously, the name of the publisher to be sufficient. The provisions of the Copy- right Amend- ment Act as Stationers in London ; and as regards prints, the title thereof, the name and place of abode of the inventor, designer, or engraver thereof, the name of the proprietor of the copyright therein, and the time and place of the first publication thereof in the foreign country named in the Order in Council under which the benefits of the Act shall be claimed, shall be entered in the said register book of the said Company of Stationers in London, and a copy of such print, upon the best paper upon •which the largest number of impressions of the print shall have been printed for sale, shall be delivered to the officer of the Company of Stationers at the hall of the said company ; and as regards any such article of sculpture or any such other work of art as aforesaid, a descriptive title thereof, the name and place of abode of the maker thereof, the name of the proprietor of the copyright therein, and the time and place of its first publi- cation in the foreign country named in the Order in Council under which the benefit of this Act shall be claimed, shall be entered in the said register book of the said Company of Stationers in London ; and the officer of the said Company of Stationers receiving such copies so to be delivered as aforesaid shall give a receipt in writing for the same, and such delivery shall to all intents and purposes be a sufficient delivery under the provisions of this Act. VII. Provided always, and be it enacted, That if a book be published anonymously, it shall be sufficient to insert in the entry thereof in such register book the name and place of abode of the first publisher thereof, instead of the name and place of abode of the author thereof, together with a declaration that such entry is made either on behalf of the author or on behalf of such first publisher, as the case may require. VIII. And be it enacted, That the several enactments in the said "Copyright Amendment Act" contained with relation to keeping the said register book, and the inspection thereof, the regards entries searches therein, and the delivery of certified and stamped copies in the register thereof, the reception of such copies in evidence, the making of Company of ^ ae entries in the said book, and the production in evidence Stationers, &c, of papers falsely purporting to be copies of entries in the said to apply to book, the applications to the courts and judges by persons entries under ; , , , . . ,, . , , , , ,, . j this Act. aggrieved by entries m the said book, and the expunging and varying such entries, shall apply to the books, dramatic pieces, and musical compositions, prints, articles of sculpture, and other works of art, to which any Order in Council issued in pursuance of this Act shall extend, and to the entries and assignments of copyright and proprietorship therein, in such and the same manner as if such enactments were here expressly enacted in relation thereto, save and except that the forms of entry pre- scribed by the said " Copyright Amendment Act " may be varied 7 & 8 vict. c. 12. 675 to meet the circumstance of the case, and that the sum to be demanded by the officer of the said Company of Stationers for making any entry required by this Act shall be one shilling only. IX. And be it enacted, That every entry made in pursuance As to expung- of this Act of a first publication shall be prima facie proof of a ing or varying rightful first publication; but if there be a wrongful first publi- ^ t ^ g ™f 11 n 1 ded cation, and any party have availed himself thereof to obtain an first publica- entry of a spurious work, no order for expunging or varying tion - such entry shall be made unless it be proved to the satisfaction of the court or of the judge taking cognizance of the application for expunging or varying such entry, first, with respect to a wrongful publication in a country to which the author or first publisher does not belong, and in regard to which there does not subsist with this country any treaty of international copyright, that the party making the application was the author or first publisher, as the case requires; second, with respect to a wrongful first publication either in the country where a rightful first publication has taken place, or in regard to which there subsists with this country a treaty of international copyright, that a court of competent jurisdiction in any such country where such wrongful first publication has taken place has given judgment in favour of the right of the party claiming to be the author or first publisher. X. And be it enacted, That all copies of books wherein there Copies of books shall be any subsisting copyright under or by virtue of this Act, wherein copy- or of any Order in Council made in pursuance thereof, printed ?*| n ^ s d ™ j"j s " or reprinted in any foreign country except that in which such Act printed in books were first published, shall be and the same are hereby foreign coun- absolutely prohibited to be imported into any part of the British those w j, erern dominions, except by or with the consent of the registered pro- the book was prietor of the copyright thereof, or his agent authorized in first published writing, and if imported contrary to this prohibition the same be "imported. and the importers thereof shall be subject to the enactments in force relating to goods prohibited to be imported by any Act relating to the customs; and as respects any such copies so prohibited to be imported, and also as respects any copies un- lawfully printed in any place whatsoever of any books wherein there shall be any such subsisting copyright as aforesaid, any person who shall in any part of the British dominions import such prohibited or unlawfully printed copies, or who, knowing such copies to be so unlawfully imported or unlawfully printed, shall sell, publish, or expose to sale or hire, or shall cause to be sold, published, or exposed to sale or hire, or have in his possession for sale or hire, any such copies so unlawfully imported or 2x2 676 THE LAW OF COPYRIGHT Officer of Sta- tioners' Com- pany to deposit books, &c, in "the British Museum. Second or sub- sequent editions. Orders in Coun- cil may specify different peri- ods for differ- ent foreign countries and for different classes of works. No Order in Council to have any effect unless it states that reciprocal protection is secured. Orders in Coun- cil to be pub- lished in Ga- zette, and to have same effect as this Act. Orders in Coun- cil to be laid before Parlia- ment. unlawfully printed, such offender shall be liable to a special action on the case at the suit of the proprietor of such copyright, to be brought and prosecuted in the same courts and in the same manner, and with the like restrictions upon the proceedings of the defendant, as are respectively prescribed in the said " Copyright Amendment Act " with relation to actions thereby authorized to be brought by proprietors of copyright against persons importing or selling books unlawfully printed in the British dominions. XL And be it enacted, That the said officer of the said Company of Stationers shall receive at the hall of the said company every book, volume, or print so to be delivered as aforesaid, and within one calendar month after receiving such book, volume, or print, shall deposit the same in the library of the British Museum. XII. Provided always, and be it enacted, That it shall not be requisite to deliver to the said officer of the said Stationers' Company any printed copy of the second or of any subsequent edition of any book or books so delivered as aforesaid, unless the same shall con- tain additions or alterations. XIII. And.be it enacted, That the respective terms to be specified by such Orders in Council respectively for the continuance of the privilege to be granted in respect of works to be first published in foreign countries may be different for works first published in different foreign countries and for different classes of such works ; and that the times to be prescribed for the entries to be made in the register book of the Stationers' Company, and for the deliveries of the books and other articles to the said officer of the Stationers' Company, as hereinbefore is mentioned, may be different for different foreign countries and for different classes of books or other articles. XIV. Provided always, and be it enacted, That no such order in Council shall have any effect unless it shall be therein stated, as the ground for issuing the same, that due protection has been secured by the. foreign power so named in such Order in Council for the benefit of parties interested in works first published in the dominions of Her Majesty similar to those comprised in such order. XV. And be it enacted, That every Order in Council to be made under the authority of this Act shall as soon as may be after the making thereof by Her Majesty in Council be published in the London Gazette, and from the time of such publication shall have the same effect as if every part thereof were included in this Act. XVI. And be it enacted, That a copy of every Order of Her Majesty in Council made under this Act shall be laid before both Houses of Parliament within six weeks after issuing the same, if 7 & 8 vict. o. 12. 677 Parliament be then sitting, and if not, then within six weeks after the commencement of the then next session of Parliament. XVII. And be it enacted, That it shall be lawful for Her Majesty Orders in Coun- by an Order in Council from time to time to revoke or alter any cil ma Y be Order in Council previously made under the authority of this Act, levo but nevertheless without prejudice to any rights acquired previously to such revocation or alteration. XVIII. Provided always, and be it enacted, That nothing in Translations, this Act contained shall be construed to prevent the printing, publication, or sale of any translation of any book the author whereof and his assigns may be entitled to the benefit of this Act (a). XIX. And be it enacted, That neither the author of any book, Authors of nor the author or composer of any dramatic piece or musical com- works first position, nor the inventor, designer, or engraver of any print, nor P" .^ e m _ the maker of any article of sculpture, or of such other work of art tries°not en- as aforesaid, which shall after the passing of this Act be first pub- l ; tled t0 C0 PJ- lished out of Her Majesty's dominions, shall have any copyright "„,j e] . thislct therein respectively, or any exclusive right to the public represen- tation or performance thereof, otherwise than such (if any) as he may become entitled to under this Act. XX. And be it enacted, That in the construction of this Act the Interpretation word " book " shall be construed to include " volume," " pamphlet," clause. " sheet of letter-press," " sheet of music,'' " map," " chart," or " plan " ; and the expression " articles of sculpture " shall mean all such sculptures, models, copies, and casts as are described in the said Sculpture Copyright Acts, and in respect of which the privi- leges of copyright are thereby conferred ; and the words " printing " and " re-printing " shall include engraving and any other method of multiplying copies ; and the expression " Her Majesty " shall in- clude the heirs and successors of Her Majesty ; and the expressions "Order of Her Majesty in Council," "Order in Council," and " Order," shall respectively mean Order of Her Majesty acting by and with the advice of Her Majesty's most honourable Privy Council ; and the expression " officer of the Company of Stationers " shall mean the officer appointed by the said Company of Stationers for the purposes of the said Copyright Amendment Act ; and in describing any persons or things any word importing the plural number shall mean also one person or thing, and any word importing the singular number shall include several persons or things, and any word importing the masculine shall include also the feminine gender; unless in any of such cases there shall be something in the subject or context repugnant to such construction. (a) This section is repealed so far as it is inconsistent with the pro- visions contained in 15 & 16 Vict. c. 12. 678 THE LAW OF COPYBIGHT. Act may be XXI. And be it enacted, That this Act may be amended or repealed this re p ea j e( j by any Act to be passed in this present session of Parliament. 7&8Vict. c. 73 (1844). An Act to reduce, under certain Circumstances, the Duties payable upon BooJcs and Engravings. Repealed by 9 & 10 Vict. c. 58, s. 1. ' 8 & 9 Vict. 0. 93 (1845). An Act to regulate the Trade of British Possessions abroad. Repealed by 16 & 17 Vict. c. 100, s. 358. 9 & 10 Vict. c. 58 (1846). An Act to amend an Act of the seventh and eighth Years of Her present Majesty for reducing, under certain Circumstances, the Duties payable upon Books and Engravings. Repealed by 24 & 25 Vict. c. 101. 10 & 11 Vict. 0. 95. An Act to amend the Law relating to the Protection in the Colonies of Works entitled to Copyright in the United Kingdom. [22nd July, 1847.] Whereas by an Act passed in the session of Parliament holden in 5 & 6 Vict. the fifth and sixth years of Her present Majesty, intituled " An Act c - 45. to amend the Law of Copyright," it is amongst other things enacted, that it shall not be lawful for any person not being the proprietor of the copyright, or some person authorized by him, to import into any part of the United Kingdom, or into any other part of the British dominions, for sale or hire, any printed book first composed or written or printed or published in any part of the United Kingdom wherein there shall be copyright, and reprinted in any country or place whatsoever out of the British dominions : And whereas by an Act passed in the session of Parliament holden in the eighth and ninth years of the reign of 10 & 11 vict. o. 95. 679 Her present Majesty, intituled " An Act to regulate the trade of 8 & 9 Vict. the British possessions abroad," books 'wherein the copyright is Cl 93- subsisting, first composed or written or printed in the United Kingdom, and printed or reprinted in any other country, are abso- lutely prohibited to be imported into the British possessions abroad : And whereas by the said last-recited Act it is enacted, that all laws, bye-laws, usages, or customs in practice, or en- deavoured or pretended to be in force or practice in any of the British possessions in America, which are in anywise repugnant to the said Act or to any Act of Parliament made or to be made in the United Kingdom, so far as such Act shall relate to and mention the said possessions, are and shall be null and void to all intents and purposes whatsoever : Now be it enacted, by the Queen's most excellent Majesty, by and with the advice and consent of the Lords spiritual and temporal, and Commons, in this present Parliament assembled, and by the authority of the same, that in Her Majesty case the legislature or proper legislative authorities in any British ™ a F suspeud • i_nv.j-jj.ij •• t ■ in certain cases possession shall be disposed to make due provision for securmg or t he prohibi- protecting the rights of British authors in such possession, and tion against shall pass an Act or make an ordinance for that purpose, and shall *J? e ?^™^ sl0n transmit the same in the proper manner, to the Secretary of State, t. 00 ks into the in order that it may be submitted to Her Majesty, and in case Her colonies in Majesty shall be of opinion that such Act or ordinance is sufficient certam cases - for the purpose of securing to British authors reasonable protection within such possession, it shall be lawful for Her Majesty, if she think fit so to do, to express Her royal approval of such Act or ordinance, and thereupon to issue an Order in Council declaring that so long as the provisions of such Act or ordinance continue in force within such colony the prohibitions contained in the aforesaid Acts, and hereinbefore recited, and any prohibitions contained in the said Acts or in any other Acts against the importing, selling, letting out to hire, exposing for sale or hire, or possessing foreign reprints of books first composed, written, printed, or published in the United Kingdom, and entitled to copyright therein, shall be suspended so far as regards such colony ; and thereupon such Act or ordinance shall come into operation, except so far as may be otherwise provided therein, or as may be otherwise directed by such Order in Council, anything in the said last-recited Act or in any other Act to the contrary notwithstanding. II. And be it enacted, That every such Order in Council shall, Orders in Coun- within one week after the issuing thereof, be published in the oil to be pub- Lrnidon Gazette, and that a copy thereof, and of every such colonial Q a * et £ Act or ordinance so approved as aforesaid by Her Majesty, shall be Orders in Coun- laid before both Houses of Parliament within six weeks after the cil and the issuing of such order, if Parliament be then sitting, or if Parliament ^"^J.^ 680 THE LAW OP COPYRIGHT. to be laid be not then sitting, then within six weeks after the opening of the mint' ^"^ next SeSSion ° f Pai*™ 16 ^- Act may be HI. And be it enacted, This Act may be amended or repealed by amended, &c. any Act to be passed in the present session of Parliament. 13 & 14 Vict. c. 104. An Act to extend and amend the Acts relating to the Copyright of Designs. [14th August, 1850.] Whebbas it is expedient to extend and amend the Acts relating to the copyright of designs : Be it therefore enacted by the Queen's most excellent Majesty, by and with the advice and consent of the Lords spiritual and temporal, and Commons, in this present Parlia- ment assembled, and by the authority of the same : Certain designs I. That the registrar of designs, upon application by or on behalf may be regis- Q f ^ e p r0 p r i e t 0J . f an y design, not previously published within the visionally for United Kingdom of Great Britain and Ireland or elsewhere, and one year. which may be registered under the Designs Act, 1842, or under the Designs Act, 1843, for the provisional registration of such design under this Act, and upon being furnished with such copy, drawing, print, or description in writing or in print as in the judgment of the said registrar shall be sufficient to identify the particular design in respect of which such registration is desired and the name of the person claiming to be proprietor, together with his place of abode or business, or other place of address, or the style or title of the firm under which he may be trading, shall register such design in such manner and form as shall from time to time be prescribed or approved by the Board of Trade ; and any design so registered shall be deemed " provisionally registered," and the registration thereof shall continue in force for the term of one year from the time of the same being registered as aforesaid ; and the said regis- trar shall certify, under his hand and seal of office, in such form as the said board shall direct or approve, that the design has been provisionally registered, the date of such registration, and the name of the registered proprietor, together with his place of abode or business, or other place of address. II. That the proprietor of any design which shall have been pro- visionally registered shall, during the continuance of such registra- tion, have the sole right and property in such design ; and the penalties and provisions of the said Designs Act, 1842, for prevent- ing the piracy of designs, shall extend to the acts, matters, and- things next hereinafter enumerated, as fully as if those penalties Benefits con- ferred by pro- visional regis- tration. 13 & 14 vict. c. 104. 681 and provisions had been re-enacted in this Act, and expressly extended to such acts, matters, and things respectively ; that is to say, 1. To the application of any provisionally registered design, or any fraudulent imitation thereof, to any articles of manufacture or to any substance : 2. To the publication, sale, or exposure for sale of any article of manufacture or any substance to which any provisionally registered design shall have been applied. III. That during the continuance of such provisional regis- The exhibition tration neither such registration nor the exhibition or exposure of of provisionally any design provisionally registered, or of any article to which any ™ s ' st fn certain such design may have been or be intended to be applied, in any places not to place, whether public or private, in which articles are not sold or defeat copy- exposed or exhibited for sale, and to which the public are not rig ' admitted gratuitously, or in any place which shall have been previously certified by the Board of Trade to be a place of public exhibition within the meaning of this Act, nor the publication of any account or description of any provisionally registered design exhibited or exposed or intended to be exhibited or exposed in any such place of exhibition or exposure in any catalogue, paper, newspaper, periodical, or otherwise, shall prevent the proprietor thereof from registering any such design under the said Designs Acts at any time during the continuance of the provisional regis- tration, in the same manner and as fully and effectually as if no such registration, exhibition, exposure, or publication had been made ; provided that every article to which any such design shall be applied, and which shall be exhibited or exposed by or with the licence or consent of the proprietor of such design, shall have thereon or attached thereto the words " provisionally registered," with the date of registration. IV. That if during the continuance of such provisional regis- Sale of articles tration the proprietor of any design provisionally registered shall *» which pro- sell, expose, or offer for sale any article, substance, or thing to Ilgtered de- C " which any such design has been applied, such provisional regis- signs, &c, have tration shall' be deemed to have been null and void immediately Jj e ™ applied to before any such sale, offer, or exposure shall have been first made ; r j„ nt but but nothing herein contained shall be construed to hinder or design itself prevent such proprietor from selling or transferring the right and ma J be sold - property in any such design. V. That the Board of Trade may by order in writing with Extension of respect to any particular class of designs, or any particular design, period of pro- extend the period for which any design may be provisionally listratioiTby registered under this Act, for such term not exceeding the additional Board of Trade. 682 THE LAW OF COPYRIGHT. term of six months as to the said board may seem fit ; and when- ever any such order shall be made, the same shall be registered in the office for the registration of designs, and during the extended term the protection and benefits conferred by this Act in case of provisional registration shall continue as fully as if the original term of one year had not expired. Registration of VI. That the registrar of designs, upon application by or on sculpture, models, &c. Benefits con- ferred by re- gistration of sculpture, &c. behalf of the proprietor of any sculpture, model, copy, or cast •within the protection of the Sculpture Copyright Acts, and upon being furnished with such copy, drawing, print, or description, in writing or in print, as in the judgment of the said registrar shall be sufficient to identify the particular sculpture, model, copy, or cast in respect of which registration is desired, and the name of the person claiming to be proprietor, together with his place of abode or business or other place of address, or the name, style, or title of the firm under which he may be trading, shall register such sculpture, model, copy, or cast in such manner and form as shall from time to time be prescribed or approved by the Board of Trade for the whole or any part of the term during which copyright in such sculpture, model, copy, or cast may or shall exist under the Sculpture Copyright Acts; and whenever any such registration shall be made, the said registrar shall certify under his hand and seal of office, in such form as the said board shall direct or approve, the fact of such registration, and the date of the same, and the name of the registered proprietor, or the style or title of the firm under which such proprietor may be trading, together with his place of abode or business or other place of address. VII. That if any person shall, during the continuance of the copyright in any sculpture, model, copy, or cast which shall have been so registered as aforesaid, make, import, or cause to be made, imported, exposed for sale, or otherwise disposed of, any pirated copy or pirated cast of any such sculpture, model, copy, or cast, in such manner and under such circumstances as would entitle the proprietor to a special action on the case under the Sculpture Copyright Acts, the person so offending shall forfeit for every such offence a sum not less than five pounds and not exceeding thirty pounds to the proprietor of the sculpture, model, "copy, or cast whereof the copyright shall have been infringed; and for the recovery of any such penalty the proprietor of the sculpture, model, copy, or cast which shall have been so pirated shall have and be entitled to the same remedies as are provided for the recovery of penalties incurred under the Designs Act, 1842 : Provided always, that the proprietor of any sculpture, model, copy, or cast which shall be registered under this Act, shall not be entitled to the benefit of this Act, unless every copy or cast of such sculpture, model, copy, 13 & 14 viot. c. 104. 683 or oast which shall be published by him after such registration shall be marked with the word "registered," and with the date of registration. VIII. That designs for the ornamenting of ivory, bone, papier Designs for maoh^, and other solid substances not already comprised in the ornamenting classes numbered 1, 2, and 3 in the Designs Act, 1842, shall be deemed ^"ieeistered^ and taken to be comprised within the class numbered 4 in that Act, under Designs and such designs shall be so registered accordingly. Act > 1842 > for IX. That the Board of Trade may from time to time order that „ iee , ye f™' , . , , Board of Trade the copyright of any class of designs or any particular design ma y extend registered or which may be registered under the Designs Act, 1842, copyright in may be extended for such term, not exceeding the additional term " rnamental of three years, as the said board may think fit, and the said board shall have power to revoke or alter any such order as may from « time to time appear necessary ; and whenever any order shall be made by the said board under this provision, the same shall be registered in the office for the registration of designs ; and during the extended term the protection and benefits conferred by the said Designs Acts shall continue as fully as if the original term had not expired. X. That the Board of Trade may from time to time make, alter, Regulations and revoke rules and regulations with respect to the mode of for ^ e i*«g is - registration, and the documents and other matters and particulars ^signs may to be furnished by persons affecting registration and provisional be made by registration under the said Acts and this Act: Provided always, Board of Trade, that all such rules and regulations shall be published in the London Gazette, and shall forthwith upon the issuing thereof be laid before Parliament, if Parliament be sitting, and if Parliament be not sitting, then within fourteen days after the commencement of the then next session ; and such rules and regulations, or any of them, shall be published or notified by the registrar of designs, in such other manner as the Board of Trade shall think fit to direct. XL That if in any case in which the registration of a design is Registrar of required to be made under either of the said Designs Acts it shall designs may appear to the registrar that copies, drawings or prints as required ls P ell5e w ' by those Acts cannot be furnished, or that it is unreasonable or i n certain cases, unnecessary to require the same, the said registrar may dispense with such copies, drawings, or prints, and may allow in lieu thereof such specification or description in writing or in print as may be sufficient to identify and render intelligible the design in respect of which registration is desired ,■ and whenever registration shall be so made in the absence of such copies, drawings, or prints, the registration shall be as valid and effectual to all intents and purposes as if such copies, drawings, or prints bad been furnished. XII. That in order to prevent the frequent and unnecessary Public books 684 THE LAW OF COPYRIGHT. and documents removal of the public books and documents in tie office for the Offi 6 t S t gnS registration of designs, no book or document in the said office be removed shall be removed for the purpose of being produced in any court withoutjudge's r before any justice of the peace, without a special order of a judge of the Court of Chancery, or of one of Her Majesty's Superior Courts of Law, first had and obtained by the party who shall desire the production of the same. Judges may XIII. That if application shall be made to a judge of any of Her order copies of i| a -j e sty's Courts of Law at Westminster by any person desiring to documents to,,. „ . , . . , , . . , , be 'furnished to obtain a copy of any registration, entry, drawing, print, or document, be given in of which such person is not entitled as of right to have a copy, for evidence. ^ e p Ur p 0ge f being used in evidence in any cause, or otherwise howsoever, and if such judge shall be satisfied that such copy is • bona fide intended for such purpose as aforesaid, such judge shall order the registrar of designs to deliver such copy to the party applying, and the registrar of designs shall, upon payment for the same of such fee or fees as may be fixed according to the provisions of the said Designs Act in this behalf, deliver such copy accordingly. Copies of docu- XIV. That every copy of any registration, entry, drawing, print, ments de- or document delivered by the registrar of designs to any person registra/to be requiring the same shall be signed by the said registrar, and sealed, and to sealed with his seal of office ; and every document sealed with the be evidence. ga j,j gea j purporting to be a copy of any registration, entry, draw- ing print, or document shall be deemed to be a true copy of such registration, entry, drawing, print, or document, and shall, without further proof, be received in evidence before all courts in like manner and to the same extent and effect as the original book, registration, entry, drawing, print, or document would or might be received if tendered in evidence, as well for the purpose of proving the contents, purport, and effect of such book, registra- tion, entry, drawing, print, or document, as also proving the same to be a book, registration, entry, drawing, print, or document of or belonging to the said office, and in the custody of the registrar of designs. Certain provi- XV. That the several provisions contained in the said Designs sions of A c t s (so far as they are not repugnant to the provisions of this Act) Act 1S l842 and relating to the transfer of designs, to cancelling and amending regis- 1843, extended tration, to the refusal of registration in certain cases, to the mode to this Act. f recovering penalties, to the awarding and recovery of costs, to actions for damages, to the limitation of actions, to the certificate of registration, to penalties for wrongfully using marks, to the fixing and application of fees for registration, and to the penalty for ex- tortion, shall apply to the registration, provisional registration, and transfer of designs, sculptures, models, copies, and casts, and 13 & 14 vict. c. 104. 685 to the designs, sculptures, models, copies, and easts entitled to protection under this Act, and to matters under this Act, as fully and effectually as if those provisions had been re-enacted in this Act with respect to designs, sculptures, models, copies, and casts registered and provisionally registered under this Act ; and the forms contained in the Designs Act, 1842, may for the purposes of this Act be varied so as to meet the circumstances of the case. XVI. That in the interpretation of this Act the following terms interpretation and expressions shall have the meanings hereinafter assigned to of terms, them, unless such meanings shall be repugnant to or inconsistent with the context or subject matter : that is to say, The expression " Designs Act, 1842," shall mean an Act passed in the sixth year of the reign of Her present Majesty intituled " An Act to consolidate and amend the Laws relating to the Copyright of Designs for ornamenting Articles of Manu- facture : " The expression " Designs Act, 1843," shall mean an Act passed in the seventh year of Her present Majesty, intituled " An Act to amend the Laws relating to the Copyright of Designs : " The expression " Sculpture Copyright Acts " shall mean two Acts passed respectively in the thirty-eighth and fifty-fourth years of the reign of King George the Third, and intituled respectively " An Act for encouraging the Art of making new Models and Casts of Busts and other things herein mentioned," and " An Act to amend and render more effectual an Act for encouraging the Art of making new Models and Casts of Busts and other Things therein mentioned :" The expression " the Board of Trade " shall mean the Lords of the Committee of Privy Council for the consideration of all matters of trade and plantations : The expression " Begistrar of Designs " shall mean the registrar or assistant registrar of designs for articles of manufacture : The expression " Proprietor " shall be construed according to the interpretation of that word in the said Designs Act, 1842 : And words in the singular number shall include the plural, and words applicable to males shall include females. . XVII. That in citing this Act in other Acts of Parliament, and in short title, any instrument, document, or proceeding, it shall be sufficient to use the words and figures following, that is to say, " The Designs Act, 1850." 686 THE LAW OF COPYKIGHT. 14 Vict. c. 8 (1851). An Act to extend the Provisions of the " Designs Act, 1850," and to give Protection from Piracy to Persons exhibiting new Inven- tion in the Exhibition of the Works of Industry of all Nations in One thousand eight hundred and fifty-one. Spent. 7 & 8 Vict. o. 12. Translations. Partial repeal of 7 & 8 Vict, c. 12, § 18. Her Majesty may by Order in Council direct that the authors of books pub- lished in 15 & 16 Yict. c. 12. An Act to enable Her Majesty to carry into effect a Convention with France on the Subject of Copyright ; to extend and explain the International Copyright Acts ; and to explain the Acts relating to Copyright in Engravings. [28th May, 1852.] Whereas an Act was passed in the seventh year of the reign of Her present Majesty, intituled " An Act to amend the Law relating to International Copyright," hereinafter called " The International Copyright Act : " And whereas a convention has lately been con- cluded between Her Majesty and the French republic, for extending in each country the enjoyment of copyright in works of literature and the fine arts first published in the other, and for certain reductions of duties now levied on books, prints, and musical works published in Prance : And whereas certain of the stipulations on the part of Her Majesty contained in the said treaty require the authority of Parliament: And whereas it is expedient that such authority should be given, and that Her Majesty should be enabled to make similar stipulations in any treaty on the subject of copyright which may hereafter be concluded with any foreign power : Be it enacted by the Queen's most excellent Majesty, by and with the advice and consent of the Lords spiritual and temporal, and Com- mons, in this present Parliament assembled, and by the authority of the same, as follows : I. The eighteenth section of the said Act of the seventh year of Her present Majesty, chapter twelve, shall be repealed, so far as. the same is inconsistent with the provisions hereinafter contained. II. Her Majesty may, by Order^in Council, direct that the authors of books which are, after a future time, to be specified in such order, published in any foreign country, to be named in such order, their executors, administrators, and assigns, shall, subject to the provisions hereinafter contained or referred to, be empowered to prevent the publication in the British dominions of any translations 15 & 16 vict. c. 12. 687 of such books not authorized by them, for such time as may be foreign coun- specified in such order, not extending beyond the expiration of five /i^ited'time years from the time at which the authorized translations of such prevent un- hooks hereinafter mentioned are respectively first published, and in authorized the case of books published in parts, not extending as to each part beyond the expiration of five years from the time at which the authorized translation of such part is first published. III. Subject to any provisions or qualifications contained in such Thereupon the order, and to the provisions herein contained or referred to, the Ifw of copy- laws and enactments for the time being in force for the purpose of te ^ to pl . e vent preventing the infringement of copyright in books published in the such trans- British dominions shall be applied for the purpose of preventing the latlons - publication of translations of the books to which such order extends which are not sanctioned by the authors of such books, except only such parts of the said enactment as relate to the delivery of copies of books for the use of the British Museum, and for the use of the other libraries therein referred to. IV. Her Majesty may, by Order in Council, direct that authors Her Majesty of dramatic pieces which are, after a future time, to be specified in ma X y O r such order, first publicly represented in any foreign country, to be direct that the named in such order, their executors, administrators, and assigns, authors of shall, subject to the provisions hereinafter mentioned or referred to, renresentTaMn 5 be empowered to prevent the representation in the British dominions foreign coun- of any translation of such dramatic pieces not authorized by them tries ma y for a „ ... . .- , . i j j. i t limited time for such tune as may be specified in such order, not extending preTent un _ beyond the expiration of five years from the time at which the authorized authorized translations of such dramatic pieces hereinafter men- translations. tioned are first published or first publicly represented. V. Subject to any provisions or qualifications contained in such Thereupon the last-mentioned order, and to the provisions hereinafter contained or r™.. °' ?"" referred to, the laws and enactments for the time being in force for representation ensuring to the author of any dramatic piece first publicly repre- of sucn pieces sented in the British dominions the sole liberty of representing the pV g Te " ™. ■same shall be applied for the purpose of preventing the representa- authorized tion of any translations of the dramatic pieces to which such last- translations. mentioned order extends, which are not sanctioned by the authors thereof. VI. Nothing herein contained shall be so construed as to prevent Adaptations, fair imitations or adaptations to the English stage of any dramatic .^° s t ™j^ 10 piece or musical composition published in any foreign country (a). English stage VII. Notwithstanding anything in the said International Copy- not prevented. right Act or in this Act contained, any article of political discussion All articles in which has been published in any newspaper or periodical in a t^^iaS- 1 foreign country may, if the source from which the same is taken be politics may be (a) See 38 Vict. o. 12, post, p. 706. 688 THE LAW OF COPYRIGHT. republished or translated ; and also all similar articles on any subject, unless the author has notified his in- tention to re- serve the right. No author to be entitled to benefit of this Act without complying with the requi- sitions herein specified. acknowledged, be republished or translated in any newspaper or periodical in this country ; and any article relating to any other subject which has been so published as aforesaid may, if the source from which the same is taken be acknowledged, be republished or translated in like manner, unless the author has signified his intention of preserving the copyright therein, and the right of translating the same in some conspicuous part of the newspaper or periodical in which the same was first published, in which case the same shall, without the formalities required by the next following section, receive the same protection as is by virtue of the Interna- tional Copyright Act or this Act extended to books. VIII. No author, or his executors, administrators, or assigns, shall be entitled to the benefit of this Act, or of any Order in Council issued in pursuance thereof, in respect of the translation of any book or dramatic piece, if the following requisitions are not complied with : (that is to say,) 1. The original work from which the translation is to be made must be registered and a copy thereof deposited in the United Kingdom in the manner required for original works by the said International Copyright Act, within three calendar months of its first publication in the foreign country. 2. The author must notify on the title-page of the original work, or if it is published in parts, on the title-page of the first part, or if there is no title-page, on some conspicuous part of the work, that it is his intention to reserve the right of translating it: 3. The translation sanctioned by the author, or a part thereof, must be published, either in the country mentioned in the Order in Council by virtue of which it is to be protected or in the British dominions, not later than one year after the registration and deposit in the United Kingdom of the original work, and the whole of such translation must be - published within three years of such registration and deposit : i. Such translation must be registered and a copy thereof deposited in the United Kingdom within a time to be mentioned in that behalf in the order by which it is pro- tected, and in the manner provided by the said International Copyright Act for the registration and deposit of original works : 5. In the case of books published in parts, each part of the original work must be registered and deposited in this country in the manner required by the said International Copy- 15 & 16 vict. c. 12. 689 right within three months after the first publication thereof in the foreign country : 6. In the case of dramatic pieces the translation sanctioned by the author must be published within three calendar months of the registration of the original work : 7. The above requisitions shall apply to articles originally published in newspapers or periodicals if the same be after- wards published in a separate form, but shall not apply to such articles as originally published. IX. All copies of any works of literature or art wherein there Pirated copies is any subsisting copyright by virtue of the International Copy- prohibited to right Act and this Act, or of any Order in Council made in pur- except with suance of such Acts or either of them, and which are printed, consent of reprinted, or made in any foreign country except that in which P ro P netor - such work shall be first published, and all unauthorized trans- lations of any book or dramatic piece the publication or public representation in the British dominions of translations whereof not authorized as in this Act mentioned shall for the time being be prevented under any Order in Council made in pursuance of this Act, are hereby absolutely prohibited to be imported into any part of the British dominions, except by or with the consent of the registered proprietor of the copyright of such work or of such book or piece, or his agent authorized in writing; and the provisions of Provisions of the Act of the sixth year of Her Majesty " to amend the Law of 5 & 6 VicL Copyright," for the forfeiture, seizure, and destruction of any forfeiture °&c. printed book first published in the United Kingdom wherein there of pirated shall be copyright, and reprinted in any country out of the British works, &c, to dominions and imported into any part of the British dominions wol .j cs pro . by any person not being the proprietor of the copyright, or a hibited to be person authorized by such proprietor, shall extend and be imported under applicable to all copies of any works of literature and art, and to all translations the importation whereof into any part of the British dominions is prohibited under this Act. Foregoing pro- X. The provisions hereinbefore contained shall be incorporated visions and with the International Copyright Act, and shall be read and con- c _ j 2 to b J strued therewith as one Act. read as one Act. XL And whereas Her Majesty has already, by Order in Council French trans- under the said International Copyright Act, given effect to certain lations to be stipulations contained in "the said convention with the French {Jg° e *nbefore Eepublic ; and it is expedient that the remainder of the stipulations mentioned, on the part of Her Majesty in the said convention contained should without fur- take effect from the passing of this Act without any further Order (-; ounc ;i in Council : During the continuance of the said convention, and so long as the Order in Council already made under the said Inter- 2 Y 690 THE LAW OF COPYRIGHT. Reduction of Duties. Recital of 9 & 10 Vict. c. 58. national Copyright Act remains in force, the provisions hereinbefore contained shall apply to the said convention, and to translations of books and dramatic pieces which are, after the passing of this Act, published or represented in France, in the same manner as if Her Majesty had issued Her Order in Council in pursuance of this Act for giving effect to such convention, and had therein directed that such translations should be protected as hereinbefore mentioned for a period of five years from the date of the first publication or public representation thereof respectively, and as if a period of three months from the publication of such translation were the time mentioned in such Order as the time within which the same must be registered and a copy thereof deposited in the United Kingdom. XII. And whereas an Act was passed in the tenth year of Her present Majesty, intituled " An Act to amend an Act of the seventh and eighth Tears of Her present Majesty, for reducing under certain Circumstances, the Duties payable upon Books and Engravings :" And whereas by the said convention with the French Eepublic it was stipulated that the duties on books, prints, and drawings published in the territories of the French Republic should be reduced to the amount specified in the schedule to the said Act of the tenth year of Her present Majesty, chapter fifty-eight : And whereas Her Majesty has, in pursuance of the said convention, and in exercise of the powers given by the said Act, by Order in Council declared that such duties shall be reduced accordingly. And whereas by the said convention it was further stipulated that the said rates of duty should not be raised during the continuance of the said conven- tion ; and that if during the continuance of the said convention any reduction of those rates should be made in favour of books, prints, or drawings published in any other country, such reduction shall be at the same time extended to similar articles published in France : And whereas doubts are entertained whether such last- mentioned stipulations can be carried into effect without the Rates of duty authority of Parliament : Be it enacted, That the said rates of duty not to be raised gQ re( j uce( j as aforesaid shall not be raised during the continuance uanceof treaty, of the said convention; and that if during the continuance of the and if further said convention any further reduction of such rates is made in favour reduction is j books, prints, or drawings published in any other foreign country, Her Majesty may, by Order in Council, declare that such reduction shall be extended to similar articles published in France ; such order to be made and published in the same manner and to be subject to the same provisions as orders made in pursuance of the said Act of the tenth year of Her present Majesty, chapter fifty- eight. XIII. And whereas doubts have arisen as to the construction of the schedule of the Act of the tenth year of Her present Majesty, F oval chapter fifty-eight : of doubts as to It is hereby declared, That for the purposes of the said Act every countries it may be ex- tended to France. 16 & 17 vict. c. 107. 691 work published in the country of export, of which part has been construction of originally produced in the United Kingdom, shall be deemed to be q^^ 1 y-° and be subject to the duty payable on " Works originally produced c . 58. in the United Kingdom, and published in the country of export," although it contains also original matter not produced in the United Kingdom, unless it shall be proved to the satisfaction of the Commissioners of Her Majesty's Customs by the importer, consignee or other person entering the same that such original matter is at least equal to the part of the work produced in the United Kingdom, in which case the work shall be subject only to the duty on " Works not originally produced in the United Kingdom." XIV. And whereas by the four several Acts of Parliament Lithographs, following ; (that is to say,) an Act of the eighth year of the reign # c - of King George the Second, chapter thirteen ; an Act of the Recital of seventh year of the reign of King George the Third, chapter 8 G. 2, c. 13. thirty-eight: an Act of the seventeenth year of the reign of^ G - 3 > c - 3 ^; King George the Third, chapter fifty-seven : and an Act of the 6 & 7 w. 4- seventh year of King William the Fourth, chapter fifty-nine, pro- c 59. vision is made for securing to every person who invents, or designs, engraves, etches, or works in mezzotinto or chiaro-oscuro, or from his own work, design, or invention, causes or procures to be de- signed, 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 every person who engraves, etches, or works in mezzotinto or chiaro-oscuro, or causes to be engraved, etched, or worked any print taken from any picture, drawing, model, or sculpture, notwithstanding such print has not been graven or drawn from his own original design, certain copy- rights therein defined : And whereas doubts are entertained whether the provisions of the said Acts extend to lithographs and certain other impressions, and it is expedient to remove such doubts : It is hereby declared, That the provisions of the said Acts are For removal of intended to include prints taken by lithography, or any other doubts as to . , , , . , . . . . ,, -, . the provisions mechanical process by which prints or impressions of drawings or f the said Acts designs are capable of being multiplied indefinitely, and the said including Acts shall be construed accordingly. lithographs, prints, &c. 16 & 17 Vict, o. 107 (1853). An Act to amend and consolidate the Laws relating to the Customs of the United Kingdom and of the Isle of Man, and certain Laws relating to the Trade and Navigation and the British Possessions. Sects. 44, 46, and 160, repealed 39 & 40 Vict. c. 36. 692 THE LAW OF COPYKIGHT. 18 & 19 Vict. o. 96 (1855). An Act to consolidate certain Acts, and otherwise amend the Laws of the Customs, and an Act to regulate the Office of the Receipt of Her Majesty's Exchequer at Westminster. Sec. 39 and 40 repealed 39 & 40 Vict. c. 36. 21 & 22 Vict. c. 70. An Act to amend the Act of the fifth and sixth Tears of Her present Majesty, to consolidate and amend the Laws relating to the Copyright of Designs for ornamenting Articles of Marm- facture. [2nd August, 1858.] 5 & 6 Vict. Whereas by an Act passed in the fifth and sixth years of the reign u. 100. f jj er present Majesty, intituled " An Act to consolidate and amend the Laws relating to the Copyright of Designs for ornamenting Articles of Manufacture," hereinafter called " The Copyright of Designs Act, 1842," there was granted to the proprietor of any new and original design in respect of the application of any such design to ornamenting any article of rhanufaeture contained in the tenth class therein mentioned, with the exceptions therein mentioned, the sole right to apply the same to any articles of manufacture, or any such substances as therein mentioned, for the term of nine calendar months, to be computed from the time of such design being regis- tered according to the said Act : And whereas it is expedient that the term of copyright, in respect of the application of designs to the ornamenting of articles of manufacture comprised in the said tenth class, should be extended, and that some of the provisions of the said Act should be altered, and that further provision should he made for the prevention of piracy, and for the protection of copy- right in designs under the Acts in the schedule hereto annexed, and hereinafter called " The Copyright of Designs Acts :" Be it therefore enacted by the Queen's most excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same as follows : that is to say, Short title. I. In citing this Act for any purpose whatsoever it shall be sufficient to use the expression " The Copyright of Designs Act, p • lit f 1858. Designs Acts II. The said Copyright of Designs Acts and this Act shall be nnd this Act to construed together as one Act. be as one. 21 & 22 vict. c. 70. 693 III. In respect of the application of any new and original design Extension of for ornamenting any article of manufacture contained in the tenth term of C0 Py- class mentioned in "The Copyright of Designs Acts, 1842," the ^h da'ss ^ term of copyright shall be three years, to be computed from the mentioned in time of such design being registered, in pursuance of the pro- 5 & 6 Vict - visions of " The Copyright of Designs Acts," and of this Act : °' 10 °' Provided nevertheless, that the term of such copyright shall expire on the thirty-first of December, in the second year after the year in which such design was registered, whatever may be the day of such registration. IV. Nothing in the fourth section of " The Copyright of Designs Copyright not Act, 1842," shall extend or be construed to extend to deprive the to be prejudiced proprietor of any new and original design applied to ornamenting mal .k ec [ any article of manufacture contained in the said tenth class of the benefits of "The Copyright of Designs Acts" or of this Act: Provided there shall have been printed on such articles at each end of the original piece thereof the name and address of such proprietor, and the word " Eegistered," together with the years for which such design was registered. V. And be it declared, That the registration of any pattern or Pattern may- portion of an article of manufacture to which a design is applied, be registered.] instead or in lieu of a copy, drawing, print, specification, or de- scription in writing, shall be as valid and effectual to all intents and purposes as if such copy, drawing, print, specification, or description in writing had been furnished to the registrar under " The Copyright of Designs Acts." VI. The proprietor of such extended copyright shall, on appli- Proprietor to cation by or on behalf of any person producing or .vending any S ive the nut n- article of manufacture so marked, give the number and the date ";*£• t ,a of the registration of any article of manufacture so marked ; and any proprietor so applied to who shall not give the number and date of such registration shall be subject to a penalty of ten pounds, to be recovered by the applicant, with full cost of suit, in any court of competent jurisdiction. VII. Any person who shall wilfully apply any mark of registra- Penalty on tion to any article of manufacture in respect whereof the appli- lssum g articles ,,,,,, ■ i i m n °t so marked. cation of the design thereto shall not have been registered, or after the term of copyright shall have expired, or who shall, during the term of copyright, without the authority of the proprietor of any registered design, wilfully apply the mark printed on the piece of any article of manufacture, or who shall knowingly sell or issue any article of manufacture to which such mark has been wilfully and without due authority applied, shall be subject to a penalty of ten pounds, to be recovered by the proprietor of such design, with full costs of suit, in any court of competent jurisdiction. 694 THE LAW OP COPYRIGHT. Proceedings for prevention of piracy may be instituted in the' County Courts. The proceed- ings of County Courts Acts applicable to proceedings for designs. VIII. Notwithstanding anything in •' The Copyright of Designs Acts," it shall be lawful for the proprietor of copyright in any design under the " Copyright of Designs Acts " or this Act, to institute proceedings in the county court of the district within which the piracy is alleged to have been committed, for the recovery of damages which he may have sustained by reason of such piracy : Provided always, that in any such proceedings the plaintiff shall deliver with his plaint a statement of particulars as to the date and title or other description of the registration whereof the copyright is alleged to be pirated, and as to the alleged piracy ; and the defendant, if he intends at the trial to rely as a defence on any objection to such copyright, or to the title of the proprietor therein, shall give notice in the manner provided in the seventy-sixth section of the Act of the ninth and tenth Victoria, chapter ninety-five, of his intention to rely on such special defence, and shall state in such notice the date of publication and other particulars of any designs whereof prior publication is alleged, or of any objection to such copyright, or to the title of the proprietor to such copyright ; and it shall be lawful for the judge of the county court, at the instance of the defendant or plaintiff respectively, to require any statement or notice so delivered by the plaintiff or of the defendant re- spectively to be amended in such a manner as the said judge may think fit. IX. The provisions of an Act of the ninth and tenth Victoria, chapter ninety-five, and of the twelfth and thirteenth Victoria, chapter one hundred, as to proceedings in any plaint, and as to appeal, and as to writs of prohibition, shall, so far as they are not inconsistent with or repugnant to the provisions of this Act, be applicable to any proceedings for piracy of copyright of designs under the said Copyright of Designs Acts or this Act. Schedule referred to in the foregoing Act. 5 & 6 Vict. c. 100. [10 Aug. 1842.] 6 & 7 Vict. c. 65. [22 Aug. 1843.] 13 & 14 Vict. c. 104. [14 Aug. 1850.] 14 Vict. o. 8. [11 April, 1851.] An Act to consolidate and amend the Laws re- lating to the Copyright of Designs for ornament- ing Articles of Manufacture. An Act to amend the Laws relating to the Copy- right of Designs. An Act to extend and amend the Acts relating to the Copyright of Designs. An Act to extend the Provisions of the Designs Aot, 1850, and to give Protection from Piracy to Persons exhibiting new Inventions in the Exhi- bition of the Works of Industry of all Nations in One thousand eight hundred and fifty-one. 25 & 26 vict. c. 68. 695 24 & 25 Vict. o. 73. An Act to amend the Law relating to the Copyright of Designs- [6th August, 1861.] Whereas by an Act passed in the session holden in the fifth and 5 & 6 Vict, sixth years of the reign of Her present Majesty, chapter one hundred, c - 100, intituled " An Act to consolidate and amend the Laws relating to the Copyright of Designs for ornamenting Articles of Manufacture," it was enacted, that the proprietor of every such design as therein mentioned, not previously published either within the United King- dom of Great Britain and Ireland or elsewhere, should have the sole right to apply the same to any articles of manufacture, or to any such substances as therein mentioned, provided the same were done within the United Kingdom of Great Britain and Ireland, for the respective terms therein mentioned, and should have such copy- right in such designs as therein provided : And whereas divers Acts have since been passed extending or amending the said recited Acts : And whereas it is expedient that the provisions of the said recited Act, and of all Acts extending or amending the same should apply to designs, and to the application of such designs, within the meaning of the said Acts, whether such application be effected within the United Kingdom or elsewhere : Be it enacted by the Queen's most excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal,.and Commons, in this present Parlia- ment assembled, and by the authority of the same, as follows : 1. That the said recited Act, and all Acts extending or amending 5 & 6 Vict, the same, shall be construed as if the words " provided the same e - 100 ' and be done within the United Kingdom of Great Britain and ° ati " g t0 ^ op y. Ireland " had not been contained in the said recited Act ; and the right of de- said recited Act, and all Acts extending or amending the same, si g ns "tended, shall apply to every such design as therein referred to, whether the application thereof be done within the United Kingdom or elsewhere and whether the inventor or proprietor of such design be or be not a subject of Her Majesty. 2. That the said several Acts shall not be construed to apply to Application of the subjects of Her Majesty only. 25 & 26 Vict. c. 68. An Act for amending the Law relating to Copyright in Works of the -Fine Arts, and for repressing the Commission of Fraud in the Production and Sale of such Works. [29th July, 1862.] Whereas by law, as now established, the authors of paintings, drawings, and photographs have no copyright in such their works, 696 THE LAW OF COPYRIGHT. and it is expedient that the law should in that respect be amended : Be it therefore enacted by the Queen's most excellent Majesty, by and with the advice and consent of the Lords Spiritual and Tem- poral, and Commons, in this present Parliament assembled, and by the authority of the same, as follows : Copyright in I. The author, being a British subject or resident within the works here- dominions of the Crown, of every original painting, drawing, and sold to vest in phonograph which shall be or shall have been made either in the the author for British dominions or elsewhere, and which shall not have been sold his life and for or disposed of before the commencement of this Act, and his assigns after'his d^ath s ^ a ^ ^ave *k e sole and exclusive right of copying, engraving, reproducing, and multiplying such painting or drawing, and the design thereof, or such photograph, and the negative thereof, by any means and of any size, for the term of the natural life of such author and seven years after his death ; provided that when any painting or drawing, or the negative of any photograph, shall for the first time after the passing of this Act be sold or disposed of, or shall be made or executed for or on behalf of any other person for a good or a valuable consideration, the person so selling or disposing of or making or executing the same shall not retain the copyright thereof, unless it be expressly reserved to him by agreement in writing signed, at or before the time of such sale or disposition, by the vendee or assignee of such' painting or drawing, or of such negative of a photograph, or by the person for or on whose behalf the same shall be so made or executed, but the copyright shall belong to the vendee or assignee of such painting or drawing, or of such negative of a photograph, or to the person for or on whose behalf the same shall have been made or executed ; nor shall the vendee or assignee thereof be entitled to any such copyright, unless, at or before the time of such sale or disposition, an agreement in writing, signed by the person so selling or disposing of the same, or by his agent duly authorized, shall have been made to that effect. Copyright not II, Nothing herein contained shall prejudice the right of any to prevent the p erson t copy-or use any work in which there shall be no copyright of the same 1011 or *° represent any scene or object, notwithstanding that there subjects" in may be copyright in some representation of such scene or object, other works. jjj ^11 copyright under this Act shall be deemed personal or Assignments, moveable estate, and shall be assignable at law, and every assign- to be in *"' merit thereof, and every licence to use or copy by any means or writing. process the design or work which shall be the subject of such copy- right, shall be made by some note or memorandum in writing, to be signed by the proprietor of the copyright, or by his agent appointed for that purpose in writing. Register of Iv - The 1 ' 6 sna ll be kept at the hall of the Stationers' Company, proprietors of by the officer appointed by the said company for the purposes of 25 & 26 vict. c. G8. 697 the Act passedj in the sixth year of Her present Majesty, intituled copyright in " An Act to amend the Law of Copyright," a book or books paintings, intituled " The Eegister of Proprietors of Copyright in Paintings, photographs' Drawings, and Photographs," wherein shall be entered a memo- to be kept at randum of every copyright to which any person shall be entitled Stationers' under this Act, and also of every subsequent assignment of any g Vict c 45 _ such copyright ; and such memorandum shall contain a statement of the date of such agreement or assignment, and of the names of the parties thereto, and of the name and place of abode of the person in whom such copyright shall be vested by virtue thereof, and of the name and place of abode of the author of the work in which there shall be such copyright, together with a short descrip- tion of the nature and subject of such work, and in addition thereto, if the person registering shall so desire, a sketch, outline, or photograph of the said work ; and no proprietor of any such copy- right shall be entitled to the benefit of this Act until such registra- tion, and no action shall be sustainable nor any penalty be recover- able in respect of anything done before registration. V. The several enactments in the said Act of the sixth year of Certain enact- Her present Majesty contained, with relation to keeping the register ments of 5 & 6 book thereby required, and the inspection thereof, the searches ,' c ' .J ° therein,, and the delivery of certified and stamped copies thereof, books to be the reception of such copies in evidence, the making of false entries ke pt under in the said book, and the production in evidence of papers falsely ls c ' purporting to be copies of entries in the said book, the application to the courts and judges by persons aggrieved by entries in the said book, and the expunging and varying such entries, shall apply to the book or books to be kept by virtue of this Act, and to the entries and assignments of copyright and proprietorship therein under this Act, in such and the same manner as if such enactments were here expressly enacted in relation thereto, save and except that the forms of entry prescribed by the said Act of the sixth year of Her present Majesty may be varied to meet the circumstances of the case, and that the sum to be demanded by the officer of the said Company of Stationers for making any entry required by this Act shall be one shilling only. VI. If the author of any painting, drawing, or photograph in Penalties on which there shall be subsisting copyright, after having sold or infringement disposed of such copyright, or if any other person, not being the ° C0 Py ug proprietor for the time being of copyright in any painting, drawing, or photograph, shall, without the consent of such proprietor, repeat, copy, colourably imitate, or otherwise multiply for sale, hire, exhibition, or distribution, or cause or procure to be repeated, copied, colourably imitated, or otherwise multiplied for sale, hire, exhibition, or distribution, any such work or the design thereof, 698 THE LAW OF COPYRIGHT. Penalties on fraudulent productions and sales. Penalties or knowing that any such repetition, copy, or other imitation has been unlawfully made shall import into any part of the United Kingdom, or sell, publish, let to hire, exhibit, or distribute, or offer for sale, hire, exhibition, or distribution, or cause or procure to be imported, sold, published, let to hire, distributed, or offered for sale, hire, exhibition or distribution, any repetition, copy, or imitation of the said work, or of the design thereof, made without such consent as aforesaid, such person for every such offence shall forfeit to the proprietor of the copyright for the time being a sum not exceeding ten pounds ; and all such repetitions, copies, and imitations made without such consent as aforesaid, and all negatives of photographs made for the purpose of obtaining such copies, shall be forfeited to the proprietor of the copyright. VII. No person shall do or cause to be done any or either of the following acts : that is to say, First, no person shall fraudulently sign or otherwise affix, or fraudulently cause to be signed or otherwise affixed, to or upon any painting, drawing, or photograph, or the negative thereof, any name, initials, or monogram : Secondly, no person shall fraudulently sell, publish, exhibit, or dispose of, or offer for sale, exhibition or distribution, any paint- ing, drawing, or photograph, or negative of a photograph, having thereon the name, initials, or monogram of a person who did not execute or make such work : Thirdly, no person shall fraudulently utter, dispose of, or put off, or cause to be uttered or disposed of, any copy or colourable imitation of any painting, drawing, or photograph, or negative of a photograph, whether there shall be subsisting copyright therein or not, as having been made or executed by the author or maker of the original work from which such copy or imita- tion shall have been taken : Fourthly, where the author or maker of any painting, drawing, or photograph, or negative of a photograph, made either before or after the passing of this Act, shall have sold or otherwise parted with the possession of such work, if any alteration shall afterwards be made therein by any other person, by addition or otherwise, no person shall be at liberty, during the life of tbe author or maker of such work, without his consent, to make or knowingly to sell or publish or offer for sale, such work or any copies of such work so altered, as aforesaid, or of any part thereof, as or for the unaltered work of such author or maker : Every offender under' this section shall, upon conviction, forfeit to the person aggrieved a sum not exceeding ten pounds, or not 25 & 26 vict. c. 68. 699 exceeding double the full price, if any, at which all such copies, engravings, imitations, or altered works shall have been sold or offered for sale ; and all such copies, engravings, imitations, or altered works shall be forfeited to the person, or the assigns or legal representatives of the person, whose name, initials, or mono- gram shall be so fraudulently signed or affixed thereto, or to whom such spurious or altered work shall be so fraudulently or falsely ascribed as aforesaid : Provided always, that the penalties imposed by this section shall not be incurred unless the person whose name, initials, or monogram shall be so fraudulently signed or affixed, or to whom such spurious or altered work shall be so fraudulently or falsely ascribed as aforesaid, shall have been living at or within twenty years next before the time when the offence may have been committed. VIII. All pecuniary penalties which shall be incurred, and all Recovery of such unlawful copies, imitations, and all other effects and things as P ecun * ar y shall have been forfeited by offenders, pursuant to this Act, and pursuant to any Act for the protection of copyright engravings, may be recovered by the person hereinbefore and in any such Act as aforesaid empowered to recover the same respectively, and hereinafter called the complainant or the complainer, as follows : In England and Ireland, either by action against the party In England and offending, or by summary proceeding before any two justices Ireland '> having jurisdiction where the party offending resides : In Scotland, by action before the Court of Session in ordinary I n Scotland, form, or by summary action before the sheriff of the county where the offence may be committed or the offender resides, who, upon proof of the offence or offences, either by confession of the party offending, or by the oath or affirmation of one or more credible witnesses, shall convict the offender, and find him liable to the penalty or penalties aforesaid, as also in expenses ; and it shall be lawful for the sheriff, in pronouncing such judgment for the penalty or penalties and costs, to insert in such judgment a warrant, in the event of such penalty or penalties and costs not being paid, to levy and recover the amount of the same by poinding: Provided always, that it shall be lawful to the sheriff, in the event of his dismissing the action and assoilzieing the defender, to find the complainer liable in expenses, and any judgment so to be pronounced by the sheriff in such summary application shall be final and conclusive, and not subject to review by avocation, suspension, reduction, or otherwise. IX. In any action in any of Her Majesty's superior Courts of SuperiorCourts Eecord at Westminster and in Dublin for the infringement of any of Record in 700 THE LAW OF COP5TKIGHT. which any such copyright as aforesaid, it shall be lawful for the court in which in'' ™,v make mC,h action is P endin S> if ihe court be tnen sitting, or if the court atTorder tor an °e n °t sitting then for a judge of such court, on the application of injunction, the plaintiff 01 defendant respectively, to make such order for an acaomit™' " in i ullctioll > inspection, or account, and to give such direction re- specting such action, injunction, inspection, and account and the proceedings therein respectively, as to such court or judge may seem fit. Importation of X. All repetitions, copies, or imitations of paintings, drawings, pirated works or photographs, wherein or in the design whereof there shall be pio i i ed. subsisting copyright under this Act, and all repetitions, copies, and imitations of the design of any such painting or drawing, or of the negative of any such photograph, which, contrary to the provisions of this Act, shall have been made in any foreign state, or in any part of the British dominions, are hereby absolutely prohibited to be imported into any part of the United Kingdom, except by or with the consent of the proprietor of the copyright thereof, or his agent Application in authorized in writing ; and if the proprietor of any such copyright, such cases of or jjj g a g en t shall declare that any goods imported are repetitions, Customs Acts. . . ., , . „ , . , . ■■ , , , copies, or imitations of any such painting, drawing, or photograph, or of the negative of any such photograph, and so prohibited as aforesaid, then such goods may be detained by the officers of Her Majesty's Customs. Saying of right XI. If the author of any painting, drawing, or photograph, in to bring action -which there shall be subsisting copyright, after having sold or. 1 ma § es - otherwise disposed of such copyright, or if any other person, not being the proprietor for the time being of such copyright, shall, without the consent of such proprietor, repeat, copy, colourably imitate, or otherwise multiply, or cause or procure to be repeated, copied, colourably imitated, or otherwise multiplied, for sale, hire, exhibition, or distribution, any such work or the design thereof, or the negative of any such photograph, or shall import or cause to be imported into any part of the United Kingdom, or sell, publish, let to hire, exhibit, or distribute, or offer for sale, hire, exhibition, or distribution, or cause or procure to be sold, published, let to hire, exhibited, or distributed, or offered for sale, hire, exhibition, or distribution, any repetition, copy, or imitation of such work, or the design thereof, or the negative of any such photograph, made with- out such consent as aforesaid, then every such proprietor, in addition to the remedies hereby given for the recovery of any such penalties, and forfeiture of any such things as aforesaid, may recover damages by and in a special action on the case, to be brought against the person so offending, and may in such action recover and enforce the delivery to him of all unlawful repetitions, copies, and imitations, and negatives of photographs, or may recover damages for the 32 & 33 vict. c. 24. 701 retention or conversion thereof: Provided that nothing herein contained, nor any proceeding, conviction, or judgment, for any act hereby forbidden, shall affect any remedy which any person aggrieved by such act may be entitled to either at law or in Equity. XII. This Act shall be considered as including the provisions of Provisions of the Act passed in the session of Parliament held in the seventh and 7 °* 8 ^ 1 " t- eighth years of Her present Majesty, intituled " An Act to amend the considered as Law relating to International Copyright," in the same manner included in as if such provisions were part of this Act. 32 & 33 Vict. c. 24. An Act to repeal certain Enactments relating to Newspapers, Pam- phlets, and other Publications, and to Printers, Typefounders, and Heading Booms. [12th July, 1869.] Be it enacted by the Queen's most excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows : 1. The Acts and parts of Acts described in the first schedule Acts and parts to this Act are hereby repealed, but the provisions of the said of , A ^ ts , m first Acts which are set out in the second schedule to this Act shall pea i e d, except continue in force in the same manner as if they were enacted in as in second the body of this Act : and this Act shall not affect the validity or scnedule - invalidity of anything already done or suffered, or any right or title already acquired or accrued, or any remedy or proceeding in respect thereof, and all such remedies and proceedings may be had and continued in the same manner as if this Act had not passed. 2. This Act may be cited as " The Newspapers, Printers, and Short title. Beading Rooms Repeal Act, 1869." [First Schedule 702 THE LAW OF COPYRIGHT. First Schedule. DATE OF ACT. TITLE OF ACT, AND PART REPEALED. 36 Geo. 3, u. 8. 39 Geo. 3, c. 79, in part. 51 Geo. 3, c. 65. 55 Geo. 3, c. 101, in part. 60 Geo. 3 & 1 Geo. 4, c. 9. 11 Geo. 4 & 1 Will. 4,c73. 6 & 7 Will. 4, c. 76, in part. 2 & 3 Vict. v. 12. An Act for the more effectually preventing seditious meetings and assemblies. An Act for the more effec-' tual suppression of so- cieties established for seditious and treason- able purposes, and for better preventing trea- sonable and seditious practices — — In part, namely, — sections fifteen to thirty-three, both inclusive, and so much of sections thirty- four to thirty-nine as relates to the above- mentioned sections. An Act to explain and amend an Act passed in the thirty-ninth year of His Majesty's reign, intituled " An Act for the more effectual suppression of so- cieties established for seditious and treasonable purposes, and for better preventing treasonable and seditious practices," so far as respects certain penalties on printers and publishers. In part, namely,- thirteen. •section An Act to regulate the collection of stamp du- ties and matters in re- spect of which licences may be granted by the Commissioner of Stamps in Ireland — . An Act to subject certain publications to the duties of stamps upon newspapers, and to make other regula- tions for restraining the abuses arising from the publication of blasphemous and seditious libels. An Act to repeal so much of an Act of the sixtieth year of His late Majesty King George the Third, for the more effectual prevention and punishment of blasphemous and seditious libels, as relates to the sentence of banishment for the second offence, and to provide some further remedy against the abuse of publishing libels. An Act to reduce the) In part, namely, - duties on newspapers and to amend the laws ! relating to the duties on newspapers and ad- vertisements — — Except sections one to four (both inclusive), sections thirty-four and thirty-five, and the sche- dule. An Act to amend an Act of the thirty-ninth year of King George the Third, for the more effectual sup- pression of societies established for seditious and treasonable purposes, and for preventing treasonable and seditious practices, and to put an end to certain proceedings now pending under the said Act. 32 & 33 vict. c. 24. 703 DATE OF ACT. TITLE OF ACT, AND PART REPEALED. 5 & 6 Vict. c. 82, in part. 9 & 10 Vict. o. 33, in part. 16 & 17 Vict, c 59, in part. An Act to assimilate the stamp duties in Great Britain and Ireland, and to make regula- tions for collecting and managing the same until the tenth day of October, One thousand eight hundred and forty-five - , An Act to amend the} laws relating to corres- I ponding societies and J- the licensing of lecture ' rooms — An Act to repeal certain } stamp duties and to grant others in lieu thereof, to amend the laws relating to stamp duties, and to make perpetual certain stamp duties in Ireland. - ) In part, namely, — The following words in section twenty : " aud also licence to any person to keep any printing presses and types for printing in Ireland." In part, namely, — So far as it relates to any proceedings under the enactments repealed by this schedule. In part, namely, — So much of section twenty as makes perpetual the provisions of 5 & 6 Vict, c. 82, repealed by this Act. Second Schedule. The enactments in this Schedule, with the exception of sect. 19 of 6 & 7 "Will. 4, c. 76, do not apply to Ireland. 39 Geo. 3, c. 79. Section 28. Nothing in this Act contained shall extend or be construed to extend Not to extend to to any papers printed by the authority and for the use of either House of papers printed Parliament. by authority of Parliament. Section 29. Every person who shall print any paper for hire, reward, gain, or profit, shall carefully preserve and keep one copy (at least) of every paper so printed by him or her, on which he or she shall write, or cause to be written or printed, in fair and legible characters, the name and place of abode of the person or persons by whom he or she shall be employed to print the same ; and every person printing any paper for hire, reward, gain, or profit who shall omit or neglect to write, or cause to be written or printed as aforesaid, the name and place of his or her employer on one of such printed papers, or to keep or preserve the same for the space of six calendar months next after the printing thereof, or to produce and shew the same to any justice of the peace who within the said space of six calendar months shall require to see the same, shall for every such omission, neglect, or refusal forfeit and lose the sum of twenty pounds. Printers to keep a copy of every paper they print, and write thereon the name and abode of their employer. Penalty of 201. for neglect or refusing to pro- duce the copy within six months. 704 THE LAW OF COPTEIGHT. Second Schedule — continued. Section 31. Not to extend Nothing herein contained shall extend to the impression of any en- to impressions graving, or to the printing by letter-press of the name, or the name and of engravings a( j ( j resg) or business or profession, of any person, and the articles in which „« ?!',? m ° ne deals, or to any papers for the sale of estates or goods by auction or HfUllPS 3.11(1 addresses. otherwise. Section 34. Prosecutions to No person shall be prosecuted or sued for any penalty imposed by this be commenced Act, unless such prosecution shall be commenced, or such action shall be within three brought, within three calendar months next after such penalty shall have months after , . , ,, . been incurred, penalty is . incurred. ^ „ _ Part of Section 35. Recovery of And any pecuniary penalty imposed by this Act, and not exceeding the penalties. sum of twenty pounds, shall and may be recovered before any justice or justices of the peace for the county, stewartry, riding, division, city, town, or place, in which the same shall be incurred, or the person having in- curred the same shall happen to be, in a summary way. Section 36. Application of All pecuniary penalties hereinbefore imposed by this Act shall, when penalties. recovered in a summary way before any justice, be applied and disposed of in manner hereinafter mentioned ; that is to say, one moiety thereof to the informer before any justice, and the other moiety thereof to His Majesty, his heirs and successors. 51 Geo. 3, c. 65. Section 3. Name and Nothing in the said Act of the thirty-ninth year of King George the residence of Third, chapter seventy-nine, or in this Act contained, shall extend or be printers not construed to extend to require the name and residence of the printer to required o e ^ e p r j n t e d upon any bank note, or bank post bill of the Governor and notes bills &o. Company of the Bank of England, upon any bill of exchange, or promis- or to any paper sory note, or upon any bond or other security for payment of money, or printed by upon any bill of lading, policy of insurance, letter of attorney, deed, or authority of agreement, or upon any transfer or assignment of any public stocks, funds, > n ^,j ... or other securities, or upon any transfer or assignment of the stocks of any office public corporation or company authorized or sanctioned by Act of Parliament, or upon any dividend warrant of or for any such public or other stocks, funds, or securities, or upon any receipt for money or goods, or upon any proceeding in any court of law or equity, or in any inferior court, warrant, order, or other papers printed by the authority of any public board or public officer in the execution of the duties of their respec- tive offices, notwithstanding the whole or any part of the said several securities, instruments, proceedings, matters, and things aforesaid shall have been or shall be printed. 32 & 33 vict. c. 24. 705 Second Schedule — continued. 6 & 7 Will. 4, c. 76. Section 19. If any person shall file any bill in any court for the discovery of the Discovery of name of any person concerned as printer, publisher, or proprietor of any proprietors, newspaper, or of any matters relative to the printing or publishing of any P 1111 * 6 ™, or newspaper, in order the more effectually to bring or carry on any suit or ' 5U I5 ers ° action fur damages alleged to have been sustained by reason of any slan- mav De en _ derous or libellous matter contained in any such newspaper respecting forced by bill, such person, it shall not be lawful for the defendant to plead or demur to &c. such bill, but such defendant shall be compellable to make the discovery required : Provided always, that such discovery shall not be made use of as evidence or otherwise in any proceeding against the defendant, save only in that proceeding for which the discovery is made. 2 & 3 Vict. c. 12, Section 2. ' Every person who shall print any paper or book whatsoever which shall Penalty upon be meant to be published or dispersed, and who shall not print upon the printers for not front of every such paper, if the same shall be printed on one side only, or printing their upon the first or last leaf of every paper or book which shall consist of name aD resl " more than one leaf, in legible characters, his or her name and usual place p apel . 01 . book of abode or business, and every person who shall publish or disperse, or and on persons assist in publishing or dispersing, any printed paper or book on which the publishing the name and place of abode of the person printing the same shall not be same - printed as aforesaid, shall for every copy of such paper so printed by him or her forfeit a sum not more than five pounds : Provided always, that nothing herein contained shall be construed to impose any penalty upon any person for printing any paper excepted out of the operation of the said Act of the thirty-ninth year of King George the Third chapter seventy- nine, either in the said Act or by any Act made for the amendment thereof. Section 3. In the case of books or papers printed at the University Press of Oxford As to books or or the Pitt Press of Cambridge, the printer, instead of printing his name papers printed thereon, shall print the following words: "Printed at the University at the Umver- Press, Oxford," or " The Pitt Press. Cambridge," as the case may be. sl y P res,s ' Section i. Provided always, that it shall not be lawful for any person or persons n actions for whatsoever to commence, prosecute, enter, or file, or cause or procure to be penalties to be commenced, prosecuted, entered, or filed, any action, bill, plaint, or infor- commenced mation in any of Her Majesty's courts, or before any justice or justices of exce P t > n * ie . o .uT- r n name 01 tne the peace, against any person or persons for the recovery ot any une, Atto] . ne y 01 . penalty, or forfeiture made or incurred or which may hereafter be incurred Solicitor under the provisions of this Act, unless the same becommenced, prosecuted, General in entered, or filed in the name of Her Majesty's Attorney-General of England or the Solicitor-General in that part of Great Britain called England, or Her ^^'j^" Majesty's Advocate for Scotland (as the case may be respectively) ; and if Scot i and any action, bill, plaint, or information shall be commenced, prosecuted, or 2 z 706 THE LAW OF COPYRIGHT. Proceedings shall not be commenced unless in the name of the law officers of the Crown. Second Schedule — continued. filed in the name or names of any other person or persons than is or are in that behalf before mentioned, the same and every proceeding thereupon had are hereby declared and the same shall be null and void to all intents and purposes. 9 & 10 Vict. c. 33. Section 1. It shall not be lawful for any person or persons to commence, prosecute, enter, or file, or cause or procure to be commenced, prosecuted, entered, or filed, any action, bill, plaint, or information in any of Her Majesty's courts or before any justice or justices of the peace, against any person or persons for the recovery of any fine which may hereafter be incurred under the provisions of the Act of the thirty-ninth year of King George the Third, chapter seventy-nine, set out in this Act, unless the same be com- menced, prosecuted, entered, or filed in the name of Her Majesty's Attorney-General or Solicitor-General in England or Her Majesty's Advocate in Scotland ; and every action, bill, plaint, or information which shall be commenced, prosecuted, entered, or filed in the name or names of any other person or persons than is in that behalf before mentioned, and every proceeding thereupon had, shall be null and void to all intents and purposes. 38 Vict. c. 12. An Act to amend the Law relating to International Copyright. [13th May, 1875]. Whebeas by an Act passed in the -fifteenth year of the reign of Her present Majesty, chapter 12, intituled " An Act to enable Her Majesty to carry into effect a convention with Prance on the subject of Copyright; to extend and explain the International Copyright Acts ; and to explain the Acts relating to copyright in engraviDgs," it is enacted that "Her Majesty may, by Order in Council, direct that authors of dramatic pieces which are, after a future time to be specified in, such order, first publicly represented in any foreign country, to be named in such order, their executors, administrators, and assigns, shall, subject to the provisions therein- after mentioned or referred to, be empowered to prevent the represen- tation in the British Dominions of any translation of such dramatic pieces not authorized by them for such time as may be specified in such order, not extending beyond the expiration of five years from the time at which the authorized translations of such dramatic pieces are first published and publicly represented :" And whereas by the same Act it is further enacted, " that, subject to any provisions or qualificatiors contained in such order, and to the provisions in the said Acts contained or referred to, the law and enactments for the time being in force for ensuring to the author of any dramatic 38 & 39 vict. c. 53. 707 piece, first publicly represented in the British Dominions the sole liberty of representing the same shall be applied for the purposes of preventing the representation of any translations of the dramatic pieces to which such order extends, which are not sanctioned by the authors thereof:'' And whereas by the sixth section of the said Act it is provided that " nothing in the said act contained shall be so construed as to prevent fair imitations or adaptation to the English stage of any dramatic piece or musical composition published in any foreign country :" And whereas it is expedient to alter or amend the last mentioned provisions under certain circumstances : Be it therefore enacted by the Queen's most excellent Majesty, by and with the advice and consent of the Lords spiritual and temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows : viz., 1. In any case in which, by virtue of the enactments hereinbefore Section 6 of recited, any Order in Council has been or may hereafter be made re cited Act not for the purpose of extending protection to the translations of dramatic dramatic pieces first publicly represented in any foreign country, it pieces in cer- shall be lawful for Her Majesty by Order in Council to direct that the tam cases - sixth section of the said Act shall not apply to the dramatic pieces to which protection is so extended ; and thereupon the said recited Act shall take effect with respect to such dramatic pieces, and to the translations thereof as if the said sixth section of the said Acts were hereby repealed. 38 & 39 Vict. c. 53. An Act to give effect to an Act of the Parliament of the Dominion of Canada respecting Copyright. [2nd August, 1875.] Whereas by an Order of Her Majesty in Council, dated the 7th day of July 1868, it was ordered that all prohibitions contained in Acts in the Imperial Parliament against the importing into the Province of Canada, or against the selling, letting out to hire, exposing for sale or hire, or possessing therein foreign reprints of books first composed, written, printed, or published in the United Kingdom, and entitled to copyright therein, should be suspended so far as regarded Canada : And whereas the Senate and House of Commons of Canada did, in the second session of the third Parliament of the Dominion of Canada, held in the thirty-eighth year of Her Majesty's reign, pass a Bill intituled " An Act respecting Copyrights," which Bill has been reserved by the Governor-General for the signification of Her Majesty "s pleasure thereon : 2 z 2 ros THE LAW OF COPYRIGHT. Short title of Act. Definition of terms. Her Majesty may assent to the Bill in schedule. Colonial re- prints not to be imported into United Kingdom. Order in Council of 7th July, 1868, to continue in force subject to this Act. And whereas by the said reserved Bill provision is made, subject to suck conditions as in the said Bill are mentioned, for securing in Canada the rights of authors in respect of matters of copyright, and for prohibiting the importation into Canada of any work for which copyright under the said reserved Bill has been secured; and whereas doubts have arisen whether the said reserved Bill may not be repugnant to the said Order in Council, and it is expedient to remove such doubts and to confirm the said Bill : Be it enacted by the Queen's most excellent Majesty, by and with the advice and consent of the Lords spiritual and temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows : 1. This Aet may be cited for all purposes as The Canada Copy- right Act, 1875. 2. In the construction of this Act the words " book " and " copy- right," shall have respectively the same meaning as in the Act of the fifth and sixth years of Her Majesty's reign, chapter forty-five, intituled " An Act to amend the Law of Copyright." 3. It shall be lawful for Her Majesty in Council to assent to, the said reserved Bill as contained in the schedule to this Act annexed, and if Her Majesty shall be pleased to signify Her assent thereto, the said Bill shall come into operation at such time and in such manner as Her Majesty may by Order in Council direct ; anything in the Act of the twenty-eighth and twenty-ninth years of the reign of Her Majesty, chapter ninety-three, or in any other Act to the contrary notwithstanding. 4. Where any book in which, at the time when the said reserved Bill comes into operation, there is copyright in the United Kingdom, or any book in which thereafter there shall be such copyright, becomes entitled, to copyright in Canada in pursuance of the pro- visions of the said reserved Bill, it shall be unlawful for any person not being the owner, in the United Kingdom, of the copy- right in such book, or some person authorised by him, to import into the United Kingdom, any copies of such book reprinted or republished in Canada ; and for the purposes of such importation the seventeenth section of the said Act of the fifth and sixth years of the reign of Her Majesty, chapter forty-five, shall apply to all such books in the same manner as if they had been reprinted out of the British Dominions. b. The said Order in Council, dated the seventh day of July one thousand eight hundred and sixty-eight, shall continue in force so far as relates to books, which are not entitled to copyright, for the time being, in pursuance of the said reserved Bill. 38 & 39 vict. c. 53. 709 SCHEDULE. [38 & 39 VICT. C. 53].', An Act respecting Copyrights. Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows : — 1. The Minister of Agriculture shall cause to be kept in his office books to be called the " Registers of Copyrights," in which proprietors of literary, scientific, and artistio works or compositions may have the same registered in accordance with the provisions of this Act. 2. The Minister of Agriculture may, from time to time* Subject to the approval of the Governor in Council, make such rules and regulations and prescribe such forms as may appear to him necessary and expedient for the purposes of this Act : suoh regulations and forms, being circulated in print for the use of the public, shall be deemed to be correct for the purposes of this Act, and all documents executed and accepted by the said Minister of Agriculture shall be held valid so far as relates to all official proceedings under this Act. 3. If any person prints or publishes, or causes to be printed or published, any manuscript whatever, the said manuscript having not yet been printed in Canada or elsewhere, without the consent of the author or legal pro- prietor first obtained, such person shall be liable to the author or proprietor for all damages occasioned by such publication, to be recovered in any court of competent jurisdiction. 4. Any person domiciled in Canada, or in any part of the British Possessions, or being a citizen of any country having an international copyright treaty with the United Kingdom, who is the author of any book, map, chart, or musical composition, or of any original painting, drawing, statue, sculpture, or photograph, or who invents, designs, etches, engraves, or causes to be engraved, etched, or made from his own design, any print or engraving, and the legal representatives of such person, shall have the sole right and liberty of printing, reprinting, publishing, reproducing, and vending such literary, scientific, or artistic works or compositions, in whole or in part, and of allowing translations to be printed or reprinted and sold, of such literary works from one language into other languages, for the term of twenty-eight years from the time of recording the copyright thereof in a manner herein-after directed : (2.) The condition for obtaining such copyright shall be that the said literary, scientific, or artistio works be printed and published, or reprinted or republished hi Canada, or in the case of works of art that it be produced or reproduced in Canada, whether they be so published or produced for the first time or contemporaneously with or subsequently to publication or production elsewhere; provided that in no case the exclusive privilege in Canada shall continue to exist after it has expired anywhere else. (3.) No immoral, or licentious, or irreligious, or treasonable, or seditious literary, scientific, or artistic work shall be the legitimate subject of Such registration or copyright. 5. If at the expiration of the aforesaid term of twenty-eight years, such author, or any of the authors when the work has been originally composed 710 THE LAW OF COPYKIGHT. and made by more than one person, be still living, or being dead haB left a widow or a child or children living, the same exclusive right shall be continued to such author, or, if dead, then to such widow and child or children (as the case may be) for the further term of fourteen years ; but in such case within one year after the expiration of the first term the title of the work secured shall be a second time recorded, and all other regu- lations herein required to be observed in regard to original copyrights shall be complied with in respect to such renewed copyright. 6. In all cases of renewal of copyright under this Act the author or proprietor shall, within two months from the date of such renewal cause a copy of the record thereof to be published once in the " Canada Gazette." 7. No person shall be entitled to the benefit of this Act unless he has deposited in the office of the Minister of Agriculture two copies of such book, map, chart, musical composition, photograph, print, cut, or engraving, and in case of paintings, drawings, statuary, and sculpture, unless he has furnished a written description of such works of art, and the Minister of Agriculture shall cause the copyright of the same to be recorded forthwith in a book to be kept for that purpose, in the manner adopted by the Minister of Agriculture, or prescribed by the rules and forms which may be made from time to time as hereinbefore provided. 8. The Minister of Agriculture shall cause one of the two copies of such book, map, chart, musical composition, photograph, print, cut, or engraving aforesaid, to be deposited in the Library of the Parliament of Canada. 9. No person shall be entitled to the benefit of this Act unless he gives information of the copyright being secured, by causing to be inserted in the several copies of every edition published during the term secured, on the title page, or the page immediately following, if it be a book, or if a map, chart, musical composition, print, cut, engraving, or photograph, by causing to be impressed on the face thereof, or if a volume of maps, charts, music, engravings, or photographs, [upon the title page or frontispiece thereof, the following words, that is to say : " Entered according to Aot of Parliament of Canada, in the year , by A.B., in the office of the Minister of Agriculture." But as regards paintings drawings, statuary, and sculptures, the signature of the artist shall be deemed a sufficient notice of such proprietorship. 10. Pending the publication or republication in Canada of a literary, scientific, or artistic work, the author, or his legal representatives or assigns, may obtain an interim copyright by depositing in the office of the Minister of Agricuture a copy of the title, or a designation of such work intended for publication or republication in Canada, the said title or designation to be registered in an interim copyright register in the said office, to secure to the author aforesaid, or his legal representatives or assigns, the exclusive rights recognised by this Act, previous to publication or republication in Canada : the said interim registration, however, not to endure for more than one month from the date of the Original publication elsewhere, within which period the work shall be piinted or reprinted and published in Canada. (2.) In all cases of interim registration under this Act, the author or proprietor shall cause notice of such registration to be inserted once in the " Canada Gazette." (3.) A literary work intended to be published in pamphlet or book form, 38 & 39 vict. c. 53. 711 but which is first published in separate articles in a newspaper or periodical, may be the subject of registration within the meaning of this Act while it is so preliminarily published, pro- vided that the title of the manuscript and a short analysis of the work are deposited in the office of the Minister of Agriculture, and that every separate article so published is preceded by the words "Kegistered in accordance with the Copyright Act of 1875 ; " but the work when published in book or pamphlet form shall be subject, besides, to the other requirements of this Act. (4.) The importation of newspapers and magazines published in foreign countries, and containing, together with foreign original matter, portions of British copyright works republished with the consent of the author or his assigns or under the law of the country where such copyright exists, shall not be prohibited. 11. If any other person after the interim registration of the title of any book according to this Act within the term herein limited, or after the copyright is secured, and for the term or terms of its duration, prints, pub- lishes, or reprints, or republishes, or imports, or causes to be so printed, published, or imported, any copy or any translation of such book without the consent of the person legally entitled to the copyright thereof first had and obtained by assignment, or knowing the same to be so printed or im- ported publishes, sells, or exposes for sale, or causes to be published, sold, or exposed for sale, any copy of such book without such consent, such offender shall forfeit every copy of such book to the person then legally entitled to the copyright thereof ; and shall forfeit and pay for every such copy which may be found in his possession, either printed or printing, published, imported, or exposed for sale, contrary to the intent of this Act, such sum not being less than ten cents nor more than one dollar as the court shall determine : of which penalty one moiety shall be to the use of Her Majesty, and the other to the legal owner of such copyright, and such penalty may be recovered in any court of competent jurisdiction. 12. If any person after the recording of any painting, drawing, statue, or other work of art within the term or terms limited by this Act, re- produces in any manner, or causes to be reproduced, made, or sold, in whole or in part, copies of the said works of art without the consent of the pro- prietor or proprietors, such offender or offenders shall forfeit the plate or plates on which such reproduction has been made, and also every sheet thereof so copied, printed, or photographed, to the proprietor or proprietors of the copyright thereof, and shall further forfeit for every sheet of the same reproduction so published or exposed for sale, contrary to the true intent and meaning of this Act, such sum, not being less than ten cents nor more than one dollar, as the court shall determine ; and one moiety of such forfeiture shall go to the proprietor or proprietors, and the other moiety to the use of Her Majesty, and such forfeiture may be recovered in any court of competent jurisdiction. 18. If any person, after the recording of any print, cut, or engraving, map, chart, musical composition, or photograph, according to the provisions of this Act, within the term or terms limited by this Act, engraves, etches, or works, sells or copies, or causes to he engraved, etched, or copied, made or sold, either in the whole or by varying, adding to, or diminishing the main design with intent to evade the law, or prints, or reprints, or imports 712 THE LAW OF COPYRIGHT. for sale, or causes to be so printed or imported for sale, any such map, chart, musical composition, print, cut, or engraving, or any part thereof, without the consent of the proprietor or proprietors of the copyright thereof first obtained as aforesaid, or knowing the same to be so printed or imported without such consent, publishes, sells, or exposes for sale, or in any manner disposes of any such map, chart, musical composition, en- graving, cut, photograph, or print without such consent as aforesaid, such offender or offenders shall forfeit the plate or plates on which such map, chart, musical composition, engraving, cut, photograph, or print has been copied, and also every sheet thereof so copied or printed as aforesaid, to the proprietor or proprietors of the copyright thereof, and shall further forfeit for every sheet of such map, musical composition, print, cut, or engraving which may be found in his or their possession, printed or published or exposed for sale contrary to the true intent and meaning of this Act, such sum not being less than ten cents nor more than one dollar as the court shall determine ; and one moiety of such forfeiture shall go to the pro- prietor or proprietors, and the other moiety to the use of Her Majesty, and such forfeiture may be recovered in any court of competent jurisdiction. 14. Nothing herein contained shall prejudice the right of any person to re- present any scene or object, notwithstanding that there may be copyright in some other representation of suoh scene or object. 15. Works of which the copyright has been granted and is subsisting in the Unite j Kingdom, and copyright of, which is not secured or subsisting in Canada nder any Canadian or Provincial Act, shall, upon being printed and publis ed or reprinted and republished in Canada, be entitled to copy- right under this Act ; but nothing in this Act shall be held to prohibit the importation from the United Kingdom of copies of such works legally printed there. (2.) In the case of the reprinting of any such copyrightwork subsequent to its publication in the United Kingdom, any person who may have previous to the date of entry of such work upon the registers of copyright imported any foreign reprints, shalljiave the privilege of disposing of suoh reprints by sale or otherwise ; the burden of proof, however, in such a case will lie with such person to establish the extent and regularity of the transaction, 16. Whenever the author of a literary, scientific, or artistic work or com- position which may be the subject of copyright has executed the same for another person or has sold the same to another person for due consideration, such author shall not be entitled to obtain or to retain the proprietorship of such copyright, which is by the said transaction virtually transferred to the purchaser who may avail himself of such privilege, unless a reserve of the said privilege is specially made by the author or artist in a deed duly executed. 17. If any person, not having legally acquired the copyright of a literary, scientific, or artistic work, inserts in any copy thereof printed, produced, reproduced, or imported, or impresses on any such copy that the same hath been entered according to this Act, or words purporting to assert the existence of a Canadian copyright in relation thereto, every person so offending shall incur a penalty not exoeeding three hundred dollars (one moiety whereof shall be paid to the person who sues for the same, and the other moiety to the use of Her Majesty), to bo recovered in any court of competent jurisdiction. 38 & 39 vict. c. 53. 713 (2.) If any person causes any work 'to be inserted iu the Register of Interim Copyright and fails to print and publish or reprint and republish the same within tbe time prescribed, he shall incur a penalty not exceeding one hundred dollars (one moiety whereof shall be paid to the person who sueth for the same, and the other moiety to the use of Her Majesty), to be recovered in any court of competent jurisdiction. 18. The right of an author of a literary, scientific, or artistic work to obtain a copyright, and the copyright when obtained, shall be assignable in law, either as to the whole interest or any part thereof, by an instrument in writing made in duplicate, and to be recorded in the office of the Minister of Agriculture, on production of both duplicates and payment of the fee herein-after provided. One of the duplicates shall be retained in the office of the Minister of Agriculture, and the other returned, with the certificate of registration, to the party depositing it. 19. In case of any person making application to register as his own the copyright of » literary, scientific, or artistic work already registered in another person's name, or in case of simultaneous conflicting applications, or of an application made by any person other than the person entered as proprietor of a registered copyright, to cancel the said copyright, the party so applying shall be notified that the question is to be settled before a court of competent jurisdiction, and no further proceedings shall be had concerning the subject before a judgment is produced, maintaining, cancelling, or otherwise settling the matter ; and this registration, or cancellation, or adjustment of the said right shall then be made by the Minister of Agriculture in accordance with such decision. 20. Clerical errors happening ia the framing or copying of any instru- ment drawn in the office of the Minister of Agriculture shall not be construed as invalidating the same, but when discovered they may be corrected under the authority of the Minister of Agriculture. 21 . All copies or extracts certified from the officer of the Minister of Agriculture shall be received in evidence without further proof, and without production of the originals. 22. Should a work copyrighted in Canada become out of print, a complaint may be lodged by any person with the Minister of Agriculture who, on the fact being ascertained to his satisfaction, shall notify the copyright owner of tbe complaint and of the fact ; and if, within a reason- able time, no remedy is applied by such owner, the Minister of Agriculture may grant a license to any person to publish a new edition or to import the work, specifying the number of copies, and the royalty to be paid on each to the copyright owner. 23. The application for the registration of an interim copyright, of a temporary copyright, and of a copyright may be made in the name of the author or of his legal representative by any person purporting to be the agent of the said author, and any fraudulent assumption of such authority shall be a misdemeanor, and shall be punished by fine and imprisonment accordingly ; and any damage caused by a fraudulent or an erroneous assumption of such authority shall be recoverable before any court of competent jurisdiction. 24. If any person shall wilfully make or cause to be made any false entry in the registry books of the Minister of Agriculture, or shall wilfully Dol. c. 1 00 50 50 1 00 50 714 THE LAW OF COPYRIGHT. produce or cause to be tendered in evidence any paper falsely purporting to be a copy of an entry in the said books, he shall be guilty of a mis- demeanor, and shall be punished accordingly. 25. If a book be published anonymously it shall be sufficient to enter it in the fname of the first publisher thereof, either on behalf of the unnamed author or on behalf of such first publisher, as the case may be. 26. It shall not be requisite to deliver any printed copy of the second or of any subsequent edition of any book or books unless the same shall contain very important alterations or additions. 27. No act or prosecution for the recovery of any penalty under this Act shall be commenced more than two years after the cause of action arose. The following fees shall be payable to the Minister of Agriculture before an application for any of the purposes herein-after mentioned Bhall be entertained ; that is to say, On registering a copyright . On registering an interim copyright On registering a temporary copyright Ou recording an assignment . On certified copy of registration On registering any decision of a court of justice, for every folio ....... 60 On office copies of documents not above mentioned, the following charges shall be made : Dol. c. For every single or first folio certified copy . 50 For every subsequent one hundred words (fractions from and under fifty being not counted, and over fifty being counted for one hundred). 25 (2.) The said fees shall be in full of all services performed under this Act by the Minister of Agriculture, or by any person em- ployed by him in pursuance of this Act. (3.) All fees received under this Act shall be paid over to the Eeeeiver General and form part of the Consolidated Revenue Fund of Canada. No fees shall be made the subject of exemption in favour of any person, and no fee exacted by this Act, once paid, shall be returned to the person who paid it. 28. " The Copyright Act of 1868," being the Act thirty-first Victoria, chapter fifty-four, and all other Acts or parts of Acts inconsistent with the provisions of this Act, are hereby repealed, subject to the provisions of the next following section. 29. All copyrights heretofore acquired under the Acts or parts of Acts repealed shall, in respect of the unexpired terms thereof, continue unim- paired, and shall have the same force and effect as regards the province or provinces to which they now extend, and shall be assignable and renewable, and all penalties and forfeitures incurred and to be incurred under the same may be sued for and enforced, and all prosecutions commenced before the passing of this Act for any such penalties or 38 & 39 vict. c. 93. 715 forfeitures already incurred may be continued and completed as if sucli Acts were not repealed. 30. In citing this Act it shall be sufficient to call it " The Copyright Act of 1S75." 38 & 39 Vict. c. 93. An Act to Amend the Copyright of Designs Act. [13th August, 1875.] Be it enacted by the Queen's most excellent Majesty, by and with the advice and consent of the Lords spiritual and temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows : 1. This Act shall come into operation on the first day of January Commence- one thousand eight hundred and seventy-six, which day is in this ment of Act. Act referred to as the commencement of this Act. 2. On and after the commencement of this Act all powers, duties, Transfer to and authorities vested in, imposed on, or to be exercised by the commissioners Board of Trade under the Acts mentioned in the Schedule to this of patents , of powers aud Act shall be transferred to, vested in, and imposed on the Com- duties of Board missioners of Patents for Inventions, and the said Acts shall be of 1'rade under construed as if the said Commissioners of Patents were throughout q^J" s A t substituted for the Board of Trade or the Lords of the Committee of the Privy Council for the consideration of all matters of trade and plantations. 3. The said Commissioners of Patents may from time to time Power for make, and when made, revoke and alter, general rules for regulat- commissioners ing registration under the Acts mentioned in the Schedule hereto, generaH-ules and this Act, and on and after the commencement of this Act any discretion or power vested in the registrar under the said Acts shall be subject to the control of the Commissioners of Patents and shall be exercised by him in such manner and with such limitations and restrictions (if any) as may be prescribed by the said general rules, and any provisions contained in the said Act as to the copies, drawings, prints, descriptions, information, matters, and particulars to be furnished to the registrar, and generally as to any Act or thing to be done by the registrar, may be modified by such general rules in such manner as the Commissioners of Patents may think Expedient. General rules made in pursuance of this section shall be laid before parliament within one month after they are made if Parliament be then sitting, or if not, within one month after the commencement of the then next session ; and if either House of Parliament resolve within one month after such rules have been laid before such House that any of such rules ought not to continue in force, any rule in 716 THE LAW OF COPYRIGHT. Transfer of duties of re- gistrar to officers of Com' missioners of Patents. Short title of Acts. respect of which such resolution has been passed shall, after the date of such resolution, cease to be of any force, without prejudice nevertheless to the making of any other rule in its place, or to anything done in pursuance of any such rules before the date of such resolution. The office of registrar under the Acts mentioned in the Schedule to this Act shall cease to exist as a separate paid office, and the Commissioners may from time to time make arrangements as to the mode in which and the person or persons by whom the duties of registrar and other duties under the said Acts are to be per- formed and may from time to time delegate to any such person or persons all or any of the duties of the registrar, and any person or persons to whom such duties may be delegated shall, in so far as delegation extends, be deemed to be the registrar within the mean- ing of the said Acts. Any arrangement or delegation of duties to the clerk or other officer of the Commissioners of Patents made by the Board of Trade shall be as valid as it would have been if this Act had been passed at the date of such arrangement or delegation and the same had been made by the Commissioners of Patents. 5. Each of the Acts mentioned in the Schedule to this Act may be cited as the Copyright of Designs Act of the year in which it was passed, and the said Acts may, together with this Act, be cited as the Copyright of Designs Act 1842 to 1875, and this Act may be cited as the Copyright of Designs Act, 1875. • SESSION AND CHAPTER. TITLE. 5 & 6 Vict. c. 100. 6 & 7 Vict. c. 65. 13 & 14 Vict. c. 104. 21 & 22 Vict. c. 70. 24 & 25 Vict. c. 73. An Act to consolidate and amend the Laws relating to the Copyright of Designs for ornamenting Articles of Manufacture. An Act to amend the Laws relating to the Copyright of Designs. An Act to extend and amend the Acts relating to the Copyright of Designs. An Act to amend the Act of the 5th and 6th year of Her present Majesty to consolidate and amend the Law relating to the Copy- right of Designs for ornamenting Articles of Manufacture. An Act to amend the Law relating to the Copyright of Designs. 39 & 40 yict. c. 36. 717 39 & 40 Vict. o. 36. [24th July 1876.] " The Customs Consolidation Act, 1876." 42. The goods enumerated and described in the following table Prohibitions of prohibitions and restrictions incurred are hereby prohibited to a ° d restl ' ic - be imported or brought into the United Kingdom, save as thereby excepted, and if any goods so enumerated and described shall be imported or brought into the United Kingdom contrary to the prohibitions or restrictions contained therein, such goods shall be forfeited, and may be destroyed or otherwise disposed of as the Commissioners of Customs may direct. A Table of Prohibitions and Restrictions inwards. Goods prohibited to be imported. Books wherein the copyright shall be first subsisting, first Table of pro- composed, or written or printed, in the United Kingdom, and nibit ; ons and restrictions printed or reprinted in any other country, as to which the pro- prietor of such copyright or his agent shall have given to the Commissioners of Customs a notice in writing, duly declared, that such copyright subsists, such notice also stating when such copy- right will expire. ■ The Commissioners of Customs shall cause to be made, and to be List of pro- publicly exposed at the Custom Houses in the several ports in the hibited books United Kingdom, lists of all books wherein the copyright shall be a ° Custom 56 subsisting, and as to which the proprietor of such copyright, or his House, agent, shall have given notice in writing to the said commissioners that such copyright exists, stating in such notice when such copy- right expires, accompanied by a declaration made and subscribed before a collector of customs or a justice of the peace, that the contents of such notice are true. 45. If any person shall have cause to complain of the insertion of Persons com- any book in such lists.it shall be lawful for any judge at chambers, P laln ™g of ii i- i.- ^ii. i ■ ■ j. ■ prohibition of on the application of the person so complaining, to issue a summons, £„„],.,, ^ c opT . calling upon the person upon whose notice such book shall have right lists may been so inserted to appear before any such judge at a time to be a PP eal . to a appointed in such summons, to show cause why such book shall chambers, not be expunged from such lists, and any such judge shall at the time so appointed proceed to hear and determine upon the matter of such summons, and make his order thereon in writing; and upon service of such order, or a certified copy thereof, upon the Commissioners of Customs or their secretary for the time being, the said commissioners shall expunge such book from the list, or ' *" THE LAW OP COPYRIGHT. retain the same therein, according to the tenor of such order ; and in case such books shall be expunged from such lists, the importa- tion thereof shall not be deemed to be prohibited. If at the time appointed in any such summons the person so summoned shall not appear before such judge, then upon proof by affidavit that such summons, or a true copy thereof, has been personally served upon the person so summoned, or sent to him by post to or left at his last known place of abode or business, any such judge may proceed ex parte to hear and determine the matter ; but if either party be dissatisfied with such order, he may apply to a superior court to review such decision and to make such further order thereon as the court may see fit : Provided always, that nothing herein con- tained shall affect any proceeding at law or in equity which any party aggrieved by reason of the insertion of any book pursuant to any such notice, or the removal of any book from such list pursuant to any such order, or by reason of any false declaration under this Act, might or would otherwise have against any party giving such notice or obtaining such order, or making such false declaration. As to the Channel Islands and other Possessions. Foreign re- 152. Any books wherein the copyright shall he subsisting, first prints of books composed or written or printed in the United Kingdom, and right pro- printed or reprinted in any other country, shall be and are hereby hibited. absolutely prohibited to be imported into the British Possessions abroad : provided always, that no such books shall be prohibited to be imported as aforesaid, unless the proprietor of such copyright, or his agent, shall have given notice in writing to the Commissioners of Customs that such copyright subsists, and in such notice shall have stated when the copyright will expire ; and the said com- missioners shall cause to be made and transmitted to the several ports in the British Possessions abroad, from time to time to be publicly exposed there, lists of books respecting which such notice shall have been duly given, and all books imported contrary thereto shall be forfeited ; but nothing herein contained shall be taken to prevent Her Majesty from exercising the powers vested in her by 10 & 11 Vict. c. 95, intituled " An Act to amend the Law relating to the protection in the Colonies of works entitled to copyright in the United Kingdom," to suspend in certain cases such prohibition. ( 719 ) APPENDIX (B). Eevised Statute of the United States being the Act of July 8th, 1870, as contained in the Eevised Statutes, Second Edition, 1878. Copyrights to be under charge of Librarian of Congress. 4948. All records and other things relating to copyrights and re- quired by law to be preserved, shall be under the control of the Librarian of Congress, and kept and preserved in the Library of Congress ; and the Librarian of Congress shall have the immediate care and supervision thereof, and, under the supervision of the joint committee of Congress on the Library, shall perform all acts and duties required by law touching copyrights. Seal of Office. 4949. The seal provided for the office of the Librarian of Congress shall be the seal thereof, and by it all records and papers issued from the office and to be used in evidence shall be authenticated. Bond of Librarian. 4950. The Librarian of Congress shall give a bond, with sureties to the Treasurer of the United States, in the sum of five thousand dollars, with the condition that he will render to the proper officers of the Treasury a true account of all moneys received by virtue of his office. Annual Report. 4951. The Librarian of Congress shall make an annual report to Congress of the number and description of copyright publications for which entries have been made during the year. What Publications may be entered for Copyright. 4952. Any citizen of the United States or resident therein, who shall be the author, inventor, designer, or proprietor of any book, map, chart, dramatic or musical composition, engraving, cut, print, 720 THE LAW OF COPYRIGHT. or photograph or negative thereof, or of a painting, drawing, chromo, statue, statuary, and of models or designs intended to be perfected as works of the fine arts, and the executors, administrators, or assigns of any such person shall, upon complying with the pro- visions of this chapter have the sole liberty of printing, reprinting, publishing, completing, copying, executing, finishing, and vending the same; and, in the case of a dramatic composition, of publicly performing or representing it, or causing it to be performed or re- presented by others. And authors may reserve the right to dramatise or to translate their own works. Terms of Copyright. 4953. Copyrights shall be granted for the term of twenty-eight years from the time of recording the title thereof, in the manner hereinafter directed. Continuance of Term. 4954. The author, inventor, or designer, if he be still living and a citizen of the United States or resident therein, or his widow or children, if be be dead, shall have the same exclusive right con- tinued for the further term of fourteen years, upon recording the title of the work or description of the article so secured a second time, and complying with all other regulations in regard to original copyrights, within six months before the expiration of the first term. And such person shall, within two months from the date of said renewal, cause a copy of the record thereof to be published in one or more newspapers, printed in the United States, for the space of four weeks. Assignment of Copyrights and recording. 4955. Copyrights shall be assignable in law, by any instrument of writing, and such assignment shall be recorded in the office of the Librarian of Congress within sixty days after its execution ; in default of which it shall be void as against any subsequent pur- chaser or mortgagee for a valuable consideration, without notice. Deposit of Title and published Copies. 4956. No person shall be entitled to a copyright unless he shall, before publication, deliver at the office of the Librarian of Congress or deposit in the mail addressed to the Librarian of Congress, at Washington, district of Columbia, a printed copy of the title of the book or other article, or a description of the painting, drawing, chromo, statue, statuary, or a model or design for a work of the fine arts for which he desires a copyright, nor unless he shall also, APPENDIX (B). 721 within ten days from the publication thereof, deliver at the office of the Librarian of Congress or deposit in the mail addressed to the Librarian of Congress, at Washington, District of Columbia, two copies of such copyright, book or other article, orin case of a painting, drawing, statue, statuary, model, or design for a work of the fine arts, a photograph of the same. Booh of Entry and attested Copy. 4957. The Librarian of Congress shall record the name of such copyright book or other article, forthwith, in a book to be kept for that purpose, in, the words following : " Library of Congress, to wit : Be it remembered that on the day of , A. B., of , hath deposited in this office the title of a book (map, chart, or otherwise, as the case may be, or description of the article), the title or description of which is in the following words, to wit (here insert the title or description) ; the right whereof he claims as author, (originator, or proprietor as the case may be), in conformity with the laws of the United States respecting copyrights. C. D., Librarian of the Congress." And he shall give a copy of the title or description, under the seal of the Librarian of Congress, to the proprietor whenever he shall require it. Fees. 4958. The Librarian of Congress shall receive, from the persons to whom the services designated are rendered, the following fees :— First. For recording the title or description of any copyright book or other article, fifty cents. Second. For every copy under seal of such record actually given to the person claiming the copyright, or his assigns, fifty cents. Third. For recording any instrument of writing for the assign- ment of a copyright, fifteen cents for every one hundred words. Fourth. For every copy of an assignment, ten cents for every one hundred words. All fees so received shall be paid into the Treasury of the United States. Copies of Copyright Works to be furnished to Librarian of Congress. 4959. The proprietor of every copyright book or other article shall deliver at the office of the Librarian of Congress, or deposit in the mail addressed to the Librarian of Congress at Washington, District of Columbia, within ten days after its publication, two complete printed copies thereof, of the best edition issued or description or photograph of such article as hereinbefore required, o A 722 THE LAW OF COPYRIGHT. and a copy of every subsequent edition wherein any substantial changes shall be made. Penalty for omission. 4960. For every failure on the part of the proprietor of any copy- right to deliver or deposit in the mail either of the published copies or description or photograph, required by sections four thousand nine hundred and fifty-six, and four thousand nine hundred and fifty-nine, the proprietor of the copyright shall be liable to a penalty of twenty-five dollars, to be recovered by the Librarian of Congress, in the name of the United States, in an action in the nature of an action of debt, in any district court of the United States within the jurisdiction of which the delinquent may reside or be found. Postmaster to give Receipts. 4961. The postmaster to whom such copyright book, title, or other article is delivered, shall, if requested, give a receipt therefor ; and when so delivered he shall mail it to its destination. Publication of Notice of 'Entry for Copyright prescribed. 4962. No person shall maintain an action for the infringement of his copyright unless he shall give notice thereof by inserting in the several copies of every edition published, on the title-page or the page immediately following, if it be a book ; or if a map, chart, musical composition, print, cut, engraving, photograph, painting, drawing, chromo, statue, statuary, or model or design intended to be perfected and completed as a work of the fine arts, by inscribing upon some portion of the face or front thereof, or on the face of the substance on which the same shall be mounted the following words : " Entered according to the Act of Congress in the year , by A. B., in the office of the Librarian of Congress at Washington." Penalty for false Publication of Notice of Entry. 4963. Every person who shall insert or impress such notice, or words of the same purport, in or upon any book, map, chart, musical composition, print, cut, engraving, or photograph, or other article, for which he has not obtained a copyright, shall be liable to a penalty of one hundred dollars, recoverable one half for the person who shall sue for such penalty, and one half to the use of the United States. Damages for violation of Copyright of Boohs. 4964. Every person who after the recording of the title of any book as provided by this chapter shall, within the term limited, and APPENDIX (b). 723 without the consent of the proprietor of the copyright first obtained in writing, signed in presence of two or more witnesses, print, publish, or import, or knowing the same to be so printed, published, or imported, shall sell or expose to sale any copy of such book, shall forfeit every copy thereof to such proprietor, and shall also forfeit and pay such damages as may be recovered in a civil action by such proprietor in any court of competent jurisdiction. For violating Copyright of Maps, Charts, Prints, &c. 4965. If any person, after the recording of the title of any map, chart, musical composition, print, cut, engraving, or photograph, or chromo, or of the description of any painting, drawing, statue, statuary, or model or design intended to be perfected and executed as a work of the fine arts, as provided by this chapter, shall, within the term limited and withou tthe consent of the proprietor of the copyright first obtained in writing, signed in presence of two or more witnesses, engrave, etch, work, copy, print, publish/or import, either in whole or in part, or by varying the main design with intent to evade the law, or, knowing the same to be so printed published, or imported, shall sell or expose to sale any copy of such map or other article as aforesaid, he shall forfeit to the proprietor all the plates on which the same shall be copied, and every sheet thereof, either copied, or printed, and shall further forfeit one dollar for every sheet of the same found in his possession, either printing, printed, copied, published, imported, or exposed for sale ; and in case of a painting, statue or statuary, he shall forfeit ten dollars for every copy of the same in his possession, or by him sold or exposed for sale ; one half thereof to the proprietor and the other half to the use of the United States. For violating Copyright of Dramatic Compositions. 4966. Any person publicly performing or representing any dramatic composition for which a copyright has been obtained without the consent of the proprietor thereof, or his heirs or assigns, shall be liable for damages therefor, such damages in all cases to be assessed at such sum, not less than one hundred dollars for the first, and fifty dollars for every subsequent performance, as to the court shall appear to be just. Damages for printing or publishing any Manuscript without consent of Author, &c. 4967. Every person who shall print or publish any manuscript whatever, without the consent of the author or proprietor first 3 A 2 724 THE LAW OF COPYRIGHT. obtained, if such author or proprietor is a citizen of the United States, or resident therein, shall be liable to the author or proprietor for all damages occasioned by such injury. Limitation of Action in Copyright Cases. 4968. No action shall be maintained in any case of forfeiture or penalty under the copyright laws, unless the same is commenced within two years after the cause of action has arisen. Defences to Action in Copyright Cases. 4969. In all actions arising under the laws respecting copyrights, the defendant may plead the general issue, and give the special matter in evidence. Injunctions in Copyright Cases. 4970. The circuit courts, and district courts having the jurisdic- tion of circuit courts, shall have power, upon bill in equity, filed by any party aggrieved, to grant injunctions to prevent the violation of any right secured by the laws respecting copyrights, according to the course and principles of courts of equity, on such terms as the court may deem reasonable. Aliens and Non-Residents not Privileged. 4971. Nothing|in this chapter shall be construed to prohibit the printing, publishing, importation, or sale of any book, map, chart, dramatic or musical composition, print, cut, engraving, or photograph, written, composed, or made by any person not a citizen of the United States nor resident therein. Act of June 18, 1874. (18 U.S. St. at L. 78.) An Act to amend the Law relating to Patents, Trade-marks and Copyrights. Be it enacted by the Senate and House of Eepresentatives of the United States of America in Congress assembled, That no person shall maintain an action for the infringement of his copyright unless he shall give notice thereof by inserting in the several copies of every edition published, on the title-page or the page immediately following, if, it be a book ; or if a map, chart, musical composition, print, cut, engraving, photograph, painting, drawing, chromo, statue, statuary or model, or design intended to be perfected and completed as a work of the fine arts, by inscribing upon some visible portion APPENDIX (b). 725 thereof or of the substance on which the same shall be mounted, the following words, viz. : " Entered according to Act of Congress, in the year , by A. B., in the office of the Librarian of Congress, at Washington ; " or at his option the word " Copyright," together with the year the copyright was entered, and the name of the party by whom it was taken out ; thus : " Copyright 18 , byA.B." Fees for recording and certifying Assignments of Copyright. 2. That for recording and certifying any instrument of writing for the assignment of a copyright, the Librarian of Congress shall receive from the persons to whom the service is rendered, one dollar ; and for every copy of an assignment, one dollar ; said fee to cover, in either case, a certificate of the record under seal of the Librarian of Congress ; and all fees so received shall be paid into the Treasury of the United States. "Restrictions on application of Words " Engraving" " Cut" and " Print." 3. That in the construction of this Act, the words " engraving," " cut," and " print," shall be applied only to pictorial illustrations or works connected with the fine acts, and no prints or labels designed to be used for any other articles of manufacture shall be entered under the copyright law, but may be registered in the Patent Office. And the Commissioner of Patents is hereby charged with the supervision and control of the entry or registry of such prints or labels in conformity with the regulations provided by law as to copyright of prints, except that there shall be paid for recording the title of any print or label not a trade-mark, six dollars, which shall cover the expense of furnishing a copy of the record under the seal of the Commissioner of Patents, to the party entering the same. "Repeal of inconsistent Laws. 4. That all laws and parts of laws inconsistent with the for " going provisions be and the same are hereby repealed. 5. That this Act shall take effect on and after the first day ot August, eighteen hundred and seventy-four. Approved, June 18, 1874. 726 THE LAW OF COPYRIGHT. OFFICIAL REGULATIONS. Directions for securing Copyrights under the Eevi6ed Act of Congress which took effect 1st August, 1874. Printed Title for Entry before Publication. 1. A printed copy of the title of the book, map, chart, dramatio or musical composition, engraving, cut, print, photograph, or a description of the painting, drawing, chromo, statue, statuary, or model or design for a work of the fine arts, for which copyright is desired, must be sent by mail or otherwise, prepaid, addressed — Librarian of Congress, Washington, D. C. This must be done before publication of the book or other article. Copyright Fees. 2. A fee of 50 cents, for recording the title of each book or other articlo, must be enclosed with the title as above, and 50 cents in addition (or one dollar in all) for each certificate of copyright under seal of the Librarian of Congress, which will be transmitted by return mail. What is required to perfect Copyright. — Penalty. 3. Within ten days after publication of each book or other article, two complete copies of the best edition issued must be sent, to perfect the copy- right, with the address — Librarian of Congress, Washington, D. C. It is optional with those sending books and other articles to perfect copy- right to send them by mail or express, but in either case the charges are to be prepaid by the senders. Without the deposit of copies above required the copyright is void, and a penalty of 25 dollars is incurred. No copy is required to be deposited elsewhere. Notice of Copyright to be given by Imprint. 4. No copyright is valid unless notice is given by inserting in every copy published, on the title page or the page following, if it be a book ; or if a map, chart, musical composition, print, cut, engraving, photograph, painting, drawing, chromo, statue, statuary, or model or design intended to be perfected as a work of the fine arts, by inscribing upon some portion thereof, or on the substance on which the same is mounted, the following words, viz. : " Entered according to Act of Congress, in the year , by , in the office of the Librarian, of Congress at Washington ; " or, at the option of the person entering the copyright, the words " Copyright, 18 , by .*' The law imposes a penalty of 100 dollars upon any person who has not obtained copyright who shall insert the notice " Entered according to Act of Congress," or " Copyright," &c, or words of the same import, in or upon any book or other article. APPENDIX (B). 727 Translations, &a. 5. Any author may reserve the right to translate or to dramatise his own ■work. In this case notice should be given by printing the words " Right of translation reserved," or " All rights reserved," below the notice of copy- right entry, and notifying the Librarian of Congress of such reservation, to be entered upon the record. Duration of Copyright. — Renewals. 6. Bach copyright secures the exclusive right of publishing the book or article copyrighted for the term of 28 years. At the end of that time the author or designer, or his widow or children, may secure a renewal for the further term of 1 4 years, making 42 years in all. Applications for renewal must be accompanied by explicit statement of ownership in the case of the author, or of relationship in the case of his heirs, and must state definitely the date and place of entry of the original copyright. Time of Publication. 7. The time within which any work copyrighted may be issued from the press is not limited by any law or regulation, but depends upon the discre- tion of the proprietor. A copyright may be secured for a projected work as well as for a completed one. 8. Any copyright is assignable in law by any instrument of writing, but such assignment must be recorded in the office of the Librarian of Congress within 60 days from its date. The fee for this record and certificate is one dollar, and for a certified copy of any record of assignment, one dollar. Copies, or Duplicate Certificates. 9. A copy of the record (or duplicate certificate) of any copyright entry will be furnished under seal, at the rate of 50 cents each. Serials or separate Publications to be copyrighted separately. 10. In the case of books published in more than one volume, or of periodicals published in numbers, or of engravings, photographs, or other articles published with variations, a copyright is to be taken out for each volume or part of a book, or number of a periodieal, or variety, as to size, title, or inscription, of any other article. Copyrights for Works ef Art. 11. To secure a copyright for a painting, statue, or model or design in- tended to be perfected as a work of the fine arts, so as to prevent infringe- ment by copying, engraving, or vending such design, a definite description must accompany the application for copyright, and a photograph of the same, at least of " cabinet size," must be mailed to the Librarian of Congress within 10 days from the completion of the work. 728 THE LAW OF COPYEIGHT. No Labels copyright. 12. Copyrights cannot be granted upon trade-marks, or labels intended to be used with any article of manufacture. If protection for such prints or labels is desired, application must be made to the Patent Office, where they are registered at a fee of six dollars for labels, and 25 for trade- marks. Full Name of Proprietor required. 13. Every applicant for a copyright must state distinctly the name and residence of the claimant, and whether the right is claimed as author, designer, or proprietor. No affidavit or formal application is required. Office of the Librarian of Congress, Washington, 1874. ( 729 ) APPENDIX (C). Her Majesty's Orders in Council consequent upon the Arrange- ment and Settlement of an International Copyright Treaty with Prussia. (Similar orders were issued on the adjustment of the convention with, Brunswick, 2ith April, 1847, with Hanover, 30th October, 1847, with the Thuringian Union, 10th August, 1847, &c.) At the Court at Osborne House, Isle of Wight, the 27th day of August, 1846. Present — The Queen's most excellent Majesty in Council. Whereas a treaty has been concluded between Her Majesty and His Majesty the King of Prussia, whereby due protection has been secured within the Prussian dominions for the authors of books, dramatic works, or musical compositions, and the inventors, designers, or engravers of prints, and articles of sculpture, and the authors, inventors, designers, or engravers of any other works whatsoever of literature and the fine arts, in which the laws of Great Britain and of Prussia do now, or may hereafter, give their respective subjects the privileges of copyright, and for the lawful representatives or assigns of such authors, inventors, designers, or engravers, with regard to any such works first published within the dominions of Her Majesty. Now, therefore, Her Majesty, by and with the advice and consent of Her Privy Council, and by virtue of the authority committed to her by an Act passed in the session of Parliament holden in the seventh and eighth years of -her reign, intituled " An Act to amend the Law relating to International Copyright," doth order, and it is hereby ordered, that, from and after the first day of September, one thousand eight hundred and forty-six, the authors, inventors, designers, engravers, and makers of any of the following works (that is to say), books, prints, articles of sculpture, dramatic 730 THE LAW OP COPYRIGHT. works, musical compositions, and any other works of literature and the fine arts, in which the laws of Great Britain give to British subjects the privilege of copyright, and the executors, administra- tors, and assigns of such authors, inventors, designers, engravers, and makers respectively, shall, as respects works first published within the dominions of Prussia, after the said first day of Septem- ber one thousand eight hundred and forty-six, have the privilege of copyright therein for a period equal to the term of copyright which authors, inventors, designers, engravers, and makers of the like works respectively, first published in the United Kingdom, are by law entitled to ; provided such books, dramatic pieces, musical compositions, prints, articles of sculpture, or other works of art, have been registered, and copies thereof have been delivered, according to the requirements of the said recited Act, within twelve months after the first publication thereof in any part of the Prussian dominions. And it is hereby further ordered, that the authors of dramatic pieces and musical compositions, which shall, after the said first day of September, one thousand eight hundred and forty-six, be first publicly represented or performed within the dominions of Prussia shall have the sole liberty of represent- ing or performing in any part of the British dominions such dramatic pieces or musical compositions, during a period equal to the period during which authors of dramatic pieces and musical compositions first publicly represented or performed in the United Kingdom are entitled by law to the sole liberty of representing or performing the same ; provided such dramatic pieces, or musical compositions, have been registered, and copies thereof have been delivered according to the requirements of the said recited Act, within twelve calendar months after the time of their being first represented or performed in any part of the Prussian dominions. And the Eight Honourable the Lords Commissioners of Her Majesty's Treasury are to give the necessary orders herein accordingly. (Signed) C. C. Gebville. At the Court at Osborne House, Isle of Wight, the 27th day of August, 1846. Present — The Queen's most excellent Majesty in Council. Whereas by an Act passed in the present session of Parliament, intituled " An Act to amend an Act of the seventh and eighth APPENDIX (C). 731 years of Her present Majesty, for reducing, under certain circum- stances, the duties payable upon Books and Engravings," it is enacted, that whenever Her Majesty has, by virtue of any authority vested in her for that purpose, declared that the authors, inventors, designers, engravers, or makers of any books, prints, or other works of art first published in any foreign country or countries, shall have the privilege of copyright therein, it shall be lawful for Her Majesty, if she thinks fit, from time to -time, by any Order in Council, to declare that from and after a day to be named in such Order, in lieu of the customs, from time to time payable, on the importation into the United Kingdom of books, prints, and drawings, there shall be payable only such duties of customs as are mentioned in the said Act. And whereas Her Majesty hath this day, by virtue of the authority vested in her for that purpose, declared that the authors, inventors, designers, engravers, and makers of books, prints, and certain other works of art, first published within the dominions of Prussia, shall have the privilege of copyright therein. Now, therefore, Her Majesty, by and with the advice and consent of her Privy Council, and in virtue of the authority committed to her by the said recited Act, doth order, and it is hereby ordered, that, from and after the first day of September, one thousand eight hundred and forty-six, in lieu of the duties now payable upon books, prints, and drawings, published at any place within the dominion of Prussia, there shall be payable only the duties of customs following (that is to say) : On books originally produced in the United Kingdom, and republished at any place within the dominions of Prussia, a duty of two pounds ten shillings per hundred-weight. On prints or drawings, plain or coloured, published at any place within the dominions of Prussia : s. d. Single, each Oj Bound or sewn, the dozen . . 14 And the Eight Honourable the Lords Commissioners of Her Majesty's Treasury are to give the necessary orders herein accordingly. (Signed) C. C. Gkbvillk. 732 THE LAW OF COPYRIGHT. APPENDIX (D). Directions issued by the Board of Trade fob Registration of Designs. ORNAMENTAL DESIGNS. Directions for Registering and Searching. Persons proposing to register a design for ornamenting an article of manufacture, must bring or send to the Designs Office : 1. Two exactly similar copies, drawings (or tracings), NOT IN PENCIL, photographs, or prints thereof, with the proper fees. 2. The name and address of the proprietor or proprietors, or the title of the firm under which he or they may be trading, together with their place of abode, or place of carrying on business, distinctly written or printed. 3. The number of the class in respect of which such registration is intended to be made, except it be for sculpture. The aforesaid copies may consist of portions of the manufactured articles (except carpets, oil-cloths, and woollen shawls), when such can con- veniently be done (as in the case of paper-hangings, calico, prints, &c), which, as well as the drawings or tracings (which must be fixed), or prints of the design, to be furnished when the article is of such a nature as not to admit of being pasted in a book, must, whether coloured or not, be facsimiles of each other. Should paper-hangings or furnitures exceed 42 inches in length by 23 inches in breadth, drawings will be required, but they must not exceed these dimensions. Applications for registering may be made in the following form : — Application to register. (Blank Forms may be obtained at the Office.) CD. Works, 188 . You are hereby requested to register, provisionally (a) the accompanying ornamental designs (in Class 1, [2, 3, 4, *c.,]) (or for sculpture (&)) (a) If not provisionally, strike out the word " provisionally." (6) Here insert "for sculpture," if for sculpture, ir ihe class or classes. APPENDIX (d). 733 in the name of ((a) A. B. of , of ,) or (A. Tt. of and C- D. of , &c, trading under the style or firm of B. D. & Co., of , of , of ), who claim to be the proprietors thereof, and to return the same (if sent by post), directed to I if brought by hand), to the bearer of the official acknowledgment for the same. To the Registrar of Designs, (Signed) B. D. & Co., Designs Office, London. by J. F. The person bringing a design must take an acknowledgment for it, which will be delivered to him on payment of the proper fees. This acknowledgment must be produced on application for the certified copy, which will be returned in exchange for the same. A design may be registered in respect of one or more of the above classes according as it is intended to be employed in one or more species of manufacture, but a separate fee must be paid, and two exactly similar copies supplied, on account of each separate class, and all such regis- trations must be made at the same time. After the design has been registered, one of the two copies, drawings (or tracings), or prints will be filed at the office, and the other returned to the proprietor, with a certificate annexed, on which will appear the mark to be placed on each article of manufacture to which the design shall have been applied. If the design is for an article registered under Class 10, no mark is required, but there must be printed on sueh article, at each end of the original piece thereof, the name and address of the proprietor, and the word "registered," together with the years for which the design is registered. If the design is for sculpture, no mark is required to be placed thereon after registration, but merely the word " registered " and the date of registration. If the design is for provisional registration, no mark is required to be placed thereon after registration, but merely the words "provisionally registered" and the date of registration. Any person who shall put the registration mark on any design not registered, or after the copyright thereof has expired, is liable to forfeit for every such offence £5. Transfers. In case of the transfer of a design, registered, whether provisionally or completely, the certified copy thereof must be transmitted to the registrar, together with the fee and forms of application (which may be procured at the office), properly filled up and signed. The transfer will then be registered and the certified copy returned. Extension of Copyright. The copyright may be extended in certain cases in provisional regis- tration, for a term not exceeding the additional term of six months, and in (a) InBert here the name and address of the proprietor, in the form in which it is to be entered on the certificate. 734 THE LAW OF COPYRIGHT. complete registration for a terra not exceeding the additional term of three years, as the Board of Trade may think fit. In case of extension, the certified copy, together with the proper fee, should be delivered at the Designs Office for registration, prior to the expiration of tlie existing copyright. Searches. All designs of which the copyright has expired may be inspected at the Designs Office, on the payment of the proper fee ; but no design, the copyright of which is existing, is in general open to inspection. Any person however, may, by application at the office, and on production of tbe registration mark, except in Class X., of any particular design, be furnished with a certificate of search, stating whether the copyright be in existence, and in respect to what particular article of manufacture it exists : also, the term of such copyright and the date of registration, and the name and address of the registered proprietor thereof. Any party may also, on the production of a piece of the manufactured article with the pattern thereon, together with the registration mark, be informed whether such pattern, supposed to be registered, is really so or not. As this mark is not applied to a provisionally registered design, or to articles registered under Class X, certificates of search for such designs will be given on production of the design, or a copy or drawing thereof ■with the number and date of registration. Persons bringing designs to be registered, on delivering them, must compare such designs together, count them, and ' see that the name and address and number of class is correctly written, and examine tlieir certificates previous to leaving the office, to see that the name, &c, is correctly entered, as no error can afterwards be rectified. An acknowledgment of its receipt will be delivered, on payment of the fees, to the person bringing a design, and no certified copy of a design, will be returned, except to the bearer of this acknowledgment, which must be produced on application at the office for the certified copy, and given in exchange for the same. All communications for the registration of designs may be made either through the General Post Office, directed to " The Registrar of Designs, Designs Office, London, S.W.," or by any other mode of conveyance ; and provided the carriage be paid, and the proper fees, or a Post Office Order for the amount, payable at the Post Office, Charing Cross, to J. H. Bowen, Esq., be inclosed, the designs will be duly registered, and the certified copies returned to the proprietors free of expense. Postage-stamps, orders upon banlcers or other persons, country and Scotch banlt-notes, and light gold, cannot be received in payment of fees. The Designs Office, No. 1, Whitehall, S.W., is open every day, between the hours of 10 in the morning and i in the afternoon, during which time inquiries and searches may be made. Designs and transfers are registered from 11 until 3. Directions for registering designs for articles of utility may be procured at the office. By Order of the Registrar. APPENDIX (D). 735 ORNAMENTAL DESIGNS. 1. Eegiatration of Ornamental Designs nnder theBe Acts may be either Complete or Provisional. Conditions of Complete Registration. 2. Under the Designs Act, 1842, 5 & G Viet. c. 100, and the amending Acts, the author or proprietor of " any new and original design, whether such design be applicable to the ornamenting of any article of manufacture, or of any substance, artificial or natural, or partly artificial and partly natural, and that whether such design be so applicable fVr the pattern, or for the shape or configuration, or for the ornament thereof, or for any two or more of such purposes," may obtain a copyright or property in such design far various terms, according to the class to whicii the article of manufacture or substance belongs. 3. The design should not have been published, either within the United Kingdom of Great Britain and Ireland, or elsewhere, previous to its registration. 4. Articles of manufacture and substances to which designs may be applied are divided into 13 classes given in the following table. Opposite to each class are placed the respective terras for which copyright in each class may be obtained, and the registration fees payable on each design :-<- Class. Copyright. 1. Articles composed wholly or chiefly of metal 2. 3. 4. Do. Do. Do. ware, bone, do. do. wood do. do. glass do. do. earthen- ivory, papier-mache or other («: solid substances not comprised in Classes j 1, 2, and 3 ) 5. Paper hangings . . 3 6. Carpets, floor-cloths, or oil-cloths .... 3 7. Shawls (patterns printed, &c, &c.) .... 9 Do. do. extended term of 9 Do. do. for the whole term of 18 8. Shawls (not comprised in Class 7) . ' . . . 3 9. Yarn, thread, or warp (printed, &c, &c.) . . 9 10. Woven fabrics (patterns printed, &c, &c), "i except those included in Class 11 . . ./ 11. Woven fabrics, technically called furnitures! (patterns printed, &c, &c), the repeat of the \ 3 pattern exceeding 12 inches by 8 inches . J 12. Woven fabrics (not comprised in any preceding'! class) J Do. do. extended term of Do. do. extended term of Do. do. whole term of 13. Lace and any other articles not comprised iti\ any preceding class / (a) See proviso 21 & 22 Vict. c. 70, s. 3. Registration Fees. £ s. 1 1 1 1 10 1 o months 1 6 7 1 1 years months years 1 5 12 months 5 year 8 years 16 1 12 months 5 736 THE LAW OF COPYEIGHT. Transfers, &c. Transfer (see paragraph 21) \ Certifying former registration (to proprietor of design) I -p Cancellation or substitution (according to decree or j _ n order in Chancery) J . 5. A design may be registered in respect of one or more of the above classes, according as it is intended to be employed in one or more species of manufacture, but a separate fee must be paid, and two exactly similar copies supplied, on account of each separate class, and all such registrations must be made at the same time. 6. Persons proposing to register a design must bring or send to the Designs Office — (1.) Two exactly similar copies, drawings, tracings (not in pencil), photographs, or prints of the design, with the prescribed fees. (2.) The name and address of the proprietor or proprietors, or the title of the firm under which he or they may be trading, together with his or their place of abode or place of carrying on business, distinctly written or printed. (3.) The number of the class in respect of which registration is intended to be effected. The two facsimile copies of the design to be furnished may consist of portions of the manufactured articles, when such can conveniently be sent, as in the case of paper hangings, calico prints, &c. Portions of carpets, however, will not be received. When drawings or tracings are furnished they must be " fixed." In the case of designs applied to articles which from their nature are incapable of being pasted into books, photographs or prints of such designs may be furnished. 7. Should paper hangings or furnitures exceed 42 inches in length, by 23 inches in breadth, drawings will be required, which must not exceed those dimensions. 8. Applications to register may be made in the following form (blank Forms may be obtained at the Office) : — Application to Register. Form. 18S . You are hereby requested to register the accompanying Design in Class , in the name of ( (a) A. B. of ,of ) or (A. B. of ,and C- D. of , . [publisher] of , of the other part. Whereas the said A. B. is the author and proprietor of a certain work entitled ; and Whereas there is now a demand for a new edition of such work being the edition. Now these presents witness that the said A. B. doth hereby agree with the said C. D. that he the said 0. D. shall be the sole publisher of the said edition of the said work at a commission of pounds per cent. And that he the said A. B. will within days next hereafter deliver to such printer as the said C. D. shall name a portion of the copy of the said work and continue to supply him with copy thereof until the whole is completed ; And that the said C. D. shall indemnify the said A. B. from all losses to be incurred as well in the printing and publishing of the said work as after its publication or by reason of the said work not selling. And it is hereby agreed that it 3 c 754 THE LAW OP COPYEIGHT. shall be lawful for the said C. D. out of the profits and proceeds of the said work in the first place to deduct and repay himself the expenses of the paper, printing, advertisements, warehouBe-room, insurance money, and commission after the rate aforesaid. And that he the said 0. D. will render a full and faithful account to the said A. B. on the day of and on the day of in every year of the sale and proceeds of the said edition. In witness, &e. No. 9. — Agreement for the editing of a Work between the Publisher and Editor, with variations where for translating a Worlt. (a) This Agbeement made the day of 188 , Between A. B., of [publisher] &c., of the one part, and C. D. [editor'] of &c, of the other part, Whereas the said A. B. some time since published a certain work written and composed by C. D., and entitled . And whereas there is a demand for a new edition of the said work. And whereas the said A. B. has agreed with the said C. D. to edit and make ready for publication as hereinafter is mentioned, a new edition (being the ,) of the said work [to be contained in volumes] for the sum of pounds. Now therefore these pbesents witness that the said 0. D., in consideration of the sum of £ , to be paid to him by the said A. B. in manner hereinafter mentioned, agrees with the said A. B. that he will edit and prepare for publication the edition of the said work. And will also examine and correct the proof sheets of the said work in its progress through the press. And that he will complete and render fit for publication the [first volume of the] said work by the day of next [the second volume by the day of &c. (according to the number of volumes.)] And further that the said C. D. will render the said edition of the said work as complete as possible, and will make all necessary and proper additions, and corrections, and add such observations and information to the said work as shall occur to him, and exert himself to the utmost to render the said work valuable and popular. And the said A. B. agrees to pay unto the said C. D. for editing the said volumes the said sum of £ in the proportions and at the times here- inafter mentioned (that is to say) the sum- of £ being one part thereof on the first of the said volumes being ready for publication, and the like sum of £ on each of them the said second and third of the said three volumes {or according to the number of volumes) being ready for publication. In witness, &c. (a) Where the agreement Is for translating a work, leave out the recitals of the precedent above and insert: "Whereas a certain work has lately been published in Germany in the German language entitled . And whereas the said A. B. is desirous that a translation of the said work should be made and perfected by the said C. D. Now these presents witness that in consideration of the payment of the sum hereinafter mentioned to him the said C. D., he the said C. D. agrees that he will well and faithfully translate the said work into English, and will complete the same on or before the day of ■" to APPENDIX (F). 755 No. 10. — Agreement between a Publisher and Engraver fot the engraving of a Painting. This Agreement made the day of 188 <. Between A. B. [publisher] of &c, of the one part, and C. D. [engraver] of &c, of the other part. Whereas the said A. B. is desirous of publishing a line [or mezzotinto] engraving of a certain painting called , and painted by Mr. .Now therefore these presents witness that in consideration of the sum of £ to be paid in the manner hereinafter mentioned, he the said C. D. agrees that he will at his own cost and charges engrave and execute a perfect and correct line [or mezzotinto] engraving on copper [or steel] plate of the said painting called . . And the said engraving shall be inches long and inches broad, and that the copper [or steel] on which the same shall be engraved shall be inches long, and inches broad. And that the said C. D. will complete the same on or before the day of . And shall at his own -expense takeoff and print complete impressions from the said plate, on good and proper paper and deliver them to the said A. B. And the said A. B. agrees to pay the said sum of £ in manner hereinafter mentioned (that is to say) the sum of £ on the day of , and the sum of £ (the residue thereof) on the day of , if the said work shall be completed at such last mentioned time. And it is hereby agreed that the said 0. D. shall be allowed to retain complete impressions of the said engraving for the use of himself and friends, but it shall not be lawful for the said 0. D. to sell or dispose of the same. In witness, &c. No. 11. — Agreement between an Artist and a Purchaser respecting a Painting, and the Copyright therein, under the 25 & 26 Vict. c. 68. The purchase money being payable by Instalments. Articles op Agreement made the day of 188. Between A. B. [artist] of &c, of the one part, and C. D. [purchaser] of &c, of the other part. Whereas the said A. B. is the artist of and is now engaged in finishing an original drawing or painting called or intended to be called or known as . And whereas the said C. D. hath contracted and agreed with the said A. B. for the absolute purchase of the said drawing or painting, and the copyright thereof, or the sole and exclusive right of copying, engraving, reproducing and multiplying such drawing or painting and the design thereof by any means and of any size whatsoever at the price or sum of £ to be paid by the several instalments and in manner hereinafter appearing. Now these presents witness, and it is hereby agreed and declared by and between the parties hereto as follows : — 1. The said A. B. shall forthwith proceed to complete and finish the said drawing or painting called or intended to be called or known as to the satisfaction in all respects of the said C. D. and deliver the same to him, his executors, administrators, or assigns, or his or their order, com- pletely finished and perfected on or before the day of next. 2. The copyright in the said drawing or painting and the sole and exclusive 3 o 2 756 THE LAW OP COPYRIGHT. right of copying, engraving, reproducing and multiplying such drawing, or painting, and the design thereof by any means, and of any size whatsoever, shall upon the execution of these presents become and be vested in the said CD., his executors, administrators, and assigns, and should the said C.D., his executors, administrators, or assigns at any time hereafter during the existence of the said copyright require a more formal assignment, the said A. B. shall duly assign unto the said C. D. his executors, administrators, and assigns the said copyright, and do or cause to be done all such acta and assurances as may be by him or them deemed necessary or advisable for vesting the said copyright in the said C. D., his executorB, administrators and assigns. 3. The said 0. D. shall and will on the execution hereof pay or cause to be paid unto the said A. B. the sum of £ , part of the said purchase money, or sum of £ , and shall and will pay or cause to be paid unto the said A. B. his executors, administrators, or assigns the sum of £ by equal payments or instalments of £ to be paid by equal yearly payments on the. day of in each year until the whole of the said purchase moneys shall be satisfied, and this without any deduction or abate- ment on any acoount whatsoever, the first of such annual instalments to be made on the day of . And shall and will also pay or cause to be paid unto the said A. B., his executors, administrators, or assigns, interest on the said sum of £ or the balance of the said purchase money for the time being remaining unpaid at the rate of £ per centum per annum to be computed from the day of next. 4. Any formal assignment which may be required by the said C. D. under the provisions hereinbefore contained shall contain covenants on the part of the said A. B., his heir, executors, and administrators, that he the said A. B. hath good right to assign and assure the said copyright and premises unto the said C. D., his executors, administrators, and assigns free from any charge or incumbrance whatsoever, that the same shall and may during the term specified in the first section of the 25 & 26 Vict. c. 68, be exercised and enjoyed accordingly by the said C .D., his executors, adminis- trators, and assigns without any lawful interruption or disturbance, and also a covenant for further assurance in the ordinary and usual form. 5. The ordinary arbitration clause. In witness, &c. No. 12. — Agreement to write an Opera. Memorandum of an Agreement made the day of Between A. B., of the one part, and C. D., of the other part. Mr. 0. D. engages to write a full opera for musical performance at one of the large theatres, on the following terms :— 1. That the copyright of the said opera shall remain the property of the said C. D. except as hereinafter mentioned. 2. That the price for the performance of the said opera to be charged by C. D. to managers of country theatres (that is, of all theatres in the United Kingdom, except those in, or within five miles of, London) shall not exceed the sum of twenty shillings nightly, (a) («) The object of this stipulation being tbat the amount of the charge should not prevent the performance of the opera. APPENDIX (P). 757 3. That the sum to be paid the said C. D. by the said A. B. for writing the said opera shall be pounds, lawful money of Great Britain, to be paid in the following manner, viz., pounds on the signature of the present agreement, a second sum of pounds within a month of this date, pounds on the delivery of the complete manu- script of the said opera, and the remaining sum of pounds on the day following the first night of the performance of the said opera. 4. That the said A. B. shall have all the profits and benefits arising from the right of representation of the said opera in London, or within five miles thereof, and shall he at liberty to make arrangements with any manager for its performance within the aforesaid distance from London. 5. That the said A. B. shall have the entire and exclusive right of publishing, with the music, all the poetry or words of the vocal portions of the said opera, for the sole benefit of the said A. B., but not the right of publishing such poetry or words independently of the music. And the said A. B. doth hereby agree for the purchase of the said opera, at -the price and under the regulations aforesaid, the said 0. D. also agreeing to deliver the complete manuscript of the said opera within six months of the present date, under the penalty of one hundred pounds. Provided always, that the said C. L\ is not prevented completing the manuscript by the necessity of alterations or additions suggested by the composer of the music of the said opera, which alterations or additions the said C. D., however, engages to make (to any reasonable extent) previous to the first performance of the said opera. (Signed) A. B. Witness 758 THE LAW OF COPYRIGHT. APPENDIX (G). FORMS WHICH MAY BE USED UNDER THE 25 & 26 VICT. o. 68. No. 1. — Form for entire reservation of Copyright by the Author where his Work has been Commissioned. Memorandum of Agreement made the day of 188 . Between A. B., of , of the one part, and C. D., of , of the other part. Whereas the said A. B. has at the request of the said C. D. made for him at the price of £ a drawing [or painting or photograph] being [shortly describe the subject"]. Now this Agreement witnesseth that at or before the time of the sale or disposition of such drawing [or painting or photograph^] it was agreed between the said parties hereto that all the cppyright in such work (including the making repetitions thereof) should be the property of the said A. B., and that he should be entitled to sell or otherwise dispose of all sketches and studies made, designed, or executed in connection with the said work. In witness, &o. No. 2. — Form for entire reservation of Copyright by Author, where he first sells his non-commissioned Work. Memorandum oe Agreement made the day of 188 . Between A. B., of , of the one part, and C. D., of , of the other part. Whereas the said C. D. hath agreed to purchase from the said A. B. at the price of £ a drawing [or painting or photograph] being [shortly describe the subject]. Now this Agreement witnesseth that at or before the time of the sale of such drawing [or painting or photograph] it was agreed between the said parties hereto that all the copyright in such work (including the making of repetitions thereof), should be the property of the said A. B., and that he should be entitled to sell or otherwise dispose of all sketches and studies made, designed, or executed in connection with the said work. In witness, &c. APPENDIX (G). 759 No. 3. — Form for partial reservation of Copyright by the Author where his Work has been Commissioned. Memorandum of Agreement made the day of 188 . Between A. B., of , of the one part, and C. D., of , of the other part. Whereas the said A. B. has at the request of the said 0. D. made for him at the price of £ a, painting [or drawing or photograph] being [shortly describe the subject"]. Now this Agreement witnesseth that at or before the time of the sale of the said painting [or drawing or photograph] it was agreed between the said parties hereto that all copyright thereof for the purpose of making all engravings and photographs therefrom should be the property of the said A. B. And that the said A. B. should be entitled to sell or otherwise dispose of all sketches and studies made, designed, or executed in connection with the said work. In witness, &c. No. i. — Form for Partial ^Reservation of Copyright by the Author where he first sells Ms non-commissioned Work. Memorandum of Agreement made the day of 188 . Between A. B., of , of the one part, and C. D., of , of the other part. Whereas the said C. D. has agreed to purchase from the said A. B. at the price of £ a painting [or drawing or photograph] being [shortly describe the subject]. Now this Agreement witnesseth that at or before the time of the sale of the said painting [or drawing or photograph] it was agreed between the said parties hereto that all copyright thereof for the purpose of making all engravings or photographs therefrom should be the property of the said A. B., and that the said A. B. should be entitled to sell or otherwise dispose of all sketches and studies made, designed, or executed in connection with the said work. In witness, &c. No 5. — Licence by Proprietor of Copyright. I, A. B., of , being the proprietor of the copyright in a painting [or drawing or photograph] in consideration of the sum of £ paid to me by C. D. of , do hereby grant to the said 0. D. the sole and exclusive liberty and licence to copy, use, and apply the design of such work for all purposes of engraving and photographing the same. [Any additional terms may be here mentioned.] A. B. To Mr. 0. D. 760 THE LAW OF COPYRIGHT. APPENDIX (H). FOBMS OF INJUNCTIONS. Literary Copyright. No. 1. — Restraining publication of Poems. That the defendant, &c, be restrained from printing, reprinting, publish- ing, or exposing to sale any copy or edition of a certain book or poem, entitled ' Paradise Lost,' composed by John Milton, or of the life of the said John Milton, or of the notes of various authors upon the said poem, com- piled by Dr. Thomas Newton, until the hearing of this cause ; and it is further ordered that the plaintiffs do speed their cause. — Eldon, L.C., in Tonson v. Walker, 3 Swan. 681. No. 2. — Topographical Dictionary. Let the defendant, his agents, servants, and workmen be restrained from further printing, publishing, selling, or otherwise disposing of any copy or copies of a book called ' A New and Comprehensive Gazetteer ' contain- ing any articles or article, passages or passage, copied, taken, or colourably altered from a book called ' The Topographical Dictionary of England,' published by the plaintiffs. — Lewis v. Fullarton, 2 Beav. 6, 14. No. 3. — Order restraining publication of Books, awarding Damages, and directing an Account. That the defendants be restrained from printing, publishing, and selling any copies or copy of a third or any subsequent edition of the plaintiffs book called ' The Practice of Photography.' It was ordered that the defendants deliver to the plaintiff all copies of the third edition of the plaintiff's book in the pleadings mentioned, the defendants offering to pay 251. to the plaintiff in full of all claims for profit upon the sale of the said edition. If the plaintiff accept such offer, it was ordered that the defendants pay the same accordingly ; but if the plaintiff does not accept such offer, then it was ordered that the usual accounts be taken of the' gains and profits received by the defendants from the third edition of the plaintiff's book.— Wood, V.C., in Delfe v. Delamotte, 3 K. & J., 581. No. 4. — Use of Name —Injury to Employer's Property. That the defendant be restrained from publishing, issuing, or circulating any such advertisements, circulars, or letters as aforesaid, containing any APPENDIX (H). 761 statement or representation that the defendant is interested or concerned in any annual, book, or publication, other than 'Beeton'a Christmas Annual' so published from year to year by the plaintiffs, or .that the defendant's connection with the plaintiff's firm is terminated, or that the use of the defendant's name by the plaintiffs for the purposes of their said ' Beeton's Christmas Annual ' is improper or unauthorized. — Malins, V.C., in Ward v. Beeton, L. B. 19 Eq. 211. No. 5. — Publication of a Magazine as a continuation of Plaintiff's That the defendants &c, be restrained from publishing or exposing to sale any copy or copies of the defendant's said work, and from printing, publishing, or exposing to sale any other work or publication as or being a continuation of the plaintiff's work, or of the defendant's work which had been so published as such continuation as aforesaid, and from printing all or any part or parts of the plaintiffs said work ; and that the injunction shall be continued as to any letters, &c, admitted by the answer to have been received from correspondents T>y the defendant, while publishing for the plaintiff. — LordEldon, C, in Hogg v. Kirby, 8 Ves. 215. No. 6. — Publication of Magazine in Breach of Contract. That the defendant, his servants, agents, and workmen be restrained from carrying on, or conducting the ' Temple Bar Magazine,' in the plaintiff's bill mentioned, but the order to be without prejudice to the publication of the said magazine until the hearing of the cause, so as that the name of the defendant Bentley do not appear on the title page or any other part ot the said publication or in any advertisements of the said publication, and this order to be without prejudice to the right (if any) of the plaintiff to damages or profits in respect to any publication of the said work. — Wood, V.C., in Ainsworth v. Bentley, 14 W. B. 632. No. 7. — Name and Title-page of Song. That the defendants, &c, be restrained from printing, publishing, selling, exposing for sale, or otherwise disposing of the said song ' Minnie Dale,' or any copy or copies thereof, or any other publication containing a colour- able imitation of the name, title, or title page of the plaintiff's said song. — Wood, V.C., in Chappell v. Sheard, 2 K. & J. 122. Titles. No. 8. — Name of Newspaper. That the defendants, their servants, workmen, and agents -be re- strained from printing, publishing or continuing to print or publish any newspaper or other periodical paper with or under the name or style of the Penny ' Bell's Life and Sporting News ;' or with or under any name or style of which the name, style, or words of ' Bell's Life ' shall form a part, or in anyway occur; and from using the said, name, style, or title of ' Bell's Life ' by way of name, style, or title to any newspaper or periodical without the licence or consent of the plaintiff. — Stuart, V.C., in Clement v. Maddick, 1 Giff. 101. 762 THE LAW OF COPYRIGHT. No. 9. — Name of Newspaper — Soliciting Customers. That the defendant, &c, be restrained from printing, or publishing, or exposing for sale, or procuring to be printed or sold, the newspaper publication called the ' True Britannia,' or any other newspaper or publication by way of a continuation or imitation of ' The Britannia,' and from soliciting custom in the name of the plaintiff's trade and business for ' The Britannia ' newspaper, and from pledging the plaintiff's credit, and from excluding the plaintiff from the accounts and particulars of the plaintiffs trade and business, and from concealing from the plaintiff the names of the subscribers to, and advertisers in, the plaintiffs newspaper ' The Britannia,' or any of them, or the amounts of their respective debts, or any particulars relating thereto. — Stuart, V.C., in Prowett v. Mortimer, 2 Jur. (N.S.) 414. No. 10. — Name of Newspaper. — Injury to Periodical. That the defendant, &c, be restrained from printing, publishing, or selling any newspaper or other periodical under the name of ' The Daily London Journal,' or under any other name or style of which the words ' London Journal ' shall form part, and from doing or committing any act or default that may tend to lessen or diminish the sale or circulation of the plaintifl's periodical called, ' The London Journal.'— Wood, V.O., in Ingram v. Stiff, 5 Jur. (N.S.) 947. Dbamatio and Musical Copyright. No. 11. — At to an Operatic Magazine. Let an injunction be awarded against the defendant to restrain him, his servants, agents, and -workmen until, &c, from selling or otherwise disposing of the portion of No. Ill in the 'Pianista and Italian Opera Promenade Concert Magazine of Pianoforte and Vocal Music,' containing three pianoforte solos from Mendelssohn's original composition of music to Shakespeare's ' Midsummer Night's Dream,' called respectively the ' Scherzo,' the ' Notturno,' and the ' Wedding March,' and also from reprinting or multiplying any further copies of the said No. Ill of the 'Pianista' which shall contain the said pieces, or any of them, and also from printing, publishing, or selling any portion of the said work or composition of music to Shakespeare's ' Midsummer Night's Dream,' composed and arranged by Felix Mendelssohn-Bartholdy, except the overture thereof. — Buxton v. James, 5 De 6. & Sm. 80. Engravings and Etchings. No. 12. — Collection of Etchings. That the defendant, W. S., his servants, agents, and workmen, be re- strained from exhibiting the gallery or collection of etchings in the bill mentioned, or any of such etchings, and from making or permitting to be made any engravings or copies of the same or any of them ; and from publishing APPENDIX (H). 763 the same or any of them, or parting with or disposing of the same or any of them ; and from selling or in any manner publishing, and from printing the descriptive catalogue in the plaintiffs bill mentioned. — Knight Bruce, V.O., in Prince Albert v. Strange, 2 De G. & Sm. 656. No. 13. — Etchings improperly obtained and published ; Catalogues improperly published — Decree — Delivery up. By the decree it was declared that the plaintiff was entitled to have delivered to him the impressions (by the answer of defendant Judge admitted to be in his possession) of such of the several etchings in the pleadings mentioned, as in the catalogue, and in the pleadings were stated to have been etched by the plaintiff; that is to say [they were described by reference to the numbers in the catalogue] ; and it was ordered that Judge should, within four days after the service of the decree, deliver up the impressions above specified on oath, and leave them with the Clerk of Eecords and Writs, at the Eecord Office. And it was ordered that the defendant Strange should, within four days after service of the decree, deliver to the Clerk of Eecords and Writs, at the said office, the twenty-three copies of the catalogue, being the same as were mentioned in the decree in the other suit of even date. And the decree contained similar directions as to six copies of the catalogue admitted by Judge to be in his possession, and the Clerk of Eecords and Writs was ordered to destroy these copies of the catalogue, giving notice to the solicitors of the several parties of the time and place at which he intended to do so. And it was ordered that the defendants, their servants, &c, should be restrained from making, or permitting to be made, any engraving or copy of such etchings, or any of them ; and from publishing the same ; and from parting with, or disposing of them, or any of them, except in obedience to the deoree : and from selling or in any manner publishing the catologue or any work being or purporting to be a catalogue of the etchings made by the plaintiff. Provision made for costs. Liberty to apply reserved. — Knight Bruce, V.C., in Prince Albert v. Strange, 2 De G. & Sm. 717. No. 14. — Illustrated Book. That the defendants, their agents, and servants be restrained from printing or publishing or selling or exposing for sale or hire, or otherwise disposing of, or causing, procuring, or permitting to be printed, published, sold, exposed for sale or hire, or otherwise disposed of, any further or other copies or copy of a book called ' The Comical History and Tragical End of Beynard the Pox,' or any other book, work, publication, or thing, con- taining any passage, article, print, wood-cut, engraving, illustration, matter, or thing taken or copied, or colourably altered from any passage, article, print, wood-cut, engraving, matter, or thing contained in a book of the plaintiff's, entitled ' The Comical Creatures from Wurtemberg, including the story of Beynard the Fox, with twenty illustrations drawn from the stuffed animals contributed by Hermann Ploucquet, of Stuttgart, to the Great Exhibition,' wherein copyright subsisted or belonged to the plaintiff.— Parker, V.C., in Bogue v. Eoulston, 16 Jur. 372. 761 THE LAW OF COPYRIGHT. Designs. No. 15. — As to Catalogue of Designs. Let a perpetual injunction be awarded to restrain the defendant, his servants, agents, and printers, from publishing, printing, selling, delivering, or otherwise disposing of the sheet of monumental designs in the bill mentioned, or any other sheet in the compilation of which the plaintiffs book of monumental designs has been used, and from copying or pirating any part of the said book. — Grace v. Newman, L. K. 19 Eq. 623. No. 16. — -4s to Woven Fabrics, and delivery up of Articles. That the injunctions awarded on the day of , against the defendants, restraining them, and each of them, their workmen, servants, and agents, . from selling or disposing of any of the articles of manufacture to which the plaintiffs design, in the plaintiff's bill mentioned, or a fraudulent imitation thereof, had been applied, as in the said bill mentioned, and from applying the plaintiff's said design or any fraudulent imitation thereof, to any woven fabrics or articles of manufacture, be continued until over the day of , and that the defendants should forthwith deliver up to the plaintiffs, for the purpose of being destroyed, the drawing or drawings, point paper, and the several cards used in applying the design in the plaintiff's bill mentioned ; and also the articles manufactured by the defendants to which the said plaintiff's design had been applied, the same to be verified by affidavit, and that such costs, when taxed, be paid by the defendants : and on payment thereof, that all further proceedings in this suit should be stayed, unless the defendants committed any breach of the injunction already awarded ; and any of the parties were to be at liberty to apply to the Court, as there should be occasion. — Knight Bruce, V.O., in MacRae v. Eoldsworth, 2 De G. & Sm. 499. Places where various Forms of other Injunctions may he found. 17. Injunctions staying publishing of newspaper ' The Real John Bull. — Edmonds v. Beriboio, cited Seton on Decrees. 18. Injunctions as to partial infringement. — BaMridge v. Briggs, cited Seton. 19. Injunctions as to Selections from Poems, 'Book of the Poets.' — Campbell v. Scott, 11 Sim. 31 ; Pemberton's Judgments, 287. 20. Injunction as to Handbook. — Colburn v. Simms, 2 Hare, 543; Pemberton's Judgments, 289. 21. Injunctions as to Directories. — Kelly v. Morris, Wood, V.C., L. K. Bq. 697 ; Pemberton's Judgments, 286. 22. Injunctions as to portions of work. ' The Guardian Angel.' — Low v. Ward, L. E. 6 Bq. 415 ; Pemberton's Judgments, 287. 23. Injunctions againBt piracy of book, and order as to damages, " The Pedigree of the English People.'— Pike v. Nicholas, L. E. 5 Oh. 251 ; Pem- berton's Judgments, 288. APPENDIX (H). 765 24. Injunction as to Directory — not to extend to advertisements, ' The Merchants' and Manufacturers' Pocket Directory of London, 1868.' ' The Business Directory of London.' — Morris v. Ashbee, L. K. 7 Eq. 84 ; Pemberton's Judgments, 286. 25. Injunctions against printing a dramatised novel. ' Lady Audley's Secret,' ' Aurora Floyd.' — TinsUy v. Lacy, 32 L.J. (Oh.) 535 ; Pemberton's Judgments, 292. 26. Injunction against piracy of maps, and inquiry as to damages, ' Bird's-eye View or Plan of Paris and its Fortifications.'— Stannard v. Harrison. Bacon, V.C. Pemberton's Judgments, 288. 27. Injunction under Designs Act as to Mantilla Shawls. — Norton v. Nicholas, 4 K. & J. 475 ; Pemberton's Judgments, 297. 28. Judgments making injunction perpetual as to Copyright. — Macltlin v. Richardson, Ambl. 694 ; Seton 944. 766 THE LAW OP COPYRIGHT. APPENDIX (I). Judgment of the Lords Justices in the late Case op Dicks v. Brooks, 15 Ch. Drv. 22, 34. James, L.J. : — The question before us resolves itself into this — whether this pattern for working in Berlin wool is a piratical copy of the print of which the defendants are the proprietors. It appears to me that the Vice-Chancellor fell into (if I may venture so to call it) the error of supposing that the case was within the Act, 8 Geo. 2. c. 13, which gave a protection, not to a mere engraver, but to a man of genius who by his industry, pains, and expense, invented a design, " or engraved, etched, or worked, or from his own work and invention caused to be designed and engraved, etched, or worked," and so on, " any historical print." Those 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. That Act was afterwards extended to embrace the case of persons engraving from something which was not the design of the engraver. Now it appears to me that the protection given by the subsequent Acts to the mere engraver was intended to be, and was commensurate with that which the engraver did, that the engraver did not acquire against anybody in the world any right to that which was the work of the original painter, did not acquire any right to the design, did not acquire any right to the grouping or composition, because that was not his work but the work of the original painter. What, as it seems to me, the Act gave him and intended to give him, was protection for that which was his own meritorious work. The art of the engraver is often of the very highest character, as in the print before me. It is difficult to conceive any skill or art much higher than that which has by a wonderful combination of lines and touches reproduced the very texture and softness of the hair, the very texture and softness of the dress, and the expression of love and admiration in the eyes of the lady looking up at her lover. That art or skill was the thing which, as I believe, was intended to be protected by the Acts of Parliament, and what we have to APPENDIX (i). 767 consider is, whether the wool pattern before us (the maker of which must have been aided in the production of it by having before him the defendants' print, or some kind of copy of it, because the wool pattern follows the print in some particulars in which the print differs from the picture) is a copy of the engraver's work ? It appears to me that without going into any etymological definition of the word " copy," and using the word in the ordinary sense of mankind as applied to the subject-matter, the question is, Is this a copy, is it a piracy, is it a piratical imitation of the engraving — of that which was the engraver's meritorious work in the print? I am of opinion, as a matter of fact, that the wool pattern is not a copy, is not a piratical imitation, with colourable variations of the defendants' engraving. The alleged copy is not a thing intended as a print in the ordinary sense of the word. It was intended to be printed, and was printed, as a pattern for Berlin wool, not put forward in any way fraudulently or as a sham, but really in truth intended solely for that purpose. Now, I am of opinion that, what- ever may be the similarities between the one and the other, the attempt not to reproduce the print, but to produce something which has some distant resemblance to the print, not by anything in the nature of the engraver's work, but by what I may call a mosaic of coloured parallelograms, is not in any sense of the word a piratical imitation of the print. Nobody would ever take it to be the print, nobody would ever buy it instead of the print, nobody would ever suppose that it was, to use the language of the first Act, a base copy of the print. It is a work of a different class, intended for a different purpose, and, in my opinion, no more calculated to injure the print qua print, or the reputation of the engraver, or the commercial value of the engraving in the hands of the proprietor, than if the same group were reproduced from the same engraving by waxwork at Madame Tussaud's, or in a plaster of Paris cast, or in a painting on porcelain. I cannot conceive that such a reproduction of the subject in tapestry, or Berlin wool, or upon china, or in earthenware, is within the meaning of the Act of Parliament. Whether dealing with it as a matter of law, or dealing with it, as we must do, as a matter of fact, I am satisfied that the appellants' pattern is not a copy or piracy of any part of that which constituted the real merit and labour of the engraver of the defendants' print. Baggallat, L.J. : — I also am of opinion that the Berlin wool pattern is not a copy of the defendants' print within the meaning of the statutes. Beliance has been placed upon the very general words of the 17 Geo. 3, c. 57, which refer to engraving, etching, or working, or 768 THE LAW OF COPYRIGHT. causing or procuring to be engraved, etched or worked in mezzo- tinto, or chiaroscuro, or otherwise or in any other manner copying in the whole or in part any print. Now, it 'is perfectly clear that those words must receive some limitation, for they cannot have been intended to apply to a lady copying a print or a part of a print upon a china plate, or to a person who for his own amusement makes an etching, drawing, or water-colour sketch from an engraving. If, then, we are to limit the meaning of the word " copy," how are we to judge of the extent to which it is to be limited? I think we can only do that by having regard to the preambles to the several statutes. We find an important preamble in the first Act, and then in the second and third of the Acts it is stated that the former Act has not been sufficient for effectuating the desired purpose. Now I think that in Oamiart v. Ball (a) the object of the Acts was well pointed out as being of twofold character, first, the protection of the reputation of the engraver; and, secondly, his protection against any invasion of his commercial property in the print. It seems to me idle to suggest that in this case the reputation of the engraver from whose hands this beautiful engraving proceeded will suffer from the publication of a print intended for the purpose of ladies or others working in Berlin wool from it, and as regards his commercial property it appears to me almost as absurd to imagine that the commercial position of the owner of the print could suffer by the sale or the publication of this article. I do not mean to say that a representation of this print in chromo-lithography, executed with that high skill and art with which works in chromo-lithography are now executed, could not be treated as a copy of the print prohibited by the statute. I do not say that it would be so, but I consider it a fairly arguable question. Here, however, though we have, no doubt, a young man and a young woman standing up in the centre of the picture in the same attitudes as in the print, in other respects the two designs have hardly anything in common. Again, this pattern cannot be called a work of art. The wool-work eventually to be made might probably be a work of art, but as for this pattern you might almost as well call a representation' of the king and queen on a ginger- bread stall at a fair a work of art. I am of opinion, therefore, that this pattern cannot be looked upon as a copy of the engraving within the intent and meaning of the Acts. Beamwell, L.J. : — I am of the same opinion and should add nothing were it not that I do not like differing from the learned Judge in the Court (a) 14 C. B. (N.S.) 306. APPENDIX (i). 769 below without showing that I have done my best to form an opinion upon the matter. I should have thought it tolerably plain, as has been said by the Lord Justice James, that the object of these statutes was to protect the engraver, and that what the Legislature contemplated was that his work as an engraver should not be pirated, that there should not be another plate made — another engraving, the engraver of which availed himself of what had been done by his predecessor. That this is the true construction of the Act of Parliament, is, I think, shewn by the expressions that are used, for instance, that the pirated plate is to be destroyed ; and I am very much inclined to think that the omission of the words " or otherwise copy " from the 7 Geo. 3, c. 38, was the result of an opinion on the part of its framer that that was the meaning of the first Act; and though the words " or otherwise copy " occur in the first Act and in the third, I think the intention was only to prohibit a piratical reproduction of the original engraving. I do not at all mean to say that the words " or otherwise copy " are to have no meaning ; I think they were put in with a view to the possibility that, by some means other than engraving, a copy might be made, the maker of which would be taking the benefit of the engraver's work, and produce a sort of equivalent or substitute for the engraving of what I may call an engraving character. I think that a strong argument in support of this view is furnished by the following considerations. It has been held that these statutes were partly for the protection of the fame of the artist. Now, how can his fame be injured, except by the circulation of something which might be taken to be his work? Is it conceivable that anybody could confound this pattern with an artistic engraving, and say, " Oh ! that must be the engraver's production ! " To my mind, that consideration furnishes a strong argument that what the Legislature had in view was a new engraving, or something which could be taken as an engraving or an equivalent to it. Now, what are the facts of this particular case? There is a picture'of which the defendants are not the owners. It is conceded that anybody might have gone to that picture and made a fresh engraving of it upon a fresh plate unless there had been some bargain which precluded his having a right to do so. It is con- ceded a multo fortiori that the persons who prepared this pattern might have gone to the picture and taken from it the materials for producing that pattern. A further fact that I may mention is this : I have very little doubt, and I should find it as a fact if necessary, that this pattern was either mediately or immediately got from the engraving, since it follows the engraving in par- ticulars in which the engraving differs from the original picture. 3 D 770 THE LAW OP OOPYEIGHT. But if the pattern might with these trifling variations have been taken from the original picture without infringing the engraving, how can it be possible to say that because the man who prepared it instead of going to the picture thought it more convenient to take this engraving, or possibly a smaller one, or possibly the etching (for any one of them would have served his purpose, because all he wanted was the outline), the case is brought within the Act ? 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. I give no opinion on the point, and I only mention it for the purpose of shewing that this particular case is not that which I have supposed, but is a case in which the man might have done everything that he has done by going to the picture instead of using the more con- venient, more accessible, and more manageable thing, the engraving. I cannot but think, therefore, with great submission to the learned Judge in the Court below, that this is not a copy within 'the statutes of Mr. Barlow's most beautiful engraving. ( 771 ) APPENDIX (K). INTEBNATIONAL CONVENTIONS. Convention between Her Majesty and the King of Prussia for the establishment of international copyright. Signed at Berlin, May 13, 1846. Art. I. The authors of books, dramatic works, or musical com- positions, and the inventors, designers, or engravers of prints, and articles of sculpture; and the authors, inventors, designers, or engravers of any other works whatsoever of literature and the fine arts, in which the laws of Great Britain and of Prussia do now or may hereafter give their respective subjects the privilege of Copy- right, shall, with regard to any such works or articles first published in either of the two States, enjoy in the other the same privilege of Copyright as would by law be enjoyed by the author, inventor, designer, or engraver of a similar work, if first published in such other State ; together with the same legal remedies and protection against piracy and unauthorised republication. The lawful representatives or assigns of authors, inventors, designers, or engravers, shall, in all these respects, be treated on the same footing as the authors, inventors, designers, or engravers themselves. Art. II. No person shall, in either country, be entitled to the protection stipulated by the preceding Article, unless the work in respect of which Copyright is claimed shall have been registered by the original producer, or by his lawful representatives or assigns, in the manner following : — First. If the work be one that has first appeared in the domi- nions of His Majesty the King of Prussia, it must have been regis- tered in the register-book of the Company of Stationers in London. Secondly. If the work be one that has first appeared in the dominions of Her Britannic Majesty, it must have been registered in the catalogue to be kept for that purpose at the office of His Prussian Majesty's Minister for Ecclesiastical, Educational, and Medical Affairs. 3 D 2 772 THE LAW OF COPYRIGHT. Nor shall any person be entitled to such protection as aforesaid, unless the laws and regulations of the respective States in regard to the work in respect of which it may be claimed shall have been duly complied with ; nor, in cases where there are several copies of the work, unless one copy of the best edition, or in the best state, shall have been delivered gratuitously at the place appointed by law for that purpose in the respective countries. A certified copy of the entry in the said register-book of the Company of Stationers in London shall be valid in the British dominions, as proof of the exclusive right of republication, until a better right shall have been established by any other party before a court of justice : — and the certificate given under the laws of Prussia, of the registration of any work in that country, shall be valid for the same purpose in the Prussian dominions. Art. III. The authors of dramatic and musical works which shall have been first publicly represented or performed in either of the two countries, as well as the lawful representatives or assigns of such authors, shall likewise be protected in regard to the public representation or performance of their works in the other country, to the full extent in which native subjects would be protected in respect of dramatic and musical works first represented or per- formed in such country ; provided they shall previously have duly registered their copyright in the oflices mentioned in the preceding Article, in conformity with the laws of the respective States. Art. IV. In lieu of the rates of duty which may at any time, during the continuance of this convention, be payable upon the importation into the United Kingdom of foreign books, prints, and drawings, there shall be charged upon the importation of books, prints, or drawings, published within the dominions of Prussia, and legally importable into the United Kingdom, only the rates of duty specified in the table hereto annexed ; that is to say — Duties on books, viz. — £ s. d. Works originally produced in the United Kingdom and republished in Prussia the cwt. 2 10 Works not originally produced in the United King- dom . the cwt. 15 Prints or drawings : — plain or coloured, single each 0! bound or sewed the dozen II It is understood that all works, of which any part was originally produced in the United Kingdom, will be considered as " works originally produced in the United Kingdom, and republished in Prussia," and will be subject to the duty of fifty shillings per cwt., APPENDIX (K). 773 although the same may contain also original matter produced else- where; unless such original matter shall be at least equal in bulk to the part of the work originally produced in the United Kingdom, in which case the work will be subject only to the duty of fifteen shillings per cwt. Art. V. It is agreed that stamps shall be provided according to a pattern to be made known to the Custom-house officers of the United Kingdom, and that the municipal or other authorities of the several towns in Prussia shall affix such stamps to all books intended for exportation to the United Kingdom. And no books shall, for the purposes of this convention, so far as the same re- lates to the rates of duty at which such books are to be entered, be deemed to have been published in Prussia, except such as appear by their title-page to have been published at some town or place within the dominions of Prussia, and which have been duly stamped by the proper municipal or other authority of any such town or place. Art. VI. Nothing in this convention shall be construed to affect the right of either of the two high contracting parties to prohibit the importation into its own dominions, of such books as, by its internal law, or under its treaties with other States, are declared to be piracies, or infringements of Copyright. Art. VII. In case either of the two high contracting parties shall conclude a treaty of International Copyright with any third power, a stipulation similar to that contained in the preceding Article shall be inserted in such treaty. Art. VIII. Those German States which, together with Prussia, compose the Customs and Commercial Union, or which may here- after join the said Union, shall have the right of acceding to the present convention; and books, prints, and drawings, published in any State so becoming a party to this convention, and exported from any other State also being a party to the same, shall be considered, for the purposes of this convention, to have been exported from the country of their publication. Art. IX. The present convention shall come into operation on the 1st of September, 1846. It shall remain in force for five years from that date, and farther, until the expiration of a year's notice, which may be given by either party, at any time after the 1st of September, 1851. Art. X. The present convention shall be ratified, and the ratifica- tions shall be exchanged at Berlin, at the expiration of two months, or sooner if possible. 774 THE LAW OF COPYRIGHT. Protocol signed by the two Plenipotentiaries on the conclusion of the preceding Convention. The undersigned plenipotentiaries of Her Majesty the Queen of Great Britain and Ireland, and of His Majesty the King oi Prussia, met together this day in order to sign the treaty drawn up on the basis of the negotiations which have taken place for the reciprocal proteetion of the right of authors against piracy and unauthorized reproduction. The two original copies of the treaty having been examined and found to correspond in form and contents with the concerted stipulations, the plenipotentiaries proceeded to sign the same, under the following conditions; such conditions, though not appearing of a nature to be admitted into the text of the treaty, nevertheless to be considered, on the ratification of the treaty, as thereby agreed to and ratified : — 1. With respect to Article II. : — Both Governments engage that the fees which may at any time be levied for the registering of a single work in the register-book of the Company of Stationers in London, or in the catalogue Of the office of His Prussian Majesty's Minister for Ecclesiastical, Educational, and Medical Affairs, shall not exceed the sum of one shilling sterling, or of ten silver groschen, as has been already declared on the part of Great Britain in a letter from the Board of Trade of the 2nd April, 1844, letter E. 2. With reference to the same Article : — The delivery of a copy gratuitously shall take place in Great Britain at the Stationers' Company in London, and in Prussia at the office of the Minister of Ecclesiastical, Educational, and Medical Affairs in Berlin. 3. With reference to Article IV. : — Both Governments agree, that the duty on musical works imported from Prussia into Great Britain shall not be greater than the duty on books im- ported from Prussia into Great Britain. 4. With reference to Article V. : — It is understood that the stamping agreed to in this Article will be confined to books and musical works (according to the interpretation of the word " books " given in Article II. of the Act of Parliament 5 & 6 Vict. c. 45, of 1st of July, 1842) ; whereas all other objects mentioned in Article I. of the convention this day signed 1 , will not require to be stamped in order to enable them to be imported into Great Britain at the rate of duty fixed for these objects by Article IV. of the present treaty. appendix (k). 775 Accession of the Kins of Saxony to the Convention con- cluded Mat 13, 1846, between Great Britain and Prussia, for the establishment of International Copy- right. Signed at Berlin, August 24, 1846. Her Majesty the Queen of the United Kingdom of Great Britain and Ireland, and His Majesty the King of Prussia, having con- cluded at Berlin, on the 13th of May, 1846, a convention for the reciprocal protection of Copyright against piracy ; and it having been stipulated in Article VIII. of that convention, that those German States which, together with Prussia, compose the German Union of Customs, or which may hereafter join that Union, should have the right of acceding to the said convention ; their Britannic "■ and Prussian Majesties have addressed to His Majesty the King of Saxony the invitation to accede thereto ; And His Majesty the King of Saxony being desirous of availing himself of the opportunity thus afforded to him of acceding to the said convention ; The plenipotentiary of His Majesty the King of Saxony in conse- quence declares, in virtue of his full powers, that His said Majesty accedes both to the convention of the 13th May, 1846, containing ten Articles, and of which a printed copy is annexed to the present Act, and to the special provisions contained in ss. 1-4 of the separate protocol signed on the same day, of which a copy is also hereunto annexed; promising that the stipulations of the said convention, which shall come into operation in the Kingdom of Saxony, from and after the 1st of September, 1846, as well as those of the separate protocol, shall be carried into execution by His Majesty the King of Saxony in all points, so far as they may be applicable to the relations which subsist between the Saxon Govern- ment and the British Government and its subjects ; subject, how- ever, to the express reservation, that Article II. of the convention shall be modified, with regard to Saxony, in the following manner, that is to say : No person in either of the two countries, either in the United Kingdom of Great Britain and Ireland, or in the Kingdom of Saxony, shall be entitled to the protection stipulated by Article I. of the convention, unless the work to be protected against piracy shall have been registered by the author or his agents in the follow- ing manner : — 1. If the work has first appeared in the dominions of His Majesty the King of Saxony, it must have been registered in the register- book of the Company of Stationers in London. 2. H the work has first appeared in the dominions of Her 776 THE LAW OF COPTKIGHT. Britannic Majesty, it must have been registered in the register- book kept by the Royal Direction of the Circle (die Bucherrolle) at Leipzig. Nor shall any person be entitled to the protection aforesaid, unless the laws and regulations of the respective States shall have been duly observed in regard to the work to be protected ; nor, in cases where there are several copies of the work, unless one copy of the best edition, or in the best state, shall have been delivered gratuitously to the authorities appointed for that purpose by the laws of the respective countries. A certified copy of the registration in the aforesaid register-book of the Company of Stationers in London, shall be valid in the British dominions, as proof of the exclusive right of publication, until a better right shall be established by any other party before a court of justice ; and the certificate given under the laws of Saxony, of the registration of any work in the aforesaid register-book at Leipzig, shall be equally valid in the dominions of His Saxon Majesty. The plenipotentiaries of Her Majesty the Queen of the United Kingdom of Great Britain and Ireland and of His Majesty the King of Prussia, in virtue of their full powers, accept the accession of His Majesty the King of Saxony ; promising that the stipulations of the convention of the 13th of May, 1846, as well as the special pro- visions which are contained in the protocol of the same date, and those which form the reservation above mentioned, shall be carried into execution by their respective sovereigns in all points, with regard to the Saxon Government and its subjects in the same manner as between the British and Prussian Governments and their subjects. Accession of the States forming the Thuringian Union, to the Convention concluded May 13, 1846, between Great Britain and Prussia, for the establishment of International Copyright. Signed at Berlin, July 1, 1847. Her Majesty the Queen of the United Kingdom of Great Britain and Ireland, and His Majesty the King of Prussia, having concluded at Berlin, on the 13th of May, 1846, a convention for the reciprocal protection of Copyright against piracy ; and having stipulated in Article VIII. of that convention, that those German States which, together with Prussia, compose the German Union of Customs, or which may hereafter join that Union, should have the right of acced- ing to the said convention ; their Britannic and Prussian Majesties APPENDIX (k). 777 have addressed to the States forming the Thuringian Union, that is to say, His Royal Highness the Grand Duke of Saxe- Weimar-Eisenach, their 'Royal Highnesses (Hoheiten) the Dukes of Saxe-Altenburg, Saxe-Coburg-Gotha, and Saxe-Meiningen, and their Serene High- nesses the Princes of Schwarzburg-Rudolstadt and Schwarzburg- Sondershausen, Reuss-Greitz, Reuss-Lobenstein-Eberdorf, and Reuss-Schleitz, the invitation to accede thereto ; And the said States being desirous of availing themselves of the opportunity thus afforded to them of acceding to the said conven- tion; The plenipotentiary of His Eoyal Highness the Grand Duke of Saxe-Weimar-Eisenach, as well as the plenipotentiary of their Royal Highnesses the Dukes of Saxe-Altenburg, Saxe-Coburg-Gotha, and Saxe-Meiningen, and of their Serene Highnesses the Princes of Schwarzburg-Rudolstadt and Schwarzburg-Sondershausen, Reuss- Greitz, Reuss-Lobenstein-Ebersdorf, and Reuss-Schleitz, in conse- quence declare, in virtue of their full powers, that their said Royal and Serene Highnesses accede both to the convention of the 13th May, 1846, containing ten Articles, and of which a printed copy is annexed to the present Act, and to the special provisions contained in ss. 1-4 of the separate protocol signed on the same day, of which a copy is also hereunto annexed ; promising that the stipulations of the said convention, which shall come into operation in the States of the Thuringian Union from and after the 15th of July, 1847, as well-as those of the separate protocol, shall be carried into execution by their said Royal and Serene Highnesses in all points, so far as they may be applicable to the relations which subsist between the States of the Thuringian Union . and the British Government and its subjects ; and declaring that English works registered, in virtue of Article II. of the convention, in the register- book kept at Berlin, shall be entitled also to protection against piracy in the said States. The plenipotentiaries of Her Majesty the Queen of the United Kingdom of Great Britain and freland, and of His Majesty the King of Prussia, in virtue of their full powers, accept the accession of their said Royal and Serene Highnesses; promising that the stipulations of the convention of the 13th of May, 1846, as well as the special provisions which are contained in the protocol of the same date, shall be carried into execution by their respective sovereigns in all points, with regard to the States of the Thuringian Union and their subjects, in the same manner as between the British and Prussian Governments and their subjects. 778 THE LAW OF COPYRIGHT. Note addressed, by the British Plenipotentiary to the Prussian Plenipotentiary on the signature of the preceding Act of Accession. The Act of Accession of the States forming the Thuringian Union of German Customs, to the convention concluded on the 13th of May, 1846, between Great Britain and Prussia, for the reciprocal protection of Copyright, having been this day signed by the respective plenipotentiaries, the undersigned, Envoy Extra- ordinary and Minister Plenipotentiary of Her Britannic Majesty, in accepting the proposition, according to which it will for the present be sufficient for the purpose of securing protection to an English work within the States of the said Union, that it should have been registered in the register-book kept at Berlin, gives at the same time, in the name of his Government, the formal assurance, that if hereafter, more than one other place, besides Berlin and Leipzig, should be selected by the members of the Zollverein who may accede to the convention of the 13th of May, 1846, for the registration of English books to be protected against piracy, the town of Weimar shall likewise be made a place of registration. In making the present declaration, the undersigned avails him- self, &c. Berlin, July 1, 1847. (Signed) WESTMORLAND. Sis Excellency the Baron de Canitz, &c. &c. Convention between Her Majesty and the King op Han- over, for the establishment of International Copy- right. Signed at London, August 4, 1847. Art. I. The authors of books, dramatic works, or musical composi- tions, and the inventors, designers, or engravers of prints and articles of sculpture ; and the authors, inventors, designers, or engravers of any other works whatsoever of literature and the fine arts, in which the laws of Great Britain and of Hanover do now or may hereafter give their respective subjects the privilege of copyright, shall, with regard to any such works or articles first published in either of the two States, enjoy in the other the same privilege of copyright as would by law be enjoyed by the author, inventor, designer, or ongraver of a similar work, if first published in such APPENDIX (k). 779 other State, together with the same legal remedies and protection against piracy and unauthorized republication. The lawful representatives or assigns of authors, inventors, designers, or engravers, shall, in all these respects, be treated on the same footing as the authors, inventors, designers, or engravers themselves. Art. II. No person shall in either country be entitled to the protec- tion stipulated by the preceding Article, unless the work in respect of which copyright is claimed shall have been registered by the original producer, or by his lawful representatives or assigns, in the manner following : — First. If the work be one that has first appeared in the dominions of His Majesty the King of Hanover, it must have been registered in the register-book of the Company of Stationers in London. Secondly. If the work be one that has first appeared in the dominions of Her Britannic Majesty, it must have been registered in the Catalogue to be kept for that purpose at the office of His Hanoverian Majesty's Minister of the Interior. Nor shall any person be entitled to such protection as aforesaid unless the laws and regulations of the respective States in regard to the work in respect of which it may be claimed, shall have been duly complied with, nor unless one copy of the work, or, in cases where there are several copies of the work, unless one copy of the best edition, or in the best state, shall have been delivered gratui- tously at the place appointed by law for that purpose in the respec- tive countries. A certified copy of the entry in the said register-book of the Company of Stationers in London shall be valid in the British dominions, as proof of the exclusive right of republication, until a better right shall have been established by any other party before a court of justice; and the certificate given underthe laws of Han- over of the registration of any work in that country shall be valid for the same purpose in the Hanoverian dominions. Art. III. The authors of dramatic and musical works which shall have been first publicly represented or performed in either of the two countries, as well as the lawful representatives or assigns of such authors, shall likewise be protected in regard to the public representation or performance of their works in the other country, to the full extent in which native subjects would be protected in respect of dramatic and musical works first represented or per- formed in such country ; provided they shall previously have duly registered their copyright in the offices mentioned in the preced- ing Article, in conformity with the laws of the respective States. Art. IV. In lieu of the rates of duty which may at any time, during the continuance of this convention, be payable upon the 780 THE LAW OP COPYRIGHT. importation into the United Kingdom of foreign books, musical works, prints, vmd. drawings, there shall be charged upon the im- portation of books, musical works, prints, or drawings, published within the dominions of Hanover, and legally importable into the United Kingdom/only the rates of duty specified in the table hereto annexed, that is to say — Duties on books and musical works, viz. : — £ s. d. Works originally produced in the United Kingdom and republished in Hanover .... the cwt. 2 10 Works not originally produced in the United King- dom the cwt. 15 Prints or drawings, plain or coloured . single, each 0j bound or sewed the dozen 14 It is understood, that all works of which any part was originally produced in the United Kingdom, will be considered as " works originally produced in the United Kingdom, and republished in Hanover," and will be subject to the duty of fifty shillings per cwt., although the same may contain also original matter produced else- where, unless such original matter shall be at least equal in bulk to the part of the work originally produced in the United Kingdom, in which case, the work will be subject only to the duty of fifteen shillings per cwt. Art. V. It is agreed that stamps shall be provided according to a pattern to be made known to the Custom-house officers of the United Kingdom, and that the municipal or other authorities of the several towns in Hanover shall affix such stamps to all books intended for exportation to the United Kingdom. And no books shall, for the purposes of this convention, so far as the same relates to the rates of duty at which such books are to be entered, be deemed to have been published in Hanover, except such as appear by their title-page to have been published at some town or place within the dominions of Hanover, and which have been duly stamped by the proper municipal or other authority. It is understood that the stamping agreed to in this Article will be confined to books and musical works (according to the interpre- tation of the word " books," given in section 2 of the Act of Parlia- ment 5 & 6 Victoria, cap. 45, of July 1, 1842), whereas all other objects mentioned in Article IV. will not require to be stamped in order to enable them to be imported into Great Britain, at the rate of duty fixed for those objects by the said Article. Art. VI. Nothing in this convention shall be construed to affect the right of either of the two high contracting parties to prohibit the importation into its own dominions of such books as, by its internal law, or under its treaties with other States, are declared to be piracies or infringements of copyright. APPENDIX (k). 781 Art VII. In case either of the two high contracting parties shall conclude a treaty of International Copyright with any third power, a stipulation similar to that contained in the preceding Article shall be inserted in such treaty. Art. VIII. Any German State which may choose to accede to the present convention, shall be admitted to it. Boots, musical works, prints, and drawings, published in any State so becoming a party to this convention, and exported from any other State, also being a party to the same, shall be considered, for the purposes of the conven- tion, to have been exported from the country of their publication. Art. IX. The present convention shall come into operation one calendar month after the exchange of the ratifications. It shall remain in force until the 1st of September, 1851 ; and further, until the expiration of a year's notice, which may be given by either party, at any time after the 1st of September, 1851. Art. X. The present convention shall be ratified, and the ratifi- cations shall be exchanged at Hanover, at the expiration of two months, or sooner if possible. Protocol signed by the Plenipotentiaries on the conclusion of the preceding Convention. The undersigned plenipotentiaries of Her Majesty the Queen of the United Kingdom of Great Britain and Ireland, and of His Majesty the King of Hanover, met together this day in order to sign the treaty drawn up on the basis of the negotiations which have taken place for the reciprocal protection of the rights of authors against piracy and unauthorized republication. The two original copies of the treaty having been examined and found to correspond in form and contents with the concerted stipulations, the plenipotentiaries proceeded to sign the same, under the following conditions : such conditions, though not appearing of a nature to be admitted into the text of the treaty, nevertheless to be considered, on the ratification of the treaty, as thereby agreed to and ratified : — 1. It is understood that no clause of the present convention shall affect or alter the exclusive rights and privileges subsisting at this time in the Kingdom of Hanover, for the publication of calendars and almanacks, psalm-books, catechisms, &c. 2. With respect to Article II : — Both Governments engage that the fees which may at any time be levied for the registering of a single work in the register-book of the Company of Stationers in London, or in the Catalogue of the office of His Hanoverian Majesty's Minister of the Interior, shall not exceed the sum of one shilling sterling, or of eight gutegroschen. 782 THE LAW OF COPYRIGHT. 3. With reference to the same Article :— The delivery of one copy gratuitously shall take place in Great Britain at the Hall of the Stationers' Company in London, and in Hanover at the office of the Minister of Ecclesiastical and Educational Affairs. The value of any copy besides, demanded on behalf of any library in either country, shall be paid to the publisher. PALMEESTON. London, August 4, 1847. H. LABOUCHERE. A. KIELMANSEGGE. Accession of the Grand Duke of Oldenburg to the Con- vention CONCLUDED AUGUST 4, 1847, BETWEEN GrREAT BRITAIN and Hanover, for the establishment of International Copyright. Signed at Hanover, December 28, 1847. Her Majesty the Queen of the United Kingdom of Great Britain and Ireland, and His Majesty the King of Hanover, having con- cluded at London, on the 4th of August, 1847, a convention for the reciprocal protection of Copyright against piracy ; and it having been stipulated in Article VIII. of that convention, that any German State which may choose to accede to the said convention should be admitted to it ; Their Britannic and Hanoverian Majesties have addressed to His Boyal Highness the Grand Duke of Olden- burg the invitation to accede thereto ; And His Boyal Highness the Grand Duke of Oldenburg, being desirous to avail himself of the opportunity thus afforded to him of acceding to the said convention ; The plenipotentiary of His Boyal Highness the Grand Duke of Oldenburg in consequence declares, in virtue of his full powers, that His Boyal Highness accedes both to the convention of the 4th of August, 1847, containing ten Articles, and of which a printed copy is annexed to the present Act, and to the special provisions contained in the separate protocol signed on the same day, of which a copy is also hereunto annexed ; promising that the stipulations of the said convention, which shall come into operation in the Grand Duchy of Oldenburg from and, after the day of the signature of the present Act, as well as those of the separate protocol, shall be carried into execution by His Boyal Highness the Grand Duke of Oldenburg, in all points, so far as they may be applicable to the relations which subsist between the Government of Oldenburg and the British Government and its subjects; subject, however, to the express reservation, — 1. That Article II. of the convention shall be modified, with APPENDIX (K). 783 regard to the Grand Duchy of Oldenburg, in the following manner . that is to say, — No person in either of the two countries, either in the United Kingdom of Great Britain and Ireland, or in the Grand Duchy of Oldenburg, shall be entitled to the protection stipulated by Article I. of the convention, unless the work to be protected against piracy shall have been registered by the author or his agents, in the following manner: — If the work has first appeared in the dominions of His Royal Highness the Grand Duke of Oldenburg, it must have been registered in the register-book of the Company of Stationers in London. If the work has first appeared in the dominions of Her Britannic Majesty, it must have been registered in the register-book kept by the Grand-Ducal Department of State and Cabinet at Olden- burg. Nor shall any person be entitled to the protection aforesaid, unless the laws and regulations of the respective States shall have been duly observed in regard to the work to be protected ; nor, in cases where there are several copies of the work, unless one copy of the best edition, or in the best state, shall have been delivered gratuitously to the authorities appointed for that purpose by the laws of the respective countries. A certified copy of the registration in the aforesaid register-book of the Company of Stationers in London, shall be valid in the British dominions, as proof of the exclusive right of publication, until a better right shall be established by any other party before a court of justice; and the certificate given under the laws of Oldenburg, of the registration of any work in the aforesaid register- book at Oldenburg, shall be equally valid in the dominions of His Boyal Highness the Grand Duke of Oldenburg. 2. That the stipulations of s. 1 of the separate protocol shall not apply to the Grand Duchy of Oldenburg. 3. And. that the stipulations of the present Act shall extend to the principalities of Lubeck and Birkenfeld, as forming part of the Grand Duchy of Oldenburg. The plenipotentiaries of Her Majesty the Queen of the United Kingdom of Great Britain and Ireland, and of His Majesty the King of Hanover, in virtue of their full powers, accept the accession of His Eoyal Highness the Grand Duke of Oldenburg ; promising that the stipulations of the convention of the 4th of August, 1847, as well as the special provisions which are contained in the protocol of the same date, and those which form the reservation above mentioned, shall be carried into execution by their respective Sovereigns in all points, with regard to the Government of Olden- 784 THE LAW OF COPYRIGHT. burg and its subjects, in the same manner as between the British and HanoTerian Governments and their subjects. Convention between Hee Majesty and the Trench . Be- public, for the establishment of International Copyright. Signed at Paris, November 3, 1851. Art. I. From and after the date on which, according to the pro- visions of Article XIV., the present convention shall come into operation, the authors of works of literature or of art, to whom the laws of either of the two countries do now or may hereafter give the right of property, or copyright, shall be entitled to exercise that right in the territories of the other of such countries for the same term, and to the same extent, as the authors of works of the same nature, if published in such other country, would therein be en- titled to exercise such right ; so that the republication or piracy in either country, of any work of literature or of art, published in the other, shall be dealt with in the same manner as a republication or piracy of a work of the same nature first published in such other country ; and so that such authors in the one country shall have the same remedies before the courts of justice in the other country, and shall enjoy in that other country the same protection against piracy and unauthorized republication, as the law now does or may hereafter grant to authors in that country. The terms " works of literature or of art," employed at the begin- ning of this Article, shall be understood to comprise publications of books, of dramatic works, of musical compositions, of drawing, of painting, of sculpture, of engraving, of lithography, and of any other works whatsoever of literature and of the fine arts. The lawful representatives or assigns of authors, translators, composers, painters, sculptors, or engravers, shall in all respects enjoy the same rights which by the present convention are granted to the authors, translators, composers, painters, sculptors, or en- gravers themselves. Art. II. The protection granted to original works is extended to translations ; it being, however, clearly understood, that the in- tention of the present Article is simply to protect a translator in respect of his own translation, and that it is not intended to confer upon the first translator of any work the exclusive right of trans- lating that work, except in the case and to the extent provided for in the following Article. Art. III. The author of any work published in either of the two countries, who may choose to reserve the right of translating it, APPENDIX (K). 785 shall, until the expiration of five years from the date of the first publication of the translation thereof authorized by him, be, in the following oases, entitled to protection from the publication in the other country of any translation of such work not so authorized by him : § 1. If the original work shall have been registered and de- posited in the one country within three months after its first pub- lication in the other. § 2. If the author has notified on the title-page of his work his intention to reserve the right of translating it. § 3. Provided always, that at least a part of the authorized translation shall have appeared within a year after the registration and deposit of the original, and that the whole shall have been published within three years after the date of such deposit. § 4. And provided that the publication of the translation shall take place within one of the two countries, and that it shall be registered and deposited according to the provisions of Article VIII. With regard to works which are published in parts, it will be sufficient if the declaration of the author that he reserves the right of translation, shall appear in the first part. But with reference to the period of five years limited by this Article for the exercise of the exclusive right of translation, each part shall be treated as a separate work, and each part shall be registered and deposited in the one country within three months after its first publication in the other. Art. IV. The stipulations of the preceding Articles shall also be ap- plicable to the representation of dramatic works, and to the perform- ance of musical compositions, in so far as the laws of each of the two countries are or shall be applicable in this respect to dramatic and musical works first publicly represented or performed therein. In order, however, to entitle the author to legal protection in regard to the translation of a dramatic work, such translation must appear within three months after the registration and deposit of the original. It is understood that the protection stipulated by the present Article is not intended to prohibit fair imitations, or adaptations of dramatic works to the stage in England and France respectively, but is only meant to prevent piratical translations. The question whether a work is an imitation or a piracy, shall in all cases be decided by the courts of justice of the respective countries, according to the laws in force in each. Art. V. Notwithstanding the stipulations of Articles I. and II. of the present convention, articles extracted from newspapers or periodicals published in either of the two countries, may be re- 3 E 786 THE LAW OF COPYRIGHT. published or translated in the newspapers or periodicals of the other country, provided the source from whence such articles are taken be acknowledged. Nevertheless, this permission shall not be construed to authorize the republication in one of the two countries, of articles from news- papers or periodicals published in the other country, the authors of which shall have notified in a conspicuous manner in the journal or periodical in which such articles have appeared, that they forbid the republication thereof. Art. VI. The importation into and the sale in either of the two countries of piratical copies of works which are protected from piracy under Articles I., II., III., and V. of the present convention, are prohibited, whether such piratical copies originate in the country where the work was published, or in any other country. - Art. VII. In the event of an infraction of the provisions of the foregoing Articles, the pirated works or articles shall be seized and destroyed ; and the persons who may have committed such infraction shall be liable in each country to the penalties and actions which are or may be prescribed by the laws of that country for such offences, committed in respeet of a work or production of home origin. Art. VIII. Neither authors, nor translators, nor their lawful representatives or assigns, shall be entitled in either country to the protection stipulated by the preceding Articles, nor shall copy- right be claimable in either country, unless the work shall have been registered in the manner following, that is to say : — 1. If the work be one that has first appeared in Prance, it must be registered at the Hall of the Company of Stationers in London. 2. If the work be one that has first appeared in the dominions of Her Britannic Majesty, it must be registered at the Bureau de la Librairie of the Ministry of the Interior at Paris. No person shall be entitled to such protection as aforesaid, unless he shall have duly complied with the laws and regulations of the respective countries in regard to the work in respect of which such protection may be claimed. With regard to books, maps, prints, or musical publications, no person shall be entitled to such protection, unless ,he shall have delivered gratuitously, at one or other of the places mentioned above, as the case may be, one copy of the best edition, or in the best state, in order to its being deposited at the place appointed for that purpose in each of the two countries ; that is to say, in Great Britain, at the British Museum at London; and in France, at the National Library at Paris. In every case, the formality of deposit and registration must be fulfilled within three months after the first publication of the APPENDIX (k). 787 work in the other country. "With regard to works published in parts, the period of three months shall not begin to run until the date of the publication of the last part, unless the author shall have notified his intention to reserve the right of translating it, as provided in Article III. ; in which case each part shall be treated as a separate work. A certified copy of the entry in the register-book of the Company of Stationers in London shall confer, within the British dominions, the exclusive right of republication, until a better right shall have been established by any other party before a court of justice. The certificate given under the laws of Prance, proving the registration of any work in that country, shall be valid for the same purpose throughout the territories of the French Eepublic. A certificate or certified copy of the registration of any work so registered in either country, shall, if required, be delivered at the time of registration ; and such certificate shall state the exact date at which the registration was made. The charge for the registration of a single work, under the stipulations of this Article, shall not exceed one shilling in England, nor one franc and twenty-five centimes in France ; and the further charge for a certificate of such registration shall not exceed the sum of five shillings in England, nor six francs and twenty-five centimes in France. The provisions of this Article shall not extend to articles which may appear in newspapers or periodicals ; which shall be protected from republication or translation simply by a notice from the author, as prescribed by Article V. But if any article or work which has originally appeared in a newspaper or periodical, shall afterwards be published in a separate form, it shall then become subject to the stipulations of the present Article. Art. IX. With regard to any article other than books, prints, maps, and musical publications, in respect to which protection may be claimable under Article I. of the present convention, it is agreed, that any other mode of registration than that prescribed in the preceding Article, which is or may be applicable by law in one of the two countries to any work or article first published in such country, for the purpose of affording protection to copyright in such work or article, shall be extended on equal terms to any similar work or article first published in the other country. Art. X. During the continuance of this convention, the duties now payable upon the lawful importation into the United Kingdom of Great Britain and Ireland of books, prints, drawings, or musical works, published throughout the territories of the French Eepublic, shall be reduced to and fixed at the rates hereinafter specified ; that is to say— 3 e 2 788 THE LAW OF COPYEIGHT. 1. Duties on books and musical works, viz. — £ s. d. (a) Works originally produced in the United King- dom, and republished in France the cwt. 2 10 (5) Works not originally produced in the United Kingdom the cwt. 15 2. Prints or drawings : — (a) Coloured or plain, single . . . each 01 < 6) Bound or sewed . . . the dozen 1} It is agreed that the rates of duty above specified shall not be raised during the continuance of the present convention: and that if hereafter, during the continuance of this convention, any reduc- tion of those rates should be made in favour of books, prints, drawings, or musical works published in any other country, such reduction shall be at the same time extended to similar articles published in France. It is moreover understood that all works published in France, of which any part may have been originally produced in the United Kingdom, shall be considered as "works originally produced in the United Kingdom, and republished in France," and as such shall he subject to the duty of fifty shillings per cwt., although the same may contain also original matter not produced in the United King- dom ; unless such original matter shall be at least equal in bulk to the part of the work originally produced in the United Kingdom, in which case the work shall be subject only to the duty of fifteen shillings per cwt. Art. XL In order to facilitate the execution of the present con- vention, the two high contracting parties engage to communicate to each other the laws and- regulations which may hereafter be established in their respective territories, with respect to copyright in works or productions protected by the stipulations of the present convention. Art. XII. The stipulations of the present convention shall in no way affect the right which each of the two high contracting parties expressly reserves to itself, of controlling or of prohibiting, by measures of legislation or of internal police, the sale, circulation, representation, or exhibition of any work or production, in regard to which either country may deem it expedient to exercise that right. Art. XIII. Nothing in this convention shall be construed to affect the right of either of the two high contracting parties to prohibit the importation into its own dominions, of such books as, by its internal law, or under engagements with other States, are or may be declared to be piracies, or infringements of copyright. APPENDIX (K). 789 Art. XIV. Her Britannic Majesty engages to recommend to Parliament to pass an. Act to enable her to carry into execution such of the arrangements contained in the- present convention as require the sanction of an Act of the Legislature. When such an Act shall have been passed, the convention shall come into operation from and after a day to be then fixed upon by the two high con- tracting parties. Due notice shall be given beforehand in each country, by the Government of that country, of the day which may be so fixed upon; and the stipulations of the convention shall apply only to works or articles published after' that day. The convention shall continue in force for ten years from the day on which it may come into operation : and if neither party shall, twelve months before the expiration of the said period of ten years, give notice of its intention to terminate its operation, the convention shall continue in force for a year longer, and so on from year to year, until the expiration of a year's notice from either party for its termination. The high contracting parties, however, reserve to themselves the power of making by common consent, in this convention, any modifications which may not be inconsistent with its spirit and principles, and which experience of its working may shew to be desirable. Art. XV. The present convention shall be ratified, and the ratifi- cations shall be exchanged at Paris as soon as may be within three months from the date of signature. Proces-Verbal of the exchange of Ratifications. The undersigned having met together in order, on the part of Her Majesty the Queen of the United Kingdom of Great Britain and Ireland, and of the President of. the French Bepublic, to proceed to the exchange of the respective ratifications of the con- vention between Great Britain and Prance, signed at Paris on the 3rd of November last, for the mutual protection, in the two countries, of copyright in works of literature and of art; the respective instruments of ratification were produced, and after having been carefully compared and found to be exactly conform- able to each other, were exchanged in the usual form. 1. Notwithstanding, however, that by the terms of Article XIV., it is stipulated that none of the arrangements of the convention shall come into operation until after the time when such of those arrangements as require to be confirmed in Great Britain by an Act of the Legislature, shall have been so sanctioned ; it was mutually agreed, that such of those arrangements as do not require that sanction and as the present state of the law enables the British 790 THE LAW OF COPTEIGHT. Crown to carry at once into execution, stall on either side receive their full and entire effect as soon as possible. 2. It was also agreed, that the stipulations contained in Article V., which forbid the republication in either of the two countries, of articles from newspapers or periodicals published in the other, the authors of which shall have notified in the newspaper or periodical in which such articles have appeared, that they forbid the republi- cation thereof, — shall not be applicable to articles of political discussion. The preceding interpretations and explanations shall have the same force and validity as if they had been inserted in the conven- tion itself. In witness whereof the undersigned have signed the present proces-verbal, in duplicate, at Paris, the eighth day of January, in the year of our Lord one thousand eight hundred and fifty-two. (l.s.) NOEMANBY. (l.s.) TUEGOT. Accession op the Dukes of Anhalt to the Convention concluded may 13, 1846, between glteat britain and Pbussia, por the establishment op International Copt- eight. Signed at Berlin, February 8, 1853. Her Majesty the Queen of the United Kingdom of Great Britain and Ireland, and His Majesty the King of Prussia, having con- cluded at Berlin, on the 13th of May, 1846, a convention for the reciprocal protection of Copyright against piracy, and it having been stipulated in Article VIII. of that convention that those German States which, together with Prussia, compose the German Union of Customs, or which may hereafter join that Union, should have the right of acceding to the said convention, their Britannic and Prussian Majesties have addressed to their Serene Highnesses the Dukes of Anhalt-Dessau and Anhalt-Bernbourg the invitation to accede thereto ; And their Serene Highnesses being desirous of availing them- selves of the opportunity thus afforded to them of acceding to the said convention ; The plenipotentiary of their Serene Highnesses the Dukes of Anhalt-Dessau and Anhalt-Bernbourg in consequence declares, in virtue of his full powers, that their said Serene Highnesses accede both to the convention of the 13th May, 1846, containing ten Articles, and of which a printed copy is annexed to the present Act, and to the special provisions contained in ss. 1-4 of the APPENDIX (k). 791 separate protocol signed on the same day, of which a copy is also hereunto annexed, promising that the stipulations of the said convention, which shall come into operation in the Duchies of Anhalt from and after the 1st of April, 1853, as well as those of the separate protocol, shall be carried into execution by their Serene Highnesses the Dukes of Anhalt-Dessau and Anhalt- Bernbourg, in all points, so far as they may be applicable to the relations which subsist between the Governments of the two Duchies and the British Government and its subjects, and de- claring that English works registered, in virtue of Article II. of the convention, in the register kept at Berlin, shall be entitled also to protection against piracy in the Duchies of Anhalt. The plenipotentiaries of Her Majesty the Queen of the United Kingdom of Great Britain and Ireland, and of His Majesty the King of Prussia, in virtue of their full powers, accept the accession of their Serene Highnesses the Dukes of Anhalt-Dessau and Anhalt- Bernbourg; promising that the stipulations of the convention of the 13th of May, 1846, as well as the special provisions which are contained in the protocol of the same date, shall be carried into execution by their respective Sovereigns on all points, with regard to the Governments of the Duchies of Anhalt and of their subjects, in the same manner as between the British and Prussian Govern- ments and their subjects. Convention between Hee Majesty and the Fkee Hanseatio City or Hamburg, fob the establishment op Interna- tional Copyright. Signed at Hamburg, August 16, 1853. Art. I. The authors of works of literature or of art, to whom the laws of either of the two States do now or may hereafter give the right of property or copyright, shall be entitled to exercise that right in the territories of the other of such States for the same term and to the same extent, as the authors of works of the same nature, if published in such other State, would therein be entitled to exercise such right ; so that the republication or piracy in either State of any work of literature or of art published in the other shall be dealt with in the same manner as the republication or piracy of a work of the same nature first published in such other State and so that such authors in the one State shall have the same remedies before the courts of justice in the other State, and shall enjoy in that other State the same protection against piracy and unauthorized republication as the law now does or may hereafter grant to authors in that State. 792 THE LAW OF COPYRIGHT. The terms "works of literature or of art" employed at the beginning of this Article shall be understood to comprise publica- tions of books, of dramatic works, of musical compositions, of drawing, of painting, of sculpture, of engraving, of lithography, and of any other works whatsoeTer of literature and of the fine arts. The lawful representatives or assigns of authors, translators, composers, painters, sculptors, or engravers shall, in all respects, enjoy the same rights which by the present convention are granted to the authors, translators, composers, painters, sculptors, or engravers themselves. Art. II. The protection granted to original works is extended to translations, it being however clearly understood that the intention of the present Article is simply to protect a translator in respect of his own translation, and that it is not intended to confer upon the first translator of any work the exclusive right of trans- lating that work, except in the case and to the extent provided for in the following Article. Art. III. The author of any work published in either of the two States, who may choose to reserve the right of translating it, shall, until the expiration of five years from the date of the first publica- tion of the translation thereof authorized by him, be, in the follow- ing cases, entitled to protection from the publication in the other State of any translation of such work not so authorized by him. § 1. If the original work shall have been registered and deposited in the one State within three months after its first publication in the other. § 2, If the author has notified on the title-page of his work his intention to reserve the right of translating it. § 3. Provided always that at least a part of the authorized translation shall have appeared within a year after the registration and deposit of the original, and that the whole shall have been published within three years after the date of such deposit. § 4. And provided that the publication of the translation shall take place within one of the two States, and that it shall be registered and deposited according to the provisions of Article VII. With regard to works which are published in parts, it will be sufficient if the declaration of the author that he reserves the right of translation, shall appear in the first part. But with reference to the period of five years limited by this Article for the exercise of the exclusive right of translation, each part shall be treated as a separate work, and eaoh part shall be registered and deposited in the one State within three months after its first publication in the other. , APPENDIX (k)* 793 Art. IV. The stipulations of the preceding Article shall also be applicable to the representation of dramatic works, and to the performance of musical compositions, in so far as the laws of each of the two States are or shall be applicable in this respect to dramatic and musical works first publicly represented or performed therein. In order, however, to entitle the author to legal protection in regard to the translation of a dramatic work, such translation must appear within three months after the registration and deposit of the original. It is understood that the protection stipulated by the present Article is not intended to prohibit fair imitations or adaptations of dramatic works to the stage of England and Hamburgh respec- tively, but is only meant to prevent piratical translations. The question whether a work is an imitation or a piracy shall in all cases be decided by the courts of justice of the respective States, according to the laws in force in each. Art. V. The importation into, and the sale in either of the two States of piratical copies of works, which are protected from piracy under Articles I., II., and III. of the present convention, are pro- hibited, whether such piratical copies originate in the country where the work was published or in any other country. Art. VI. In the event of an infraction of the provisions of the foregoing Articles, the pirated works or articles shall be seized and destroyed; and the persons who may have committed such in- fraction shall be liable in each State to the penalties and actions which are or may be prescribed by the laws of that State for such offences, committed in respect of a work or production of home origin. Art. VET. Neither authors, nor translators, nor their lawful representatives or assigns, shall be entitled in either State to the protection stipulated by the preceding Articles, nor shall copyright be claimable in either State unless the work shall have been registered in the manner following, that 'is to say : — 1. If the work be one that has first appeared in Hamburgh, it must be registered at the Hall of the Company of Stationers in London ; 2. If the work be one that has first appeared in the dominions of Her Britannic Majesty, it must be registered in the Catalogue kept for that purpose at the Office of the Public Library at Hamburgh. No person shall be entitled to such protection as aforesaid, unless he shall have duly complied with the laws and regulations of the respective States in regard to the work in respect of which such protection may be claimed. With regard to books, maps, and prints, and also with regard to dramatic works and musical com- 794 THE LAW OF COPYRIGHT. positions, unless such dramatic works and musical compositions shall be in manuscript only, no person shall be entitled to such protection, unless he shall have delivered gratuitously, at one or other of the places mentioned above, as the case may be, one copy of the best edition, or in the best state, in order to its being deposited at the place appointed for that purpose in each of the two States, that is to say, in Great Britain at the British Museum at London; and in Hamburgh at the Public Library of that city. In every case the formality of deposit and registration must be fulfilled within three months after the first publication of the work in the other State. With regard to works published in parts, the period of three months shall not begin to run until the date of the publication of the last part, unless the author shall have notified his intention to reserve the right of translating it, as provided in Article III., in which case each part shall be treated as a separate work. A certified copy of the entry in the register-book of the Company of Stationers in London shall confer, within the British dominions, the exclusive right of republication, until a better right shall have been established by any other party before a court of justice. The certificate given under the laws of Hamburgh, proving the registration of any work in that State, shall be valid for the same purpose throughout the territory of Hamburgh. A certificate or certified copy of the registration of any work so registered in either State, shall, if required, be delivered at the time of registration, and such certificate shall state the exact date at which the registration was made. . The charge for the registration of a single work, under the stipulations of this Article, shall not exceed one shilling ill- England, nor twelve shillings currency in Hamburgh; and the further qjiftrge for a certificate of such registration shall not exceed the sum of five shillings in England, nor four marks currency in Hamburgh. Art. "VIII. With regard to any article other than books, prints, maps, and musical publications, in respect to which protection may be claimable under Article I. of the present convention, it is agreed that any other mode of registration than that prescribed in the preceding Article, which is or may be applicable by law in one of the two States to any work or article first published in such State, for the purpose of affording protection to copyright in such work or article, shall be extended on equal terms to any similar work or article first published in the other State. Art. IX. During the continuance of this convention, the duties now payable upon the lawful importation into the United Kingdom APPENDIX (li). 795 of Great Britain and Ireland of books, prints, drawings, or musical works, published throughout the Republic of Hamburgh, shall be reduced to and fixed at the rates hereinafter specified, that is to say : 1. Duties on books and musical works, viz. : £ s, d. (a.) Works originally produced in the United King- dom, and republished in Hamburgh the cwt. 2 10 (&.) Works not originally; produced in the United Kingdom the cwt. 15 2. Prints or drawings : (a.) Coloured or plain, single each 0J (b.) Bound or sewed the dozen li It is agreed that the rates of duty above specified shall not be raised during the continuance of the present convention, and that if hereafter, during the continuance of this convention, any reduc- tion of those rates should be made in favour of books, prints, drawings, or musical works published in any other country, such reduction shall be at the same time extended to similar articles published in Hamburgh. It is moreover understood that all works published in Hamburgh, of which any part may have been originally produced in the United Kingdom, shall be considered as works originally produced in the United Kingdom and republished in Hamburgh, and as such shall be subject to the duty of fifty shillings per cwt., although the same may contain also original matter not produced in the United Kingdom, unless such original matter shall be at least equal in bulk to the part of the work originally produced in the United Kingdom, in which case the work shall be subject only to the duty of fifteen shillings per cwt. It is further agreed that during the continuance of this conven- tion, the rate of duties now payable on the importation into the territories of Hamburgh of books, prints, drawings, and musical works published throughout the dominions of Her Britannic Majesty, shall not be raised, and shall not exceed the rates of duty which are or may be levied on the importation into the United Kingdom of similar works published in the territory of Hamburgh. Art. X. It is agreed that all books, prints, and drawings, published within the dominions of any other State that has con- cluded or concludes, or has acceded or accedes to, a Copyright Convention with Great Britain, and which may be legally imported into the United Kingdom, shall, if exported from Hamburgh, be considered, for the purposes of this convention, to have been exported from the country of their publication. 796 THE LAW OF COPYRIGHT. Art. XI. It is further agreed, that stamps shall be provided at Hamburgh according to a pattern to be made known to the Custom- house officers of the United Kingdom, and that such stamps shall be affixed to all books intended for exportation to the United Kingdom, unless they be already provided with the stamps of the States mentioned in the foregoing Article X. Art. XII. In order to facilitate the execution of the present convention, the two high contracting parties engage to com- municate to each other the laws and regulations which may here- after be established in their respective territories, with respect to copyright in works or productions protected by the stipulations of the present convention. Art. XIII. The stipulations of the present convention shall in no way affect the right which each of the two high contracting parties expressly reserves to itself, of controlling or of prohibiting, by measures of legislation or of internal police, the sale, circulation, representation, or exhibition of any work or production, in regard to which either State may deem it expedient to exercise that right Art. XIV. Nothing in this convention shall be construed to affect the right of either of the two high contracting parties to prohibit the importation into its own dominions of such books as, by its internal law, or under engagements with other States, are or may be declared to be piracies or infringements of copyright. Art. XV. The present convention shall come into operation as soon as possible after the exchange of the ratifications. Due notice shall be given beforehand in each State, by the Government of that State, of the day which may be fixed upon for its coming into operation, and the stipulations of the convention shall apply only to works or articles published after that day. The convention shall continue in force for ten years from the day on which it may come into operation ; and if neither party shall, twelve months before the expiration of the said period of ten years, give notice of its intention to terminate its operation, the convention shall continue in force for a year longer, and so on from year to year, until the expiration of a year's notice from either party for its termination. The high contracting parties, however, reserve to themselves the power of making, by common consent in this convention, any modifi- cations which may not be inconsistent with its spirit and principles, and which experience of its working may show to be desirable. Art. XVI. The present convention shall be ratified, and the ratifications shall be exchanged at Hamburgh as soon as may be within three months from the date of the signature. APPENDIX (K). 797 Convention between Her Majesty and the King of the Belgians, for the establishment of International Copyright. Signed at London, August 12, 1854. Art. I. From and after the date on which, according to the provisions of Article XV., the present convention shall come into operation, the authors of works of literature or of art, to whom the laws of either of the two countries do now or may hereafter give the right of property or copyright, shall be entitled to exercise that right in the territories of the other of such countries for the same term, and to the same extent, as the authors of works of the same nature, if published in such other country, would therein be entitled to exercise such right ; so that the republication or piracy in either country, of any work of literature or of art, published in the other, shall be dealt with in the same manner as the republi- cation or piracy of a work of the same nature first published in Such other country ; and so that such authors in the one country shall have the same remedies before the courts of justice in the other country, and shall enjoy in that other country the same protection against piracy and unauthorized republication, as the law now does or may hereafter grant to authors in that country. The terms "works of literature or of art," employed at the beginning of this Article, shall be understood to comprise publica- tions of books, of dramatic works, of musical compositions, of drawing, of painting, of sculpture, of engraving, of lithography, and of any other works whatsoever of literature and of the fine arts. The lawful representatives or assigns of authors, translators, composers, painters, sculptors, or engravers, shall, in all respects, enjoy the same rights which by the present convention are granted to the authors, translators, composers, painters, sculptors, or engravers themselves. Art. II. The protection granted to original works is extended to translations ; it being, however, clearly understood that the inten- tion of the present Article is simply to protect a translator in respect of his own translation, and that it is not intended to confer upon the first translator of any work the exclusive right of trans- lating that work, except in the case and to the extent provided for in the following Article. Art. III. The author of any work published in either of the two countries, who may choose to reserve the right of translating it, shall, until the expiration of five years from the date of the first publication of the translation thereof authorized by him, be, in the following cases, entitled to protection from the publication in the 798 THE LAW OF COPYRIGHT. other country of any translation of such work not so authorized by him; § 1. If the original work shall have been registered and deposited in the one country within three months after its first publication in the other. § 2. If the author has notified on the title-page of his work his intention to reserve the right of translating it. § 3. Provided always, that at least a part of the authorized translation shall have appeared within a year after the registration and deposit of the original, and that the whole shall have been published within three years after the date of such deposit. § 4. And provided that the publication of the translation shall take place within one of the two countries, and that it shall be registered and deposited according to the provisions of Article VIII. With regard to works which are published in parts, it will be sufficient if the declaration of the author that he reserves the right of translation, shall appear in the first part. But with reference to the period of five years limited by this Article for the exercise of the exclusive right of translation, each part shall be treated as a separate work, and each part shall be registered and deposited in the one country within three months after its first publication in the other. Art. IV. The stipulations of the preceding Articles shall also be applicable to the representation of dramatic works, and to the performance of musical compositions, in so far as the laws of each of the two countries are or shall be applicable in this respect to dramatic and musical works first publicly represented or per- formed therein. In order, however, to entitle the author to legal protection in regard to the translation of a dramatic work, such translation must appear within three months after the registration and deposit of the original. It is understood that the protection stipulated by the present Article is not intended to prohibit fair imitations, or adaptations of dramatic works to the stage in England and Belgium respectively, but is only meant to prevent piratical translations. The question whether a work is an imitation or a piracy, shall in all cases be decided by the courts of justice of the respective countries, according to the laws in force in each. Art. V. Notwithstanding the stipulations of Articles I. and II. of the present convention, articles extracted from newspapers or periodicals published in either of the two countries, may be republished or translated in the newspapers or periodicals of the other country, provided the source from whence such articles are taken be acknowledged. APPENDIX (k). 799 Nevertheless, such permission shall not be construed to authorize the republication in one of the two countries, of articles from news- papers or periodicals published in the other country, the authors of which shall have notified in a conspicuous manner in the journal or periodical in which such articles have appeared, that they forbid the republication thereof. This last stipulation shall not, however, apply to articles of political discussion. Art. VI. The introduction, circulation, sale, and exhibition, in either of the two countries, of unauthorized republications of works or articles defined in the preceding Articles I., II., III., IV., are pro- hibited, whether such unauthorized republications originate in either of the two countries, or whether they originate in any foreign country. Art. VII. In the event of an infraction of the provisions of the foregoing Articles, the pirated works or articles shall be seized and destroyed ; and the persons who may have committed such infrac- tion shall be liable in each country to the penalties and actions which are or may be prescribed by the laws of that country for such offences, committed in respect of a work or production of home origin. Art. VIII. Neither authors nor translators, nor their lawful representatives or assigns, shall be entitled in either country to the protection stipulated by the preceding Articles, nor shall copy- right be claimable in either country, unless the work shall have been registered in the manner following, that is to say : 1. If the work be one that has first appeared in Belgium, it must be registered at the Hall of the Company of Stationers in London. 2. If the work be one that has first appeared in the dominions of Her Britannic Majesty, it must be registered at. the office of the Minister of the Interior at Brussels. No person shall be entitled to such protection as aforesaid, unless he shall have duly complied with the laws and regulations of the respective countries in regard to the work in respect of which such protection may be claimed. With regard to books, maps, and prints, and also with regard to dramatic works and musical publications, unless such dramatic works and musical publications shall be in manuscript only, no person shall be entitled to such protection, unless he shall have delivered gratuitously, at one or other of the places mentioned above, as the case may be, one copy of the best edition, or in the best state, in order!|to its being deposited at the place appointed for that purpose in each of the two countries : that is to say, in Great Britain, at the British Museum at London ; and in Belgium, at the Koyal Library at Brussels. In every case the formality of deposit and registration must be 800 THE LAW OP COPYBIGHT. fulfilled within three months after the first publication of the work in the other country. With regard to works published in parts, each part shall be treated as a separate work. A certified copy of the entry in the register- book of the Company of Stationers in London shall confer, within the British dominions, the exclusive right of republication, until a better right shall have been established by any other party before a court of justice. The certificate given under the laws of Belgium, proving the registration of any work in that country, shall be valid for the same purpose throughout the territories of the kingdom of Belgium. A certificate or certified copy of the registration of any work so registered in either country shall, if required, be delivered at the time of registration ; and such certificate shall state the exact date at which the registration was made. The charge for the registration of a single work, under the stipulations of this Article, shall not exceed one shilling in England, nor one franc and twenty-five centimes in Belgium; and the further charge for a certificate of such registration shall not exceed the sum of five shillings in England, nor six francs and twenty-five centimes in Belgium. The provisions of this Article shall not extend to articles which may appear in newspapers or periodicals ; which shall be protected from republication or translation simply by a notice from the author, as prescribed by Article V. But if any article or work which has originally appeared in a newspaper or periodical, shall afterwards be published in a separate form, it shall then become subject to the stipulations of the present Article. Art. IX. With regard to any work of literature or of art other than books, prints, maps, and musical publications, in respect to which protection may be claimable under Article I. of the present convention, it is agreed, that any other mode of registration than that prescribed in the preceding Article, which is or may be applicable by law in one of the two countries to any work or article first published in such country, for the purpose of affording pro- tection to copyright in such work or article, shall be extended on equal terms to any similar work or article, first published in the other country. Art. X. During the continuance of this convention, the duties now payable upon the lawful importation into the United Kingdom of Great Britain and Ireland of books, prints, drawings, or musical works, published throughout the territories of the Kingdom of Belgium, shall be reduced to and fixed at the rates hereinafter specified ; that is to say : APPENDIX (K). 801 £ s. d. 1. On books and musical works . . the cwt. 15 2. On prints or drawings, coloured or plain, the lb 11 It is agreed that the rates of duty above specified shall not be raised during the continuance of the present convention ; and that if hereafter, during the continuance of this convention, any re- duction of those rates should be made in favour of books, prints, drawings, or musical works published in any other country, such reduction shall be at the same time extended to similar articles published in Belgium. During the continuance of the present convention, the duties now payable on the lawful importation into Belgium, of books, musical works, prints, and maps or charts published throughout the United Kingdom of Great Britain and Ireland, shall be reduced to and fixed at the uniform rate of ten francs the hundred kilo- grammes. Art. XI. It is agreed that no books shall, for the purposes of this convention, so far as relates to the rate of duty at which such books are to be entered, be deemed to have been published in Belgium, except such as appear by their title-page to have been published at some town or place within the dominions of Belgium. Art. XII. In order to facilitate the execution of the present con- vention, the two high contracting parties engage to communicate to each other the laws and regulations which may hereafter be established in their respective territories, with respect to copyright in works or productions protected by the stipulations of the present convention. Art. XIII. The stipulations of the present convention shall in no way affect the right which each of the two high contracting parties expressly reserves to itself, of controlling and of prohibiting, by measures of legislation or of internal police, the sale, circulation, representation, or exhibition of any work or production, in regard to which either country may deem it expedient to exercise that right. Art. XIV. Nothing in this convention shall be construed to affect the right of either of the two high contracting parties to prohibit the importation into its own dominions, of such books as, by its internal law, or under engagements with other States, are or may be declared to be piracies, or infringements of copyright. Art. XV. The present convention shall come into operation as soon as possible after the exchange of the ratifications. Due notice shall be given beforehand in each country, by the Government of that country, of the day which may be fixed upon for that purpose, and the stipulations of the convention shall be applicable only to 3 F 802 THE LAW OF COPYEIGHT. works and articles published, and to dramatic works or musical compositions represented or executed for the first time in either of the two countries, after the convention shall have come into operation. The convention shall continue in force for ten years from the day on which it may come into operation ; and if neither contracting party shall, twelve months before the expiration of the said period of ten years, give notice of its intention to terminate its operation, the convention shall continue in force for a year longer, and so on from year to year, until the expiration of a year's notice from either contracting party for its termination. The high contracting parties, however, reserve to themselves the power of making by common consent, in this convention, any modifications which may not be inconsistent with its spirit and principles, and which experience of its working may show to be desirable. Art. XVI. The present convention shall be ratified, and the ratifications shall be exchanged at London as soon as may be within six months from the date of signature. Convention between Her Majesty and the King oe Prussia, additional to the convention concluded at berlin, Mat 13, 1846, tor the establishment of International Copyright. Signed at London, June 14, 1855. Art. I. It is agreed that all books, prints, and drawings published within the dominions of any other State that has concluded or may conclude, or which has acceded or may accede to, a Copyright Con- vention with Great Britain, shall, if exported from Prussia, Saxony, Saxe-Weimar, Saxe-Meiningen, Saxe-Altenburg, Saxe-Coburg-Gotha- Brunswick, Anhalt-Dessau-Cothen, Anhalt-Bernburg, Schwarzburg- Eudolstadt, Schwarzburg-Sondershausen, or Eeuss, be considered, for the purposes of this convention, to have been exported from the country of their publication. Art. II. The protection granted by the convention which was concluded between the high contracting parties on the 13th of May, 1846, to original works, is extended to translations; it being, however, clearly understood that the intention of the present Article is simply to protect a translator in respect of his own translation, and that it is not intended to confer upon the first translator of any work the exclusive right of translating that work, except in the case and to the extent provided for in the following Article. ■ APPENDIX \t&). 803 Art. III. The author of any work published in either of the two countries, who may choose to reserve the right of translating it, shall, until the expiration of five years from the date of the first publication of the translation thereof authorized by him, be, in the following cases, entitled to protection from the publication in the other country of any translations of such work not so authorized by him : § 1. If the original work shall have been registered and deposited in the one country within three months after its first publication in the other ; § 2£ If the author has notified on the title-page of his work his intention to reserve the right of translating it ; § 3. Provided always, that at least a part of the authorized translation shall have appeared within a year after the registration and deposit of the original, and that the whole shall have been published within three years after the date of such deposit ; § 4. And provided that the publication of the translation shall take place within one of the two countries, and that it shall be registered and deposited in conformity with the stipulations of Article II. of the convention of the 13th of May, 1846. With regard to works whieh are published in parts, it will be sufficient if the declaration of the author that he reserves the right of translation shall appear in the first part. But with reference to the period of five years, limited by this Article for the exercise of the exclusive right of translation, each part shall be treated as a separate work, and each part shall be registered and deposited in the one country within three months after its first publication in the other. Art. IV. The stipulations of the preceding Articles shall also be applicable to the representation of dramatic works, and to the performance of musical compositions, in so far as the laws of each of the two countries are or shall be applicable in this respect to dramatic and musical works first publicly represented or performed therein. In order, however, to entitle the author to legal protection in regard to the translation of a dramatic work, such translation must appear within three months after the registration and deposit of the original. It is understood that the protection stipulated by the present Article is not intended to prohibit fair imitations, or adaptations of dramatic works to the stage in England and Prussia respectively, but is only meant to prevent piratical translations. The question whether a work is an imitation or a piracy, shall in all cases be decided by the courts of justice of the respective countries, according to the laws in force in each. 3 f 2 804 THE LAW OF COPYRIGHT. Art. V. Notwithstanding the stipulations of Article I. of the convention of the 13th of May, 1846, and of Article II. of the present additional convention, articles extracted from newspapers or periodicals published in either of the two countries, may be re- published or translated in the newspapers or periodicals of the other country, provided the source from whence such articles are taken be acknowledged. Nevertheless, this permission shall not be construed to authorize the republication or translation in one of the two countries, of articles from newspapers or periodicals published in the other country, the authors of which shall have notified in a conspicuous manner in the journal or periodical in which such articles have appeared, that they forbid the republication thereof. This last stipulation shall not, however, apply to articles of political discussion. Art. VI. The present additional convention shall come into operation as soon as possible after the exchange of the ratifications thereof. Due notice shall be given beforehand in each country by the Government of that country,* of the day which may be fixed upon for its so coming into operation, and its stipulations shall apply only to works published after that day. Art. VII. The present additional convention shall have the same duration as the convention of the 13th May, 184-6. It shall be ratified, and the ratifications shall be exchanged at London as soon as may be within two months from the date of signature. Convention between Heb Majesty and the Queen of Spain, pok the establishment op Intebnational Copy- eight. Signed at Madrid, July 7, 1857. Art. I. From and after the date on which, according to the provisions of Article XIII., the present convention shall come into operation, the authors of works of literature or of art, to whom the laws of either of the two countries do now or may hereafter give the right of property, or copyright, shall be entitled to exercise that right in the territories of the other of such countries for the same term, and to the same extent, as the authors of works of the same nature, if published in such other country, would therein be entitled to esercise such right; so that the republication or piracy, in either country, of any work of literature or of art published in the other shall be dealt with in the same manner as the republica- tion or piracy of a work of the same nature first published in such APPENDIX (k). 805 other country ; and so that such authors in the one country shall have the same remedies before the courts of justice in the other country, and shall enjoy in that other country the same protection against piracy and unauthorized republication, as the law now does or may hereafter grant to authors in that country. The terms "works of literature or of art," employed at the beginning of this Article, shall be understood to comprise publica- tions of books, of dramatic works, of musical compositions, of drawing, of painting, of sculpture, of engraving, of lithography, and of any other works whatsoever of literature and of the fine arts. The lawful representatives or assigns of authors, translators, composers, painters, sculptors, or engravers, shall, in all respects, enjoy the same right which by the present convention are granted to the authors, translators, composers, painters, sculptors, or engravers themselves. Art. II. The protection granted to original works is extended to translations, it being, however, clearly understood that the intention of the present Article is simply to protect a translator in respect of his own translation, and that it is not intended to confer upon the first translator of any work the exclusive right of trans- lating that work, except in the case and to the extent provided for in the following Article. Art. III. The author of any work published in either of the two countries, who may choose to reserve the right of translating it, shall, until the expiration of five years from the date of the first publication of the translation thereof authorized by him, be, in the following cases, entitled to protection from the publication in the other country of any translation of such work not so authorized by him : — § 1. If the original work shall have been registered and deposited in the one country within three months after its first publication in the other ; § 2. If the author has notified on the title-page of his work his intention to reserve the right of translating it ; § 3. Provided always, that at least a part of the authorized translation shall have appeared within a year after the registra- tion and deposit of the original, and that the whole shall have been published within three years after the date of such deposit ; § 4. And provided that the publication of the translation shall take place within one of the two countries, and that it shall be registered and deposited according to the provisions of Article VIII. "With regard to works which are published in parts, it will be sufficient if the declaration of the author that he reserves the 806 THE LAW OF COPYRIGHT. right of translation shall appear in the first part. But with reference to the period of five years limited by this Article for the exercise of the exclusive right of translation, each part shall be treated as a separate work, and each part shall be registered and deposited in the one country within three months after its first publication in the other. Art. IV. The stipulations of the preceding Articles shall also be applicable to the representation of dramatic works, and to the performance of musical compositions, in so far as the laws of each of the two countries are or shall be applicable in this respect to dramatic and musical works first publicly represented or per- formed therein. In order, however, to entitle the author to legal protection in regard to the translation of a dramatic work, such translation must appear within three months after the registration and deposit of the original. It is understood that the protection stipulated by the present Article is not intended to prohibit fair imitations or adaptations of dramatic works to the stage in England and Spain respectively, but is only meant to prevent piratical translations. The question whether a work is an imitation or a piracy shall in all cases be decided by the courts of justice of the respective countries, according to the laws in force in each. Art. V. Notwithstanding the stipulations of Articles I. and II. of the present convention, articles extracted from newspapers or periodicals published in either of the two countries may be re- published or translated in the newspapers or periodicals of the other country, provided the source from whence such articles are taken be acknowledged. Nevertheless, this permission shall not be construed to authorize the republication in one of the two countries of articles other than those of political discussion, from newspapers or periodicals published in the other country, the authors of which shall have notified in a conspicuous manner in the journal or periodical in which such articles have appeared, that they forbid the republica- tion thereof. Art. VI. The importation into and the sale in either of the two countries of piratical copies of works which are protected from piracy under Articles I., II., III., and V. of the present convention are prohibited, whether such piratical copies originate in the country where the work was published or in any other country. Art. VII. In the event of an infraction of the provisions of the foregoing articles, the pirated works or articles shall be seized and destroyed; and the persons who may have committed such in- fraction shall be liable in each country to the penalties and actions APPENDIX (K). 807 which are or may be prescribed by the laws of that country for such offences, committed in respect of a work or production of home origin. Art. VIII. Neither authors, nor translators, nor their lawful representatives or assigns, shall be entitled in either country to the protection stipulated by the preceding Articles, nor shall copyright be claimable in either country, unless the work shall have been registered in the manner following, that is to say : — 1. If the work be one that has first appeared in Spain it must be registered at the Hall of the Company of Stationers in London ; 2. If the work be one that has first appeared in the dominions of Her Britannic Majesty, it must be registered at the Ministry of Public Works (MinisUrio de Fornento) at Madrid. No person shall be entitled to such protection as aforesaid unless he shall have duly complied with the laws and regulations of the respective countries in regard to the work in respect of which such protection may be claimed. With regard to books, maps, and prints, and also with regard to dramatic works and musical compositions (unless such dramatic works and musical composi- tions shall be in manuscript only), no person shall be entitled to such protection unless he shall have delivered gratuitously, at one or other of the places mentioned above, as the case may be, one copy of the best edition, or in the best state, in order to its being deposited at the place appointed for that purpose in each of the two countries : that is to say, in Great Britain, at the British Museum at London ; and in Spain, at the National Library at Madrid. In every case the formality of deposit and registration must be fulfilled within three months after the first publication of the work in the other country. With regard to works published in parts, each part shall be treated as a separate work. A certified copy of the entry in the register-book of the Company of Stationers in London shall confer, within the British dominions, the exclusive right of republication until a better right shall have been established by any other party before a court of justice. The certificate given under the laws of Spain, proving the registration of any work in that country, shall be valid for the same purpose throughout the territories of Her Catholic Majesty. A certificate or certified copy of the registration of any work so registered in either country shall, if required, be delivered at the time of registration, and such certificate shall state the exact date at which the registration was made. The charge for the registration of a single work, under the stipulations of this Article, shall not exceed one shilling in England, nor five rials vellon in Spain; and the further charge 803 THE LAW OP COPYRIGHT. for a certificate of such registration shall not exceed the sum of five shillings in England, nor twenty-five rials vellon in Spain. The provisions of this Article shall not extend to articles which may appear in newspapers or periodicals, which shall be protected from republication or translation simply by a notice from the author, as prescribed by Article V. But if any article or work which has originally appeared in a newspaper or periodical shall afterwards be published in a separate form, it shall then become subject to the stipulations of the present Article. Art. IX. With regard to any article other than books, prints, maps, and musical publications, in respect to which protection may be claimable under Article I. of the present convention, it is agreed that any other mode of registration than that prescribed in the preceding Article, which is or may be applicable by law in one of the two countries to any work or article first published in such country, for the purpose of affording protection to copyright in such work or article, shall be extended on equal terms to any similar work or article first published in the other country. Art. X. In order to facilitate the execution of the present con- vention, the two high contracting parties engage to communicate to each other the laws and regulations which may hereafter be established in their respective territories, with respect to copy- right in works or productions protected by the stipulations of the present convention. Art. XI. The stipulations of the present convention shall in no way affect the right which each of the two high contracting parties expressly reserves to itself, of controlling or of prohibiting, by measures of legislation or of internal police, the sale, circulation, representation or exhibition of any work or production in regard to which either country may deem it expedient to exercise that right. Art. XII. Nothing in this convention shall be construed to affect the right of either of the two high contracting parties to prohibit the importation into its own dominions of such books as, by its internal law, or under engagements with other States, are or may be declared to be piracies, or infringements of copyright. Art. XIII. The present convention shall come into operation as soon as possible after the exchange of the ratifications. Due notice shall be given beforehand in each country, by the Government of that country, of the day which may be fixed upon for its coming into operation ; and the stipulations of the convention shall apply only to works or articles published after that day. The convention shall continue in force for six years from the day on which it may come into operation ; and if neither party shall, twelve months before the expiration of the said period of six years, give notice of its intention to terminate its operation, the convention APPENDIX (k). 809 shall continue in force for a year longer, and so on from year to year, until the expiration of a year's notice from either party for its termination (a). The high contracting parties, however, reserve to themselves the power of making by common consent, in this convention, any modi- fications which may not be inconsistent with its spirit and principles, and which experience of its working may show to be desirable. Art. XIV. The present convention shall be ratified, and the ratifications shall be exchanged at Madrid as soon as may be within three months from the date of signature. Declaration. The undersigned plenipotentiaries of Her Majesty the Queen of the United Kingdom of Great Britain and Ireland, and of Her Majesty the Queen of Spain, authorized for this purpose by their respective Sovereigns, declare, for the purpose of facilitating the customs service in the execution of a part of the convention for the protection of literary property which they have this day signed, that, in order to make the origin of works published in either of the two countries evident, there shall appear in their title-page the city or place of their publication. (l.s.) Howden. (l.s.) El. Maegs. dk Pial. Convention between Hee Majesty and the King of Sae- dinia, foe the establishment op Inteenational Copt- eight. Signed at Turin, November 30, 1860. Art. I. From and after the date on which, according to the provisions of Article XIV., the present convention shall come into operation, the authors of works of literature or of art, to whom the laws of either of the two countries do now or may hereafter give the right of property, or copyright, shall be entitled to exercise that right in the territories of the other of such countries for the same term, and to the same extent, as the authors of works of the same nature, if published in such other country, would therein be entitled to exercise such right; so that the republication or piracy, in either country, of any work of literature or of art published in the other, shall be dealt with in the same manner as the republi- cation or piracy of a work of the same nature first published in such other country ; and so that authors in the one country shall have the same remedies before the courts of justice in the other country, (a) This treaty expired on the 17th March, 1880, and a new treaty has been entered into, but is not yet printed. 810 THE LAW OF COPYKIGHT. and shall enjoy in that other country the same protection against piracy and unauthorized republication, as the law now does or may hereafter grant to authors in that country. The terms " works of literature or of art/' employed at the beginning of this Article, shall be understood to comprise publi- cations of books, of dramatic works, of musical compositions, of drawing, of painting, of sculpture, of engraving, of lithography, and of any other works whatsoever of literature and of the fine arts. The lawful representatives or assigns of authors, translators, composers, painters, sculptors, or engravers, shall, in all respects, enjoy the same rights which by the present convention are granted to the authors, translators, composers, painters, sculptors, or engravers themselves. Art. II. The protection granted to original works is extended to translations; it being, however, clearly understood that the intention of the present Article is simply to protect a translator in respect of his own translation, and that it is not intended to confer upon the first translator of any work the exclusive right of trans- lating that work, except in the case and to the extent provided for in the following Article. Art. III. The author of any work published in either of the two countries, who may choose to reserve the right of translating it, shall, until the expiration of five years from the date of the first publication of the translation thereof authorized by him, be, in the following cases, entitled to protection from the publication in the other country of any translation of such work not so authorized by him: — 1. If the original work shall have been registered and deposited in the one country within three months after its first publication in the other ; 2. If the author has notified on the title-page of his work his intention to reserve the right of translating it ; 3. Provided always, that at least a part of the authorized transla- tion shall have appeared within a year after the registration and deposit of the original, and that the whole shall have been published within three years after the date of such deposit ; 4. And provided that the publication of the translation shall take place within one of the two countries, and thafr it shall be registered and deposited according to the provisions of Article VIII. With regard to works published in parts, it will be sufficient if the declaration of the author that he reserves the right of transla- tion shall appear in the first part. But with reference to the period of five years limited by this Article for the exercise of the exclusive right of translation, each part shall be treated as a separate work, and each part shall be registered and deposited in APPENDIX (K). 811 the one country within three months after its first publication in the other. Art. IV. The stipulations of the preceding Articles shall also be applicable to the representation of dramatic works, and to the performance of musical compositions, in as far as the laws of each of the two countries are or shall be applicable in this respect to dramatic and musical works first publicly represented or performed therein. In order, however, to entitle the author to legal protection in regard to the translation of a dramatic work, such translation must appear within three months after the registration and deposit of the original. It is understood that the protection stipulated by the present Article is not intended to prohibit fair imitations or adaptations of dramatic works to the stage of the respective countries, but is only meant to prevent piratical translations. The question whether a work is an imitation or a piracy shall in all cases be decided by the courts of justice of the respective countries, according to the laws in force in each. Art. V. Notwithstanding the stipulations of Articles I. and II. of the present convention, articles extracted from newspapers or periodicals published in either of the two countries may be re- published or translated in the newspapers or periodicals of the other country, provided the source from whence such articles are taken be acknowledged. Nevertheless, this permission shall not be construed to authorize the republication in one of the two countries of articles other than those of political discussion, from newspapers or periodicals published in the other country, the authors of which shall have notified in a conspicuous manner in the journal or periodical in which such articles have appeared that they forbid the republica- tion thereof. Art. VI. The importation into and the sale in either of the two countries of piratical copies of works which are protected from piracy under Articles I., II., III., and V. of the present con- vention are prohibited, whether such piratical copies originate in the country where the work was published or in any other country. Art. VII. In the event of an infraction of the provisions of the foregoing Articles, the pirated works or articles shall be seized and destroyed; and the persons who may have committed such in- fraction shall be liable in each country to the penalties and actions which are or may be prescribed by the laws of that country for such offences, committed in respect of a work or production of home origin. 812 THE LAW OF COPYLUGHT. Art. VIII. Neither authors, nor translators, nor their lawful representatives or assigns, shall be entitled in either country to the protection stipulated by the preceding Articles, nor shall copy- right be claimable in either country, unless the work shall have been registered in the manner following, that is to say:— 1. If the work be one that has first appeared in the dominions of His Sardinian Majesty, it must be registered at the Hall of the Company of Stationers in London {Stationers' Hall) ; 2. If the work be one that has first appeared in the dominions of Her Britannic Majesty, it must be registered at the Ministry of the Interior (Ministero dell' Internd) at Turin. No person shall be entitled to such protection as aforesaid, unless he shall have duly complied with the laws and regulations of the respective countries in regard to the work in respect of which such protection may be claimed. With regard to books, maps, and prints, and also with regard to dramatic works and musical com- positions (unless such dramatic works and musical compositions shall be in manuscript only), no person shall be entitled to such protection unless he shall have delivered gratuitously, at one or other of the places mentioned above, as the case may be, one copy of the best edition, or in the best state, in order to its being deposited at the place appointed for that purpose in each of the two countries : that is to say, in the dominions of Her Britannic Majesty, at the British Museum in London ; and in the dominions of His Sardinian Majesty, at the Ministry of the Interior {Ministero dell' Internd) at Turin. In every case, the formality of deposit and registration must be fulfilled within three months after the first publication of the work in the other country. With regard to works published in parts, each part shall be treated as a separate work. A certified copy of the entry in the register book of the Company of Stationers in London shall confer, within the British dominions, the exclusive right of republication, until a better right shall have been established by any other party before a court of justice. The certificate given under the laws of the States of His Sardinian Majesty, proving the registration of any work in that country, shall be valid for the same purpose throughout the above-mentioned States. A certificate or certified copy of the registration of any work so registered in either country shall, if required, be delivered at the time of registration ; and such certificate shall state the exact date at which the registration was made. The charge for the registration of a single work, under the stipulations of this Article, shall not exceed one shilling in England, nor one franc twenty-five centimes in the States of His Sardinian APPENDIX (k). 813 Majesty ; and the further charge for a certificate of such registration shall not exceed the sum of five shillings in England, nor six franca and twenty-five centimes in the States of His Sardinian Majesty. The provisions of this Article shall not extend to articles which may appear in newspapers or periodicals; which shall be pro- tected from republication or translation simply by a notice from the author, as prescribed by Article V. But if any article or work which has originally appeared in a newspaper or periodical shall afterwards be published in a separate form, it shall then become subject to the stipulations of the present Article. Art. IX. With regard to any article other than books, prints, maps, and musical publications, in respect to which protection maj be claimable under Article I. of the present convention, it is agreed, that any other mode of registration than that prescribed in the preceding Article, which is or may be applicable by law in one of the two countries to any work or article first published in such country, for the purpose of affording protection to copyright in such work or article, shall be extended on equal terms to any similar work or article first published in the other country. Art. X. It is agreed that if by any convention for the protection of copyright in works of literature or of art, greater favours than those stipulated by the present convention should be accorded by either of the high contracting parties to a third power, the same advantages shall be extended to the other party on the same conditions. Art. XI. In order to facilitate the execution of the present convention, the two high contracting parties engage to com- municate to each other the laws and regulations which may here- after be established in their respective territories, with respect to copyright in works or productions protected by the stipulations of the present convention. Art. XII. The stipulations of the present convention shall in no way affect the right which each of the two high contracting parties expressly reserves to itself, of controlling or prohibiting, by measures of legislation or of internal police, the sale, circulation, representa- tion, or exhibition of any work or production in regard to which either country may deem it expedient to exercise that right. Art. XIII. Nothing in this convention shall be construed to affect the right of either of the two high contracting parties to prohibit the importation into its own dominions of such books as, by its internal law, or under engagements with other States, are or may be declared piracies, or infringements of copyright. Art. XIV. The present convention shall come into operation as soon as possible after the exchange of the ratifications. Due notice shall be given beforehand in each country, by the Government-of 814 THE LAW OF COPYRIGHT. that country, of the day which may be fixed upon for its coming into operation : and the stipulations of the convention shall apply only to works or articles published after that day. The convention shall continue in force for six years from the day on which it may come into operation ; and if neither party shall, twelve months before the expiration of the said period of six years, give notice of its intention to terminate its operation, the convention shall continue in force for a year longer, and so on from year to year, until the expiration of a year's notice from either party for its termination. The high contracting parties, however, reserve to themselves the power of making by common consent, in this convention, any modifications which may not be inconsistent with its spirit and principles, and which experience of its working may show to be desirable. Art. XV. The present convention shall be ratified, and the ratifications shall be exchanged at Turin, as soon as may be within three months from the date of signature. INDEX. Abandonment of title of periodical, 75 in France, 75, note (c) of copyright, 133 no presumption of, by book being out of print, 133 no, by mere expression of opinion, 253 whether right of representation of dramatic piece in MS. lost by printing, circulation among pupils of a system of bookkeeping not an, 111, 112 Abode : see also Name and Abode. given in England of author being abroad in entry, 139 of assignee, 139, 140. Abolition op Stae-Chambee, 21 ' A Boy's Adventtjees in the Wilds op Australia,' 606-608 Abridgment, what is an, 59, 202, 298 distinction between compilation and, 202 shortening a work by leaving out unimportant parts not an, 59, 60, 207 principles by which to test whether, be fair, 60 effect of, on original work, 201 arrangement must be adopted to be a faithful, 62, 202 copyright in an, 59, 202 Mr. Cartis's view of an, 61, 202, note (6) Vice-Chancellor Wood's opinion as to an, 61, 209 judicial dicta that bond fide, not piratical, 59, 60, 201 of dramatic pieces, 34, 298 of law reports, 195, 207, 208 of Acts of Parliament, 283 of Dr. Johnson's Easselas, 203 of an imaginative work, 207 Viner's, 63, note (a), 206 Comyns', 206 Rolle's, 281 Story's Commentaries infringed by, 205 infringement of copyright by, 83, 201-208 test of originality of, 59, 202 may answer the purpose of an advertisement, 204, and note (a) 816 INDEX. Abridgment — continued. extent to which held good in America, 205 suggestions of Copyright Commissioners as to, 62, note (a) ' Abeidgmekt of Cases in Equity,' 207 Abroad, publication, prevents copyright in this country, 112, 113, 323, 324, 331 472, 505 ' except under International treaties, 331 simultaneous, and in this country, 113, 117, note (e), 125, note (a) work composed, by Englishmen, protected if first published here, 115 residence, by Englishmen at time of publication does not affect copyright, whether foreigner resident, can obtain copyright here, 116, 117, 118, 125, note (a), 170. assignment by foreigner, to an Englishman, 168 articles sold, without registration mark, 429. Abstbact, an, no piracy, 59, note (V) of title, copyright in, 46, note (6) Account, incident to remedy in equity, 268 need not be specifically prayed, 270 right to, dependent on right to injunction, 269, 270 usually waived, 268, 271 has reference to past as well as future transactions, 270 plaintiff entitled to profits from sales on commission of piratical copies, 270 defendant ordered to pay net profits in equity, 261, 270 when ordered to be kept by defendant, 254 between authors and publishers, 612 Acquiescence, not presumed where there is no knowledge,- 134 in infringement fatal to subsequent action, 134 plaintiff may forfeit rights by delay or laches, 248, 249 „ „ five months' delay, 249 „ „ tendency of modern decisions, 250 right not prejudiced by custom, 82, 83, 194, 196, 248 not responsible for delay when ignorant of piracy, 134 delay may be explained, 249 injunction not granted generally where there has been, 252, 266 no proof of assignment, 266 Action : see also Damages (Action for) for importing pirated copies, 217-221, 638 for recovery of penalties, 223, 224, 641 „ of copies pirated 225, 640 „ of value of copies sold, 225 „ of damages for performing play, 230, 627 for infringing airs in an opera, 230 for false representation as to the registry of a design, 427, note (a) for damages under Designs Act, 441 INDEX. 817 Action — continued. In the County Court : see County Court. In, notice of objection to plaintiff's title to be given, 227, 637 amending notice of objection, 227 proprietor need not aver that defendant published plaintiffs book, 231 where locus of infringement not stated, plaintiff may amend, 231 what defendant may plead, 228, 641 „ give in evjdence, 228, 641 for infringement no defence to plead name and address of printer omitted, 231 security for costs, 232 where venue to be laid, 230 evidence in, for plaintiff under Engraving Acts, 378 of offer to compromise, 231 every, to be commenced within certain time : see Limitation of Time. no, to be brought until registration, 145 if, can be maintained, then injunction will be granted, 239 maintainable for not supplying work agreed to be furnished, 580 cannot be maintained for printing obscene book, 580 what sufficient defence to, for not pertorming agreement to write, 584, note (c) on the case : see Remedies fob Infringement. Acts of Congress : see Appendix (B.) Acts of Parliament : see Statutes. right to print, 280 abridgment of, 283 published with notes, 286 Adaptation : see Imitations, what is a fair, 481, 485 of music, see Musical Compositions. by changing to a dance, 211 of old songs, 345, 346 of old play, 311 of quotations, copyright in, 216 from operas, 343 an, may be made under the International Copyright Act, 481, 687, 707 Additions, copyright in, 39 to constitute new book, 102 small, do not constitute joint authorship, 130, 131, 132 Gray's poems published with, 39 Patterson's Eoad Book published with, 39, 40 Advertisements, no copyright in, of place and kind of business, 97 illustrated furniture guide, 98 principles on which copyright in, depend, 100 no excuse for piracy to say work acts as, 204, note (a) ' Afteb Dark,' 327 " Aggrieved Persons : " see " Peesons aggrieved ; " Registration. ' Agreeable Surprise ,' (The), 296 3 G 818 INDEX. Agbeement, between authors and publishers, 575, 578 „ „ should be in writing, 578, 579 „ „ construction of, 594 „ „ ordinary, not a partnership, 605 forms of, between authors and publishers : — for sale of copyright, 749 half-profit agreement, 749, 750 licence to print one edition, 751 limited assignment of a new edition, 751 for enlarging second edition of book, 752 for sale of a work where sum paid for copyright, 752 variations where profits divided, 752 by commission, 753 for editing of a work, with variations for translating a work, 754 to write an opera, 756 forms under 25 & 26 Vict. c. 68, see 758, 759 between manager of theatre and actor, 583 for division of profits, 595 when a joint adventure, 599 not assignable, 596, 597 terminable by notice, when, 599, 603 for payment to authors of article in periodical work, not sufficient to vest copyright, 76 note, (a) for publication of specified number of copies, 591 terms of, should be clearly stated, 603 as to style of publication, 591 not to write on particular subject, 583 not to sell under a certain price, 603 to supply work, 578 no specific performance decreed, 581 as to copyright under 25 & 26 Vict. c. 68 ..390 require a 6d. stamp, 390, note (a) a mere publishing, not assignable, 597, 598 construction of the word " Edition," 102, 605. Albert's (Prince) case, 11 Alien : see Foreigner. Almanacs, right to print generally, 286 „ the Nautical, 289 title page of, 68, note (c) cannot be wholly original, 174 sale of a sheet, printed from directory restrained, 178 "Gadbury's,"286. Alteration, of author's work by another, 588 when written under the name of another, 588, 589 sufficient to constitute new work, 102 slight, of another's work, does not constitute joint authorship, 130, 131, 132 infringement of copyright by colourable, 196, 201 INDEX. 819 Alteration — continued. of dramatic piece, 298, 311 in the law suggested by Copyright Commissioners : see Copyright Com- missioners. Amendment of register under Copyright Act, 1842 .. 636 Designs Act, 448, 652 law : see Copyright Commissioners. America : see United States. Amount, of matter essential to copyright, piracy, &c. : see Quantum ; Value. Anhalt joins the International Convention, 506 Animus Furandi, what, 173, and note (b) Anne, Statute of, 25, 26, 613 assignment under, 161 extended in effect, 122 Annotation :" see Notes. Anonymous Works, 109 registration of, under International Copyright Act, 477, 674 Antigua adopts the provisions of the 10 & 11 Vict. c. 95 ..499 ' Apology for the Life of George Anne Bellamy,' 204 Appointment of Registrar under Designs Acts : see Registration. ' Arch^ologia Philosophica,' by Burnett, 212 Architectural Design protected under the 25 & 26 Vict. c. 68, 389, note (b) Argentine Republic, no copyright law in the, 568 Arithmetic, Instance of Piracy of, 199 Arrangement, copyright in, 38, 43, 63, 174, 215 of poems, 39, 43 of book of roads, 39 of account of natural curiosities, &c, 40 of works of art, 40 of matters of statistical information, 40 of maps, 41 of receipt books, 41 must be adopted in abridging a work, to, be a faithful abridgment, 62, 202 component parts of a compilation not protected apart from the, 42, 215 where, copied materials being different, 215 and materials both copied, 215 Arrangements : see Agreements. 3 g 2 820 INDEX. Articles : see also Encyclopedias ; Newspapers; Periodical Publications. copyright in, for reviews, &c, 75, 76, 593, 638 newspapers, 470, 638 for newspapers may be withdrawn, 51 but need not be preserved by editors, 52 of political discussion may be translated from foreign newspapers, 480, 687 exhibited at exhibitions, 451 registration of design by sample of, 417, 418 provisionally registered : see Provisional Keqistration. Artists' sketches and studies, 407, 408 replicas of, 408 Arts : See Designs ; Drawings ; Engravings ; Fine Arts ; Paintings ; Photographs ; Sculpture. Assignees of copyright, 115, 157, 158, 159 of manuscript, 8, note (a) of foreign authors, 117, note («), 118 of works first published abroad not protected, 116 of author before publication, right to publish, 11, 117, and note (e) who are, 158 difference between licensees and, 161, note (6), 171 rights of, under a commission in bankruptcy, 157, 158 registration by, 140 title should be stated in bill for injunction, 235 what passes to, by assignment under 22nd section of 5 & 6 Vict. u. 45 . . 317, 318 claim by, what must be shewn, 265 instance where, by parol obtained injunction, 265, note (a) may claim penalties under 3 Will. 4, c. 15, though assignment not by deed, 316 may maintain action for piracy of engravings, 375 may sue for penalties under 25 & 26 Vict. c. 68, before assignment has been registered, 395 though previous assignments have not been registered, 395 Assignment of Copyright, Literary Copyriyht, will not be presumed, 159 may be limited to licence for particular purpose, 392 agreement for division of profits not an, 595, 596 not effected by mortgage of share in newspaper, 466 under the statute of Anne, 161 by a foreigner, 117, note (e), 118, 168 does not prevent assignor selling stock on hand, 170, 606, 608 by entry on register under 5 & 6 Vict. c. 45 ..136, 164, 636 stamp, 136, 164 by delivery of manuscript, 158 as to whether need be in writing, 159, 160, 165 instance where person claiming under parol, obtained an injunction, 265, note (a) licence to publish is not an, 171 difference between, and licence, 161 note ( INDEX. 821 Assignment of Copyright — continued. Literary Copyright — continued. whether necessary to be attested, 162, 163, 164, note (c), 165 how far receipt for purchase-money will operate as, 165 may he made by letter, 165 partial as to locality, 166 „ time, 167 absence of, must be specially pleaded, 170 effect of statement by plaintiff that he had, 170 after, author cannot produce substantially same work, 171 forms under Act, 749, 750 of limited, under Act, 751 for certain number of years, 168 share in, 171 acquiescence no proof of, 268 Dramatic Copyright, Chap. XL, 640 of right of representation, 316 must he in writing, 318 need not be made by deed, 316 express, need not be registered, 317, 318 but assignment intended to include this right must be registered, 317 what words will act as an, 318, note (e) on, right of representation does not pass, 168, 640 not necessary when one person composes for another, 319, 320 Engravings and prints, 375 In sculpture, 384 In paintings, drawings, and photographs, 391 where limited in effect, 392 In designs, 430, 648 ornamental, 733 fees on, 736 form of, 430, 648 must be in writing, 165, note (a), 431 entry of, 431, 648 useful, 742 fees on, 743 provisionally registered, 738 fees on, 738 no time should elapse between, in designs and registration, 432 effect of bankruptcy of transferor between, of design and registration, 432 Assignor, right of, to sell copies in his possession after assignment, 170, 171, 606, 608 Attestation to assignment of copyright, 161 not now necessary, 164, note (e), 165 Atjbbr's Opera ' Fra Diayolo,' 142 " Lestocq," 209 ' Aurora Floyd,' 765, see Tinsley v. Lacy. 822 INDEX. AUSTRALIA, not adopted provisions of the 10 & 11 Vict. c. 95 .. 500 Austria, and Hungary, international convention with, 505 copyright in, 541 term of copyright in, 541 what works protected, 541 registration, 541 assignment, 541 piracy, 542 remedy of the author, and penalties, 542 dramatic and musical representations, 542 artistic copyright, 542 Author : see also Agreements between Authors and Publishers. right of, to his own ideas, 6 in his own works, 8, note (a), 10 to first publication, 7 to assign MS., 8, note (a) first recognised, 19 to articles in magazines, reviews, &c, 76, 638 to reserve separate publication in such works, 76, 78 to withdraw letters written to papers, 51 to be paid for work already completed, 156, note (c) to property alone protected, 47 to books published in foreign countries, 84 an, against different booksellers in respect of same work is dis- tinct, 261 may prevent publication, 8, note (a) may terminate a joint adventure by notice, 599, 603 may sue seller, though he has not sued publisher, 262 may bind himself not to write on particular subject, 583 „ „ „ or for particular theatre, 583 Court will not interfere until actual publication, 584 may publish continuation of work sold, 584 ' The Edinburgh Philosophical Journal,' 585 ' The London Journal,' 585 ' London Society,' 586 must register before he can sue for penalties, 145 bankruptcy of, 157 manner in which, regards his work, 575 reward due to, 576, 577 contracts between, and publishers, 578 „ „ should be in writing, 578 construction of agreements between publisher and, 594 agreements for division of profits between, and publishers, personal and not assignable by publisher, 596 a joint adventure, 599 cannot after sale of book substantially reproduce it, 171 parting with copyright reproduce matter in any other book, 592. accounts between publisher and, 594 ordinary agreement between, and publisher not a partnership, 605 when, cannot revoke licence to print given to publishers, 591 INDEX. 823 Author — continued. publisher bound to observe agreement with, as to style of publication, «- 591 as to alteration of work of, by another, 588 action may be maintained against, for not supplying work agreed to be furnished, 580 but specific performance not decreed, 581 should work be stopped, must be paid for work done, 580, 581 payment to representative of, for work done, 580, 581 who is, within meaning of Act, 115 of a dramatic work, 127 ' a joint, 130, 131, 133, note (a), 321 under International Copyright Acts, 490 if Englishman may be resident abroad, 114, 115 if foreigner must be in British dominions, 116, 121, 122, 123 alien, how may acquire copyright here, 116 simultaneous publication by, abroad and in this country, 113, 117, note (e), 129, note (a) arranger of music is the, of arrangement, 130, 319, 320 consent of, to performance of his dramatic piece, 302 Bahamas (The), adopts the provisions of the 10 & 11 Vict. c. 95 ..499 Bankruptcy of author, 157 of stereotype founder and sale of plates does not pass the copyright, 157 what passes on, to trustees, 157 MSS. do not, 157 but copyright of printed work does, 157 whether copyright will pass on, without writing, 157, 158, 157, note (a) rights of assignee under contract of bankrupt publisher, 157 rights of author under agreement after publisher's bankruptcy, 157, 611 Barbadoes adopt the Provisions of the 10 & 11 Vict. c. 95 ..499 Bars of Music, how many constitute a phrase, 210, 211 seventeen, pirated, 210 eight, pirated, 211 ' Bath Chronicle,' 156 Beeton's ' Christmas Annual,' 761 Belgium international copyright with, 506 Literary copyright in, 525 duration, 525 penalty for infringement, 525 registration, 525 what protected, 525 assignment, 525 Dramatic and musical works, 525 right of- representation, 525 Artistic copyright, 526 rights of foreigners, 526 proposed alteration of law of copyright in, 526, note (a) 824 INDEX. ' Belgeavia Annual,' 254 ' Belgeavia Magazine,' 66, 143, 194, 254 Bellini's ' Sonnambula,' 166 ' Bell's Life in London,' 69, 761 ' Belshazzar'b Feast,' Martin's Picture, 374 Benedict's Part Song, ' The Wreath,' 216 Bequest of copyright, 156 in default of, will devolve in England to personal representatives, 156, 641 Bermuda adopts the provisions of the 10 & 11 Vict. c. 95 .. 499 Bible, copyright of, in the Crown, 274, 276 on what ground, 274, 276 view taken in Ireland, 277 „ „ England, 278 notes to the, 277 translation of books of the, 277 publication of separate books of the, 277 no prerogative copyright in the Hebrew, 274 nor in the Septuagint, 274 „ New Testament, 274 letters patent to King's printer (Scotland) concerning the, 276, note (5) ' Bird's-eye View and Plan of Paris and its Fortifications,' 361, 765 : see Stannard v. Harrison. Blackstone's Commentaries, 64 Blasphemous Publication, whether author may prevent publication of a, in MS., 85, 92 or recover damages, 87 not entitled to copyright, 84 Board of Trade, formerly empowered to extend period of protection to designs, 413, 683 - directions issued by, for registration, 413 since issued by Commissioners of Patents, Appendix (D) all powers of, now vested in Commissioners of Patents, 452, 715, 716 Bodleian Library (Oxford) : see Universities. " Bona Fide," abridgment, what, 60, 201, 202 quotations what, 174, 187, 216 notes, 277, 286 : see Notes. ' Bon Soir,' 248 Bone, Copyright in Articles made from, 412, 683 INDEX. 825 Book, definition of, 110, 145, 148, 294, 359, 459, 632 diagram a, 100 includes maps, 110 label not a, 100 newspaper not a, 459 title part of, 68 each part of a periodical a, 82 separate article advertised to form part of a periodical not a, 110 of registry : see Registration. open to inspection, 135, 291 making false entry in, 136 expunging or varying entry in, 141, 636 copy of every, for British Museum, 114, 151, 634 „ the Universities, 151, 634 origin of claim, 152, 153 distinction between copy of, for different libraries, 151, 152 penalty for not delivering, to libraries, 151, 152 in America to the Smithsonian Institute, 153, note (o) now, to library of Congress, 720 on every, to be printed name and abode of printer, 231, 457 what to be printed at the Universities, 291 alterations sufficient to constitute new, 102 written by one for another, 126, 128 out of print, copyright not presumed to be abandoned, 133 havingbeenparted with by author cannot be substantially reproduced, 171 new editions of, 101, 105 written by foreigner and published abroad not formerly entitled to copy- right, 472 otherwise under International Copyright Act, 473 duration of copyright in : see Term of Copykight. Book of Common Prater : see Prayer Book. ' Book of the Poets/ 188, 764 : see Campbell v. Scott. Book-keeping, circulation among pupils of a system of, not a publication, 111 Books, Privy Council may license the publication of any, 109, 633 International Copyright Act, 1837, refers solely to, 473 importation of, 27, 114, 217, 221, 638, 708, 718 copyright in catalogues of, 96 published before Copyright Act, 1842 . . 108 on hand may be sold after assignment, 170, 171 colourably shortened, 196-201 law, copyright in, 280, 281 suggestion of Copyright Commissioners as- to delivery of, to libraries, 154, 155 delivery of, to British Museum : see British Museum. new edition of : see Edition. Booksellers : see also Publishers. lien on books already printed for cost of production, 157 826 INDEX. Booksellers' Catalogues : see Catalogues. Boucioault's ' The Colleen Bawii,' 299 ' The Shaughraun,' 333 Bound aeies of townships shewn on maps, 65, note (a) ' Bow Bells,' 372 Brazil, copyright in, 567 term of, 567 foreign hooks have no protection in, 567 Breach of Confidence : see Private Letters. Breach of Contract : see Contract. 'Brewer's Guide to Science,' 65, 178,179 Brick, proper subject of registration under Designs Act, 439 ' Bristol Mercury' (The), 194, 254 ' Britannia,' (.The), 73, 762 British Dominions, definition of, 116, note (a), 632 necessity for residence of alien in, to ohtain copyright, 116, 120, 122, 125, note (a) British Guiana adopts the Provisions of the 10 & 11 Vict c. 95 .. 499 British Museum, delivery of copy of every book at, 114, 151, 152, 634 penalty for default, 153, 635 under International Copyright Acts, 475, 673, 688 British Subjects : see Englishmen. ' Broad-stone of Honour,' 109, note (a) Brunswick joins the International Convention, 506 Bureau de la Libraire of the Ministry of the Interior at Paris, works there to be registered, 487, 688 ' Burlesque Valse,' Coote, 293 Burnett's ' Arch^ologia Ehilosophica,' 212 Burn's ' Justice of the Peace,' 584. Burns' Letters, 49, note (c) Business Letters : see Letters. copyright in advertisements of, 97 INDEX. 827 Busts : see Sculpture. Buyer : see Agreements between Authors and Publishers ; Assignees ; Proprietors. Byron's 'Cain,' 89 "Childe Harold,' 126 ' Don Juan,' 90 ' Marino Paliero,' 33 Cain, Lord Byron's Poem of, 89 Calendars : see also Almanacs. subject of copyright, 258, 286 Campbell's Poems, copied, 188. Campbell (Lord), criticism on Lord Eldon's refusal to grant injunctions in the case of obnoxious books, 86 Cambridge (Public Library) : see Universities. Canada, adopts provisions of the 10 & 11 Vict. c. 95 ..499, 500 protective duties in, 500 effect of Boutledge v. Low on copyright in, 505 correspondence between government of, and this country, 500 value of copyright in, to British authors, 500, note (a) suggestions of Copyright Commissioners, 501 the Act of 1875 as to copyright in, 501, 709 assent to this Act by Parliament, 502, 707, 708 effect of this Act, 502 case of Smiles v. Belford, 502 Cancelling Begistration : see Expunging Entry. Cape of Good Hope, adopts provisions of the 10 & 11 Vict. c. 95 ..499 Cards, Christmas, protected, 367 Carpets, copyright in designs as applied to, 412, 646, 732, 735 > Cases, taken from legal reports, 194, 195 ' Castle of Otranto,' 93 Casts : see Sculpture. Catalogues, of engravings : see Prince Albert's Case. of natural curiosities, 40 of tricks and magical apparatus, 96, note (c) of designs, form of injunction restraining sale of, 764 raisonnees, 97 828 INDEX. Catalogues — contin ued. tradesmen, 97 copyright in, if descriptive, 96, 204, note (a) no, if but dry list of names, 96 Certificate, of registration of designs, 426, 664, 736 of entry in registry, 136, 636 stamp on, 136, note (a) of entry at Universities, 620 Chancery Amendment Act, 1858 .. 256 Chancery (Court op) : see Court op Chancery : Injunctions ; Remedies for Infringement op Copyright. Character. letters may be published for vindication of, 50 ' Charms of Berlin,' 472 Charter op Stationers' Company, original, 19 Charts : see Maps. copyright in, 42, 110 degree of originality necessary in, 41, 42 Chatterton (Death of), Picture op, 34 Chesterfield (Lord), Letters, 44, 49, note (c) Chiaro-oscuro, meaning of the term, 368 ' Childe Harold,' by Byron, 126 Childrens' School Books, copyright in, 46, note (a) Chili, (Eepublic of), copyright in, 567 duration of, 567 foreign works have no protection in, 567 Christianity, part of the law of the land, 88, note (c), work, against, 87, 91 ' Christie Johnstone,' 599 ' Christmas Annual,' (Beeton's), 761 Christmas Cards, protected either under Engraving Acts, or 25 & 26 Vict. c. 68, or Designs Act, 367 Chromos, protected in United States, 568 ' Chronicles of Stanfield Hall,' (The), 78 INDEX. 829 Chronological Work, Piracy op, 198 Cicero quoted, 49, 197 Circulation of Copies, generally, though gratuitously, a publication, 111 to a limited number not a publication, 111 among pupils of a system of book-keeping not a publication, 1 L 1 Citizen, copyright in United States limited to, and resident, 569, 570 see Foreign Authors. Civilization, international law in relation to, 471 effect of the fine arts on, 351 Clarendon's (Lord) History, 8 Claribel, songs by, 95 Clarinda, Letters of Burns to, 49, note (c) Class-book of Modern Science, 179 Clyde Bill of Entry and Shipping List, copyright in, 40, note, (c) Collections, copyright in, of poems, proverbs, maxims, quotations, &c, 43, 184 ' Colleen Bawn,' (The), 299, 332 College Copyright : see University Copyright. ' Collegians (The),' 299 Colonial Copyright, the 5 & 6 Vict. c. 45, and 8 & 9 Vict. c. 93 ..498, 678 the provision of 1847 as to foreign reprints, 498, 678 colonies which have placed themselves under the provisions of 1847 . . 499 Canadian copyright, 500, 501, 502, 506, 707-709 suggestion of the Copyright Commissioners on the Foreign Reprints Act, 501, 503 suggestion of the Copyright Commissioners as to, 503 value of, to British authors, 500, note (a) Colourable Alterations, infringement of copyright by, 196-201 Combination, original, proper subject of registration under Designs Acts, 432, 433 ' Come to Peckham Eye,' 301, 310 a ' Come where the Moonbeams linger,' 293, note (a) Comedy, copyright in, given by 3 & 4 Will. 4, c 15, 5 & 6 Vict, c 45 ..299, 300, 308, 626, 639, 640 ' Comical History and Tragical End of Eeynard the Fox,' 763 830 INDEX. Commencement of copyright in books published in parts, 82 MS. plays, 323 proceedings under Copyright Act, 1842, within 12 months, 228, 229, 250, 641 Commercial Letters : see Letters. Commission, copyright in works executed on, 390 „ photographs executed on, 408 on pirated works to come into the account, 270 replicas of pictures painted on, 408 as to publishers', 612 Commissioners : see Copyright Commissioners. Commissioners of Patents. all powers vested in Board of Trade by Designs Acts vested in, 452, 716 general rules made by, under Designs Acts, to be laid before Parliament, 452, 715 Common Law, copyright at, 6, 29, 31, 33, 34 publication at, 17 right to old copies, 27 early decisions as to, in Scotland, 30, note (a) no right to delivery up of pirated copies at, 225 how right to representation lost at, 301 : see Manuscript. Common Materials, no copyright in, 42, 214, 215 : see Compilation. Common Prater Book : see Prater Book. Company, letters by the solicitor of a, 43, note (b), 52 Compilation : see also Digests. copyright in a, -38, 43, 62, 178 „ „ in Prance, 40, note (6) the result of a, must be original, 42, 174, 178, 181, 198, 215 component part of a, not protected apart from the arrangement, 42, 214, 215 difference between an abridgment and a, 202 Blackstone's Commentaries a, 62 of maps, 41, 42 of poems, 39, 43 of road book, 39 of account of natural curiosities, 40 of account of works of art, &c, 40 of receipt books, 41 of mathematical table, 43 of a systematic course of instruction, 65 of directories, what course may be followed, 177 of dictionaries, 181, 182 Composition, nature of a literary, 1, 5 author's right to his own, 6, 7 INDEX. 831 Co mposition — continued. property in a literary, 7 does not pass by publication, 19 what renders a, literary, 45, 46 abroad does not affect copyright, 114 a dramatic, protected in MS. like a literary, 18, 301, 640 the value of property in a musical, 17 musical : see Musical Composition. Compromise, offer to, cannot be pleaded against a plaintiff, 231 Comyns' Digest, 63, note (a) Configuration, protection under Designs Act only afforded to, 438 Congress, question of international copyright before, 495, 496, 497 copies of books to be delivered at library of, 570, 571, 720 Consent of Author to publication, 1 61-165 to the representation of his dramatic work, 302 ' when consent of Dramatic Authors' Society equivalent to, 302 may apply to work not in existence, 303 cannot be given to infringe copyright after sale, 171 distinction between licence and assignment, 161, note (b) to use paintings, drawings, and photographs must be in writing, 391 , 400 where there are several authors, 303 what in plaintiff's conduct may amount to : see Acquiescence. form of minute of, to be entered at Stationers' Hall, 642 Consolidated Customs Act, provision relating to books, 221, 224, and note (V), 717 Construction of words " in pursuance of this Act," 228 „ " printed and published," 18 „ " persons aggrieved," 141, note (c) „ " sheet of letter-press," 110, 677 „ " personal representatives," 632 „ " place of dramatic entertainment," 304 „ " dramatic piece," 308, 632 „ "provided the same be done within the United Kingdom, &c," 113, 114, 116, note (a), 120 „ British dominions, 116, note (a), 120, 632 „ Commissioners of the Treasury, 656, 661 „ articles of sculpture, 677 „ or any portion of his interest, 5 & 6 Vict. c. 45, s. 13 .. 168 of the word " book," 110, 145, 148, 632, 677 " copyright," 1, 337, 632 " subject," 119 "stage- play ,"668 " offence " in the Copyright Act, 229, 251 " edition," 605 " author," 115, 120, 490 „ " proprietor," 648 832 INDEX. Construction — continued. of the word " assigns," 632 " volume," 632, 677 " pamphlet," 632, 679 interpretation clause of the 7 Vict. c. 12 ..677 15 Vict. 0.12.. 683 Literary Copyright Act, 1842 .. 632 Engraving Copyright Acts, 357 Designs Act, 427 of Act of 3 Will, 4, c. 15 ..308, 628 of the 19th section of the International Copy- right Act, 334 of agreements between authors and publishers, 594 Contemporaneous publication abroad and in this country, 113, 117, note (e), 125, note (a) Continuation of Work, author may publish, having sold copyright, 584 by another restrained, 761 Contracts : see also Agreements. to supply work, 578, 580 „ specific performance of, 581 to publish unlawful book, 580 not to write on a particular subject, 583 not to sell under a certain price, 603 between authors and publishers, 575, 578 should be in writing, 578 manager of theatre and actor, 583, note (a) for division of profits, 595, 596 not assignable, 596, 598 terminable by notice 599, 603 ordinary, between authors and publishers not a partnership, 605 breach of, ground for issuing injunctions, 49 as to publishing, 578 as to articles in encyclopsedia, 75, 80 as to works written by one for another, 126, 130 as to style of publication, 591 for sale of copyright will be decreed, 581, note (6) for publication of a specific number of copies, 591 on breach of, to sell copies on hand prior to expiration of limited copyright, 606 Contributors, right of : see Periodical Publications. Conventions, international copyright, 505, 506 power of Crown to conclude, 473, 671 between England and France, 506 list of foreign countries with which, have been entered into, 506 between this country and Foreign States, Appendix (K.) Conveyancing, Precedents in, stolen, 9 copyright in, 64 Copies of Books to be delivered to the British Museum, 151, 634 INDEX. 833 Copies op Books — continued. to be delivered to the Universities Library, 151, 634 penalty for default, 152 under International Copyright Act, 475, 673, 676, 688 importation of pirated, prohibited, 217, 221, 224, note (b), 675 action for recovery of, pirated, 225 no delivery up of, under 54 Geo. 3, o. 156 .. 225 number of pirated, to be disclosed by defendant, 266 agreement as to publication of specified, 591 constituting edition : see Edition. Copying, to what extent allowed, 172, 174 in case of directories, 177 „ dictionaries, 181-185 to certain extent necessary in engravings, 369 evidenced by similarity of errors, 183, 184, note (a) of photographs lent for particular purpose, 375 in action under Engraving Acts defendant to be charged with, part as well as the whole, 378 Copyright, nature and definition of, 1, 120, 156 personal property, 156, 641 a local right, 156 devolves on personal representatives, 156, 157, 641 passes to creditors, 157 regarded as a matter of state, 274 at Common Law, 3, 29, 33 no, in mere ideas, 5, 37, 66 in the material that has embodied the ideas, 6, 37 not in the form of words, but in intellectual conception thereby ex- pressed, 37 to obtain, there must be originality, 37, 65 when first recognised, 19 petitions to Parliament for protection of literary, 25 first Act for protection of literary, 25, 613 Universities obtain Act for protection of their, 35, 618 effect of a perpetuity in, 107 „ „ considerations respecting, 107 „ „ Naooleon' 5 ! opinion, 107 in works published before 5 & 6 Vict. c. 45 . . 108 duration of, under 18 Anne c. 19 .. 26 „ 54 Geo. 3, c. 156, s. 4.. 35 „ 5 &6 Vict. c. 45.. 108, 632 „ „ the Engraving Acts, 353, 355, 614, 617 „ „ the Sculpture Acts, 382, 624 „ the Designs Acts, 412, 646, 647, 683, 735 „ of author published more than twenty-eight years before the 54 Geo. 3, c. 156 .. 35, note (a) what may be the subject of, 37 in maps, 41, 42, 65, note (a) 147 in arrangement of receipts, 41 private letters, 43, 53 in letters sent to newspapers, 51 in ' The Clyde Bill of Entry and Shipping List,' 40, note (c) in lectures, 17, 18, 54, 58 in sermons, 57 3 H 834 INDEX, Copyright — continued. in abridgments, 59 in digests, 62 in school books, 65, note (b) in a title, 67 in a single word, 67 in an abstract of title, 46, note (V) in encyclopedias and periodicals, 75, 76, 638, 639 in articles written for reviews, magazines, &c, 75, 76 in translations, 82, 211, 212 in directories, 96, 177 in dictionaries, 174, 181, 182 in a dry catalogue of names, 96 Wood, V.C., opinion as to, 96 in a descriptive catalogue of tricks and magical apparatus, 96, note (c) in specifications of patents, 96 in catalogues raisonnies, 97 in tradesmen's catalogues, 97 not in advertisements of place and kind of business, 97 in illustrated furniture guides, 98 principles on which not allowed in an advertising medium, 100 in a diagram, 100 scoring tablet, 100 in newspapers, 453, 470 in newspaper telegrams, 100, 101 in new editions, 101, 105 in spectacular pieces, 310 in adaptation of old play, 311 in translation of foreign drama, 311, 689, 707 in immoral play, 315 in MS. dramatic pieces, 323, 324, 325 in libellous, immoral, or obscene works, 84 in irreligious works, 88 in works of a scandalous nature, 92, 94 „ intended to deceive the public, 93, 94 so decided on ground of fraud, 94, 95 in the Bible and Prayer Book, 274, 276 in Acts of Parliament and matters of state, 280 in the publication of proceedings in Courts of Justice, 283 in almanacs generally, 286 in sheet almanac printed from a directory, 78 in the Nautical Almanac in particular, 289 in the Latin Grammar, 299 in manuscript musical and dramatic compositions, 18, 323, 324, 325 in works where no originality is claimed, 65 „ which have no actual existence, 66 „ written for another, 126 „ „ „ where only subject suggested, 127 in whom vested, 108 •in France, 507 in Belgium, 525 in Holland, 526 in the German empire, 529 in Austria and Hungary, 541 in Norway, 543 in Sweden, 549 INDEX. 835 CorTMGHT — continued. in Denmark, 556 in Portugal, 558 in Italy, 559 in Switzerland, 562 in Turkey, 563 in Russia, 564 in Greece, 566 in Brazil, 567 in Republic of Chili, 567 in Japan, 567 in Mexico, 567 in the United States of Venezuela, 567 no, in certain countries, 568 in the United States, 568 in anonymous works, 109, 674 commencement of, in works published in parts, 82 abandonment of, 133 not presumed from book being out of print, 133 not lost by mere expression of opinion, 253 obtained by simultaneous publication abroad and in this country, 113, 117, note (e), 125, note (a) an Englishman resident abroad may have, 114 no, by law of nations, 115 no, in a mere plan of a work, 100 no, acquired by registration before publication, 100 persons who may claim under the word "author," 115 how alien may acquire, in this country, 116 whether a foreign resident abroad can obtain, in a work printed and published here, 116, 117 extension of, by the Act, 1842 . . 120 necessity for alien to be within British dominions, and to publish in United Kingdom to obtain, 122 in such portion of work as published here, 122 there may be, in part of work, 126 may be owned by Government, 126 „ corporation, 126 Lords Cairns' and Westbury's opinions on the Literary Copyright Act, 12 Lord Cranworth's opinion, 119, 121 lien on, by bookseller, 157 an equitable, 159 ignorance of, no excuse for piracy, 67, 305, 367 song may not be publicly sung, 308, 3 L0 international conventions : see International Copyright. the offspring of civilization, 471 regulated by 7 Vict. c. 12, and 15 Vict. c. 12 . . 472, 668, 686 of 1837, refers solely to books, 473 registration of, 474, 673, 688 colonial : see Colonial Copyright. suspension of, in colonies, 498, 499, 678 in musical and dramatic composition : see Dramatic Copyright. in engravings, prints, and lithographs : see Engravings. in sculpture and casts : see Sculpture. in paintings, drawings and photographs : see these titles. in designs : see Designs. registration of : see Registration. :■! II 2 836 INDEX. Copyeiqht — continued. assignment of : see Assignment of Copteight. Crown : see Crown Copyright. infringement of : see Infringement of Copyright. of Universities : see Universities. Copyright Commissioners (The Royal), suggestions as to lectures, 57 abridgments, 62, note (a) periodical publications, 80 extension of copyright, 109 publication in the United Kingdom, 125, note (a) aliens, 125, note (a) persons capable of holding copyright, 126, note (a) actions in respect of infringements before registration, 146, note (c) copies of books for the public libraries, 154 copyrights of Universities, 292 musical and dramatic copyright, 325 literary and performing rights in, 325 dramatization of novels, 341 sculptures and models, 386 registration of paintings, drawings, and photographs, 396, note (a) engravings and prints, 396, note (a) copyright in paintings, drawings and photographs, 390, note (J) photographs particularly, 407 » artists' sketches and studies, 407, 408 registration under the International Copyright Act, 478 translations and adaptations of foreign plays, 491 dramatic pieces and right of performance, 442 the Foreign Reprints Act, 501, 503 colonial copyright, 503 ' Cornflower Valse,' 293, note (a) Corporation may own copyright, 126 ' Correspondent Newspaper,' (The), 70 Correspondents : see also Letters, letters from, to editors of newspapers, 51, 52 to Government officers, 53 Costs, in actions, 299, 300 double, 300, 622, 625 security for, 232 points as to, in equity, 271, 273 Cottenham's (Lord) Opinion as to Author's Right to MSS., 10 Cotton, Copyright in Designs applied to, 412, 647, 735 County Court, proceedings in, for piracy under Designs Act, 444, 694 Court of Chancery : see Injunctions ; Remedies m Equity. Court Guide, 96 ' Court Miscellany or Gentleman and Lady's Magazine,' 295 INDEX. 837 Ooubt of Justice, right to publish proceedings in, 283, 285 when publication of proceedings in, published, 284 Cotjbt of Session, principles on which determinations of, have proceeded, 49 Cbeditobs, cannot seize author's MSS., 7, 157 Criterion op Pieacy, quantum little, 61, 156, 187 that one work serves as substitute for the pirated work, 174, 175, 195, 196 similarity of errors, a, 183, 184, note (a) „ appearance, 246, 247 Ceiticism, on the rule as to abridgments, 60, 61 extracts for, when amount to piracy, 188, 191 Cbokeb's Notes to Boswell's ' Life of Johnson,' 126 Cbown Copyright, Chapter IX. nature of, 274 in Bible and Prayer Book, 274, 276 view taken in Ireland of, 277 „ England of, 277 no, in Hebrew Bible, 274 nor Septuagint, 274 nor New Testament, 274 in State documents, 280 in Acts of Parliament, 280 in law book that concerns the common law, 281 in abridgments of Acts of Parliament, 283 imprimatur usually affixed to law reports, 283 as to publication of proceedings in Courts of Justice, 283 Year Books, 283 trial of Lord Melville, 284 when publication during trial prohibited, 284 publication of ex parte statements upon a coroner's inquest, 285 , no claim to exclusive publication of judicial proceedinss in lecenfc years, 285 no claim to copyright in opinions of Judges, 286 effect of notes to statutes, 286 almanacs, 286 reason for claim, 286 the Latin Grammar, 274 Cumulative Penalties : see Penalties. Curiosities, account of natural, copyright in, 40 Customs, of the trade cannot override the law, 82, 83, 194, 196, 248 no excuse for piracy, 253, 254 of a particular establishment does not vest copyright, 322 by the law of the, importation of pirated books prohibited, 219, 221, 717 838 INDEX. Cuts : see Engravings. Cyclopedias : see Encyclopedias. Daily London Journal (The), 69, 585, 762 Damages, Actions foe, for violation of common law rights, 8 gratuitious circulation, 216 pirated copies sold, 225 in respect of irreligious work, 87 under the 3 & 4 Will. 4, c. 15 .. 348, 349, 627, 628 „ ' 8 Geo. 2, c. 13.. 615 17 Geo. 3. c. 57.-376,377, 622 54 Geo. 3, c. 56, s. 3 .. 385, 624, 625 5 & 6 Vict. c. 45.. 641 5 & 6 Vict. c. 100, s. 9.. 441, 652 25&26 Vict. c. 68.. 699, 700 brought under statute of Anne without registration, 135, 145 but not under 5 & 6 Vict. c. 45 ..136, 145, 146 against unlawful importing of books, 217, 221, 224 „ ,, printing, selling, or letting on hire, 223, 224 „ „ as to separate penalties for such offence, 224, note (a) at common law when not provided by statute, 218, 219 See Limitation of Time ; Remedies for Infringement of Copyright. Damask, Copyright in Designs applied to, 412, note (e), 647, 735 ' Dangerous Connections,' 145 Date of Publication : see Registration. Death of Chatterton ' picture,' 34 Decisions : see Judgments. Descriptive Work, no copyright in, 93 Decrees of Star Chamber, 20 Defendant in action to give notice of objection to plaintiffs title, 226 what sufficient notice, 227 amending notice, 227 may plead general issue and give special matter in evidence, 228, 641 all actions against, to be brought within twelve months : see LIMITATION of Time. position of, when notices of objections to title not given, 228 when to keep account, 254 effect of offering to compromise, 231 Definition : see also Construction. of " Copyright," 1, and note (a), 337, 632 of " originality," 181 INDEX. 839 Definition — continued. of property, 5 of " book," 110, 294, 632 of a head-note, 62 of an abridgment, 59, 202, 298 of "offence," 229, 251 of an injunction, 233 of " books, and other writings," 294 of dramatic pieces, 310, 632 of a dramatic composition, 308 of a place of dramatic entertainment, 304, and note (V) of the representation of a dramatic composition, 308 of " published " in 3 & 4 Will. 4, c. 15, and 5 & 6 Vict. c. 45 . . 334, 335, 336 of " printed and published," 18 of " persons aggrieved," 141, note (c) of " sheet of letter press," 110 of " in pursuance of this Act," 228 of " design," 356, 411 of " proprietor " of a design, 413, note (V), 648 of " personal representative," 632 of " assigns," 632 of " British dominions," 632 assignment as distinguished from a licence, 161, note (b) of translations, 485 necessarily a want of originality in, 174, 181 Delay : see also Acquiescence. where there has been, application for security of costs will not be entertained, 232, 248 Delivery of pirated copies up to authors, 225 „ no right at Common Law, 225 „ of designs and drawings, 226 form of order for, of woven fabrics, 764 of copies to the public libraries, 114-151, 155, 229, 634, 635 under International Copyright Acts, 475, 673, 676, 688 of lectures : see Lectures. Denmark, Literary Copyright, 554 what, 554 duration, 554 works out of print, 554 anonymous works, 554 registration, 555 remedies, 555 penalties, 555 Dramatic and Musical Works, 555 right of representation, 555 Artistic Copyright, what protected, 555 duration, 555 Deposit of Copies at Public Libraries, 114, 151-155, 475, 634, 635, 673 676, 688 840 INDEX. ' Dermot Astore,' 232, note (a) Descriptive Catalogues, copyright in, 96, 98 Designs, copyright in — Chapter XV. protection afforded by the French, 410 first Act giving, 410, 622 other Acts, 622, 623, 631, 680, 695, 715 division of the right of, 410, 411 copyright in designs for ornamental purposes, 411, 645 considered as different from the substance to which they are applied, 411 what is a publication of, 411, note (a) from what period copyright begins, 411, note (a) duration of the right, 412, 646, 683, 735 extension of copyright in, for damasks, 412, note (e) the Commissioners of Patents empowered to extend time, 413, 681, 683, 733 orders of Commissioners to be registered, 413 registration of, for ornamental purposes, 413, 647 when registration to be effected, 413 definition of a proprietor of a copyright in, 413, note (6), 648 who entitled to register, 737 as to marking ' Ed.' on designs, 414, 647 what sufficient for registration, 414, 415 shawl, 414, 415, 417 no specification necessary, 415 inspection of registry allowed to all after copyright expired, 415, 429, 655, 734, 738 and before under certain circumstances, 415, 429, 661, 734 certificate may be obtained on production of a design as to whether there be copyright or not, &c, 429, 655, 734 copies of, in books for sale need not have registration mark, 415 may be registered in several classes, 415, 736 when advisable, 416 but must be at same time, 416 the appointment of a registrar and other officials, 416, 425, 653, 659 the making of rules for regulation of office, 416, 417, 653, 654, 666, 683 pattern registered in one class may be applied to substance in another, 416, note (b) mode of registration, 417, 693 fees payable on, 735, registration may be effected by sample, 417, 693 when advisable, 417 when not advisable, 418 when sample of article registered, design not infringed by article produced on same principle if different in style, 418-425 power of registrar to dispense with drawings, &c, 426, 660, 683 copies of drawings or tracings to be filed, 426, 448, note (6), 732, 736 certificate of registration, 426, 654, 734 to be received in evidence, 427, 654 the registration mark, 447, 657, 693, 733 not required on sculpture, 427, 682, 733 when provisionally registered, 427, 733 if article registered under class 10 ..733 INDEX. 841 Designs — continued. penalty for wrongful usage of the registration mark, 427, 450, 649, 652, 737 action lies for false representation as to registry of, 427, note (a) acts to be construed strictly, 427 transfer and authority to register, 430, 648, 733 form of, 430, 648 must be in writing, 431, 432 fees payable on, 736 any license must be in writing, 165, note (a), 431, 432 effect of bankruptcy of transferor between assignment and registration, 432 original combination of old patterns may be registered, 433, 434 claim to register a design for a dog-cart, 433, note, (b) 440 copy of a photograph of a well-known character not a, 435 remedies for piracy of right in ornamental designs, 435, 649 manufacturer bound to inquire if design registered, 436 notice under the 7th section of the 5 & 6 Viet. c. 100 .. 436, 437, 649 the manufacture without the intention of selling, an offence, 438 ignorance of, does not excuse the piracy, 438 the 7th section of the 5 & 6 Vict. c. 100, extended to useful designs, 438, 659 as to what is a proper subject for registration under the Designs Act, 438 " oblong pane of glass," 438 " protector label," 439 " dog-cart phseton," 440 " table lamp," 441 action for damages for infringement, 441, 649 „ " „ in England, 442, 450 „ „ in Scotland, 443, 651 „ „ in Ireland, 443, 652 limitation of actions, 444, 653 justice may order payment of costs in cases of summary proceedings, 444, 653 remedies extended to useful designs, 444, 659 proceedings may be taken in the County Court, 444, 694 consideration in selecting remedy, 445 no right to delivery up of pirated articles, 445 but order made in one case, 226, 445, 764 what a statement of claim should contain, 446 articles alleged to be piracies to be produced in court, 446 extension of copyright in ornamental design, 683, 693 Copyright in Design of utility — what necessary in order to obtain protection, 447 „ to procure registration, 447 all designs to have a title, 448, 740 amending or cancelling registration, 448, 659 what not a design, 433, note (i) no mechanical action or principle not inseparable from shape can be registered, 449, 742 discretionary power in registrar, 426, 449, 660 to register under ornamental or useful Designs Act, 449, 660, 661 to reject designs being simply labels, wrappers, or other coverings, 449, 661 appeal to Privy Council, 449, 661 842 INDEX. Designs— continued. Copyright in Design of Utility — continued. all provisions of 5 & 6 Vict. o. 100, as to transfer of designs, printing, &c, penalties extended to useful designs, 449, 659 provisional registration of designs, 450, 680, 737 exhibition of designs provisionally registered, 450, 451, 681 fees for provisional registration, 451 special provisions made at the Exhibition of 1851 ..451, 686 the 24 & 25 Vict. c. 73 .. 451, 695 all provisions by Designs Act vested in Board of Trade transferred to the Commissioners of Patents, 452, 715, 716 power for commissioners to make rules, 452, 715 general rules to be laid before Parliament, 452, 715 office of registrar to cease as a separate paid office, 452, 716 form of injunction under Designs Act, 765 „ as to catalogue of designs, 764 „ as to woven fabrics and delivery up of articles, 764 Despatches, publication of, 53 Duke of Wellington's, 54 Detinue (Action of) : see Action. Diagram, copyright in a, 100 Dicks' English Novels, 71 Dictionaries, certain amount of liberty allowed in, 174, 181 instances of piracy of, 182 the case of, analyzed, 181 Difference between assignment and licence, 161, note (b) „ „ commercial letters and literary compositions, 45, 46 „ „ a copy and an imitation, 196 „ „ various kinds of abridgments, 201 „ „ pianoforte score, and original score, 343 Digby's ' Broadstone of Honour,' 109, note (a) Digest : see also Abridgments, copyright in a, 62 infringement of copyright by way of, 208 a head-note considered as a, 62, 63, 208 Comyns', 63, note (a), 206 Diligence to be observed in seeking Injunction, 248 Directories, copyright in, 96, 258 instances of piracies of, 177 post-office, title, 75 injunction as to, 764 Discovert, right of plaintiff in equity to, 226, 269 „ ., how limited, 269 INDEX. 843 DISCRETIONARY POWER in registrar to register under the Designs Acts, 426, 449, 660, 661 Dissolution of partnership between publishers, 76, note (b) of injunctions : see Injunctions. Distinct Properties not adjusted immediately, 3 Distinguishable Property, Copyright, a, 5 Distribution, gratuituous, when a publication, 111 „ when, an infringement of copyright, 216 Divisibility op Copyright, as to locality, 166 as to time, 167 Division, of piracies into classes, 186 no, of copyright, as to locality, 166, 167 agreements for, of profits, 595 „ „ not assignable, 596, 597 „ „ terminable by notice, 597, 598 forms of agreements for, of profits, 750, 752 Documents (State) : see Crown Copyright. ' Dog-cabt Photon,' not a proper subject of registration under Designs Act, 440 ' Doing for the Best,' 165 Donaldson v. Becket, Case op, 29 Double Costs : see Costs. Dramatic Authors' Society, an agent for its members, 302 Dramatic Composition, copyright in, 293 what is a, 308, 309 musical compositions for the stage are, 294 work not intended for stage may be a, 308 song " Come to Peckham Rye " a, 310 a spectacular piece a, 310 representation of, not equivalent to publication of, 295 American case, 296 made equivalent to publication, 300, 643 may be stayed by injunction, 295, note (a) what amounts to, 308 the 3 & 4 Will. 4. c. 15, relating to, 299, 626 term of copyright in, 300, 301, 626, 627 abridgment of, 33, 298 a pantomime prohibited, 299 how the common law right of representation of MS. lost, 301 statutory protection attaches on public representation, 301, 627 query whether MS. being registered and piece after printed and not registered, copyright affected, 301 where the copyright in unpublished, dates from, 302 as to consent of author of, 302 844 INDEX. Dbamatic Composition — continued. as to consent of Dramatic Authors' Society, 302 „ may apply to works not in existence, 303 „ authors where more than one, 303 may be taken from novel without infringement, 336 otherwise in Prance, 337, note (a) hut drama may not be printed, 337 published before novel saves right of dramatization of novel, 339 but not if published after, 340 altered, though improved by another does not constitute joint authorship, 130 what constitutes joint authorship in a, 321 no assignment necessary where, executed for another, 319, 320 performance at a place of dramatic entertainment, 303 what is a place of dramatic entertainment, 304, and note (V) ■ copyright may be secured in the adaptation of old play, 311 translation of foreign drama, 311, 313, 689, 707 immoral play not protected, 315 right of Lord Chamberlain to prohibit plays, 315, note (a), 661 : see Theatres. the right of representation in MS. plays, 322 „ how affected by subsequent representation, 322 „ previous publication in print in foreign country, 323 „ from what time to commence, 323, 324 „ lost by first publication in foreign country 324, 331, 332,333 in MS., what sufficient to register, 301 distinction between the right of printed publication and public perform- ance, 325 private performance of, 326 suggestions of the Copyright Commissioners as to, 325 omission to register does not affect copyright, 302 as to suing in respect of infringement of, before registration, 146, 641 double costs given by 3 & 4 Will. 4, c. 15, taken away, 300 assignment of the right of representation of, 168, 316, 318, note (b) need not be registered, 317 must be in writing, 318 assignee may sue though assignment be not by deed, 316 the 22nd section of the 5 & 6 Vict. c. 45, does not apply to assignment of representation, 317, 640 what words amount to a complete assignment of, 318, note (e) meaning of assignment of ' London right ' in, 350 what amounts to a piracy of a, 326 the taking of parts of a, 326 substantial identity, 327 the taking of a material scene, 315, 327-330 no plagiarism in dramatizing the same incidents, 298 injunction restraining the water-cave scene in ' The Colleen Bawn,' 299 form of injunction restraining sale of operatic magazine, 762 words of song taken, 308, and note (o) playing music in public though other words used, 308 principal decisions on questions of piracy under Act of "Will. 4 ..311 cases of Planche v. Braham, and Chatterton v. Gave, 312 two dramas taken from common original one not piracy of other, 347 the 5 & 6 "Vict. c. 45, does not deprive proprietors of remedies under Act of Will. 4.. 301, 640 INDEX. 845 Dramatic Composition — continued. punishment for infringement of, not to be visited on one not actually taking part in the performance, 305 case of Lyon v. Knowles, 306 Marsh v. Conquest, 307 remedies forinfringement of copyright in: see Remedies fob Infringement. under the International Copyright Acts, 474, 481 : see also International Copyright. registration when in print, 475, 688, 689 in MS., 475, 689 deposit of copies when necessary, 475 fair imitations or adaptations not prohibited, 481, 687, 707 Frou-frou, 482, 483, 484, 485 what is a translation, 485 requisites in order to obtain protection, 486, 487, 688 as to works published in parts, 487 fees for registration, 488 effect of 19th section, 489 applies to native as well as foreign authors, 489 suggestions of Copyright Commissioners as to adaptation of foreign plays, 491 as to right of performance, 492 importation of copies prohibited, 492, 493, 689 extended to unauthorized translations, 493, 687, 689 Dramatic Entertainment : see also Representation. what is a, 304 place of, 303, 304, and note (&) who those who cause, 306 introduction to a pantomime a, 305 Dramatic Piece defined by 5 & 6 Vict. c. 45 ..632 Dramatization, novel may be dramatized, 216, 336 except where play on same previously published, 216, 339 cannot be saved by author publishing play after novel, 340 suggestions of Copyright Commissioners as to, of novels, 341, note (a) Drawings : see also Paintings. in furniture guides, not protected, 98 registrar may dispense with, on registration of designs, 426, 447, 660, 683 at whose expense furnished, 448, note (6) " Duenna," by Sheridan, 296 Duration of Copyright : see Term of Copyright Duty of sovereign to superintend publication of statutes, 277, 280, 281 works on doctrines of religion, 276, 277 of registrar of designs, 425 Earthenware, copyright in designs applied to, 412, 647, 735 84G INDEX. Edition, what is an, 102, 605 rights of the purchaser of an, 605 copyright may be obtained for any number of, 104, 105 new, subject of copyright, 101 may be treated as a piracy though old edition was not, 252 of any work in which copyright does not exist may be brought out and valid copyright obtained, 105 to be registered, and if not, how far protected, 147 deposited under International Copyright Acts if containing additions, 475, 675 Editors, right of, to publish articles, 51, 76 communications sent to, may be published, 51 hut not if withdrawn before publication, 51 need not be preserved, 52 when copyright vested in, 76 when employed by publishers, not entitled to copyright, 76, note (d), 594, note (a) name of, on title-page not part of title, 588, note (V) agreement between, and publishers not to alter title, 588, note (b) how far proprietors of periodicals, may interfere with, 594 ' Edinburgh Philosophical Journal,' 584, 585 Effect of a perpetuity in copyright, 107 of evidence of offer to compromise, 231 of failure to give notice of objection to plaintiff's title, 228 of public performance of MS. piece, 301 of omission to register dramatic piece, 302 of publication : see Publication. of registration : see Registration. Egypt, no copyright law in, 568 El don's (Lord) Opinion of Perceval v. PMpps, 48 Employer, who is legally an, 127 copyright of work written for another in, 126, 127 Encyclopedias : see also Periodical Publications. copyright in, 75, 638 reservation by author of articles in, 76 article in, on Thomas Aquinas, 78 . right of separate publication of, 78, 639 may be acquired by contract, 80 suggestion of the Copyright Commissioners as to copyright in, 80 registration of title of, 81, 144 may not outstrip the limits of fair quotation, 174 England, international copyright treaty between Prance and, 487 „ „ „ and other countries, 506, Appendix (K) Englishman, though resident abroad may have copyright here, 114, 115 when entitled to copyright in Prance, 486, 487 INDEX. 847 ' English Society,' 586, 587 Engravings by the Queen and Prince Albert, 11 must bear name and date, 358, 614 advisable to retain name of first proprietor in print, 378 when published with letter-press, 359, 632 copyright in, 351 nature and origin of the right of, 351 first Act conferring, 8 Geo. 2, c. 13 ..353, 613 only protected engraver being the designer, 35-1 second Act, 7 Geo. 3, c. 38 .. 354, 616 third Act, 17 Geo. 3, c. 57 .. 355, 621 Acts extended to Ireland, 370, 630 Acts to be construed strictly, 357 include lithographs, 370, 691 no monopoly in the subject, 368 from objects in nature, 369 two engravings made from perusal of same text, 369 Acts extend to maps, 148, 150 similarity of, from same map, 200 maps protected under Engraving Acts, 360-367 not necessary to register, 360-365 a print of any building, house, or garden protected by Engravings Acts, 354 copyright obtained by person unable to draw, 355, 356 meaning of the term " design," 356 terms of the American Act, 356, note (b) Christmas cards protected under Engravings Acts, 367 an engraver always a copyist, 369 means by which effect produced, 369 statutes do not apply to sale of prints made originally with consent, 374, 375 in what class of, no copyright, 375 no copyright in obscene or immoral, 375 „ libellous, 375 infringement of copyright in, 368 may be infringed by photography, 370 infringement effected by copies made by mechanical or chemical process, 372 not infringed by designs transferred to an article of manufacture, 372 late case of Dicks v. Brooks, 372, 373, 766 exhibition of picture not an infringement, 374 ignorance of copyright in, no excuse for piracy, 367, penalty for piracy of, 376, 614 special action on the case, 376, 622, 699 assignee may maintain action for piracy, 375 not in Scotland necessary to allege where piracy committed, 375 limitation of time as to actions, 377, 404, note (a), 615 summary proceedings for the recovery of penalties 377, 699. in England and Ireland 377, 699 in Scotland, 377, 699 order for inspection of accounts, 378 evidence on behalf of plaintiff, 378 international copyright in, 376, 672 may be protected by international treaty, 473, 672 registration of order, 475, 676 848 INDEX. Engravings — continued. foreign authors claiming copyright in, are not exempt from conditions affecting native authors, 489 form of injunction as to collection of etchings, 762 „ „ etchings improperly obtained and published, 763 „ „ illustrated book, 763 form of agreement between a publisher and engraver for engraving a painting, 755 Entertainments, copyright in, 304 place of dramatic, 303, 304, and note (J) who those who cause dramatic, 306 Entry in Registry : see also Registration. forms of, 642, 643, 644 of book necessary to support action, 136, 145 full name of firm must be set out, 137 of first publication under name of firm, 138 date of publication, 139 as to the place of residence, 139 abode of the assignees, 139 of title of work not yet published, 143 stamp on copies of, 136, note (a) assignment of copyright, 164 : see Assignment of Copyright. under an application by assignor, 164, 165 expunging or varying, 140, 477, 636, 652 „ „ on what evidence,^141 „ „ under Designs Act, 448, 652, 659 „ „ under 25 & 26 Vict, c 68 .. 397, 697 making false, 136, 636, Ephemeral Publications : see Temporary. Epitome : see Abridgment. Equitable Copyright. remedy : see Injunction. Equity, Court op : see also Remedies for Infringement of Copyright. principles on which injunctions granted, 15, 28, 234 interfere to prevent publication of private letters, 46, 48 ' Era,' 72 Errors, similarity of, test of piracy, 183, 184, note (a) Etchings : see Engravings ; Prince Albert's Case. Eton, copyright in perpetuity, 290 ' Eunuchus,' sale of, by Terence, 2 ' Eve of the Battle of Edgehill,' by Landseer, 403, 404 Evidence, what defendant may give uuder general issue, 228, 641 necessary for obtaining an injunction, 235 for plaintiff in engraving suits, 378 before expunging entry or varying register, 141, 142 INDEX. 849 Evidence — continued. letters used in, not deemed published, 110, note (a) of copying by similarity of errors, 183, 184, note (a) effect of offer to compromise, 231 of witnesses taken by examiners, 268, 269 as to damages under 3 & 4 Will. 4, c. 15 .. 348 registration, prima facie, of title, 395 certificates of registration under Designs Act what, 426, 427, 429, 655 Examiner, attendance of witnesses before, 268, 269 Excuse foe Delay : see Acquiescence ; Delay. piracy : see Custom. Execution, copyright not subject to seizure on, 157 Executors, right to publish, 156, note (c) to receive payment of price of portion of work, although author die before completion, 156, note (c) Exhibition of 1851, articles exhibited at, 451 of pictures not infringement of copyright, 374 a publication, 399 of designs provisionally registered, 450 Existence of Work necessary for Copyright, 6, 7, 37, 66. Exportation, printer liable to action for printing copyright work for, 223, note (a) Expunging Entry in registry book, 140, 477, 636, 652 „ „ on what evidence, 141 „ under 25 & 26 Vict. c. 68 . . 397, 697 „ under Designs Act, 448, 652, 659 Extension of Copyright, when, under the 5 & 6 Vict. c. 45, s. 4 .. 108, 109, 633 in designs, 413, 683, 693, 733 see Term of Copyright. Extracts from different authors, a digest, 62 from poetical works, 188 from Thackeray's works, 190 from another work simply arranged alphabetically, piratical, 209 omitting unimportant points not an abridgment, 59, 202 amount taken no criterion of piracy, 61, 187 value of, 186-188 of caricatures from ' Punch,' 188, 189, note (a) for criticism, to what extent protected, 191 Faculties of Advocates at Edinburgh, delivery of copies of books to, 151 Farce : see Dramatic Composition. 3 i 850 INDEX. Fees for Registration under the Literary Copyright Act, 136 „ Designs Act, 448, 735 „ „ for provisional registration, 451, 737 „ International Copyright Act, 488 ' Festivals and Fasts,' Nelson's, pirated, 28 •Field' (The), 46 Figures : see Arithmetic. Fine Arts, encouraged by the Stuarts, 352 their gradual development, 388 Copyright Act, 389, 695 „ „ registration under the, 391, 696, 697 see also Wobks of Art. Firm, full name of, must be set out in entry at Stationers' Hall, 137 sufficient to enter first publication under name of, 138 First recognition of copyright, 19 Act for protection of literary copyright, 25, 613 „ „ engravings, 353, 41.3, 613 „ „ sculptures, 381, 623 „ „ paintings, 389, 695 „ designs, 410, 622 of play abroad deprives it of protection here, 323, 334, 331 publication : see Publication. Floor-Cloths, copyright in designs applied to, 412, 659, 735 Foreign Books : see Translations. Foreign Reprints, prohibited to be imported, 219-221, 224, note (J), 679, 718 countries which have availed themselves of the, Act, 499 suggestions of the Copyright Commissioners on the, Act, 501, 503 Act : see 10 & 11 Vict. c. 95 .. 678 Foreigner, what necessary for, to obtain copyright here, 116, 122, 489 may prevent translations, 84, 677, 686-689 assignment by, 117 and note (e), 118, 168 claiming copyright in engravings must take what steps, 489 Forfeiture of Copies under the 5 & 6 Vict, c. 45 .. 217, 223, 224, 225, 638, 640 under the Customs Consolidated Act, 219, 221, 224, note (b), 717 under the 25 & 26 Vict. c. 68 .. 401, 698 suggestions of Copyright Commissioners, 401 provisions of the Bill now before the House, 401, 402 imported under the 25 & 26 Vict. c. 68 .. 406, 700 no provisions for, of pirated articles under Designs Act, 445 but order made on one occasion, 445, 764 provisions of 5 & 6 Vict. u. 45, as to, extended to works prohibited to be imported under International Copyright Acts, 494, 689 INDEX. 851 Forms, minute of consent under 5 & 6 Vict. c. 45 .. 642 requiring entry of proprietorship of book, 643, 746 „ „ dramatic piece or musical composition, 747 of entry of proprietorship of copyright in a hook, 643, 746 of concurrence of the party assigning in any book, previously registered, 644, 746 of concurrence of the party assigning in any musical composition, 747 of entry of assignment of copyright in hook previously registered, 644 for registration under the Designs Act, 647, 732, 736 „ „ „ Works of Art Act, 1862 . . 747 for transfer of designs, 450, 648, 733 copyright in substance not in, 212 of agreements between authors and publishers, 749 of agreement for sale of copyright in a work, 749 half-profit agreement between author and publisher, 749 of licence to print one edition of a work, 751 of limited assignment by an author of a new edition of his work, 751 of agreement to enlarge a second edition of a book and correct proofs of same, 752 of agreement between an author and publisher for sale of a work where a sum is paid for the copyright, with variations where profits divided, 752 of agreement between an author and publisher for sale of a work by commission, 753 of agreement for editing of a work between the publisher and editor, 754 „ „ „ variations where for translating work, 754 „ between a publisher and engraver for the engraving of a painting, 755 Under 25 & 26 Vict. c. 68, of agreement to write an opera, 756 > for entire reservation of copyright by author when his work has been commissioned, 758 for entire reservation of copyright by author when he first sells his non-commissioned work, 758 for partial reservation of copyright by author where his work has been commissioned, 759 for partial reservation of copyright by author when he first sells his non-commissioned work, 759 Of Injunctions : Literary Copyright, restraining publication of poems, 760 topographical dictionary, 760 order restraining publication of books, awarding damages, and directing an account, 760 use of name — injury to employer's property, 760 publication of a magazine as a continuation of plaintiff's magazine, 761 publication of a magazine in breach of contract, 761 name and title page of song, 761 Titles, name of newspaper, 761 soliciting customers, 762 injury to periodical, 762 Dramatic and Musical Copyright, as to an operatic magazine, 762 Engravings and Etchings, collection of etchings, 762 3 i 2 852 INDEX. Forms — continued. Injunctions — continued. Engravings and Etchings — continued. etchings improperly obtained and published ; catalogues im- properly published, decree ; delivery up, 763 illustrated book, 763 Designs, as to catalogue of designs, 764 as to woven fabrics and delivery up of articles, 764 staying publishing of newspaper, 764 as to partial infringement, 764 as to selection from poems, 764 as to handbook, 764 as to directories, 764 as to portions of a work, 764 as to piracy of book and order as to damages, 764 as to directory, not to extend to advertisements, 764 as to printing a dramatised novel, 765 piracy of maps and inquiry as to damages, 765 under Designs Act as to mantilla shawls, 765 of judgments making injunction perpetual as to copyright, 765 Fra Diavolo, 142, 241 France, protection afforded to designs in, 410 copyright in, 507 „ term of, 508, 509, 512 reciprocity decree, 28th March, 1852 ..512, 522 international copyright treaty with, 506 peculiarity of combined effect of the French law, and the Convention of 1852.. 523, note (a) law as to compilations in, 40 „ lectures, 57 „ dramatization of novels, 337, note (a) Literary Copyright, 514 decree of 19th July, 1793 .. 509 posthumous works, 510, 515 procedure and remedies, 510 penal code on piracy, 511 law of 8th April, 1854. .512 law of 14th July, 1866 .. 513 what protected, 514 duration of copyright, 514 rights of author's widow, 514 rights of widower of an authoress, 515 state copyright, 515 registration and deposit, 515 assignment of copyright, 515 piracy, 516, 518 whether whole or partial forbidden, 517 unauthorized translations, 517 points of note which have been decided, 518 Dramatic Copyright, 518 decree of 13ta July, 1791 ..507 „ 19th July, 1791.. 508 INDEX. 853 France— continued. Dramatic Copyright — continued. law of 3rd August, 1844 .. 511 operas, &c, 518 registration and deposit, 519 „ of representation, 519 not lost by publication, 520 rights of foreign dramatic authors, 524 Musical Works, 520 piracy, 520 adaptation, 520 piracy of unpublished work, 521 combined effect of laws of 1791 and 1793 ..521 penalties, 521 Artistic Copyright, 521 duration, 522 what protected, 522 photographs, 522 registration and deposit, 522 penalties of piracy, 522 resiprocity, 522 Fraud, provisions for the repressing of, 402, 698 no copyright in works intended to deceive, 94 Statute of, in relation to contracts between authors and publishers, 578, 579 Fraudulent alterations of pictures, 402, 403, 698 entry in register, 136, 636 imitation under the Designs Act, 436, 446, 649 intent not necessary to shew, 73 putting registration mark, 427, 450, 649, 652, 693 representation of work to be the production of another, 247, 698 taking of part of a title, 73 Friendly Letters, 45 Fbith's Picture, ' The Railway Station,' 405 ' Frou-Frou,' imitated or adapted to the English stage, 482 Furniture Guide, copyright in, 98 Gadbury's Almanac, 286 Gazeteers : see Dictionaries. General Issue under plea of, what evidence may be offered, 641 ' Gentleman's Journal and Youth's Miscellany,' 364 ' Gentleman's Magazine,' 203, note (b) German Empire, Literary copyright, Acts regulating, 529 854 INDEX. German Empire — continued. Literary Copyright — continued. what works protected, 529 duration of, 530 translations, 530, 531 anonymous works, 530 posthumous works, 530 registration, 531 assignment, 531 infringement and piracy, 531 piracy by copies made by hand, 531 „ of music, 532 remedy of authors, 533 prescription, 533 confiscation of pirated copies, 533 penalties, 533 sale of pirated copies, 534 Dramatic and Musical Representation, duration, 535 Artistic Copyright, 535 what is protected, 536 persons protected, 536 duration, 536 registration, 537 alienation, 537 piracy, 537 what acts piratical, 537 exceptions, 537 remedies and penalties, 538 nationality and reciprocity, 538 Copyright in Photographs, 538 what protected, 538 who protected, 538 duration, 538 alienation, 539 piracy, 539 remedies, penalties, 539 nationality, 539 Copyright in Industrial Designs and Models, 539 what protected, 539 who protected, 539 duration, 540 registration, 540 infringement, 540 what is not piracy, 540 nationality and reciprocity, 540, 541 copyright convention with, 505, Appendix (K.) Gift of Manuscript not a parting with copyright, 48 ' Gipps' Land Mercury,' 101 ' Glasgow Herald,' 470 Glass, copyright in designs as applied to, 412, 438 ' Glory,' 340 INDEX. 855 ' Going to Work,' picture by Eddis, 392 ' Gold,' 339 ' Good-Night ! Heaven Bless You!' 247 ' Good Words,' 340, 341, 463 Goods and Chattels, copyright in newspaper included in that term in Bankruptcy Act, 464 Government, right of, to publish or -withhold private letters, 53 as to copyright same as individuals, 126 may own copyright, 126 principle on which the right is founded, 53, 54 no claim to work by an officer independently of his official duties, 126 Grammar, Latin, right to print, 289 Gratuitous Circulation a publication, when, 111 „ ,, an infringement of copyright, 216 Gray's Poems, published with additions, 39 Great Western Bailway Inquiry (The), 192 Greece, copyright in, 566 duration of, 566 reciprocity, 566 Grenada, adopts the provision of the 10 & 11 Vict. c. 95 ..499 Griffin's Novel of ' The Collegians,' 299 ' Guardian Angel,' (The), 764 : see Low v. Ward. Guide, copyright in Brewer's, to science, 65 „ illustrated furniture, 98 Guilty Knowledge : see Ignorance. Hair, copyright in designs composed of, 412, 647 Hamburg, copyright treaty with, 1853 .. 506, Appendix (K.) ' Handbook for Travellers in Switzerland,' 213, 764 Hanover, copyright treaty with, 1847 .. 506, Appendix (K.) ' Happiest Day of my Life ' (The), 162 ' Happy Land ' (The), 315, note (a) 856 INDEX. Head-Note op Eepoet, copyright in, 62 definition of, 63, 208 may be considered as a digest, 63, 208 Mr. Justice Crowder's opinion of the, 62 Hearing, before, not necessary to apply for interlocutory injunction, 259 as to bringing cause to, where interlocutory injunction has been granted, 259 plaintiff entitled to bring the cause to, 271 where he does so in face of offer of defendant, 272 as to dissolution of injunction on, 259, 260 injunction may be continued to, though equity of case fully answered, 260 ' Hecyka,' sale of, by Terence to Roscius, 2 ' Hero (A) and Martyr,' 470 ' Heso and Leander,' 247 Hire, letting books to, prohibited by 5 & 6 Vict. c. 45 .. 638 paintings, drawings and photographs to, prohibited by 25 & 26 Vict, c. 68.. 697, 698 History op Literary Copyright : see Chapter I. Hogarth referred to, 351, 354, 616 ' Holiday Time,' 392, 393 Holland, copyright in, 527 „ term of, 527, 528 „ . what entitled to, 529 „ penalty for infringement of, 528 deposit of copies of books in, 529 prohibition of importation of pirated copies, 529 new draft law extending term of copyright in, 529 Hopp's ' Lipe op Jesus,' 91 Horace quoted, 172, 197 examples of imitations from, 197 ' Horse Pair,' Rosa Bonheur's picture, 371 ' How I Lost the County,' 194 ' How to Dress on £15 a Year,' 609 ' Huguenot ' (The), picture by Millais, 372, 373 Hunt's (Holman), ' Light op the World,' 371 Hymns, copyright in collection of, 43 INDEX. 857 Ideas, what, 1 free, 6 not capable of visible possession, 5 no copyright in, 5, 37, 66, 100, 173 when embodied in words, 6, 37 imitation of, 197 must be taken in abridging a work, 202 Identification, literary copyright capable of, 3, 5 Identity, substantial test of piracy, 200 see Originality ; Similarity. Ignorance of committing piracy no excuse, 67, 305, 367 of wrong in selling altered copies of works of art may be pleaded, 403, note (a), 697, 698 ' I'll Cast my Rose on the Waters,' 95 Illustrated Book, form of injunction restraining publication and sale of, 763 ' Illustrated Furniture Guide,' 98 Illustrations : see Engravings, Prints and Photographs. Imitation : see also Infringement of Copyright. examples of, 196, 197 infringement of copyright by, 196 not every, a proof of plagiarism, 201, 268 fraudulent, under Designs Act, 436, 446, 649 not within the International Copyright Act, 481, 687, 707 what is a fair, 197 of Homer by Virgil, and Horace, 197 of wrapper, 72 of foreign works, 481 distinction between a copy and an, 196 Immoral Woeks, no copyright in, 84, 315, 375 contracts concerning not enforceable, 93, 580, note (c) Immortality of the Soul work denying, not protected, 88 Importation of pirated works prohibited, 27, 114, 217-221, 638, 718 action for damages against, given by 5 & 6 Vict. c. 45 ..223, 638 as to separate penalties, 224, note (a) ignorance no defence, 218 may be sustained though no copy sold, 218 copies to be seized and destroyed, 217, 638 provisions of customs laws respecting, 219, 221, 224, note (6), 717, 718 for gratuitous circulation, unlawful, 223, note (a) 858 INDEX. Importation — continued. penalties, forfeitures and damages for, in case of engravings and prints, 616,699 of paintings, drawings, and photographs protected by 25 & 26 Vict. c. 68.. 406, 700 prohibited by International Copyright Act, 492, 675, 689 from colonies, 679, 708, 718 first Act making unlawful, 615 Importer cannot plead want of knowledge of piracy, 225 Improvements : see Additions. Incidents : see Scenes. Indecent Publications : see Immoral Works. India, copyright in, 506 „ term of, 506 „ „ in book published after author's death, 506 „ registration of, 506 „ „ fees payable on, 506 „ „ certificated copies of, 506 Indices of Title copyright in, 46, note (V) Infringement of Copyright, In Books. considerations for judging of an, 172, 175 , „ the animus furandi not to be relied on, 173 and note (b) plagiarism not necessarily an, 173, 197, 201 the latter work to be an, need not serve as a substitute for the former, 174 modes adopted for, 186 by reproducing the whole verbatim, 186 „ verbatim a part, 186 by piratical criticism, 191, 192 by imitation of wrapper, 72 by quotation, 188 by reviewing, 194, 196 by reproduction in an abridged form, 201 by copying general arrangement, 215 by way of digest, 208 by translation, 211, 214 by abridgment, 56, 60 by gratuitous distribution of copies, 216, 217 by importation, 217, 221 „ offence committed though no copy sold, 218 in directories, 15, 177 in dictionaries, 181 in reports, 194 in titles : see Titles. quantity but slight criterion, 61, 187 substantial identity test of, 200 ignorance no excuse for, 67, 82, 83, 194, 196, 248, 253, 305 IKDEX. 859 Infringement of Copyright — continued. In Books — continued. custom of trade no excuse for, 194, 196 what not an, 196, 197, 201 of part of work only to what extent injunction to go, 242, 243 Lord Hardwicke's opinion, 243 acquiescence in, fatal to subsequent action, 216, 217 trifling, 241, 314, 315 In a Dramatic Piece, committed only by one taking part in performance, 305 case of Lyon v. Knowles, 300 Marsh v. Conquest, 307 an, not committed by dramatizing a novel, 216 by taking certain ' scenes or points,' 313, 315 by dramatizing novel, 336, 340 a spectacular piece, 310 In a Musical Composition, 209, 210, 211, 330 a song, 308, 310, 312, 346 what constitutes a piracy, 210, 211 In Engravings, 368 what is, 368 what not, 374 by photography, 370, 371 but not by copies made by hand, or designs transferred to an article of manufacture, 372, case of Dicks v. Brooks, 372, and Appendix (I.) In Sculpture, 385 not infringed by drawings or photographs, 386 In Paintings, Drawings, and Photographs, 397, 697 a criminal offence, 404 where effected by copying a copy, 398 by public exhibition, 399 penalties for, cumulative, 400 In ornamental and useful Designs, 435, 438, 649, 659 penalty for, 649, 652, 659 proceedings in cases of, 441, 649 In Foreign Countries, France, in books, 516 in musical and dramatic works, 520 in unpublished play, 521 in photographs, 522 Belgium, 525, 527 note, 528 note Holland, 528 The German Empire in books, 531 in translations, 531 in music, 532 in dramatic works, 537 in artistic works, 537 what acts piratical, 537 exceptions, 537 in photographs, 539 in industrial designs and models, 540 Austria and Hungary, 542 Norway, in books, 544 860 INDEX. Infbingement of Copyright — continued. In Foreign Countries — continued. Norway — continued. in translations, 545 in dramatic works, 546 in artistic works, 548 what is not piracy, 548, works of art in public places, 548 in photographs, 549 Sweden, in books, 551 ^ in translations, 561 what is not piracy, 551 in dramatic and musical works, 555 Denmark, in books, 565 in dramatic and musical works, 555 Spain, 55T Portugal, 558, 559 Italy, 560 Switzerland, 562 Turkey, 563 Russia, in books, 565 in artistic works, 565 United States, 572, 722, 723 Remedies for : see Remedies fob Infbingement. Injunctions, remedy by : see Remedy in Equity. definition of, 233 on common law right, 27, 28, 234 principles on which issued, 15, 28, 234 on what evidence issued, 235 the publication of private letters restrained by, 44, 45 Mr. Justice Story's opinion, 48 breach of contract, ground of, 49 Lord Mansfield's opinion on the issuing of, 29, 234 modern practice on the issuing of, 235 auxiliary to legal right, 237 in granting Court will exercise its discretion, 238 in what cases issued, 235, 238 Lord Eldon's opinion, 235, 236 in Scotland, 240 not issued when action could not be maintained, 239 „ where fair doubt as to whether damages could be recovered, 240 „ in trifling cases, 241 „ where evidence of plaintiff contradicted by defendant, 240 as to continuation of, or its dissolution, 241, 259, 260 when part only of work piratical, 73, 242 to what extent it is to go, 243 Lord Eldon's opinion, 244 due diligence to be observed in applying for, 248 what sufficient excuse for delay, 249 tendency of modern decisions, 250 to obtain not necessary to shew fraud, 73 to restrain sale of sheet almanac printed from a directory, 178 INDEX. 891 Injunctions — continued. to restrain articles from a periodical being copied into a newspaper, 194, 196 equitable title which will support, 236 mere agent has not such title, 237 prima facie title must be shewn, 237 where there is a similarity of appearance in works, 247 where publication is falsely represented to be the work of another, 247 not granted generally where there has been acquiescence, 252 objections to granting before the hearing, 242 where the publication is of a temporary character, 257, 258 as to bringing cause to hearing, where granted, 259 not necessary to apply for interlocutory, 259 usual method of obtaining dissolution of, 260 may be granted without proof of damage, 260 damages by defendant against plaintiff having obtained an, 261 will not be refused against seller because proceedings not taken against publisher, 262 will not be granted by one partner against another for publishing account of invention, 262 application for, before answer to be supported by affidavit, 263 nature of affidavit, 263, notes (c) and (d) forms of, 262 Literary Copyright, restraining publication of poems, 760 topographical dictionary, 760 order restraining publication of books awarding damages and directing an account, 760 use of name — injury to employer's property, 760 publication of a magazine as a continuation of plaintiff's magazine, 761 in breach of contract, 761 name and title-page of song, 761 Titles, name of newspaper, 761 soliciting customers, 762 injury to periodical, 762 Dramatic and Musical Copyright, as to an operatic magazine, 762 Engravings and Etchings, collection of etchings, 762 etchings improperly obtained and published — Decree — Delivery up, 763 illustrated book, 763 as to catalogue of designs, 764 as to woven fabrics and delivery up of articles, 764 Miscellaneous staying publishing of newspaper, 764 as to partial infringement, 764 selection of poems, 764 handbook, 764 directories, 764 portions of work, 764 piracy of book and order as to damages, 764 directory, not to extend to advertisements, 764 862 INDEX. Injunctions — continued. forms of — continued. Miscellaneous — continued. printing a dramatized novel, 765 piracy of maps and inquiry as to damages, 765 under Designs Act, as to mantilla shawls, 765 points as to costs in connection with, 271, 273 instances where assignee by parol obtained an, 265, note (a) to stop performance of pirated dramatic works, 295, note (a) orders for, under 25 & 26 Vict. c. 68 . . 378 Innocent, work must be, to be entitled to copyright, 84 Inquests, statements made ex parte at, 285 Inspection, register at Designs Office open to, 429, 655, 734, 738 wbo may search and as to what designs, 429, 655, 734, 738 under International Copyright Act, 477, 674 orders for, under 25 & 26 Vict. c. 68 ..378, 700 Instrumental Music, copyright in, 294 Intention, dishonest, not necessary to constitute piracy, 67, 173, 305, 367 need not be shewn in printer or importer under 5 & 6 Vict. c. 45 . . 218, 225 Interdict, when issued, 49, 218 Interlocutory Injunction: see Injunctions. International Copyright, the first Act, 472, 631, 669 offspring of modern civilization, 471 regulated by 7 Vict. c. 12, and 15 Vict. c. 12 .. 472, 669 Act of 1837 refers solely to books, 473 increased power conferred to conclude treaties, 473, 671 order may specify different periods for different foreign countries and for different classes of works, 478, 676 no order to have effect unless stating reciprocal protection secured, 478, 676 order made under Act to be published in Gazette, 478, 676 articles of political discussion in newspapers may be reproduced, 480, 687 translations not prevented by, 214, 479, 677, 686, 687, 707 suggestion of Copyright Commissioners as to translations, 491 what is a translation, 485 requisites in order to obtain protection, 473, 486, 673, 688 convention between England and France, 487 difference between the Act and the French treaty, 488 registration, 475, 487, 673 „ fees for, 488 „ of books published anonymously under this Act, 477, 674 effect of, 477 INDEX. 863 International Copyright — continued. as to expunging or varying treaty grounded on wrongful first publication, 477, 675 proposal of Copyright Commissioners as to registration, 478 dramatic pieces and musical compositions, 474, 475, 481, 672 fair imitations or adaptations not prohibited, 481, 687, 707 construction of 19th section, 334, 489, 490, 491 its applicability to native as well as foreign authors, 489, 490 dramatic pieces and right of performance, 492, 672 as to registration of dramatic or musical piece in MS., 475, 673 character of copies to be delivered at Stationers' Hall, 475, 673 mode of entry under Acts, 476, 673, 688 cases of Wood v. Boosey, Boosey v. Fairlie, 476 in engravings, 376, 473, 672 as to registration of engravings and prints, 475, 673 proprietors of foreign prints must comply with Engravings Acts, 489 in sculpture, 672 Interpretation Clause of the 5&6 Vict. c. 45.. 632 „ „ c. 100.. 656 „ 7 Vict. c. 12.. 677 „ 13 & 14 Vict. c. 104.. 685 Intestacy, provision for transfer or devolution of copyright in case of, 156, 641 Ireland, Engravings Acts, extended to, 370, 630 summary recovery of penalties under Engraving Acts in, 377, 699 remedy under Designs Act in, 443, 652 in what way letters patent for Bible regarded in, 277 Irreligious, no copyright in, work, 84 Italy, Literary Copyright, 559 duration, 559 translation, 560 works of academies and public bodies, 560 registration, 560 assignment, 560 piracy, 560 penalties, 561 Dramatic and Musical Copyright, 561 right of representation, 561 Artistic Copyright, 561 ' It is Never too Late to Mend,' 336 Ivory, copyright in designs as applied to, 412, 683, 735 Jamaica adopts the provisions of the 10 & 11 Vict. c. 95 ..499 864 INDEX. Japan, oopyright in, 567 „ duration of, 567 „ translations in, 567 Jeffeeys v. Boosey, celebrated case of, 31, 118, 122, 166, 167 Joint Authorship, what is, 130, 131, 133, note (a), 321 what is not, in a musical arrangement, 129, 32] adventure, what is a, 599 not assignable, 601 terminable by notice, 602, 603 owners may contract between themselves as to printing and publishing 599, note (a) 'John Bull '(The), 73 Johnson's (De.) ' Basselas ' abridged, 60, 203 opinion as to imitations, 196, 197, 201 Judicatube Acts, effect of, 222, 257 Judicial Committee of Privy Council, may license republication of books, 109, 633 Judicial Decisions : see Judgments. Judgments, right of using, in text-books, 63 belong to the government, 126 making injunction perpetual as to copyright, 765 of the Lords Justices in late case of Dicks v. Brooks, 766 ' Judy,' 72, 247 Jurisdiction : see Bemedies foe Infringement of Copyright. 'Jurist' (The), 77, 463 Justice, sales of original compositions founded on natural, 2 no copyright in works parodying, 92 ' Justice of the Peace,' (Burn's), 584 ' Kathleen Mavoueeen,' 232, note (a) ' King's Wager,' (The), 131, 321 King's Inn at Dublin, delivery of copies of books to, 153 Knowledge of Piracy, ignorance no defence for piracy generally, 67, 305, 367 printer or importer of books without, liable under 5 & 6 Vict. c. 45.. 218, 225 must be shewn in seller, 225 seller of engravings and prints not liable to penalties and forfeitures under 8 Geo. 2, c. 13, when ignorant of piracy, 367, 368, 614 but is liable to damages under 17 Geo. 3, c. 57 .. 367, 368, 622 INDEX. 865 Knowledge op Piracy — continued. must be shewn to subject importer, seller, or publisher to penalties under • 25 & 26 Vict. c. 68 ..398, 402, 403, 697, 698 but not copyists or printer, 403, 698 plaintiff in equity not responsible for delay when ignorant of piracy, 134 Label, no copyright in, 100 may be rejected by the Registrar under Pesigns Act, 449 Lace, copyright in designs applied to, 412, 647, 735 Laches : see Acquiescence. ' Lady Audley's Secret,' 129, 338, 765 : see Tinsley v. Lacy. ' Lady of the Lake,' 104 Landseer's Picture ' Eve op the Battle op Edgehilt,,' 404 Latin Grammar, right to print, 289 prerogative right to, claimed by the Crown, 289 Laurence's Lectures on Physiology, &c. 88 Law, Remedies in : see Remedies for Infringement of Copyright. Law Reports : see Reports. Leading Cases : see Smith's Leading Cases. Lectures, copyright in, 17, 18, 54, 628 nature of, 54 when reduced into writing, 54 what not a publication of, 18, 57 the Act of 5 & 6 Will. 4, c. 65 . . 55, 628 not to prohibit publishing of lectures after expiration of copyright, 629 what not within the 5 & 6 Will. 4, c. 65 ..56, 629 what to be done to obtain copyright in, 56, note (a) few, protected by Act, 56 doubtful whether copyright applies to, not previously in writing, 57 unpublished, may be delivered by any person, 57, note (b) but delivery of, by other than author, seems to infringe author's rights in the MS., 57 admission of persons to hear, does not permit subsequent publication of the same, 54, 55, 629 penalties on persons publishing, without leave, 628 printing and publishing of newspapers, 629 on physiology &c. by Lawrence, 88 decision in France as to, 57 alterations suggested by Copyright Commissioners, 57 Legal Forms : see Precedents. 3 K 866 INDEX. Legal Reports : see Reports. Legal Title : see Injunctions ; Remedies fob Infringement of Copyright. Lent MS. does not confer right to print, 8 photographs donot confer right to copy, 375 ' Lestocq', Auber's Opera, 209 Letter Press, meaning of expression, " sheet of,' 100 engravings published with, 359, 632 Letters, copyright in private, 43 distinction between literary and commercial, 45 „ „ „ „ not now drawn, 46 » ,. ,. „ why not, 46 „ „ „ „ Story's opinion as to, 48 what is a publication of private, 52 when the publication of private, permitted, 50 „ „ „ „ not permitted, 50, 51 „ „ „ „ „ in Scotland, 49 Cicero's opinion on the publication of private, 49 to newspapers, 51 to public officers, 53 by solicitors of a company, 43, note (b) written by one person for or on behalf of another, 52 used in evidence not deemed published, 110, note (d) whether, can operate as assignment of copyright, 165 Burn's, 49, note (c) Lord Chesterfield's, 44, 49, note (c) Lady Tyrawley's, 45 Letters Patent, for printing the Bible and Prayerbook, 274, 276 how regarded in Ireland, 277 „ in England, 277 for Acts of Parliament ar.d matters of state, 280 no copyright in specification of letters patent, 96 Lexicon, Piracy op, 175 Libellous Work, no copyright in a, 84, 375 contracts concerning, 580 Libraries, delivery of copies of books to, 114, 151-155, 634, 676 distinction between delivery to the British Museum and the other, 114, 151, 152, 634 delivery of copies of books to Smithsonian Institution, 153, note (a) „ „ Library of Congress, 719, 720 Licence, to publish, 20, note (a), 161 attestation of, 160, 165 INDEX. 867 Licence — continued. to perform dramatic pieces, 315, 316 : see also Theatres. to publish not an assignment, 171 to use designs must be in writing, 431 Privy Council may, the publication of any book, 109, note (a), 633 intended, to use music implied from contract of employment, 131 effect of intended, 134 difference between, and assignment of copyright, 161, note (i) assignment of copyright may be limited to, 392, 393 form of, to print one edition of a work, 750 see also Consent of Author. Licensing Act, 21 continued by other Acts, 23 attempts to obtain a new, 25 Lien of bookseller on copyright, 591, note (a) of printer on undelivered copies, 594, note (a) * Life of Jesus written for Young Disciples,' 9 1 ' Light of the World,' Holman Hunt's picture, 371 ' Like to Like,' 482 Likeness without Identity : see Identity ; Imitation ; Similarity. ' Lillie Dale,' 316 Limitations of actions to be brought, 228, 615, 617, 641 , 667 to what actions does not apply, 229, 250, 251, 641 under 8 Geo. 2, c. 13, does not apply to actions on the case under 17 Geo. 3, c. 27 .. 404, note (a) under 54 Geo. 3, c. 56 .,625 under 3 & 4 Will. 4, c. 15 .. 628 under 5 & 6 Vict. c. 45 ..641 under Designs Act, 444, 653 against printers for not printing name and abode of, 458. 704 Limited Assignment as to locality, 166 as to time, 167, 168 Linen, copyright in designs applied to, 412, 647, 735 List of Books to be supplied to Commissioners of Customs, 219, 717 of shipping protected, 40, note (c) Literary Property, definition of, 1 its nature, 1 early rules, 2 mode by which early, made profitable, 2 sales in early times, 2 copyright not at first known as a species of, 3 distinct properties not adjusted at same time, 3 3 K 2 868 INDEX. Literary Property— o a distinguishable property, 3 Mr. Justice Erie's view of, 4 definition of property by some too narrow, 3 has a distinguishable existence and is of value, 5 no, in mere ideas, 5 „ reason, 5, 6 in material embodying them, 6 author's right to the first publication of his own MS., 6 cannot be seized by creditors as property, 7 may have conditions and restrictions annexed to user by author, 7 right of authors in, described by Lord Mansfield, 7 „ „ Mr. Justice Erie, 8, note (a) injunctions granted to protect, 8, 9 the statutes do not affect right to, before publication, 10 before publication, 11, 14 what amounts to publication of, at common law, 17 what does not, 18 author's right to, does not pass by, 19 effect of publication, of, 19 primary recognition of copyright in, 19 original charter of the Stationers' Company, 19 abolition of Star Chamber, 21 the Licensing Act of Car. 2 . . 21 ordinance of the Stationers' Company in 1681 ..24 a bylaw of the Stationers' Company in 1694 .. 24, 25 a petition presented to Parliament in 1709 for protection of, 25 the first Act relating to, 25, 26, 613 what renders a work a, 47 letters whether to be regarded as, 47, 48 a dramatic work in MS. protected like a, 300, 301 falsely represented to be the work of another, 247 see also Copyright. Lithographic Copies privately distributed a publication, 111 „ „ a piracy, 216 Lithographs : see Engravings. copyright in, 570, 691 may be infringed by photography, 370, 371 ' Little (A), Tour in Ireland,' 598 Local Right copyright a, 156 Locality divisibility of copyright as to, 166 Lockhart's Notes to Sir Walter Scott's Works, 103, 215, 216 ' London Journal,' 69, 585, 762 ' London Eight ' meaning of assignment of, in dramatic composition, 350 INDEX. 869 ' London Societx,' 586 Lobd Chamberlain : see Theatres. ' Love a la Mode,' 9, 295 Magazine : see also Periodical Publications. form of injunction restraining sale of operatic, 762 „ „ injury to, 762 „ „ publication of, as a continuation of another, 761 „ „ publication of, in breach of contract, 761 Magical Apparatus, catalogues of, 96, note (c) ' Man of his Time ' (The), 188 Mansfield's (Lord) definition of author's right, 7, note (c) opinion on issuing injunctions, 29, 234 in Donaldson v. Becket, 30 Mantilla Shawls : see Shawls. Manuscript, gift of, does not confer right to publish, 48 „ „ except where this the intention, 134 injunction will be granted to restrain publication of, obtained sur- reptitiously, 247 does not pass to assignees in bankruptcy, 157 author's right to first publication of his own, 6, 57, 85 cannot be seized by creditors, 7, 157, 158 claim in respect of destruction of, 87 assignment of, 8, note (a), 158, 159, 160 Lord Oottenham's opinion as to right of author in, 10 may be owned by government, 126 musical compositions in, 18, 293, 301 : see Musical Composition. the right of representation of plays, 322 common law right to exclusive representation of, play, 301 how common law right of representation of, lost, 301 musical compositions in, what necessary to register, 301 quaere where, being registered and piece after printed and not registered, copyright affected, 301 date when copyright in, play begins, 302 dramatic piece or musical composition in, under International Copyright Act may be registered, 475 need not be deposited, 475 lectures in, orally delivered protected, 55-57 „ not in, doubtful if protected, 57 Manufacture, an article, of, not a subject or registration, 440 a design transferred to an article of, not a piracy of an engraving, 372 Maps, description of, 363 870 INDEX. Maps — continued. degree of originality necessary in, 42, 65, note (a), 183, 184 copyright in, 41, 110 published separately, protected under Engraving Acts, and also Literary Copyright Act, 360 with letter-press protected by the Act of 1842 . . 360 registration of, 147-151, 360 protected as engravings, 360 Marginal Notes : see Side Notes. ' Marino Paliero,' Byron's, 33 Mark of Begistration, 414, 427, 647 no, required in sculpture, 427 wrongfully using, 427, 652 on articles provisionally registered, 427 articles sold abroad, 429 Martin's Picture, ' Belshazzar's Feast,' 374 Materials, Common, no copyright in, 42, 214, 215 : see also Compilations. Mathematical Tables, copyright in, 43 Mauritius, adopts the provisions of the 10 & 11 Vict. u. 95 .. 499 Maxims, copyright in collections of, 43 Meaning : see Construction ; Definitions. ' Melbourne Argus,' 101 Melville's (Lord) Trial, 284 ' Memoir of Harrietts Wilson,' 93 ' Memoirs of the Life of Mrs. Bellamy,' 204 Mendelssohn's Music to Shakespeare's ' Midsummer Night's Dream,' 762 ' Merchants' and Manufacturers' Pocket Directory of London,' 764 : see Morris v. Ashbee. Merit : see Value. Metal, copyright in designs as applied to, 412, 646, 735 Mexico, copyright in, 567 perpetual, 567 registration of protected works in, 567 right of representation in, 567 artistic copyright in, 567 INDEX. 871 ' Midsummer Night's Dream,' injunction to restrain solos from, 762' Millais' Picture, ' The Huguenot,' 372, 373 Millar v. Taylor, case of, 29, 33, 34 Milton's ' Paradise Lost,' pirated, 28, 243, 760 ' Minnie,' Song, 73, 346, 761 * Minnie Dale,' Song, 346 ' Minnie, Dear Minnie,' Song, 346 ' Minstrelsy op the Scottish Border,' 103, 215, 216 Miscellanies, Pope's and Swift's, pirated, 27 Mode of registering Designs, 417, Appendix (D.) Models : see Sculpture. ' Momentous Question,' 230 ' Monthly Chronicle,' 192 Mortgage of Share in Newspaper, whether requires registration, 466 Municipal Law, copyright only conferred by, 115 Murray's Handbook for Travellers in Switzerland, 213 Musical Composition, what is a, 293 copyright in a, 293 value of property in a, 17 originality required in a, in America, 65, note (a) effect of words " written and composed " on, 95 written to the order of another, 129 joint authorship in, 130, 131 in manuscript how protected, 293 within the Literary Copyright Act, 293, 639, 640 case of Bach v. Longman, 294 sale of copyrights in recent years, 294, note (a) songs, 293, note (a) adaptation of words to an old air, 294, 302, note (a), 346 instrumental music, 294 the 3 & 4 Will. 4, c. 15 ..299, 626 double costs given by last Act, taken away, 300 extension of the 3 & 4 Will. 4, c. 15, to, 300, 639, 640 the 5 & 6 Vict. c. 45, does not deprive proprietors of remedies given by Will. 4.. 301, 640 single sheets of music entered at Stationers' Hall, 293, note (a), 294 interpretation clause of Copyright Act, 1842 . . 294, 632 for stage, 294 872 INDEX. Musical Composition — continued. two several rights in authors of, 295 formerly representation equivalent to publication, 295 American law, 296 representation made equivalent to publication, 300, 640 sole liberty of performing, 294, 620, 641 what amounts to a representation, 308 term of copyright in, 300, 301, 626, 640 where the copyright in unpublished work dates from, 302 copyright song cannot be publicly sung, 300, note (6) cannot be publicly played without consent, 300, note (6) the 5 & 6 Vict. c. 45, retrospective as to right of performing, published before the Act, 300, note (c) in MS. sufficient to register, what, 301 how the common law right of representation of MS. lost, 301 statutory protection attaches on public representation, 301 query whether MS. being registered and piece after printed, and not registered copyright affected, 301 as to the consent of the author of, 302 Dramatic Authors' Society, 302 may apply to works not in existence, 303 authors, where more than one, 303 performance at a place of dramatic entertainment, 303 what is a place of dramatic entertainment, 304, and note (i) author of, right not affected by custom of place for which composed, 322 the pianoforte score of an opera, 342 arrangement for the piano of quadrilles, valtzes, &c, 342, note (a) distinction between the pianoforte score and original score, 343 and 345, note (a) the piece of music called ' Pestal,' 345 assignment of right of representation, 316, 640 need not be registered, 317 must be in writing, 318 no, necessary where work composed for another, 319, 320 registration of, 302, 635 under International Copyright Act in print, 475, 672 „ „ in MS., 475 omission to register does not affect the copyright, 302 suggestion of Copyright Commissioners as to registration of, 154, 155 deposit of, under the International Copyright Act, 475, 678, 688 cases of Wood v. Boosey, and Boosey V. Fairlie, 476 infringement of copyright in a, 209, 230, 330 what constitutes an, 210, 211 what use may be made of a prior, 209, 211 songs with similar titles restrained, 346 remedies for infringements of: see Ebmbdies fob Infringement of Copyright. remedies under International Copyright Act, 474, 689 punishment for infringement not to be visited on an actor not actually taking part in the performance, 305 suggestions of Copyright Commissioners as to, 325 Musical Entertainment, included in definition of dramatic piece in 5 & 6 Vict. c. 45 ..632 see also Dramatic Composition ; Dramatic Entertainments. INDEX. 873 Name, registration of, of intended work gives no copyright, 66, 81, 142 full, of person to be set out in registry, 137 sufficient if first publication be entered in, of firm, 138 of newpapers assumed, 470 form of injunction restraining use of, and title page of song, 761 use of newspaper, 761 soliciting customers, 762 injury to periodicals, 762 Name and Abode of printer to be placed on every book, 82, 457, 458, 705 of proprietor to be entered on register, 82, 136, 139 and date to be placed on engravings, 358, 614 „ „ sculpture, 624 Names, no copyright in dry list of, 96 Napoleon's, opinion of a perpetuity, 107 life of, illustrated by caricatures, 188, 189, note (a) Natal, adopts the provisions of the 10 & 11 Vict. c. 95 ..499 National Library at Paris, delivery of books at the, 487, 515 Native Authors : see Authors ; Foreigners. nature of copyright, 1, 120, 156 Nautical Almanac, right to print, 289 Negative of Photograph, to whom belongs, 408 Nelsons' ' Festivals and Feasts ' pirated, 28 Nett Profits: see Profits. ' Never too Late to Mend,' Reade's Novel, 32, 336 Nevis, adopts the provisions of the 10 & 11 Vict. c. 95 ..499 New : see Edition ; Original. New Brunswick, adopts the provisions of the 10 & 11 Vict. c. 95 ..499 ' New Era,' 172 Newfoundland, adopts the provisions of the 10 & 11 Vict. c. 95 .. 499 Newspapers, when first used in England, 453 the oldest extant, 453, note (a) the Acts of Parliament relating to, 453, 702, 703, 704, 705, 706 copy of each, to be kept, and if required produced, 453, 703 bill for discovery as to name of printer, &c. not demurrable, 454, 705 case of Dixon v. Enoch, 454 prosecution to be commenced within three months, 458, 704 874 inuex. Newspapers — continued. prosecution, how to be conducted, 458, 705, 706 , name and abode of printer to appear, 453, 457, 458, 704, 705 „ wnen printed at Universities, 408, 705 printer's name not appearing cannot recover for work, 458, note (a) copyright in, 66, 144, 459 included in terms " goods and chattels '' in Bankruptcy Act, 464 no copyright in prospective series of 66, but may attach upon each successive publication, 66, 144 need not be registered, 144, 459 mortgage of a share in a, not an assignment of copyright, 466 „ „ whether to be registered, 466 letters written to, 51 articles in, 470 in foreign, of political nature, 687, 688 not a book, 459 name of, may not be assumed for purpose of deception, 470 nor for supplanting good will, 470 may not copy whole tales sent to them to review, 194, 196 custom of trade no excuse, 194, 196 enactments relating to newspapers, 701 French registration of, 488 form of injunction restraining use of name of, 761 , „ „ soliciting customers, 762 „ „ injury to periodical, 762 „ „ publication of, 764 Newspaper Telegrams, copyright in, 100 Newton's Notes to ' Paradise Lost,' 28, 243, 760 Norway, copyright in, 543 laws relating to, 543 Worhs of Literature, 543 what protected, 543 persons protected, 543 translations, 543 duration, 543 registration, 544 alienation, 544 piracy and infringement, 544 what is piracy, 544 piratical translations, 544 what is not piracy, 545 works being out of print, 545 penalties, 545 right to protection lost by delay, 545 nationality and reciprocity, 546 Musical and Dramatic Worhs, 546 representation within the meaning of the law, 546 consent of joint authors, 546 right of representation not assignable without consent of author, 546 duration of right of representation, 546 Artistic Copyright, what protected, 547 INDEX. 875 ' Not Above his Business,' 340 Notes, Newton's, to ' Paradise Lost,' 28, 243, 760 how far, constitutes new work, 102 to the Bible, 277 to statutes, 286 Lockhart's, to Sir Walter Scott, infringed, 103, 215, 216 Notice, of objection to plaintiff's title, 226, 637 forms of particular, 227, note (b) position of defendaut when not given, 228 when sufficient, 227 amendment of, 227 to terminate a joint adventure, 599, 603 to be given to Commissioners of Customs, 219, 220 by Universities of copies of books to be delivered to them, 151, 152 Nova Scotia, adopts the provisions of the 10 & 11 Vict. c. 95.. 499 Novel, arrangements, copyright in, 38, 39, 40, 43, 63, 174, 215 may be dramatized without infringement of copyright, 216, 336 drama from copyright, may not be printed, 337 ' It is Never too Late to Mend,' 32, 336 author may protect, by dramatizing before publication, 340 „ „ but not after publication, 340 suggestions of Copyright Commissioners as to dramatization of, 341, note (o) Novelty : see Originality. Objection to plaintiff's title in action : see Notice. Obnoxious Publications: see Immoral Works ; Obscene Works," &c' Obscene Wokks, no copyright in, 84, 375 action cannot be maintained by printer for printing, 580, note (c) where part may be recovered, 580, note (c) 'Observer' (The), 284 Occupancy, right of an author founded on, 1 „ property founded on, 5 Offenbach's Opera, ' Vert- vert,' 476 " Offence," meaning of word in Oopyngnt Act, 2^9, 251 committed every time copy sold, 229, note (c) before registration not actionable under 25 & 26 Vict. c. 68 .. 395 Offices (Public), letters addressed to, 53' 876 INDEX. Official Correspondence : see Letters. Official Documents: see Crown Copyright. Official Reports : see Reports. Oil Cloths, copyright in designs applied to, 412, 659, 735^ Old Copies, common law right to, 27 ' Old Joe and Young Joe,' Comedy, 318 ' Old Mortality,' 104 Oldenburgh Copyright Treaty, 506, Appendix (K.) ' Omission to print name and abode of printer, 453, 457, 458 to register, effect of, 302 Opera : see also Musical Composition. infringing airs in, 250 of the ' Duenna' infringed, 296, note (a) there may be copyright in waltzes and quadrilles taken from unprotected, 342, note (a) rights in, infringed by adapting therefrom waltzes and quadrilles, 330 ' Vert-vert,' by Offenbach, 476 Opinions, Judicial : see Judgments ; Mansfield. Oral Lectures : see Lectures. ' Orb ' (The), 145 ' Orchardist ' (The), 250 Order of Council under International Copyright Act, 478, 486, 729, 731 what to contain, 478, 671, 672, 676, 687, 707 none to be valid unless reciprocitv secured, 478, 676 to be published in ' London Gazette,' 479, 676 may be revoked, 677 Foreign Reprints Act, 679 to be published in ' London Gazette,' 679 laid before Parliament, 680 as to Canadian Act, 708 ' Ordered on Foreign Service,' 394 Ordinances of the Stationers' Company : see Stationers' Company. Long Parliament, 21 Original Work, every fair abridgment an, 201, 202, 591 translation an, 83 a book need not be entirely an, to obtain copyright, 38 whether copyright may exist in book not an, 65 index. 877 Original Wobk — continued. a compiler must produce an, 181 affected to some extent by abridgment, 201, 202 as to photograph being an, 400 a photograph of an engraving is an, 400 Originality, legal definition of, 181 some, necessary in every composition, 37 " arrangement, 38, 39 not necessary in the doctrines treated of, 65, 179, 180 want of, in modern works, 173 in result necessary in a compilation, 181 degree of, necessary in maps, 42, 65, note (a), 183, 184 „ dictionaries, 181, 182, 183 required in a musical composition in America, 65, note («) hardly possible in engravings, 369 Ornamental Designs : see Designs. ' Our Young Polks,' 75, note (6) Out of Print : see Books. Owner : see Assignee ; Author ; Proprietor. Ownership: see Property. Oxford, University of : see Universities. Paintings and Drawings, copyright iD, Chapter XIV., 695 „ term of, 389, 696 „ by whom may be claimed, 389, 390, last branch of fine arts protected, 387 the claims of an artist to copyright in, considered, 387 in most European countries copyright in, exists, 388 existence of copyright is a protection to the purchaser of picture, 388 the Act of 25 & 26 Vict. c. 68 .. 389, 696 to preserve copyright in, what agreement to be signed, 389, 390, 696 any person may copy picture in which there is no copyright, 391 executed on commission, copyright in, 390 „ suggestion of Copyright Commissioners, 390, note (b) architectural designs protected, 389, note (J) artist prohibited from reproducing after sale, 397, 407, 408 artists' studies and sketches, 407 „ replicas, 408 assignment of copyright in, 391 „ when limited in effect, 392 registration of copyright in, 391, 393, 394 : see also Registration. how to be effected, 394 what description to be given, 394, 395, 697 description of ' Ordered on Foreign Service,' 394 „ ' My First Sermon,' 394 „ ' My Second Sermon,' 394 878 INDEX. Paintings and Drawings— continued. registration of copyright in — continued. no action sustainable until, 395, 398 enactment of the 5 & 6 Vict. c. 45, as to, applicable, 395 except as to forms of entry, 396 aggrieved person, 397 expunging entry in register, 397 last assignment of copyright in, only need be registered, 395 infringement of copyright in, 397 by the author, 397 by any other person, 397 by making a copy of a copy, 398 by a photograph of a drawing, 398 by drawing of a painting, 398 penalties attached thereto, 398, 697 1 cumulative, 400 suggestions of Copyright Commissioners asto registration of, 396, note (a) „ „ summary proceedings, 401 „ „ photographs, 407 provisions for repressing fraud in production and sale of works of art, 402, 698 penalties imposed as a punishment for a criminal offence, 409, 698 cannot be escaped by deed of composition with creditors 404, 405, 406 rights in, not infringed by exhibition, 399 as to license required to copy photographs, 398, note (a) importation of piratical, 406, 700 penalties, 406, 700 special action on the case, 406, 700 no limitation of time in which actions to be brought, 406 provisions of International Copyright Acts extended to, 406 forms of Agreement under Works of Art Act, 1862 memorandum of registration used at Stationers' Hall, 747 agreement between artist and purchaser as to a painting and the copyright therein, 755 entire reservation of copyright by the author, where work com- missioned, 758 where he first sells non-commissioned work, 758 partial reservation of copyright by the author when his work has been commissioned, 759 where he first sells his non-commissioned work, 759 license by proprietor of copyright, 759 ' Pall Mall Budget,' 454 ' Pall Mall Gazette,' 454 Pamphlet : see Book. Pantomime, protected, 299, note (5) introduction of a dramatic entertainment, 305 Paper, . property in, on which a composition is penned, 43, 44 hangings, copyright in designs applied to, 412, 64 6, 735 index. 879 Papier Mache, ' copyright in designs applied to, 412, 683, 735 ' Paradise Lost,' 28, 243, 760 Paraguay, no copyright law in, 568 Paris, purchase by, of Agave, 2 Parliament, ordinance of the Long, 21 Acts of : see Statutes. petition to, to protect copyright, 25 ' Parlour Library,' (The), 78 Parol assignment not sufficient tn pass copyright, 165, 318 Part, there may be copyright in, of work, 126 infringement of copyright by copying, 242, 243 injunction as to, 242, 243 of compilation, not new, not protected, 42 a title taken, 73 of work published in this country protected, 124 Partial assignment of copyright, 166, 167, 168 infringement of copyright, 242, 243 as to registration of, 168 Particulars of Objections, 227, and note (b) Partnership, not constituted between authors and publishers by agreement to divide profits, 601, 602 Passages may be selected from reports, 63 Patent, no copyright in specifications of, 96 Patents, Commissioners op, 413, 715 empowered to extend time for protection of designs, 413 orders made by, to be registered, 413, 715 registrar and officers to be appointed by, 416, 425 to exercise power of Board of Trade, 715 transfer of duties of registrar to officers of, 716 Pattern, persons have to register, under Designs Act, 417 when advisable so to register, 417 when not so, 418 when registration by, what protected, 418, 425 Pattern for Berlin Woolwork, design for a, not a piracy of an engraving, 372, 373, 7613 880 INDEX. Patterson's Boad Book, 39 Payment, of articles in magazines must be actually made to vest copyright, 70 ' Pedigree of the English People,' 764 : see Pike v. Nicholas. ' Peg Woffington,' 599 Penal Code, extract from, oil Penalties : see also Bemedies foe Infringement of Copyright. action for, to be brought within twelve months, 228, 250, 349, 615, 617, 625, 628 under Copyright (Works of Art) Act, 377, 397, 404 cumulative, 400 under Literary Copyright Acts, 641 entry must be correct to support, 137, 145 summary proceedings for recovery of penalties under En^ravinc Acts, and 25 & 26 Vict. c. 68 . . 377, 621, 699 action for, under 3 & 4 Will. 4, c. 15 ..299, 305, 348, 349, 627 „ „ Sculpture Acts, 385 for not delivering copies at the various libraries, 152, 635 for omission to print name and abude of printer, 231, 457, 705 for wrongfully using registration mark, 450, 652 for infringing copyright in designs, 441, 450, 649, 650 on persons publishing lectures, 628 on printers and publishers of newspapers publishing protected lecture, 629 separate for each offence, 224, note (a) for importation of copies of protected work, 217, 221 in Scotland, 218, 223 may be recovered under 3 & 4 Will. 4, c. 15, though assignment not by deed, 316 under 25 & 26 Vict. e. 68, importing pirated copies, 406 must be waived in equity, 261 incurred when representation of dramatic piece without author's consent, in writing, 302 cannot be escaped by executing composition deed, 404, 405 see Forfeiture ; Limitation of Time. Performance of Agreements: see Agreements between Authors and Publishers ; Specific Performance. Performance, Bight of : see Dramatic Composition ; Eepresentations. Periodical Publications : see also Magazines ; Newspapers ; Beviews. copyright in, 68, 638 articles in, 593, 639 runs from publication of each part, 82 proprietors of, entitled to copyright in articles in, 594, note (a) registration of, 81, 144, 145, 639 „ the title of, 81 „ where intended only, 66, 143 letters written to, 51 editors of, may destroy letters, 52 „ may not insert if requested not, previous to publication, 51 INDEX. S81 Periodical Publications — continued. titles of, 67 properly registered, 67, 81 change of, 75 in Prance, 75, note (c) each part of, a book, 82, 145 Perpetuity in copyright, 107 of Universities, 35, 618 the Emperor Napoleon's opinion of a, 107, 108 Personal copyright, property, 156, 641 an agreement for division of profits a contract, 595, 586 ' Persons aggrieved ' who, 141, and note (c), 396, 639 Pert;, no copyright law in, 568 ' Pestal,' 227, 345 Petes Pindar's Lectures, 88 Petitions, to parliament to protect copyright, 25 Photographs, copyright in, 389, 695 term of, 389, 696 by whom may be claimed, 390, 696 registration of, 391, 393, 697 „ on, what description to be given, 394, 395 benefit of 25 & 26 Vict. c. 68, cannot be claimed until after registration, 395 action only in respect of offence committed after registration, 395 provisions of 5 & 6 Vict. c. 45, as to registration applied to, 395 who is an aggrieved person, 396 expunging entry in register, 397 assignment of copyright in, 391, 697 infringement of copyright in, 397 penalties for, 397, 398, 404, 697 cumulative, 400 cannot be escaped by executing a composition with creditors, 405, 406 a criminal offence, 404, 405 effected by chromo-lithograph taken from, 393 penalties inflicted for fraudulently signing photograph, 402, 698 „ „ selling, publishing, or exhibiting, 403, 698 „ „ selling a copy or colourable imitation, 403, 698 penalties! inflicted for knowingly selling altered work of author without consent, 403, 698 engravings may be infringed by, 370, 371, 398 so also may paintings, 398 of engravings may be regarded as original productions, 400 3 L ' 882 INDEX. Photographs — continued. taken from a painting original, 400 lent for particular purpose cannot be copied, 375 to illustrate ' Good Words,' 391 as to the license required to copy, 398, note (a) not designs, 435 provisions as to forfeiture in the bill now before Parliament, 401 International Copyright Act extended to, 406 suggestion of Copyright Commissioners as to, 407 negative of, to whom belong, 408 Phrase. three or four bars may form a, 210, 211 see also Musical Composition. ' PlANISTA AND ITALIAN OpEEA PROMENADE CONCERT MAGAZINE,' &C, 762 Pianoforte score of an opera, copyright in, 342 distinction between this, and original score, 343, 344 registration of an arrangement of a opera, 476 arrangement of ' Vert- Vert,' 476 see also Musical Composition. Picture, exhibition of, not a publication, 18 engravings from, 368 photograph from, 400 see also Engravings ; Paintings and Drawings ; Photographs. Piece : see Pattern ; Registration ; Sample. ' Pilgrim's Progress,' 23 Piracy : see Infringement of Copyright. Place, first publication must be in United Kingdom, 112, 113, 323, 324, 331, 472, 505 except under international treaties, 331 native author may be abroad, 114, 115 foreign author must be within British dominions, 122, 123 first performance of MS. play must be in United Kingdom, 113, 491 of dramatic entertainment, 303, 304, and note (b) Plagiarism not necessarily an invasion of copyright, 173 not every imitation a proof of, 197, 201 Plaintiff, evidence for, in engravings suits, 378 „ „ necessary to obtain an injunction : see Injunction. offering to compromise, effect of, 231 Plan: see also Arrangement; Map. not subject of copyright, 42, 215 Plates: see Stereotype Plates. • Play,' 296 INDEX. 883 Play : see Dramatic Compositions. Plea, where allowed usually end of injunction, 260 Plead, what defendant may, 228 notice of objections to plaintiffs title, 226, 227 form of, 227, note (b) Poems, Byron's 'Cain,' 89 ' Childe Harold,' 126 ' Don Juan,' 90 Gray's, 39 Milton's ' Paradise Lost,' 28 Selections of, 43 Southey's ' Wat Tyler,' 86 said to be Byron's, 95, 96 Pope and Swift's Miscellanies pirated, 27 ' Popular Favourites for the Pianoforte,' 293, note (a) Portions : see Part ; Pattern ; Registration ; Sample. Possession : see Occupancy ; Property. ideas not capable of visible, 5 Post Office Directories, 74 Practice of granting Injunctions : see Injunctions. ' Practice of Photography ' (The), 760 Prayer Book, copyright in the Crown, 274, 276 on what ground, 276 view taken in Ireland, 277 view taken in England, 278 Precedents in Conveyancing : see also Fobms. stolen, 9 copyright in, 64 Prerogative Copies : see Crown Copyright. restraints on ; removed, 21 Presumption, no, of assignment of copyright, 159 Prince Edward's Island, adopts the provisions of the 10 & 11 Viet. c. 95 .. 499 ' Prince Impemal Galop,' 293, note (as) 3 l 2 INDEX. Principles : see also Rules. on which Courts of Equity act, 47 „ in Scotland act, 49, 240 on which injunctions granted, 234-246 on which copyright in an advertising medium depend, 100 on which piracy of dictionary depends, 181 on which translation of protected work piratical, 212 by which a piracy may be discovered, 175, 183 Printer, his name and abode to be printed on every book, 231 „ „ newspaper, 453, 457, 705 name of, need not appear on cards or on articles in which he deals, 458 „ „ papers for sale of estates or goods by auction, 458 prosecutions of, for not printing name to be commenced within three months, 458 . „ „ how to be conducted, 458, 706, 715 when cannot maintain action against publishers, 92, 458, note (a) has lien on books printed, 157 liable to action for printing for " sale or exportation," 223, note (5) no defence to action for piracy that name of, not on book, 231 contract by, to print and find paper not contract for sale of goods, 578, note (6) lien of, on copies printed for cost of printing, 378, 594, note (a) cannot plead want of knowledge, 225 demurrer to bill of discovery as to names &c. 454 cannot recover for printing work until whole be complete and delivered, 578, note (b) cannot maintain action for printing obscene book, 580, note (c) but entitled to recover in what cases for un-objectionable part, 580, note (c) Printing, restraints on, 20, 21 effect of, 19 a drama taken from a novel, 337 at Universities, 705 printer not, name and residence in any book, 231, 457, 705 Prints : see Engravings. Private, letters, copyright in, 43 distinction between commercial and, 45 Cicero's opinion on the publication of, 49 when the publication of, permitted, 50 „ not permitted, 50, 51 principles on which publication prevented in Scotland, 49 ground on which Court of Chancery will prevent publication of, 49 what is a publication of, 52 written by one person for another, 52 circulation not a publication, 18, 111 distribution of lithographic copies deemed a publication, 111 INDEX. 885 Private — continued. distribution among pupils of a system of bookkeeping, 111 theatricals, 325, 326 Privy Council, may license the publication of any book, 109, 633 appeal from Registrar of Designs to, 449, 661 Procedure, mode of, in seeking an injunction, 261 see also Remedies for Infringement of Copyright. Proceedings : see also Remedies for Infringement of Copyright. in cases of infringement of copyright generally, 445 in County Court, 444 for not printing name and abode of printer, 705, 706 for fraudulently selling a work of art, &c, 403, 698 signing a work of art, 402, 698 see also Action for Damages ; Injunctions. Proclamation of the Star Chamber in 1623 .. 20 Production the essential principle of one source of property, 3 see also Property. Profane Publications : see Blasphemous Publications. Profits arising from recital of works, 2 due to author, 576 agreements for division of, 595 not assignable, 596 create a joint adventure, 599 terminable by notice, 599-603 property in work considered as rights to, 84 account of, incident to plaintiffs relief in equity, 268 where not allowed, 270 to what limited, 270 as to past as well as future sales, 270 in equity only nett, 261, 270 what in America included in such, 270 if small, usually waived, 271 points as to costs in connection with, 271-273 between authors and publishers, 612 when ordered to be kept by defendant, 254 Prohibitions: see Customs Consolidation Act, 717 Property, how originally adjusted, 3 copyright a distinguishable, 3, 5 personal, 156, 158 in literary compositions, 3, 158, 159 does not pass by publication, 19 definition of, 3, 5, 16 rights of, must be instituted before violation, 3 alone protected by Courts of Equity, 47 in the order of words a mental abstraction, 5, 6 886 INDEX. Property — continued. in a stream of water, 6 in private and commercial letters, 43 in the paper on which letters written, 43 in lectures, 17 in the Bible, 274, 276 production the principle of one source of, 3 value of, in musical composition, 17, 293, note (a) considered as the right to profits of work, 84 „ „ publish or withhold, 85 no, in works of libellous, immoral, or obscene nature, 84 Proprietary Rights ideas not the subject of, 5 Proprietors : see also Authors ; Publishers. of copyright, who, 158 copyright of articles in, of periodicals, 593, 639 of periodicals, right to publish articles, 51, 52, 75, 78 how can, of periodicals interfere with editor, 594 name and abode of, to appear in register, 82, 639 may sue for recovery of copies pirated, 225, 640 otherwise at Common Law, 225 value of pirated copies sold, 225 in Equity entitled to nett profits only, 261 of designs, may have pirated copies delivered up, 226 ' meaning of word, 648 Protection obtained by the Universities, 35, 618 „ registration of sample : see Designs ; Registration. Protector-Label not a proper subject of registration, 439 Proverbs, copyright in collections of, 43 Provisional Registration, 427, 450, 680, 737 : see also Sculpture. on what terms may be obtained, 737 no mark necessary, 427, 737 what necessary to furnish registrar, 448, note (a) same protection afforded a, as to designs completely registered, 450 of articles exhibited, 450, 451, 681 fets on, 451, 737 transfer of designs provisionally registered, 738 fees on, 737 cancellation of, 737 provisions as to searches, 738 „ inspection of register, 739 fees on, 739 Prussia, international convention with England, 505, 729, 730 ; Appendix (K.) Public offices, letters addressed to, 53 documents, copyright in, 126 „ publication of, may be prevented by Government, 53, 54 libraries : see British Museum ; Universities. INDEX. 887 Public — continued. performance : see Dramatic Compositions ; Representation. reading : see Lectures. ' Public Correspondent ' (The), 70 Public Delivery of Lecture : see Lectures. Publication what is a, 17, 110, 112 what not, 18, 111 in what way works originally published, 2 Common Law right to first, 10 statutes do not affect right of author before, 10 author may prevent, 8, note (a), 11, 85 effect of, 19 „ unlimited right of, 134 what passes by, 19 of private letters, 43, 47, 52 of letters not permitted for the purpose of representing that to be true which has been admitted to be false, 50 of letters sent to newspapers, 51 f, „ government offices, 53 of articles in reviews, &c, 76 of the Bible : see Bible of separate books of the Bible, 277 of translations of the Bible, 277 of statutes, 274, 280 : see Crown Copyright. of reports in courts of justice, 283, 285 „ during trials, 284 of ex parte statements upon coroners' inquest, 285 of head-notes : see Head-notes of newspapers when copyright attached, 66 of a series of parts, 80 copyright runs from, of each part, 82 of books by order of Privy Council, 109, 633 of a design, 411, note (a), 413, note (a) of a temporary character, 257, 258 separate may be reserved, 76, 78, 639 by recital, 2 by writing, 2 by executors, 156, note (c) gratuitous circulation not necessarily a, 18, 111 private distribution of lithographic copies deemed a, 110 presentation of copies not a, 111 repeating from memory not a, 110 public exhibition of sculpture a, 383 „ „ a future not a, 18, 399 must be first in this country, 112, 113, 323, 324, 331, 472, 505 first in this country by foreigner, 122, 491 simultaneous abroad and in this country, 113, 117, note (e), 125, note (a) effect of, of portion here, 124 date of first must be stated in the registry book, 136, 139, 636 effect of insertion of wrong day of, in registry, 137 before, no copyright acquired by registration, 143 representation of dramatic piece formerly not a, 110, 295 „ now a, 110, 300 888 INDEX. Publication— con tinued. representation of dramatic piece, a, under American Law, 296 „ „ „ abroad, effect of, 323, 324, 331, 472, 505 whether copyright in dramatic piece governed by representation or, 323 copyright arises by, in France, 490 no copyright in libellous, immoral, or obscene, 84 „ „ irreligious, 88 the use of letters as evidence in Court is not, 110, note (d) contract as to, of unlawful book, invalid, 580, note (c) until actual, court will not interfere, 584 agreement as to style of, 591 Publishers when copyright vests in, 594, note (as), 638, 639 light in which, regard compositions, 575 arrangements between author and, 575 construction of agreements between authors and, 594, 595 contracts between authors and, should be in writing, 578 what necessary to satisfy the Statute of Frauds, 578 may bring action against author for not supplying work, 580 should work be stopped, must pay author for work done, 580 payment to representative of author, 580, 581 agreement between editor and, not to alter title of journal, 588, note (6) agreement for division of profits, personal, 595, 596 the benefit of the right to publish not transferrable, 596, 597 „ „ „ not even whether the author receives a royalty, 597 „ „ „ otherwise when he receives a sum down, 597 agreement for division of profits a joint adventure, 599 „ „ „ terminable by notice, 563, 599 agreement not to sell under a certain price, 603 agreement as to style of publication, 591 ordinary agreements between authors and, not a partnership, 605 construction of the word " edition," 605 right of, to sell copies on hand prior to expiration of his limited copy- right, 606 accounts between authors and, 612 dissolution of partnership between, 76, note (V) copyright in, when they employ and pay editor, 76, note (d) of piratical work not liable unless guilty knowledge brought home to them, 224, note (a), 225 injunction may be obtained against seller though plaintiff has not pro- ceeded against, 262 no specific performance of agreement to write book, 581 an author may bind himself not to write upon a particular subject, 583 but Court will only interfere until actual. publication, 584 when not contrary to agreement with, author may publish continuation of his work, 584 ' The Edinburgh Philosophical Journal,' 584, 585 ' London Journal,' 585 ' London Society,' 586 as to alteration by, of author's work, 588 lien on the copyright for disbursements, 591, note (a) when agreement is for a specified number of copies, 591 INDEX. 889 Publishers — continued. after purchase of copyright by, author cannot reproduce matter in any other book, 592 not bound to publish a second edition, 592 as to commission of, 612 see also Agreements between Authors and Publishers. Puffendorf, cited, 3 ' Punch,' 72, 188, 189, 247 Quadrilles taken from copyright opera, a piracy, 320 where may be copyright in, taken from unprotected opera, 342, note (a) Quantum little criterion of piracy, 61, 187 in trifling cases injunction not issued, 241 Queen : see Prince Albert's Case, 11 et seq. Quotation, copyright in, 43 to what extent may be made in encyclopedias, 174 extensive from poetical works, 188 quantity of, but slight criterion, 187 when amount to piracy, 216 adaptation of, 216 see also Reviews. ' Railway Station,' Picture of, by Frith, 402 ' Railway Times ' (The), 192 ' Rasselas,' (Dr. Johnson's), abridged, 60, 203 Reade's ' Never too Late to Mend,' 32 „ ' Peg Woffington,' 599 „ ' Christie Johnstone,' 599 ' Real John Bull,' (The), 764 ' Reason Why,' 179 Receipts, copied from book on other subject, 189, note (a) copyright in arrangement of, 41 no copyright in simple collection of, 41 whether, for purchase-money will operate as an assignment, 165 Receiver of Letter, property in paper, 43 not permitted to publish it, 50 Recital of Works in Ancient Times, 2 Re-deliveby of Lecture : see Lectures. 890 INDEX. Kegistebed, word to be attached to every article under Designs Act, 414, 427, 693, 733 not necessary in statement of claim to allege this done, 263 Registrar, appointment and duties under Designs Acts, 416, 425, 653 what discretion, may exercise, 4^6, 449, 660, 683 to register under Ornamental and Useful Designs Act, 449, 661 to reject designs being simply labels, wrappers, &c, 449, 661 appeal to Privy Council, 449, 661 office of, to cease as separate paid office, 452 Keuisteatiok, Literary Copyright, object ot, 114, 135 only legal of a work actually composed, 66, 144 certificate of, 136, 636 of title of intended work, 66, 143 of copyright, 135, 165, 635 effect of neglect of, 136, 302, 641 must be accurate to support action, 136 full name of person, 137, 636 but sufficient to enter first publication under name of firm, 138 of first date of publication must be given 139, 636 plaoe of residence, 139, 636 abode of assignee, 139 expunging or varying entry, 140, 396, 636, 637 making false entry a misdemeanour, 636 but entry must be clearly shewn to be false, 141 who has a right to have entry expunged, 141, 636 condition of work to secure sufficiency of, 143 of the first number of periodical sufficient, 145 not necessary of the particular part in which article infringed appearing, 145 a condition precedent to sue under 5 & 6 Vict. c. 45 ..145 but not under Works of Art Act of 1862 .. 146 of new editions, 147 of maps, 147, 360-367 of partial assignment, 168 of assignment for certain number of years, 168 „ of certain number of copies or editions, 168 „ of share in copyright, 171 of a newspaper, 144 of newspapers, 459-464 mortgage of share in newspaper does not require, 466 of periodicals, 81, 144, 639 of university copyright, 291, 620 suggestions of Copyright Commissioners as to, 154, 155 Musical and Dramatic Copyright. dramatic pieces, 302 in manuscript, 301, 302, 323 omission to register does not affect copyright, 302 the right of representation, 316, 323, 640 not necessary where expressly assigned, 317, 318 necessary where intended to pass by assignment of copyright, 316, 640 INDEX. 891 Registration — continued. Engravings, Prints, and Lithographs, no, necessary, 359 Sculpture and Models, mode of, 384, 682, 738 Paintings, Drawings, and Photographs, provisions as to, of, 393, 394, 697 photographs, descriptions sometimes necessary on, 394, 395 no action under 25 & 26 Vict. c. 68, can be maintained until, 395 except as to offences committed after, 395 of intermediate assignments not necessary if last assignment be entered, 395 who an aggrieved person, 396 suggestions of Copyright Commissioners as to, 396, note (a) Designs for Ornamental Purposes, mode of, 413, 417, 652, 732 who entitled to register, 737 Commissioners of Patents to issue regulations for, 416 have issued regulations for, 417, 425, 426, 732 directions for registering and searching, 732 et seq. copies, drawings, or tracings to be supplied, 732, 733 name and address of proprietor, 732 number of class sought to he registered in, 732 form of application to register, 732, 733, 736 when to he effected, 413 what sufficient for, 414, 415 leaving a shawl, 414, 415, 417 no specification necessary, 415 may be effected in several classes, 415, 733 when advisable, 416 must be at same time, 416 may be effected by sample, 417, 693 when advisable. 417 when not advisable, 418 original combination of old patterns may be registered, 433, 434 manufacturer hound to inquire as to, 436 as to what proper subject for, under Acts, 438 oblong pane of glass, 438 protector-label, 439 dog-cart phaeton, 440 table lamp, 441 certificate of, 426 „ of what evidence, 427 as to registration mark, 414, 427, 693, 733 not required on sculpture, 427, 733, 738 nor when provisionally registered, 427 penalty for wrongful use of, 427 copies of designs in books need not have, mark, 415 appointment and duties of registrar, 425 what discretion registrar may exercise, 426 power of registrar to dispense with drawings, &c, effect of bankruptcy of transferor after assignment and before, 432 Designs for Purposes of Utility, mode of, 447, 448, 659, 683, 739 what necessary to furnish registrar on, 447, 660, 7«s9 copies of drawings to be filed on, 448, note (ft), 683 __ 892 INDEX. Registration — continued. Designs for Purposes of Utility — continued. directions for registering, 740 fees on : 743 amending or cancelling, 448, 652 of orders of Commissioners of Patents, 413 transfers under, 742 searches, 745 Under International Copyright Acts, 474 of books, 474, 475 of dramatic pieces and musical compositions, 475, 486, 487 of engravings and prints, 475 of articles of sculpture, 476 of translations, 486, 487 of books published anonymously, 477 of pianoforte arrangement of an opera, 476 mode of entry, 476 effect of, 477 as to expunging or varying entry, 477 delivery of copy to Stationers' Hall, 475 not of dramatic or musical MS., 475 suggestions of Copyright Commissioners as to, 479 Under Convention with France, mode of, 487 delivery of copies, 488 fees on, 481 of a French newspaper, 488 of books published in parts, 487 of articles published in periodicals, 487 In Foreign Countries, Prance, 515 Belgium, 525, 527, note Holland, 529 the German Empire, of books, 531 of artistic works, 537 of industrial designs and models, 540 Austria and Hungary, 541 Norway, 544, 547 Sweden, 551, 555 Spain, of books, 556 of dramatic and musical works, 558 Portugal, of books, 558 of artistic works, 559 Italy, 560 Russia, of books, 564 of artistic works, 566 The United States of Venezuela, 567 The United States of America, 571, 721 see also Provisional Registration. Registry, Book of, provided under the 5 & 6 Vict. c. 45 .. 135 open to inspection, 136, 635, 661 INDEX. 893 Registry, Book of — continued. certificate of entry in, 136, 636 stamp on, 136, note (a) varying or expunging entry in, 141, 142, 636, 637 making false entry in, 636 ' Reine de Saba,' (La), 248 Religion, no copyright in works against the Christian, 87, 91 Remedies fob Infringement of Copyright, At Law, for violation of common law rights, 8, 9 for unlicensed publication of MS., 9 since Judicature Act, 222 Books, penalties and forfeitures imposed by Statute of Anne, 26 remedies provided by 5 & 6 Vict. c. 45 ..223, 637 action for damages against unlawful printing, importing, selling, or letting on hire, 222, 223, 638 notice of objections to plaintiff's title to be given, 226, 637 when sufficient, 227 amending notice of objection, 227 the defendant may plead the general issue and give special matter in evidence, 228 venue, 230 plaintiff need not aver that defendant published plaintiff's book, 231 offer to compromise on certain terms, 231 security for costs, 232 knowledge of piracy must be shewn in selling, but not in printer or importer, 218, 224, note (as), 225 owner may sue for recovery of piratical copies, 225, 640 „ profits on copies sold, 225, 640 penalties against unlawful importing, 224, 638 „ separate, on same day, 224, note (a) remedies against gratuitous circulation, 218, 223, note (a) within what time actions must be brought, 228, 229, 641 omission to register will not affect, 302 Dramatic and Musical Compositions, under 3 & 4 Will 4, c. 15 .. 299, 300, 347, 627 under 5 & 6 Vict. c. 45, s. 21 . . 347, 640, 641 penalties recoverable by whom, 347 where material part taken, actual damage need not be proved, 348 Lord Hatherley's opinion, 348 suggestions of the Copyright Commissioners as to penalties, 348 actions to be brought within twelve months, 349, 641 to what actions apply, 349, 641, 642 what offence to be described, 349 Engravings, Prints, and Lithographs, an assignee may maintain action, 375 not necessary in Scotland to allege where piracy committed, 375 penalty under Engraving Acts, 376, 614, 622 special action on the case by 17 Geo. 3, c. 57.. 376, 377, 621, 622 limitation of time as to actions, 377, 615, 617 894 INDEX. Remedies fob Infbingement of Copyright — continued. ' At Law — continued. Engravings, Prints, and Lithographs — continued. summary proceedings for recovery of penalties, 377, 699 in England, 377, 699 in Ireland, 377, 699 in Scotland, 377, 699 order for inspection and injunction or account, 378, 700 evidence on behalf of plaintiff, 378 not necessary to produce plate, 378 Sculptures and Busts, action for damages given by 54 Geo. 3, c. 56 . . 385, 625 penalty imposed on offender, 385, 625 remedy provided by the 13 & 14 Vict. c. 104 .. 385, 682 Paintings, Drawings, and Photographs, action only maintainable as to offence after registration, 395, 695 assignee may sue though prior assignments not registered, 395 who is an aggrieved person, 396 expunging entry in registry, 397 penalties on infringement, 397, 699 penalties cumulative, 400 forfeiture of copies, 401, 700 suggestions of Copyright Commissioners as to this, 401, 402 Penalties imposed for : — fraudulently signing painting, drawing, or photograph, 402, 698 „ selling, publishing, or exhibiting same, 403, 698 „ selling any copy or colourable imitation, 403, 698 knowingly selling work having altered it without author's consent, 403, 698 to whom penalty is payable, 404 penalties imposed as a punishment for a criminal offence, 404 „ cannot be escaped by a composition deed, 404, 405, 406 importing piratical copies, 406, 700 manufacturer bound to inquire where design registered, 436 notice as provided by 7th section of 5 & 6 Vict. c. 100 . . 436, 437, 649 what necessary to prove, 437 ignorance of registration no excuse, 438 action for damages under sect. 9 of 5 & 6 Vict. c. 100 .. 441, 652 forfeiture under the 8th s. of 5 & 6 Vict. c. 100 .. 442, 649 in England, 442, 650 in Scotland, 443, 651 in Ireland, 443, 652 limitation of actions, 444, 653 justices may order payment of costs in cases of summary proceedings, 444, 653 same remedies for infringement of useful as ornamental designs, 444, 659 proceedings may be taken in the county court, 444, 694 considerations affecting choice of remedy, 445 no provision for delivery up of pirated articles, 445 „ but order made on one occasion, 445 proceedings may be taken in Chancery Division of High Court of Justice in all cases, 446 INDEX. 895 Remedies foe Infringement of Copyright — continued. At Law — continued. Designs — continued. what statement of claim should contain, 446 articles should be produced in court, 446 provisions as to recovery of penalties &c. under Ornamental Designs Acts extended to useful designs, 449, 450, 659 penalties for using falsely the word " Ed," 450, 693 provisions of Designs Acts extended to articles provisionally registered, 450, 684, 740 In Equity, for violation of common law rights in unpublished works, 8, 27 in cases when work not literary, 43, 49 in letters, 43-50 injunction, 233 definition of, 233 Lord Mansfield's opinion upon the issuing of an, 234 the modern practice, 235 where this remedy applied and on what evidence, 235 Lord Eldon's opinion, 235, 236 equitable title which will support, 236 mere agreement not such title, 236 prima facie title must be shewn, 237 auxiliary to legal right, 237 in granting, court will exercise its discretion, 238 in what cases it will be granted, 238 „ „ refused, 239 not granted where action not maintainable, 239 not issued against work on ground that it is injurious to feelings, 240 where fair doubt as to whether damages could be recovered at law, 240 where evidence of plaintiff contradicted by defendant, 240 in trifling cases, 241 Scotch law on this subject, 240 as to continuation of, or its dissolution, 241 where portion only of the work is piratical, 242 to what extent it is to go, 243 Lord Eldon's opinion, 244 where there is a similarity of appearance in works, 247 where publication is falsely represented to be the work of another, 247 due diligence to be observed in applying for, 248 what sufficient excuse for delay, 249 tendency of modern decisions, 250 not granted generally where there has been acquiescence, 252 institution of proceedings after lapse of twelve months, 250 custom of trade no excuse for piracy, 254 methods usually adopted by the court in particular instances, 254 procedure in Equity, 255, 257, 261 „ in cases where publication of temporary character, 257J as to bringing to hearing where interlocutory injunction obtained, 259 not necessary to apply in first instance as interlocutory application, 259 dissolving of interlocutory injunctions, 260 usual method of obtaining dissolution, 260 896 INDEX. Remedies for Infringement of Copyright — continued. In Equity — continued. where copyright infringed injunction- granted without proof of damages, 260 proprietor entitled to nett profits only, 261 to recover pirated copies proceedings must be taken at law, 261 invasions by several persons, 261 proceedings may be taken against seller, instead of against publisher, 262 one of several partners will not be restrained from publishing ac- count of invention, 262 if plaintiff has merely equitable title, person having legal title should be party, 263 proceedings under the Judicature Acts, 262, 263 not necessary to specify in statement of claim, parts of work pirated, 264 on claim by assignee what must be shewn, 265 nature of relief usually sought and obtained, 266 forms of injunction, 267, Appendix (G-.) : see Forms, Injunctions. Account right to, incident to other relief, 268 where no, allowed, 269 as to past as well as future sales, 270 " limited to nett profits, 270 commissions in America included iu such, 270, 271 if small usually waived, 271 examination of witnesses before examiner, 268, 269 nature of discovery given, 269 points as to costs, 271 effect of offer by defendant on, 272 bankruptcy of plaintiff after hearing but before judgment, 273 rule for estimating damages, 273 In Foreign Countries, France, in books, 510, 516 in dramatic and musical works, 520, 521 in artistic works, 522 Belgium, 525, 527, note, 528, note Holland, 528 The German Empire, in books, 531 in music, 533 in dramatic representations, 535 in artistic works, 537 in photographs, 539 in industrial designs and models, 540 Austria and Hungary, 542 Norway, in books, 544 in piratical translations, 545 in artistic works, 548 in photographs, 549 Sweden, in books, 551 in dramatic works, 553 Denmark, 555 Spain, 557 INDEX. 897 Remedies for Infringement of Copyright — continued. In Foreign Countries — continued. Portugal, in books, 558 in dramatic and musical works, 559 in artistic works, 559 Italy, 560, 561 Switzerland, 562, 563 Turkey, 563 Russia, in books, 565 in dramatic and musical works, 565 United. States, 572, 573 in books, 722 in maps, charts, prints &c, 723 in dramatic compositions, 723 in manuscripts, 723 Repeal of the Foreign Reprints Act not recommended, 503 Repetitions : see Replicas. Replicas, whether artist having sold picture may make, of it, 390, note (J), 408 Report of Royal Copyright Commissioners : see Copyright Commissioners. Reports, passages may be selected from, 63 to what extent cases may be taken bodily, 194 head-notes of, 62 publication of, in Courts of Justice, 283 of ex parte statements on a coroner's inquest, 285 violation of the copyright in, 208, 209 official, belong to the Government, 53, 126 ' Repository of Arts, Manufacture, and Agriculture,' 82 Representation of dramatic pieces, 110, 318, 325, 626, 627, 640 what is, within the meaning of the Acts, 308 equivalent to publication, 110, 300, 331, 640 even under International Copyright Acts, 332, 333, 334 not formerly so, 295 at place of dramatic entertainment, 303, 304 who those who cause, 305, 306, 307 right of, of dramatic pieces in MS. 322 when commences, 322, 323 lost by previous publication, 323, 324, 331 whether copyright in MS. governed by, or publication, 323 right of, of MS. lost by publication in print, 324 how the Common Law right of, of MS. lost, 301 what is a private performance, 326 of drama taken from novel not an infringement, 336, 341, note (a) otherwise' if printed, 337 assignment of right of, 316, 640 „ „ must be in writing, 318 3 M. 898 INDEX. Representation — continued. right of, does not pass by assignment of copyright with registration,' 316, 640 express assignment of, need not be registered, 317, 318 effect of assignment of right of, in London, 350 penalties for assignment violated only in those taking part in, 305 suggestion of the Copyright Commissioners as to the right of, 325 Reprinting, invasion of copyright by, the whole, 186 „ „ a part, 186 et seq. in colonies : see Foreign Reprints Act. provision in Canadian Act as to, 708 Customs Consolidated Act, 1876 ..718 Republication of Books, by order of Privy Council, 109, 633 Requisites for securing; Copiright: see Registration. Resemblance between Works, not amounting to piracy, 196, 197 amounting to substantial identity test of piracy, 200 in general appearance, 246, 247 see Originality; Similarity. Reservation, of copyright in paintings, 390, 747, 755 „ in one country on sale in respect of another, 116 of separate publication of articles written for periodicals, 76 form for entire, of copyright under the 25 & 26 "Vict. c. 68 .. 758 partial, of copyright, under the 25 & 26 Vict. c. 68 .. 759 Residence, proprietor's place of, must be entered in registry book, 136 abroad, by Englishmen, does not affect copyright, 114, 115, 139 necessary in British dominions for alien to obtain copyright here, 116, 117 note (a), and 122 meaning of, in United States, 569 as to the, of an assignee, 139 Restraints of Press removed, 21 "R "F'STTlTfPTfVN'S on importation of pirated copies, 217, 218, 219, 220, 679, 700 contained in Customs Consolidated Act, 1876 .. 219, 220, 717 Result in Compilation must be original, 42, 174, 178, 181, 198, 215 Reviews : see Periodical Publications. copyright in articles written for, 75, etc., 638, 639 when, are invasions of copyright, 188, 140, 191 registration of title of, 81, 144, 639 extracting whole stories for, 194, 196 Revised Edition : see Editions. Reward due to an Author, 36, 576, 577. Right-: see also Property. of action : see Actions. INDEX. 899 Right — continued. of author in his works before publication, 8, note (a), 10 early decisions in Scotland, 30, note (a) of property, 3, 6 of assignor to sell copies of books after assignment, 170, 608 but not an exclusive right, 609 ideas not the subject of proprietary, 56 Road Book, infringement of copyright in, 39 in compiling, milestones must be counted, 176 use which may be made of earlier writers, 184 RoSCIUS's, THE PLAYEB, PURCHASE FROM TERENCE, 2 Royal Copyright Commissioners : see Copyright Commissioners. Rule, respecting abridgments, 59, 60, 202, 298 by which a piracy judged, 181, 184, note (a), 185 Russell's Song, ' The Ship on Fire,' 304 Russia, Literary Copyright in, 564 what protected, 564 duration, 564 registration, 564 assignment, 564 remedies of author against piracy, 565 penalties, 565 Dramatic and Musical Works, 565 Artistic Copyright, 565 what protected, 565 piracy, 565 assignment, 566 registration, 566 St. Christopher adopts the provisions of the 10 & 11 Vict. c. 95 .. 499 St. Kitts adopts the provisions of the 10 & 11 Vict. c. 95 .. 499 St. Lucia adopts the provisions of the 10 & 11 Vict. c. 95 ..499 St. Vincent adopts the provisions of the 10 & 11 Vict. c. 95 ..499 Sales : see also Assignments. of copyright by the Universities, 291, 620 warranty on, 593 may be made by letter, 165 of books by assignee after assignment of copyright, 170, 171, 606, 608 3 m 2 900 INDEX. Sales — continued. forms of, under Literary Copyright Act, 749, 750, 752 „ „ the 25 & 26 Vict. c. 68 . . 755, 758, 759 restraining sales : see Injunctions. Sample, permissible to register by, 417 when advisable to register by, 417 when not advisable to register by, 418 what protected when registration by, 418-425 Sardinia, convention between, and Austria, 506 „ „ this country, 506, Appendix (K.) Saxony, joins the international convention, 506, Appendix (K.) Scandalous Wokk, no copyright in, 92 Scenes, piracy by taking of certain, of play, 313, 314, 315, 327-330 Scenic Entebtainment, included in definition of dramatic piece, 5 & 6 Vict. c. 45 . . 632 School Books, copyright in, 46, note (V), 65, 179, 180 Science (Guide to) : see Beewee (Db.) Scoee, copyright in a pianoforte, 342 distinction between pianoforte, and original, 343, 344 Scoring Tablet, copyright in, 100, 139 Scotland, early decisions as to author's common law rights in, 30, note (a) principles upon which Court of Session in, have acted in issuing injunc- tions, 49, 240 remedy in, under the Copyright (Works of Art) Act, 377, 699 „ under Designs Act, 443, 651 Scott (Sir Walter), works infringed, 103, 104, 215, 216 Scriptures : see also Bible. work denying truth of, not protected, 88 Sculpture and Busts construction of Acts relating to, 381 copyright in, 379 extent of, 381, 624 term of, 382, 624, 625 term of, suggestion of Copyright Commissioners as to, 383, note (b) when date from, 382 INDEX. 901 Sculpture and Busts — continued. copyright in, what necessary to obtain, 383 assignment of, 384 registration of, 384, 682 infringement of, 385 penalties for, 385 formerly no offence to sell a pirated cast of, with additions, 381 „ „ make a pirated cast of a/ao simile of original, 381 otherwise by 54 Geo. 3, c. 56 . . 381, 382, 624 what is publication of a piece of, 383 registration mark on, 385, 682, 683, 733, 738 public exhibition of a piece of, 383 not protected against drawings or engravings, 386 protected under the international Copyright Act, 473, 672 registration under, 475, 673 suggestions of Copyright Commissioners on copyright as to, 386 as to remedies for infringement, 402 Search : see Begister Book. ' Seasons,' (Thomson's) pirated, 29 Security for Costs : see Costs. Seditious Work, no copyright in, 86 Selections : see Collections. Seller : see Assignor. Selling Price op Book, may be fixed by publisher when not specified in agreement, 592 Separate publication of articles in reviews, 76, 78 „ „ books of the Bible, 277 articles advertised to form part of periodical publication, not a book, 110 penalties for each offence, 224, note (a) Series : see Periodical Publications. publication of a, of parts, 80 of parts, copyright runs from publication of each, 82 ' Serious Family Polka,' (The), 75' Sermons, copyright in, 57 Session, Court of (Scotland), principles under which an interdict is issued,. 49, 240 remedy in, under the Copyright (Works of Art) Act, 377, 699 Designs Act, 443, 651 Shape, protection under Designs Act only afforded to, 438, 735, 739 ' Shaughraun,' (The) 333 Shawls, copyright in designs as applied to, 412, 646, 732, 735 902 INDEX. Shawls — continued. registration of, 414, 415, 434 provisional registration of, 681, 737 form of injunction as to mantilla, 765 Sheet of Letter-press, meaning of expression, 110, 632, 677 engravings published with, 360 Sheridan's Opera of the ' Duenna,' 296, note (a) ' Ship on Fire,' Russell's Song, 304 ' Shop,' 340 Shorthand, play may not be taken down in, and published, 9 lecture may not be taken down in, and printed, 18, 55, 57 Side-notes of Reports, copyright in, 62 definition of, 62, 208 may be considered as digest, 63, 208 Silks, copyright in designs as applied to, 412, 647, 735 Similarity of errors test of piracy, 183, 184, note (a) of appearance of two works, 246 between two engravings, 368, 369 Simultaneous Publication abroad and in this country, 113, 117, note (e), 125, note (a) Sion College, copies of books for, 153 Sketches (Artist's), 407, 408 ' Slap Bang ! Here We are Again !' 293, note (a) Smiles's ' Thrift,' 502 Smith's ' Leading Cases,' 194, 195, 253 Smithsonian Institution (America) copy of every book for, formerly required, 153, note (o) „ „ not now necessary, 721, 725 Solicitor, copyright in letter written by, of a company, 43, note (6) Solid Substances, copyright in designs as applied to, 412, 646, 683, 735 Sonata, copyright in a, 293 ' Sonnambula ' (La), 166 INDEX. 903 Songs number of some popular, sold, 293, note (a) prices given for copyright of some, 293, note (a) words of taken, 308 „ " written and composed " on, 95 copyright, may not be publicly sung, 57, note (J), 300, note (b), 308, 310 copyright in, not lost by custom of place where sung, 322 term of, 300 when dramatic, 309, 310 arrangement of new words of, and accompaniment to old airs, 342, note (a), 346 stated to be composed by Gounod, 247, 248 assignment of copyright in, must be in writing, 165, 318 form of injunction restraining use of name and title page of, 761 Southey's ' Wat Tyler,' 86 Spain, copyright treaty of 1857 with, 506, 804 expiration of, 506, note (a) Literary C'ojjyriyht in, 556 what protected, 556 persons protected, 556 duration, 556 registration, 556 reciprocity, 557 Musical and Dramatic Works, 557 duration, 558 registration, 558 Works of Art, 558 Specific Performance, no, of contract to write book, 581 for sale of copyright, 581, note (&) Specifications, no copyright in, 96 Spectacular Piece : see Dramatic Composition. copyright in, 310, 311 Speeches : see Lectures. copyright in, 57 ' Spinning by her Cottage Door,' 95 ' Sporting Life,' (The), 466 ' Spring Carol,' 95 Stamp, not necessary on assignment of copyright by entry, 136, 164 on certificate of entry in registry, 136, note ( a) necessary on agreements under the 25 & 26 Yict. c. 68 .. 390, note (a) Star Chamber, decrees ofthe, 19, 20, 275 abolition of the, 21 904 INDEX. State Documents : see Crown Copyright ; Government. copyright in, 280 Statement of Claim, under Judicature Act, 262 under Designs Acts, what necessary to allege, 446 „ what not necessary, 263 in, not necessary to specify parts of work pirated, 264, and note, (b) by assignee of copyright, 265 usually prays for account, 266 practice in America, 266, note (b) Statements made ex parte on Coroner's Inquest, 285 Stationers' Company, original charter of the, 19 effect of the Licensing Act upon the, 22, 23 traffic of members in, 24 ordinances and by-laws of the, 24 book of registry to be kept at, 26, 135 registration at, 136, 168, 171 : see Registration. delivery of books to, for public libraries, 26 practice of, as to partial assignments, 168, 171 forms of entry used by the, 745, 746 monopoly of printing almanacs, 287, 288 none now existing, 288 Statistics, copyright in, 40 „ being infringed, 176 Statius, sale of 'Agave,' to Paris, 2 Statuary : see Sculpture and Busts. Statute of Anne, object of registration under the, 135 assignment under the, 161 operation of the, enlarged, 120 Statute of Frauds, in relation to contracts between authors and publishers, 578, 579 Statutes, do not affect copyright (generally) before publication, 10 notes to, 286 Crown, right to publication of, 126, 274, 280 forms framed under, 64 relating to copyright in British dominions, Appendix (A.) „ United States, Appendix (B.) Statutory Requisites for Securing Copyright : see Registration. Stereotype Plates, purchaser of, is not authorized to print, 157, note (a) Stolen Manuscripts, 9 Story (Mr. Justice), opinion as to copyright in private letters, 48 INDEX. 905 Stoby (Mr. Justice) — continued. opinion as to, letters to public officers, 53 „ Blackstone's Commentaries, 64 Commentaries on Equity Jurisprudence infringed, 205 Stowe's ' Uncle Tom's Cabin,' 213 Stuarts, encouraged fine arts, 352 Studies (Artist's), 407, 408 Style, agreements as to, of publication, 591, 592 copy of general, of work, 75 Styles : see also Forms ; Precedents. copyright in, 64 Subject of copyright : see Copyright. of book need not be new, 37, 38, 39 of new edition, of copyright, 101 original combination a proper, for registration, 432, 433 what a proper, under the Designs Act, 438 : see Designs. a new ventilator not a proper, for registration, 438 a " protector label," not a proper, for registration, 439 author may bind himself not to write on particular, 583 copyright the, of bequest, 156 or phrase, three or four bars of music may form, 210, 211 Subscriptions to works coming out in parts, 579 Substance, copyright is in the, and not in the form, 212 „ in designs as applied to solid, 412, 646 , 683, 735 Sue's ' Wandering Jew,' 313 Sugden on ' Vendors and Purchasers/ 175 Suggestions of Copyright Commissioners: see Copyright Commissioners. Suit : see Action ; Remedies for Infringement of Copyright. Summary Proceedings : see also Remedies for Infringement of Copyright. for recovery of penalties under Engravings Acts, and 25 & 26 Vict. c. 68 . . 377, 699 in England and Ireland, 377, 699 before two justices, 377 or stipendiary, 377, note (b) under Designs Act, 649, 650, 651 in, justices may order payment of costs under Designs Acts, 444, 653 Sweden, Literary Copyright, 549 what protected, 550 persons protected, 550 translations, 550 publishers of periodicals, 550 906 INDEX. Sweden — continued. Literary Copyright — continued. duration, 550 works of learned societies, 550 registration, 551 alienation, 551 piracy and infringement, 551 piratical translations, 551 what is not piracy, 551 penalties, 551 nationality and reciprocity, 552 Musical and Dramatic Works, 552 right of representation, 552 penalties, 553 general provisions, 553 additional law of 10th August, 553 Artistic Copyright, 553 ' Sweetly Pretty Valse,' 293, note (a)] Swift and Pope's Miscellanies pieated, 27 Switzerland copyright in, 562 works protected in, 562 duration of copyright in, 562 piracy of copyright in, 562 penalties for infringement, 5G2, 563 reciprocity, 563, Tables, 'copyright in mathematical, 43, 182 „ statistical, 40 Talfourd (Serjeant), on copyright term, 36 on the r< Telegrams, copyright in newspaper, 100 ' Temple Bar,' publication of, magazine restrained as being in breach of contract, 7C1 Temporary injunction where publication is, in character, 257, 258 Tender, effect of, by defendant to plaintiff, 272 Tennyson's Works printed in America and imported, 218 Terence sale of his ' Eunuchus,' 2 „ ' Hecyra,' 2 accused of stealing his fable, 2 INDEX. 907 Term of Copyright, under 8 Anne, c. 19 .. 26, 613 8 Geo. 2, c. 13, and 7 Geo. 3, c. 38 ..614, 617 54 Geo. 3, c. 156.. 35, 624 _ 3 Will. 4, c. 15.. 626, 627 5&6 Will. 4, c. 6S..629 5 & 6 Vict. c. 45 ..106, 108, 632 5 & 6 Vict. c. 100 .. 646, 647, 735 25&26 Vict. c. 68.. 686 in works published before the Act of 1842 . . 108 in periodical works, 76, 638, 639 in dramatic compositions, 299, 300, 629, 632 in engravings, 353-355, 614, 617 in sculpture, 35, 382, 624 in ornamental designs, 412, 646, 647, 735 in France, 513, 514, 522 in Belgium, 525, 526 in Austria and Hungary, 541, 542 in Holland, 527, 528 in Norway, 543, 546, 547, 549 in Sweden, 550, 552 in Denmark, 554, 555 in Spain, 556, 558 in Portugal, 558, 559 in Italy, 559, 561 in Switzerland, 562 in Turkey, 563 in Russia, 564 in Germany, 530, 535, 536, 538, 540 in Greece, 566 in Brazil, 567 in Republic of Chili, 567 in Japan, 567 in Mexico, 567 in the United States of Venezuela, 567 in the United States of America, 568, 569, 720, 727 considerations respecting increase of, 106, 107 suggestions of Copyright Commissioners as to, 109 ' Teem Reports,' 209 Test of Piracy, 174, 175, 183, 184, note (a), 195 Text, how far alteration of the, constitutes new edition, 102 ' Thackerayana, Notes and Anecdotes,' 190 Theatres, contracts between managers of, and actors, 583, note (a) „ to write only for particular, 583 Act regulating, 661 all, for the performance of plays must be licensed, 662 what licences shall be granted by the Lord Chamberlain, 662 fee for same, 669 licences may be granted by justices, 663 fee for same, 663 908 INDEX. Theatres — continued. to whom licences shall be granted, 663 rules for the, under the control of the Lord Chamberlain, 664 „ enforcing order in the theatres licensed by the justices, 664 proviso for the Universities of Oxford and Cambridge, 664, 665 penalty on persons performing in unlicensed places, 665 no new play or additions to old ones to be acted until submitted to the Lord Chamberlain, 665 fees to be paid for examination of plays, &c, 665 the Lord Chamberlain may forbid any play, 666 penalty for acting plays before they are allowed, 666 „ „ after they are disallowed, 666 what shall be evidence of acting for hire, 666 proof of licence in certain cases to lie on the parties accused, 666 proceedings begun before the passing of the Act may be discontinued, 666_ penalties how to be recovered, 666 appeal, 667 appropriation of penalties, 667 limitation of actions, 667 interpretation of Act regulating theatres, 668 limits of Act 6 & 7 Vict. c. 68. .668 Theatbical Representation : see Representation* Theories, no copyright in mere, 173 Thompson's (Miss), ' Boll Call,' 397 Thomson's ' Seasons' pirated, 29 Thoughts : see Ideas. Thread, copyright in designs as applied to, 412, 646, 647, 735 ' Thrift,' by Smiles, 502 Thtjanus, (Histories of) sole right of printing, &c, granted, 613 Thdringian Union (The) joins the International Convention, 506 the copyright convention with, 776 Time : see also Limitation of Time ; Term of Copyright. divisibility of copyright as to, 167-168 Title, copyright in a, 66-75 abstracts of, 46, note (b) registration of intended, confers no copyright, 66, 81, 143 of part of periodical, 81 when innocently assumed, 68 notice of objection to plaintiff's, to be given, 226 when sufficient, 227 „ „ amending, 227 nature of a, 68 more properly a trade-mark, 68 part of book, 68 INDEX. &'09 Title — continued. to ' Bell's Life in London,' 69, 761 ' London Journal,' 69, 762 ' The Correspondent,' 70 ' Trial and Triumph,' 70 ' Punch and Judy,' 72 ' The Era,' 72 ' The Wonderful Magazine,' 73 ' Minnie,' 73 ' John Bull,' 73 ' The Serious Family Polka,' 75, note (V) Post Office Directories, 74 ' Our Young Polks,' 75, note (b) where the exact, taken, 70 „ not taken, 71 where part of the, taken without fraud, 73 assuming a, which has been disused, 75 in France, 75, note (c) change of, and resumption of, by another, 75 of almanac, 68, note (h) necessary to support an injunction, 235 equitable, 236 prima facie, 237 injunction auxiliary to legal, 237, 238 forms of injunctions restraining use of titles, 761, 762 ' Topographical Dictionary of England,' 760 Townships, boundaries of, shewn on maps, 65, note (a) Trade, custom of, cannot override the law, 82, 83, 194, 196, 248 no excuse for piracy, 253, 254 board of, empowered to extend time of protection as to designs, 413 now, as to designs, superseded by Commissioners of Patents, 452 advertisements of, no copyright in, 97 Tradesmen's Catalogues : see Catalogues. Tragedy : see Dramatic Compositions. Lord Byron's, of ' Marino Faliero,' infringed, 33 Transfer : see Assignment of Copyright. Translation, what is a, 485 copyright in a, 82, 211, 686, 687 an original work, 83 infringement of copyright by, 211 distinction between an imitation and a, 485, 486 of the Bible, 274, 276 „ separate books of the Bible, 277 may be numerous of unprotected original, 211, 311 principle on which, of protected work, piratical, 212 different rule as to translations in America and here, 213, 214 of ' Uncle Tom's Cabin,' 213 910 INDEX. Translation — con tinned. of foreign work infringing a protected work, 213 opinion of some that piracy not committed by translation of protected work, 213 of foreign drama, 311, 687, 689, 707 under the International Copyright Acts, 84, 214, 479, 481, 673, 677, 686, 687, 689, 707 of articles of political discussion for newspapers, &c, 480, 687 requisites to obtain copyright in, under International Copyright Act, 486, 487, 673, 674, 688 registration of, under International Copyright Act, 487, 688 fees for, 488 the 9th sect, of 15 Vict. c. 12, extended to unauthorized, 493, 689 suggestions of Copyright Commissioners as to, 491 Treatises, upon particular subjects, 63 use which may be made in, of reports, 63 „ „ judgments, 63 Trial, at, evidence of which notice not given not to be adduced, 226 report of, of Lord Melville pirated, 284 publication of proceedings during, 283, 284 ' Trial and Triumph,' 70 ' Thicks : see Magical Apparatus. Trinity College (Dublin), copy of every book for, 151, 634 copyrights belonging to, 291 ' Troubled Life ' (A), 194 ' True Britannia,' 73 ' True to the Core,' 71 Trust, breach of, ground for injunction, 49 Tune, copyright, cannot be played in public without the composer's consent, 300, note (b) Turkey, copyright in, 563 term of, 563 translations in, 563 piracy in, 563 Tyrawley's (Lady) Letters, 45 ' Uncle Tom's Cabin,' 213 Undertaking as to Damages by Plaintiff, 254 ' Under the Gaslights,' 327 INDEX. 911 ' Under the Willows,' 95 Unitarian Views, copyright in work expressing, 91 United Kingdom, definition of, 116, note (a) publication must be in, by alien to obtain copyright, 113, 122, 123 publication of part of work in, 124, 125, 126 United States, copyright in, 568 what the subject of, 568, 719, 720 who entitled to, 568, 720 must be a citizen to acquire, 568, 569, 720 temporary residence not sufficient, 569 term of, 568, 720, 727 continuance of term, 720, 727 mode of acquiring, 570, 571 time of publication, 727 deposit of title and published copies, 570, 720 book of entry and attested copy, 571, 721 fees, 721, 726 copyright to be under charge of Librarian of Congress, 719 copies of works to be furnished to the Librarian of Congress, 571, 720, 721 penalty for omission, 571, 722, 726 postmaster to give receipt, 522 publication of notice of entry for copyright prescribed, 572, 722, 726 penalty for false publication of notice of entry, 572, 722 assignment of, 571, 720, 725, 727 „ and recording, 720, 725 translations. 727 serials or separate publications to be copyrighted separately, 727 infringement of, 572 damages and forfeiture for violation of copyright in books, 572, 573, 722 „ „ maps, charts, prints, &c, 723 „ „ dramatic compositions, 723 dramatic compositions, 573 works of art, 727 how to secure exclusive right of performance, 573 damages for printing or publishing manuscripts, 574, 723 limitation of actions in copyright cases, 724 defence to action in copyright cases, 724 injunctions in copyright cases, 724 restrictions on application of words " engraving," " cut," and " print," 725 international copyright with, 494 right of English authors in, 494 reason why no convention between this country and, 495 bill introduced in Congress, 1871 ..496, note (a) 1872.. 496 title not protected apart from work, 568, note (b) no labels protected, 728 full name of proprietor required, 728 Universities. obtained an Act for protection of their copyrights, 35, 618 9 12 INDEX. Universities — continued. may hold copyright in perpetuity, 290, 618 suggestions of the Copyright Commissioners as to copyrights of the, 292 delivery of copies of books to, 151, 634 origin of claim, 152 penalty for default, 152, 635 distinction between delivery of copies to the British Museum, and to the, 151, 634 suggestions of Copyright Commissioners as to delivery of books to, 154, 155 right of, to print Eibles and Prayer Books, 279 .,, „ Acts of Parliament, 282 books printed at, 291, 705 registration and sale of copyrights by, 291, 620 clerk to give certificate of entry, 620 rights of, saved by 5 & 6 Vict. c. 45 . . 642 Unlawful Publication : see Blasphemous Publications ; Immoral Works ; Seditious Works. Unpublished Works : see Letters ; Manuscripts. Uruguay (The Republic of) no copyright law in, 568 Use permitted of antecedent literature, 38, 41, 172, 174, 178, 183 „ „ prior musical composition, 209 Utility, copyright in designs of : see Designs. Value of Extracts, an ingredient in piracy, 186 injunction refused where, slight, 241 Variations, adding, to a musical composition, 211 Varying, entry in registry, 141, 142, 477, 636 : see Entry ; Registration. Vendor : see Assignor. Vendors and Purchasers (The Law of), pirated, 175 Venezuela (The United States of) copyright in, 567 duration of, 567 deposit and registration necessary, 567 Ventilator not a subject of registration under Designs Act, 438 Venue, 230 Verbal Assignment : see Parol Assignment. Verbatim Piracy, 186 ' Vergers' Daughter,' (The) 145 INDEX. 913 ' Vert-vert,' opera by Offenbach, 476 ' Vert Suspicious,' 293, note (a) Vested copyright in whom, 114-124 Vindication of Character, private letters may be published for, 50 Viner's Abridgment, 63, note (a), 206 Violation of agreement : see Specific Performance. of copyright : see Infringement of Copyright ; Remedies for In- fringement of Copyright. Virgil, examples of imitation from, 197 Volume, each, a book, 82, 110 copyright runs from publication of each, 82 interpretation of, by 5 & 6 Vict. c. 45 ..632 „ 7 Vict. c. 12.. 677 see also Book ; Edition. Waltzes taken from copyright opera, a piracy, 330 taken from unprotected opera, 342, note (a) ' Wandering Jew ' (The), 313 Warp, copyright in designs as applied to, 412, 646, 735 Warranty, on sale of copyright, 593 ' Wat Tyler,' 86 Webb, ' Precedents of Conveyancing,' 9 ' Welcome Guest' (The), 79, 463 Wellington's, (Duke of), Despatches, 54 Westminster, copyright of, perpetual, 290 ' What an Afternoon ! ' 232, note (6) ' White Cat ' (The), 230 • Whole Duty of Man ' (The), 27 Winchester copyright of, perpetual, 290 Witnesses to an assignment, 161-165 evidence of, taken before examiners, 268, 269 3 N 914 INDEX. • Wonderful Magazine,' (The), 73 Wood, copyright in designs as applied to, 412, 646, 735 Wood (Vice-Chancellor), opinion as to abridgments, 61 Wool, copyright in designs as applied to, 412, 646, 732, 735 Word, whether there can be copyright in a single, 67 Woeds, external signs of ideas, 2 permanent endurance of, 6 note (5) copyright not In the form of, but in the intellectual conception expressed thereby, 37 " written and composed," in songs, 95 Works op Art : see Paintings and Drawings ; Photographs. Act of 1862 ..389, 695 „ remedies under, 397, 400, 402, 403, 699 no copyright in, until registration, 395 provisions for the repressing of fraud in the sale of, 402, 698 of the ancient Greek and Romans well preserved, 6, note (b) Works op Literature and Art referred to : Books. Novels and Tales, • Aurora Floyd,' 765 ' Uncle Tom's Cabin,' 213 ' Christie Johnstone,' 599 ' The Chronicles of Stansfield Hall,' 78 ' Dangerous Connections,' 145 Dick's ' English Novels,' 71 Griffin's ' Collegians,' 299 ' The Guardian Angel,' 764 ' How I Lost the County,' 194 ' It is Never too Late to Mend,' 32, 336 Johnson's ' Rasselas,' 60, 203 'Lady Audley's Secret,' 129, 338, 765 ' Not Above his Business,' 340 'Old Mortality,' 104 ' The Parlour Library,' 78 • Peg Woffington,' 599 Sue's ' Wandering Jew,' 313 ' Trial and Triumph,' 70 • A Troubled Life,' 194 ' True to the Core,' 71 ' The Verger's Daughter,' 145 Poems, ' The Book of the Poets,' 188, 764 Byron's ' Cain,' 89 IKDEX. 915 Works of Literature and Art referred to — continued Boohs — continued. Poems — continued. Byron's 'Childe Harold,' 126 Byron's ' Don Juan,' 90 Campbell's Poems, 188 Gray's Poems, 39 Terence's ' Hecyra,' 2 Terence's ' Eunuchus,' 2 ' The Lady of the Lake,' 104 Milton's ' Paradise Lost,' 28, 243, 760 ' The Minstrelsy of the Scottish Border,' Scott, 103, 215, 216 Southey's ' Wat Tyler,' 86 Thomson's ' Seasons,' 29 Tennyson's Works, 218 Newspapers and Magazines, ' The London Journal,' 585 ' The Edinburgh Philosophical Journal,' 584, 585 ' London Society,' 586 ' The Bath Chronicle,' 156 ' The Belgravia Annual,' 254 ' The Belgravia Magazine,' 66, 143, 194, 254 Bell's ' Life in London,' 69, 761 ' Bow Bells,' 372 ' The Britannia,' 73, 762 ' The British Mercury,' 194, 254 ' The Court Miscellany, or Gentleman and Lady's Magazine,' 295 ' The Daily London Journal,' 69, 585, 762 ' English Society,' 586, 587 'Era,' 72 ' The Field,' 46 'The Gentleman's Journal and Youth's Miscellany,' 364 ' The Gentleman's Magazine,' 203, note (6) • The Glasgow Herald,' 470 ' Gipps' Land Mercury,' 101 ' Good Words,' 340, 341, 463 ' The John Bull,' 73 ' The Jurist,' 77, 463 ' Judy,' 72, 247 ' The Melbourne Argus,' 101 ' The Monthly Chronicle,' 192 i ' The New Era,' 172 ' The Observer,' 284 ' The Orb,' 145 ' Our Young Folks,' 75, note (b) ' The Pall Mall Budget,' 454 ' Pall Mall Gazette,' 454 'Punch,' 72, 188, 189, 247 ' The Railway Times,' 192 ' The Eeal John Bull,' 764 ' The Sporting Life,' 466 ' Temple Bar,' 761 ' The True Britannia,' 73 ' The Welcome Guest,' 79, 463 ' The Wonderful Magazine,' 73 916 INDKX. Works op Literature and Art referred to — continued. Boohs — continued. Newspapers and Magazines — continued. 'Punch and Judy,' 72 ' The Public Correspondent,' 70 Works of General Literature, ' Apology for the Life of George Anne Bellamy,' 204 • Arcbaeologia Philosophica,' 212 ' Beeton's Christmas Annual,' 761 ' A Bird's-eye View or Plan of Pans and its Fortifications, 361, 765 ' Blackstone's Commentaries,' 64 Brewer's ' Guide to Science,' 65, 178, 179 Digby's ' Broad Stone of Honour,' 109, note (a) Burn's ' Justice of the Peace,' 584 Bums' Letters, 49, note (c) Lord Chesterfield's Letters, 44, 49, note (c) Lord Clarendon's History, 8 ' The Clyde Bill of Entry aud Shipping List,' 40, note (c) 'The Comical History and Tragical End of Reynard the Fox,' 763 ' The Court Guide,' 96 Croker's Notes to ' Boswell's Life of Johnson,' 126 ' The Duke of Wellington's Despatches,' 54 Nelson's ' Festivals and Fasts,' 28 ' Gadbury's Almanac,' 286 ' The Great Western Railway Inquiry,' 192 Reade's ' A Hero and Martyr,' 470 ' How I Lost the County,' 194 ' How to Dress on £15 a Year,' 609 ' Illustrated Furniture Guide,' 98 ' Lawrence's Lectures on Physiology, &c.,' 88 ' Life of Jesus, re-written for Young Disciples,' 91 ' A Little Tour in Ireland,' 598 ' The Man of his Time,' 188 ' Memoir of Harriette Wilson,' 93 ' The Merchants' and Manufacturers' Pocket Directory of London,' 764 Pope's and Swift's Miscellanies, 27 Murray's ' Handbook for Travellers in Switzerland,' 213, 764 ' The Orchardist,' 240 Patterson's ' Road-Book,' 39 ' Pedigree of the English People,' 764 ' Peter Pindar's Lectures,' 88 ' Pianista, an Italian Opera Promenade Concert Magazine,' &c, 762 ' The Pilgrim's Progress,' 23 ' Post Office Directories,' 74 ' The Practice of Photography,' 760 ' The Reason Why,' 179 ' Repository of Arts, Manufactures and Agriculture,' 82 Smiles' ' Thrift,' 502 Smith's ' Leading Cases,' 194, 195, 253 Story's ' Commentaries,' 205 Sugden's ' Vendors and Purchasers,' 175 ' The Term Reports,' 209 ' Thackerayana, Notes and Anecdotes,' 190 ' Histories of Thuanus,' 613 ' Topographical Dictionary of England,' 760 INDEX. 917 Woeks op Literature and Art referred to — continued. Boohs — con tinned. Works of General Literature — continued. ' Lady Tyrawley's Letters,' 45 Webb's ' Precedents of Conveyancing,' 9 ' The Whole Duty of Man,' 27 ' A Boy's Adventures in the Wilds of Australia,' 606-608 Viner's ' Abridgment,' 63, note (a), 206 Comyns' ' Abridgment,' 206 Rolle's ' Abridgment,' 281 ' Abridgment of Cases in Equity,' 207 Musical and Dramatic Works, Plays, ' The Agreeable Surprise,' 296 'The Colleen Bawn,' 299 ' The Shaughraun,' 333 Byron's ' Marino Faliero,' 33 ' Doing for the Best,' 165 Sheridan's 'Duenna,' 296 ' Frou-frou,' 482 ' Glory,' 340 ' Gold,' 339 ' The Happiest Day of my Life,' 162 ' The Happy Land,' 315, note (a) ' The King's Wager,' 131, 321 ' Like to Like,' 482 ' Love a la Mode, 9, 295 ' Momentous Question,' 230 ' Old Joe and Young Joe,' 318 ' Shop,' 340 'Under the Gaslight,' 327 ' The White Cat,' 230 'After Dark,' 327 'S, 'The Wreath,' 216 ' Bon Soir,' 248 ' The Charms of Berlin,' 472 'Come to Peckham Eye,' 301, 310 ' Come where the Moonbeams Linger,' 293, note (a) ' Dermot Astore,' 232, note (a) ' Good Night ! Heaven Bless y ou ! ' 247 ' Hero and Leander,' 247 'I'll Cast, my Rose on the Waters,' 95 ' Kathleen Mavoureen,' 232, note (a) ' Lillie Dale,' 316 ' Minnie,' 73, 346, 761 ' Minnie Dale,' 346 ' Minnie, Dear Minnie,' 346 ' Pestal,' 227, 345 ' La Eeine de Saba,' 248 Russell's ' Ship on Fire,' 304 ' Slap Bang ! Here We are Again ! ' 293, note (a) ' Spinning by her Cottage Door,' 95 ' Spring Carol,' 95 ' Under the Willows,' 95 ' Very Suspicious,' 293, note (a) 918 INDEX. Works of Literature and Art referred to — continued. Musical and Dramatic Works — continued. Other Music, ' What an Afternoon !' 232, note (J) Bellini's ' Sonnambula,' 166 ' The Burlesque Valse,' 293, note (a) ' The Cornflower "Valse ' 293, note (a) 'FraDiavolo,' 142, 241 Auber's ' Lestocq,' 209 Offenbach's ' Vert-vert,' 476 ' Popular Favourites for the Pianoforte,' 293, note (a) ' Prince Imperial Galop,' 293, note (a) ' The Serious Family Polka,' 75 ' The Sweetly Pretty Valse,' 293, note (a) Works of Art, ' Belshazzar's Feast,' 374 ' Death of Chatterton,' 34 Landseer's ' Eve of the Battle of Bdgehill,' 403, 404 Frith's ' Railway Station,' 405 Eddis's ' Going to Work,' 392 ' Holiday Time,' 392, 393 Bosa Bonheur's ' Horse Fair,' 371 Millais' 'Huguenot,' 372, 373 Hunt's ' Light of the World,' 371, Appendix (I.) ' Ordered on Foreign Service,' 394 ' My First Sermon,' 394 ' My Second Sermon,' 394 Thompson's ' Koll-Call' 397 * The Young Cricketer,' 395, note (c) Woven Fabrics, copyright in designs as applied to, 412, 646, 693, 735 Wrappers, may be rejected by registrar under Designs Acts, 449 imitation of, 72 ' Wreath ' (The), 216 Writing : see also Letters ; Manuscript. as to whether assignment of copyright must be in, 159, 161, 165, 318 contracts between authors and publishers should be in, 578 Yarn, copyright in designs as applied to, 412, 646, 735 Yates, arguments against literary property, 6, 7 ' Young Cricketer ' (The), 395, note (c) LONDON : FKINTED BY WILLIAM CLOWES AND SONS, LIMITED, STAMFORD STKKET AND CHAEING CKOSS.