Home
  By Author [ A  B  C  D  E  F  G  H  I  J  K  L  M  N  O  P  Q  R  S  T  U  V  W  X  Y  Z |  Other Symbols ]
  By Title [ A  B  C  D  E  F  G  H  I  J  K  L  M  N  O  P  Q  R  S  T  U  V  W  X  Y  Z |  Other Symbols ]
  By Language
all Classics books content using ISYS

Download this book: [ ASCII | HTML | PDF ]

Look for this book on Amazon


We have new books nearly every day.
If you would like a news letter once a week or once a month
fill out this form and we will give you a summary of the books for that week or month by email.

Title: A Treatise Upon the Law of Copyright in the United Kingdom and the Dominions of the Crown, - and in the United States of America - Containing a full Appendix of all Acts of Parliament - International Conventions, Orders in Council, Treasury - Minute and Acts of Congress now in Force.
Author: MacGillivray, E. J.
Language: English
As this book started as an ASCII text book there are no pictures available.
Copyright Status: Not copyrighted in the United States. If you live elsewhere check the laws of your country before downloading this ebook. See comments about copyright issues at end of book.

*** Start of this Doctrine Publishing Corporation Digital Book "A Treatise Upon the Law of Copyright in the United Kingdom and the Dominions of the Crown, - and in the United States of America - Containing a full Appendix of all Acts of Parliament - International Conventions, Orders in Council, Treasury - Minute and Acts of Congress now in Force." ***

This book is indexed by ISYS Web Indexing system to allow the reader find any word or number within the document.



[Transcriber's Note:

Bold text delimited with equal signs, italics delimited with
underscores.]



  A TREATISE UPON
  THE LAW OF COPYRIGHT



  A TREATISE UPON

  THE LAW OF COPYRIGHT

  IN THE UNITED KINGDOM AND THE DOMINIONS

  OF THE CROWN, AND IN THE UNITED

  STATES OF AMERICA

  CONTAINING A FULL APPENDIX OF ALL ACTS OF PARLIAMENT

  INTERNATIONAL CONVENTIONS, ORDERS IN COUNCIL

  TREASURY MINUTE AND ACTS OF CONGRESS

  NOW IN FORCE

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

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

  LONDON

  JOHN MURRAY, ALBEMARLE STREET



  TO

  THOMAS EDWARD SCRUTTON, ESQ., K. C.

  IN GRATITUDE FOR
  MUCH INSTRUCTION AND KINDNESS



PREFACE


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

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

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

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

 E. J. MACGILLIVRAY.

 3 TEMPLE GARDENS,
     _June 1902._



  CONTENTS


                                                                  PAGE

  TABLE OF ENGLISH, SCOTCH, IRISH, INDIAN, AND COLONIAL CASES      xix

  TABLE OF CASES IN THE UNITED STATES                             xxxi


  PART I

  _THE LAW OF COPYRIGHT IN THE UNITED KINGDOM
  AND THE DOMINIONS OF THE CROWN_

  CHAPTER I

  INTRODUCTORY                                                       3

  CHAPTER II

  WHAT BOOKS ARE PROTECTED

  SEC. 1. WHAT IS AN ORIGINAL BOOK                                  10
    Definition of a Book                                            10
    Essential Elements of a Book                                    11
      Physical Form                                                 11
      Literary Matter                                               13
      Originality                                                   15
    Examples of what are Books                                      16

  SEC. 2. PUBLICATION                                               36
    Divestitive Publication                                         37
    Investitive Publication                                         38
    First Publication within the British Dominions                  40

  SEC. 3. AUTHOR'S NATIONALITY                                      42

  SEC. 4. IMMORAL WORKS                                             46

  SEC. 5. REGISTRATION                                              46
    Before Action                                                   46
    The Requisite Entry                                             49
      The Actual Title                                              49
      The Time of First Publication                                 51
      The Name and Place of Abode of the Publisher                  52
      The Name and Place of Abode of the Proprietor                 52
    Certificate of Registration                                     53
    False Entries                                                   54
    Rectification of Register                                       54

  SEC. 6. DELIVERY OF COPIES TO LIBRARIES                           55

  SEC. 7. DURATION OF PROTECTION                                    56

  SEC. 8. COPYRIGHT IN LECTURES                                     57


  CHAPTER III

  THE OWNER OF THE COPYRIGHT IN BOOKS

  SEC. 1. THE CROWN                                                 59

  SEC. 2. THE UNIVERSITIES                                          61

  SEC. 3. THE AUTHOR                                                62

  SEC. 4. THE EMPLOYER                                              66
    Under Section 18                                                66
      Scope of Section                                              67
      Under such Employment                                         68
      On Terms that Copyright shall belong to such Proprietor       68
      Joint Employers                                               71
      Payment                                                       71
      Author's Separate Rights                                      72
    Employer's Rights where Section 18 does not apply               73

  SEC. 5. THE ASSIGNEE                                              74
    Before Publication                                              74
    After Publication                                               77
    Partial Assignment                                              80
    Assignment distinguished from Licence                           81

  SEC. 6. THE LICENSEE                                              82

  SEC. 7. THE EXECUTORS OR ADMINISTRATORS                           83

  SEC. 8. THE TRUSTEE IN BANKRUPTCY                                 83


  CHAPTER IV

  INFRINGEMENT OF COPYRIGHT IN BOOKS

  SEC. 1. PROHIBITED ACTS, AND REMEDIES                             84
    Causing to be Printed                                           85
    Damages                                                         86
    Account of Profits                                              86
    Injunction                                                      86
    Delivery up of Copies                                           89
    Customs Act                                                     91
    Every Offence                                                   91
    Limitation of Action                                            91
    Pleading                                                        92
    Evidence                                                        94
    Discovery                                                       94
    Mode of Trial                                                   94
    Costs                                                           95

  SEC. 2. WHAT IS A PIRATICAL COPY                                  96
    What is a Copy                                                  97
    A Substantial Part must be Taken                                97
    No _Animus Furandi_ need be Proved                             100
    Taking not necessarily for Profit                              101
    Copying may be Indirect and Unintentional                      102
    Custom of Trade                                                102
    Fair Use                                                       103
      No one can Monopolize a Field of Labour                      103
      No Infringement to take Facts                                104
      No Infringement to take the General Scheme of another's
          Work                                                     105
      Every Author must do his own work                            105
      Work with a Different Object                                 109
      Extract for purpose of Criticism                             111
      Improvement or Addition of New Matter no Excuse              112
      Dramatization of a Novel                                     114
      Abridgments                                                  114
      Translations                                                 116
    Licence                                                        118
    Abandonment                                                    119
    Acquiescence and Delay                                         119
    Provision against the Suppression of Books                     119


  CHAPTER V

  PERFORMING RIGHTS

  SEC. 1. NATURE OF PERFORMING RIGHT                               120

  SEC. 2. PERFORMING RIGHT AT COMMON LAW                           121

  SEC. 3. WHAT IS A DRAMATIC WORK                                  123

  SEC. 4. WHAT DRAMATIC WORKS ARE PROTECTED, AND DURATION
      OF PROTECTION                                                126

  SEC. 5. WHAT IS A MUSICAL COMPOSITION                            130

  SEC. 6. WHAT MUSICAL WORKS ARE PROTECTED, AND DURATION
      OF PROTECTION                                                130

  SEC. 7. REGISTRATION OF PERFORMING RIGHTS                        131
    Musical Compositions                                           133

  SEC. 8. ASSIGNMENT OF PERFORMING RIGHTS                          134

  SEC. 9. INFRINGEMENT OF DRAMATIC PERFORMING RIGHTS               135
    Public Performance                                             135
    Substantial Part                                               138
    Causing to be Represented                                      139
    Knowledge                                                      142
    Innocent Agents                                                142
    Licence                                                        142

  SEC. 10. INFRINGEMENT OF MUSICAL PERFORMING RIGHTS               142
    Substantial Part                                               142
    Public Performance                                             143
    Causing to be Represented                                      143

  SEC. 11. REMEDIES FOR INFRINGEMENT OF DRAMATIC PERFORMING
      RIGHTS                                                       144

  SEC. 12. REMEDIES FOR INFRINGEMENT OF MUSICAL PERFORMING
      RIGHTS                                                       145


  CHAPTER VI

  COPYRIGHT IN ENGRAVINGS

  SEC. 1. WHAT WORKS ARE PROTECTED                                 146
    What is an Original Engraving                                  146
      Originality                                                  147
      Maps, Charts, and Plans                                      148
      Engravings in a Book                                         149
    Must the Engraving be made within the British Dominions        150
    The Engraving must be First Published within the British
        Dominions                                                  150
    Date of First Publication and Proprietor's Name                151
      Name of Proprietor                                           151
    Immoral Works                                                  152
    Duration of Protection                                         152

  SEC. 2. THE OWNER OF THE COPYRIGHT                               152
    The Engraver                                                   152
    The Employer                                                   153
    The Assignee                                                   154

  SEC. 3. INFRINGEMENT OF THE COPYRIGHT                            155
    Prohibited Acts and Remedies                                   155
      Guilty Knowledge                                             156
      Limitation of Action                                         156
      Costs                                                        156
      Copying for Private Use                                      156
    What is a Piratical Copy                                       156
      Licence a Defence                                            159


  CHAPTER VII

  COPYRIGHT IN SCULPTURE

  SEC. 1. WHAT WORKS ARE PROTECTED                                 161
    What is an Original Sculpture                                  161
    The Sculpture must be First Published within the British
        Dominions                                                  162
      Publication                                                  162
    Author's Nationality                                           162
    Proprietor's Name and Date                                     162
      Proprietor's Name                                            163
      Date                                                         163
    Immoral Works                                                  163
    Duration of Protection                                         163

  SEC. 2. THE OWNER OF THE COPYRIGHT                               164
    The Artist                                                     164
    The Employer                                                   164
    The Assignee                                                   164

  SEC. 3. INFRINGEMENT OF THE COPYRIGHT                            164
    Prohibited Acts and Remedies                                   164
      Guilty Knowledge                                             165
      Limitation of Action                                         165
      Copying for Private Use                                      165
    What is a Piratical Copy                                       165


  CHAPTER VIII

  COPYRIGHT IN PAINTINGS, DRAWINGS, AND
  PHOTOGRAPHS

  SEC. 1. WHAT WORKS ARE PROTECTED                                 167
    Every Original Painting, Drawing, and Photograph               167
      Originality                                                  167
      Artistic Merit                                               168
    Publication Outside the British Dominions                      168
     Published                                                     169
    Nationality or Residence of Artist                             170
    Registration                                                   171
      The Requisite Entry                                          171
      Name                                                         173
      Place of Abode                                               173
      Short Description                                            173
    Immoral Works                                                  174
    Duration of Protection                                         174

  SEC. 2. THE OWNER OF THE COPYRIGHT                               174
    The "Author"                                                   174
    The Employer                                                   175
    The Assignee                                                   176

  SEC. 3. INFRINGEMENT                                             177
    Prohibited Acts and Remedies                                   177
      Cause or Procure                                             178
      Innocent Agent                                               179
      Unlawful Copy                                                179
      Separate Offence                                             179
      Copying for Private Use                                      180
      Action on Breach of Contract                                 180
      Fraudulent Acts                                              180
      Limitation of Action                                         181
      Evidence                                                     181
    What is a Piratical Copy                                       181
      No Monopoly                                                  181
      What is a Copy                                               181
      General Idea may be Taken                                    182
      Material Part                                                183
      Indirect Taking                                              184
      Guilty Knowledge                                             184
      Replicas                                                     184
      Licence a Defence                                            184


  CHAPTER IX

  COLONIAL COPYRIGHT

  Books                                                            186

  Artistic Works                                                   191


  CHAPTER X

  INTERNATIONAL COPYRIGHT

  Works Produced in His Majesty's Dominions                        193

  Works Produced in Foreign Countries with which this Country
    has no Treaty                                                  193

  Works Produced in Foreign Countries with which this Country
    has a Treaty                                                   193

  What Foreign Works are entitled to Protection                    195
    Produced                                                       195
    Character of Work                                              196
    Unpublished Works                                              196
    Special Provisions                                             197

  Works Produced in Foreign Countries before 6th December 1887     197

  Formalities Required in case of Foreign Work                     198

  Who are Entitled to Sue in respect of a Foreign Work             200

  Evidence of Title                                                200

  Protection afforded to Foreign Works                             200
    Works Published before 6th December 1887                       202
    Translating Right                                              203
    Articles in Newspapers and Periodicals                         204
    Photographic Works                                             204
    Performing Right in Dramatic or Dramatic Musical Works         204
    Express Provision as to particular kind of Infringement        205


  CHAPTER XI

  COMMON LAW

  Title--Passing off                                               206
    No Copyright in Title.                                         206
    Whether Protection is based on a Right of Property in Title    207
    Knowledge of Existence and Value on the part of the Public     208
    Non-user of Title                                              208
    No Fraud need be Proved                                        209
    Must be Calculated to Deceive                                  209
    Cases in which an Injunction Granted                           209
    Cases where Injunction Refused                                 211

  Malicious Criticism                                              213

  Slander of Title                                                 213

  Author who has parted with Copyright is entitled to Protect his
    Reputation                                                     213

  Protection from Breach of Faith or Contract                      215

  Unpublished Works                                                220

  Speeches and Sermons                                             223

  Letters                                                          225


  CHAPTER XII

  PUBLISHING AND PRINTING AGREEMENTS

  Publishers' Agreements                                           227

  Printers' Agreements                                             230


  PART II

  _THE LAW OF COPYRIGHT IN THE UNITED STATES_


  CHAPTER I

  INTRODUCTORY                                                     235


  CHAPTER II

  WHAT WORKS ARE ENTITLED TO COPYRIGHT

  SEC. 1. AN ORIGINAL LITERARY OR ARTISTIC WORK                    236

  SEC. 2. NATIONALITY OF THE AUTHOR                                247

  SEC. 3. NECESSARY FORMALITIES                                    250
    Conditions Precedent                                           251
    Delivery of Title                                              251
    Delivery of Description                                        253
    Delivery of Copies                                             253
    Printing in the United States                                  254
    Retrospective Provision                                        254
    Notice of Copyright                                            255
    Publication                                                    260

  SEC. 4. IMMORAL WORKS                                            266

  SEC. 5. DURATION OF COPYRIGHT                                    267


  CHAPTER III

  WHO IS THE OWNER OF THE COPYRIGHT

  SEC. 1. THE AUTHOR                                               269

  SEC. 2. THE EMPLOYER                                             271

  SEC. 3. THE STATE                                                272

  SEC. 4. THE ASSIGNEE                                             272


  CHAPTER IV

  INFRINGEMENT OF COPYRIGHT

  SEC. 1. WHAT IS A PIRATICAL COPY                                 276
    Copying may be Indirect                                        277
    The Intention need not be Bad                                  277
    Proof of Copying                                               277
    No Monopoly in the Subject-Matter                              278
    Taking a Substantial Part                                      279
    Fair Use                                                       281
    Improvement no Excuse                                          283
    Different Object                                               283
    Extract for Review                                             284
    Abridgments                                                    284
    Translations                                                   286
    Dramatic Performing Right                                      286
    Musical Rights                                                 287

  SEC. 2. PROHIBITED ACTS AND REMEDIES                             287
    Account of Profits                                             289
    Damages                                                        290
    Penalties                                                      290
    Forfeiture                                                     290
    Injunction                                                     291
    Who is Liable                                                  291
    Limitation of Action                                           292
    Acquiescence                                                   292
    Pleading                                                       293
    Penalties for affixing False Notice                            293
    Importing Books Printed outside the United States              294


  CHAPTER V

  COMMON LAW RIGHTS

  SEC. 1. PUBLISHED WORK                                           296
    Passing Off                                                    296

  SEC. 2. UNPUBLISHED WORK                                         298


  APPENDIX

  BRITISH STATUTES

  THE ENGRAVING COPYRIGHT ACT, 1734                                303

  THE ENGRAVING COPYRIGHT ACT, 1766                                305

  THE COPYRIGHT ACT, 1775 (Universities)                           307

  THE PRINTS COPYRIGHT ACT, 1777                                   310

  THE SCULPTURE COPYRIGHT ACT, 1814                                311

  THE DRAMATIC COPYRIGHT ACT, 1833                                 313

  THE LECTURES COPYRIGHT ACT, 1835                                 315

  THE PRINTS AND ENGRAVINGS COPYRIGHT ACT, 1836                    316

  THE COPYRIGHT ACT, 1836 (Compensation to Libraries)              317

  THE COPYRIGHT ACT, 1842                                          317

  THE INTERNATIONAL COPYRIGHT ACT, 1844                            329

  THE COLONIAL COPYRIGHT ACT, 1847                                 337

  COPYRIGHT IN DESIGNS ACT, 1850, secs. 6 and 7 (Sculpture)        338

  THE INTERNATIONAL COPYRIGHT ACT, 1852                            339

  THE FINE ARTS COPYRIGHT ACT, 1862                                343

  THE INTERNATIONAL COPYRIGHT ACT, 1875                            348

  THE CANADA COPYRIGHT ACT, 1875                                   349

  THE CUSTOMS LAWS CONSOLIDATION ACT, 1876                         350

  THE COPYRIGHT (MUSICAL COMPOSITIONS) ACT, 1882                   351

  THE INTERNATIONAL COPYRIGHT ACT, 1886                            353

  THE COPYRIGHT (MUSICAL COMPOSITIONS) ACT, 1888                   360

  THE REVENUE ACT, 1889                                            361


  INTERNATIONAL CONVENTIONS

  THE BERNE CONVENTION, 1886                                       361

  ORDER IN COUNCIL, 1887                                           370

  THE ADDITIONAL ACT OF PARIS, 1896                                373

  ORDER IN COUNCIL, 1898                                           376


  TREASURY MINUTE

  GOVERNMENT PUBLICATIONS TREASURY MINUTE, 1887                    377


  AMERICAN STATUTES

  REVISED STATUTES, 1874                                           379

  ACT OF CONGRESS, June 18, 1874                                   384

     "      "  August 1, 1882                                      384

     "      "  October 1, 1890                                     385

     "      "  March 3, 1891                                       385

     "      "  March 3, 1893                                       389

     "      "  March 2, 1895                                       390

     "      "  January 6, 1897                                     390

     "      "  March 3, 1897                                       391



  TABLE OF CASES


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

  ENGLISH, SCOTCH, IRISH, INDIAN, AND COLONIAL CASES

  ABERNETHY _v._ Hutchinson   1825 3 L. J. (O. S.),      37, 38, 219,
                                   Ch., 209              222, =224=
  Adams _v._ Batley           1887 18 Q. B. D., 625      144
  Aflalo _v._ Lawrence         --  [1902], 1 Ch., 264    =71=
  Ager _v._ Collingridge      1886 2 T. L. R., 291       =20=
  Ager _v._ P. & O. Steam     1884 26 Ch. D., 637        =20=, 102, 118
    Navigation Co.
  Alexander _v._ Mackenzie    1847 9 D., 748             =23=, =101=, 104
  Allen _v._ Lyon             1884 5 Ont. Rep., 615      118
  Anglo-Canadian _v._         1889 17 Ont. Rep., 239     191
      Suckling
  Anonymous Case              1774 Lofft., 775           115
  Anstruther _v._ Bentley     1866 14 W. R., 630         228
  Archbold _v._ Sweet         1832 5 C. and P., 219      214
  Austria, Emperor of, _v._   1861 4 L. T. (N. S.), 494  90
    Day
  Avanzo _v._ Mudie           1854 10 Exch., 203         =200=
  Avery _v._ Wood              --  [1891], 3 Ch., 115    144,156

  BACH _v._ Longman           1777 2 Cowp., 623          36, 97
  Baily _v._ Taylor           1829 1 Russ. and My., 73   15, =23=, 86,
                                                         87, 98, 105,
                                                         109
  Barfield _v._ Nicholson     1824 2 Sim. and Stu., 1    62, 220,
                                                         229
  Barnett _v._ Glossop        1835 1 Bing., N. C., 633   93
  Baschet _v. London_          --  [1900], 1 Ch., 73     46, 152, 174,
     _Illustrated Standard_                              179, 180, 201
  Baskett _v._ Cunningham     1762 1 Wm. Black, 370      59, 60
  Baskett _v._ University of  1758 2 Burr., 661          59
    Cambridge
  Bastow, _ex parte_          1854 14 C. B., 631         54, 81, 82
  Beal, _ex parte_            1868 L. R., 3 Q. B., 387   91, 173, 179,
                                                         181, 184
  Beckford _v._ Hood          1798 7 T. R., 620          36, 47, 86,
                                                         206
  Beere _v._ Ellis            1889 5 T. L. R., 330       138
  Bell _v._ Walker            1785 1 Bro. Ch. Cas., 450  115
  Bell _v._ Whitehead         1839 8 L. J. Ch., 141      112
  Bensley _v._ Bignold        1822 5 B. and Ald., 335    230
  Bentley _v._ Foster         1839 10 Sim., 329          =42=
  Black _v._ Murray & Son     1870 9 M., 341             12, =26=, 27,
                                                         111
  Blackie _v._ Aikman         1827 5 Sh., 719            229
  Blackwell _v._ Harper       1740 2 Atk., 93            146, 151, 152
  Blake _v._ Nicholson        1814 3 M. and S., 167      230
  Blanchett _v._ Ingram       1887 3 T. L. R., 687       38
  Bleaden _v._ Hancock        1829 4 C. and P., 152      230
  Bogue _v._ Houlston         1852 5 De G. and Sm., 267  12, =34=, 149
  Bohn _v._ Bogue             1846 10 Jur., 420          98, 101
  Bolton _v._ Aldin           1895 65 L. J. Q. B., 120   181
  Bolton _v._ London          1898 14 T. L. R., 550      179, 183
      Exhibitions
  Boosey _v._ Davidson        1846 4 D. and L., 147      92, 93
     "          "             1849 13 Q. B., 257         42, 94
  Boosey _v._ Fairlie         1877 7 Ch. D., 301         26
  Boosey _v._ Jefferys        1851 4 Exch., 145          42
  Boosey _v._ Purday          1846 10 Jur., 1038         93
   "            "             1849 4 Exch., 145          40, 42
  Boosey _v._ Whight,          --  [1899], 1 Ch., 836    11, 12
   "            "              --  [1900], 1 Ch., 122    11, =33=, 97
  Borthwick _v. Evening       1888 37 Ch. D., 449        88, 207, 209,
       Post_                                             212
  Boucicault _v._ Chatterton  1876 5 Ch. D., 267         36, 41, 127,
                                                         128, 129
  Boucicault _v._ Delafield   1863 1 H. and M., 597      41, 129, 193
  Boydell _v._ Drummond       1809 11 East., 142         230
  Bradbury _v._ Beeton        1869 39 L. J. Ch., 57      207, 209, 211
  Bradbury _v._ Dickens       1859 27 Beav., 53          207
  Bradbury _v._ Hotten        1872 L. R., 8 Ex., 1       99, 109, =110=
  Bradbury _v._ Sharp         1891 [1891], W. N., 143    89
  Bramwell _v_, Halcomb       1836 3 My. and Cr., 737    99
  Bridgman _v._ Green         1755 2 Ves. Sen., 627      219
  Britain _v._ Hanks          1902 Wright, J., April 15  162, 163
  British Museum _v._ Payne   1828 2 Y. and J., 166      56
  Brooke _v._ Chitty          1831 2 Coop. Cas., 216     229
  Brooke _v._ Milliken        1789 3 T. R., 509          91
  Brooks _v._ Cock            1835 3 Ad. and E., 138     151
  Brooks _v._ Religious Tract 1897 45 W. R., 476         183, 184
    Society
  Brown _v._ Cooke            1846 16 L. J. Ch., 140     68, 71
  Burnett _v._ Chetwood       1720 2 Mer., 441           46, 117
  Butterworth _v._ Kelly      1888 4 T. L. R., 430       84
  Butterworth _v._ Robinson   1801 5 Ves., 709           =28=, 115
  Buxton _v._ James           1851 5 De G. and Sm.,      80 40, 41,
                                                         42, 87
  Byron _v._ Johnston         1816 2 Meriv., 29          215

  CABLE _v._ Marks            1882 47 L. T. (N. S.), 432 =31=
  Cadell _v._ Anderson        1787 Mor. Dic., 8310       =26=
  Caird _v._ Sime             1887 12 A. C., 326         37, 38, 220,
                                                         221, =222=
  Cambridge University _v._   1812 16 East, 317          56, 86
    Bryer
  Campbell _v._ Scott         1842 11 Sim., 31           88, 101, 112
  Caproni _v._ Alberti        1892 40 W. R., 235         162
  Carnan _v._ Bowles          1786 1 Cox Cha. Cas.,      16, 27, 113,
                                   283                   164
  Carr _v._ Hood              1808 1 Camp., 354 _n_      213
  Cary _v._ Faden             1799 5 Ves. 24             16, 46
  Cary _v._ Kearsley          1802 4 Esp., 168           16, 75, 98,
                                                         100, 101,
                                                         113
  Cary _v._ Longman           1801 1 East, 358           12, 16, =26=
  Cassell _v._ Stiff          1856 2 K. and J., 279      53, 202
  Cate _v._ Devon             1889 40 Ch. D., 500        11, =21=, 48,
                                                         50, 88,
                                                         99, 100,102
  Chappell _v._ Boosey        1882 21 Ch. D., 232        121, 127
  Chappell _v._ Davidson      1855 2 K. and J., 123      =210=
      "       "               1856 18 C. B., 194         46, 49, 87,
                                                         93
  Chappell _v._ Purday        1843 12 M. and W., 303     54, 55, 79
      "       "               1845 14 M. and W., 303     40, 42
  Chappell _v._ Sheard        1855 2 K. and J., 117      50, =210=
  Chatterton _v._ Cave        1875 L. R., 10 C. P., 572  25, 26, 98,
                                                         123, 139
     "     "                  1878 3 A. C., 483          25, 26, 97,
                                                         =98=, 102, 138
  Chilton _v._ Progress        --  [1895], 2 Ch., 29     14, =33=
     Printing Co.
  Church _v._ Linton          1894 25 Ont. Rep., 131     19, 24, 33
  Clark _v._ Bell             1804 Mor. Dic. Literary    92
                                   Property, App. 9
  Clark _v._ Bishop           1872 25 L. T. (N. S.),     =47=, 120, =124=,
                                   908                   133, 134
  Clarke _v._ Freeman         1848 11 Beav., 112         214
  Clarke _v._ Price           1819 2 Wills, C. C., 157   227
  Clay _v._ Yates             1856 1 H. and N., 73       231
  Clement _v._ Maddick        1859 1 Giff., 98           101, 207, 209,
                                                         =210=
  Clementi _v._ Golding       1809 2 Camp., 25           11, 36
  Clementi _v._ Walker        1824 2 B. and C., 861      40, 41, =75=, 77
  Clowes _v._ Hogg            1870 W. N., 268            =210=
  Cobbett _v._ Woodward       1872 L. R., 14 Eq., 407    =18=, 19, 95, 238
  Cocks _v._ Purday           1848 5 C. B., 860          40, 42, 76, 77,
                                                         79, 93
  Colburn _v._ Duncombe       1838 9 Sim., 151           76, 78
  Colburn _v._ Simms          1843 2 Hare, 543           85, 86, 90
  Cole _v._ Gear              1888 4 T. L. R., 246       141
  Coleman _v._ Wathen         1793 5 T. R., 245          37, 122
  Collette _v._ Goode         1878 7 Ch. D., 842         93
  Collingridge _v._ Emmott    1887 57 L. T. (N. S.), 864 =50=, 51, 71
  Collis _v._ Cater           1898 78 L. T. (N. S.), 613 =19=
  Comyns _v._ Hyde            1895 43 W. R., 266         =35=, 149
  Constable _v._ Brewster     1824 3 S., 215             209, 229
  Cooper, _in re_             1902 19 Pat. Des. and      31
                                   Trade Mark Cases,     53
  Cooper _v._ Stephens         --  [1895], 1 Ch., 567    =34=, 78, 81, 98,
                                                         99, 118, 154,
                                                         160
  Cooper _v._ Whittingham     1880 15 Ch. D., 501        84, 85, 87, 102
  Coote _v._ Ingram           1887 35 Ch. D., 117        95
  Coote _v._ Judd             1883 23 Ch. D., 727        70, 93
  Cornish _v._ Upton          1861 4 L. T. (N. S.), 862  17
  Corns _v._ Griffiths        1873 [1873], W. N., 93     =210=
  Correspondent Newspaper     1865 11 Jur. (N. S.), 540  48, 208
    _v._ Saunders
  Cowan _v._ Milbourn         1867 L. R., 2 Ex.          46
  Cowen _v._ Hulton           1882 46 L. T. (N. S.), 897 =212=
  Cox _v._ Cox                1853 1 Eq. Rep., 94        77, 214
  Cox _v. Land and Water_     1869 L. R., 9 Eq., 324     11, =21=, 48,
                                                         89, 206
  Cumberland _v._ Copeland    1861 7 H. and N., 118      134
      "            "          1862 1 H. and C., 194      77
  Cumberland _v._ Planché     1834 1 A. and E., 580      135

  D'ALMAINE _v._ Boosey       1835 1 Y. and C. Ex., 288  36, 37, =42=,
                                                         97, =113=, 115,
                                                         142
  Davidson, _ex parte_        1853 18 C. B., 296         54, 55
     "          "             1856 2 E. and B., 577      54
  Davidson _v._ Bohn          1848 6 C. B., 456          77, 80, 164
  Davis _v._ Comitti          1885 52 L. T. (N. S.), 539 14, =32=
  Day _v._ Simpson            1865 18 C. B. (N. S.), 680 126
  De Berenger _v._ Wheble     1819 2 Stark, 548          157
  Delfe _v._ Delamotte        1857 3 K. and J., 581      86, 90
  Delondre _v._ Shaw          1828 2 Sim., 237           42, 86
  Dennison _v._ Ashdown       1897 13 T. L. R., 226      79
  Dickens _v._ Lee            1844 8 Jur., 183           116
  Dicks _v._ Brooks           1880 15 Ch. D., 22         95, 157, 159,
                                                         213
  Dicks _v._ Yates            1881 18 Ch. D., 76         48, 52, 96,
                                                         =207=, =212=
  Dobson, _ex parte_          1892 12 N. Z. L. R., 171   41, 80
  Dodsley _v._ Kinnersley     1761 Amb., 403             =115=, 116
  Dodson _v._ Martin          1880 24 Sol. J., 572       46
  Donaldson _v._ Beckett      1774 2 Bro. P. C., 129     6, 8, 61, 122,
                                                         152, 206, 220
  Du Bost _v._ Beresford      1810 2 Camp., 511          174
  Duck _v._ Bates             1884 13 Q. B. D., 843      =136=
  Duck _v._ Mayen             1892 8 T. L. R., 339       142
  Dupuy _v._ Dilkes           1879 48 L. J. Ch., 682     79, 172

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

  FAIRLIE _v._ Boosey         1879 4 A. C., 711          53, 134
  Farina _v._ Silverlock      1858 4 K. and J., 650      168
  Fishburn _v._ Hollingshead   --  [1891], 2 Ch., 371    =199=, 200
  Fisher _v._ Folds           1834 1 Jon. Ir. Ex., 12    35
  Fitzbull _v._ Brooke        1844 2 D. and L., 477      144
  Fores _v._ Johnes           1802 4 Esp., 97            152, 174
  Forrester _v._ Walker       1741 4 Burr., 2331         220
  Fourmat _v._ Pearson        1897 14 T. L. R., 82       14
  French _v._ Day             1893 9 T. L. R., 548       141
  Frowde _v._ Parish          1896 27 Ont. Rep., 526     77, 191
  Fuller _v._ Blackpool        --  [1895], 2 Q. B., 429  =124=, 126, 131
    Winter Gardens

  GALE _v._ Leckie            1817  2 Stark, 107         227
  Gambart _v._ Sumner         1859  5 H. and N., 5       156
  Gambart _v._ Ball           1863  14 C. B. (N. S.),    157, 182
                                    306
  Garland _v._ Gemmill        1887  Canada, 14 S. C. R., 16, 106, 108,
                                     321                 256
  Gee _v._ Pritchard          1818  2 Swanst., 402       225, 226
  Geissendorfer _v._          1896  13 T. L. R., 91      170
    Mendelssohn
  Gibson _v._ Carruthers      1841  8 M. and W., 321     227
  Gilbert _v._ Boosey         1889  _The Law Times_,     =214=
                                    Sept. 28, 1889
  Gilbert _v._                1894  11 T. L. R., 4       =218=
    _Star_ Newspaper

  Gillett _v._ Mawman         1808  1 Taunt., 140        230, 231
  Goubard _v._ Wallace        1877  36 L. T. (N. S.),    47
                                    704
  Grace _v._ Newman           1875  L. R., 19 Eq., 623   =19=, 77
  Granard _v._ Dunkin         1809  1 Ball and B., 207   225
  Graves, _ex parte_          1868  L. R., 3 Ch., 642    178
  Graves, _ex parte_ Walker   1869  L. R., 4 Q. B., 715  54, 55, 168,
                                                         172, 173, 176,
                                                         182
  Graves _v._ Ashford         1867  L. R., 2 C. P., 410  152, 157, 182
  Graves _v._ Gorrie          1900  32 Ont. Rep., 266    192
  Graves _v._ Mercer          1868  16 W. R., 790        156
  Green _v._                  1899  [1899], 1 I. R., 386 180
    _Irish Independent_
  Grierson _v._ Jackson       1794  Irish T. R., 304     59
  Griffin _v._ Kingston       1889  17 Ont. Rep., 660    =33=
  Griffith _v._ Tower          --   [1897], 1 Ch., 21    227
    Publishing Company
  Grimson _v._ Eyre           1804  9 Ves., 341          86
  Guggenheim _v._ Leng        1896  12 T. L. R., 491     35, 183, 185
  Guichard _v._ Mori          1831  9 L. J. (O. S.), Ch. 227
  Gyles _v._ Wilcox           1740  2 Atk., 142          25, =115=

  HALL, _in re_               1899  24 Vict., L. R., 702 54
  Hall _v._ Whittington       1892  18 Vict., L. R., 525 21
  Hanbury _v._ Dumsday        1884  10 Vict., L. R. Eq., 32
                                         272
  Hanfstaengl _v._ American    --  [1895], 1 Q. B., 347  198, =199=
    Tobacco
  Hanfstaengl _v._ Baines      --  [1895], A. C., 20     182, 184
  Hanfstaengl _v._ Empire      --  [1894], 2 Ch., 1      167, 182
    Palace
  Hanfstaengl _v._ Empire      --  [1894], 3 Ch., 109    182, 184, 196
    Palace
  Hanfstaengl _v._ Holloway    --  [1893], 2 Q. B., 1    198, =199=, 203
  Harris _v._ Smart           1889 5 T. L. R., 594       =49=, 94
  Harrison _v._ Hogg          1794 2 Ves., 322           151
  Hasker _v._ Wood            1885 54 L. J. Q. B., 419   144, 156
  Hatton _v._ Kean            1859 7 C. B. (N. S.), 268  26, =63=, 123
  Hayward _v._ Lely           1887 56 L. T. (N. S.), 418 26, 46, 51, 93
  Hazlitt _v._ Templeman      1866 13 L. T. (N. S.), 593 77
  Hedderwick _v._ Griffin     1841 3 D., 383             27
  Henderson _v._ Maxwell      1876 4 Ch. D., 163         51
     "              "         1877 5 Ch. D., 892         48
  Hereford, Bishop of, _v._   1848 16 Sim., 190          70, 73
    Griffin
  Hildesheimer & Faulkner     1891 64 L. T. (N. S.), 452 =35=, 53, 74,
    _v._ Dunn                                            149
  Hildesheimer _v._ Faulkner   --  [1901], 2 Ch., 552    179, 180
  Hime _v._ Dale              1803 2 Camp., 27 _n_ 11,   46
  Hodges _v._ Welsh           1840 2 Ir. Eq. Rep., 266   28, 70, 111
  Hogg _v._ Kirby             1803 8 Ves., 215           46, 86, 87, 104,
                                                         =209=, 213, 229
  Hogg _v._ Maxwell           1866 L. R., 2 Ch., 307     48
  Hogg _v._ Scott             1874 L. R., 18 Eq., 444    47, 88, 92,
                                                         107, 119
  Hole _v._ Bradbury          1879 12 Ch. D., 886        47, 54, 81, 90,
                                                         92, 93, 227
  Hollinrake _v._ Truswell     --  [1894], 3 Ch., 420    14, =32=, 36,
                                                         105
  Holt _v._ Woods             1896 17 N. S. W. Eq., 36   80, 135
  Hotten _v._ Arthur          1863 1 H. and M., 603      =18=, 19, 20,
                                                         94. 101, =106=
  Houston _v._ Mills          1834 1 M. and Rob., 325    230
  Howard _v._ Gunn            1863 32 Beav., 462         225
  Howitt _v._ Hall            1862 6 L. T. (N. S.), 348  79, 80
  Hutchins, _ex parte_        1879 4 Q. B. D., 483       135

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

  JARROLD _v._ Heywood        1870 18 W. R., 279         98
  Jarrold _v._ Houlston       1857 3 K. and J., 708      =24=, 88, 94,
                                                         100, 101,
                                                         =105=, 106,
                                                         113, =211=
  Jefferys _v._ Baldwin       1753 Amb., 164             146
  Jefferys _v._ Boosey        1854 4 H. L. C., 815       15, 36, 37, 40,
                                                         41, =42=, 43,
                                                         44, =76=, 77,
                                                         79, 80, 119,
                                                         164, 286, 218,
                                                         221
  Jefferys _v._ Kyle          1856 18 D., 906            76
  Johnson, _in re_            1902 19 Pat. Des. and      31
                                   Trade Mark Cases, 56
  Johnson _v._ Egan           1880 24 Sol. J., 572       229
  Johnson _v._ Newnes          --  [1894], 3 Ch., 663    =12=, 52, =70=,
                                                         72
  Johnson _v._ Wyatt          1863 2 De G. J. and S.     88
  Jovatt _v._ Winyard         1820 1 Jac. and W., 394    =216=

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

  LACY _v._ Rhys              1864 4 B. and S., 873      47, 133, 134,
                                                         135
  Lacy _v._ Toole             1867 15 L. T. (N. S.),     78
                                   572
  Lamb _v._ Evans              --  [1893], 1 Ch., 218    12, =17=, 67,
                                                         =69=, 104,
                                                         105, =217=,
                                                         237
    "         "                --  [1892], 3 Ch, 462     88
  Latour _v._ Bland           1818 2 Stark, 382          78, 83, 119
  Lauri _v._ Renad             --  [1892], 3 Ch., 402    65, 79, =198=,
                                                         203
  Lawrence _v._ Smith         1822 Jac., 471             46
  Leader _v._ Purday          1849 7 C. B, 4             26, 50, 78, 93,
                                                         130,
  Leader _v._ Strange         1849 2 C. and K., 1010     84
  Lee _v._ Gibbings           1892 8 T. L. R., 773       215
  Lee _v._ Simpson            1847 3 C B., 871           102, =123=,
                                                         136, 142
  Lennie _v._ Pillans         1843 5 D., 416             =24=, 98, 105
  Leslie _v._ Young            --  [1894], A. C., 335    12, =22=, 98,
                                                         113, 237
  Levi _v._ Champion          1887 3 T. L. R., 286       175
  Levy _v._ Rutley            1871 L. R., 6 C. P., 523   =64=, 78
  Lewis _v._ Chapman          1840 3 Beav., 133          87
  Lewis _v._ Fullarton        1839 2 Beav., 6            =24=, 88, 89,
                                                         =106=, 107
  Leyland _v._ Stewart        1876 4 Ch. D., 419         77, 134
  Licensed Victuallers _v._   1888 38 Ch. D., 139        207, 208
    Bingham
  Liverpool _v._ Commercial    --  [1897], 2 Q. B., 1    53, 78, 82, 96
    Press
  London Printing _v._ Cox     --  [1891], 3 Ch., 291    52, 78, 118,
                                                         172, 176,
                                                         185
  London Stereoscopic _v._    1888 5 T. L. R., 169       183
    Kelly
  Longman _v._ Winchester     1809 16 Ves., 269          16, 17, 24,
                                                         104, =105=,
                                                         109
  Louie _v._ Smellie          1895 11 T. L. R, 515       =217=
  Lover _v._ Davidson         1856 1 C. B. (N. S.), 182  26, 41, 50, 53,
                                                         78, 130
  Low _v._ Routledge          1864 L. R, 1 Ch., 42       47, =51=, 53
  Low _v._ Ward               1868 L. R, 6 Eq., 415      12, 44
  Lucas _v._ Cooke            1880 13 Ch. D., 872        53, 80, 176
  Lucas _v._ Williams          --  [1892], 2 Q. B., 113  181
  Lyon _v._ Knowles           1863 3 B. and S., 556      140
  Lytton _v._ Devey           1884 52 L T. (N. S.), 121  225, 226

  MACFARLANE _v._ Oak         1883 10 R., 801            46
    Foundry
  Mack _v._ Petter            1872  L. R., 14 Eq., 431   207
  Macklin _v._ Richardson     1770  Amb., 694            37, 120, 121,
                                                         222
  Mackmurdo _v._ Smith        1798  7 T. R., 518         151
  Maclean _v._ Moody          1858  20 D., 1154          20, 62, 76
  Macmillan _v._ Shamsal      1894  Ind. L. R., 19       116
                                    Bomb., 557
  Macmillan _v._ Suresh       1890  Ind. L. R., 17       =25=, 47, 51,
    Chunder Deb                     Calc., 951           52, 77, 92
  Macneill _v._ Williams      1847  11 Jur., 344         =23=, 87
  Manners _v._ Blair          1828  3 Bligh (N. S.), 391 59
  Maple _v._ Junior Army      1882  21 Ch. D., 369       13, 14, =19=,
    and Navy Stores                                      =34=, 51, 69,
                                                         87, 95, 97,
                                                         149, 238
  Marchant _v._ Evans         1818  2 Moore, 14          230
  Marsh _v._ Conquest         1864  17 C. B. (N. S.),    47, 121, 134,
                                    418                  135, 140
  Marshall _v._ Broadhurst    1831  1 Tyrw., 348         227
  Marshall _v._ Petty         1900  17 T. L. R., 501     34, 78, 154,
                                                         160
  Martin, _in re_             1884  10 Vict. L. R., 196  54
  Martin _v._ Wright          1833  6 Sim., 297          113, 155, 156,
                                                         158, 213
  Marzials _v._ Gibbons       1874  L. R., 9 Ch., 518    24, 65
  Mason _v._ Murray            --   Cited, 1 East, 360   26
  Mathieson _v._ Harrod       1868  L. R., 7 Eq., 270    51
  Matthewson _v._ Stockdale   1806  12 Ves., 270         15, 16, 104,
                                                         105, 109
  Mavor _v._ Pyne             1825  3 Bing., 285         230
  Mawman _v._ Gillett         1809  2 Taunt., 325        231
  Mawman _v._ Tegg            1826  2 Russ., 385         83, 86, 88, 94,
                                                         99, 104, 105,
                                                         111
  Maxwell _v._ Hogg           1867  L. R., 2 Ch., 307    14, 51, 207,
                                                         208
  Maxwell _v._ Somerton       1874  22 W. R., 313        95, 102
  Mayall _v._ Higbey          1862  1 H. and C., 148     180, 223
  Mayhew _v._ Maxwell         1860  1 J. and H., 312     52, 72, 73
  Melville _v._                --   [1895], 2 Ch., 531   174, 175, 176
    _Mirror of Life_
  Merryweather _v._ Moore      --   [1892], 2 Ch., 518   =217=
  Metzler _v._ Wood           1878  8 Ch. D., 606        46, 95, =211=
  Millar _v._ Taylor          1769  4 Burr., 2303        =6=, 7, 37, 42,
                                                         59, 115, 117,
                                                         119, 206, 220,
                                                         221
  Moffat & Paige _v._ Gill    1902  C. A., April 25      25, 26, 109
  Monaghan _v._ Taylor        1886  2 T. L. R., 685      141
  Moore _v._ Clarke           1842  9 M. and W., 692     157, 183
  Morang _v._ Publishers      1900  32 Out. Rep., 393    53, 78, 188
  Morison _v._ Moat           1851  9 Hare, 241          219
  Morocco Bound Syndicate      --   [1895], 1 Ch., 534   193
    _v._ Harris
  Morris _v._ Ashbee          1868  L. R., 7 Eq., 34     16, =17=, 18,
                                                         87, 105,
                                                         =107=, 108,
                                                         119
  Morris _v._ Colman          1812  18 Ves., 437         228

  Morris _v._ Kelly           1820  1 Jac. and W., 481   79, =121=
  Morris _v._ Wright          1870  L. R., 5 Ch., 279    16, =108=, 109
  Morton _v._ Copeland        1855  16 C. B., 517        78, 118, 143
  Motte _v._ Falkner          1735  4 Burr., 2326        6
  Moul _v._ Groenings          --   [1891], 2 Q. B., 443 202, 203
  Muddock _v._ Blackwood       --   [1898], 1 Ch., 58    84, 86, 92
  Munshi _v._ Mirza           1890  Ind. L. R., 14       116
                                    Bomb., 586
  Murray _v._ Benbow          1822  Jac., 474 _n_        46
  Murray _v._ Bogue           1852  1 Drew, 353          =26=, 51, 99,
                                                         102, 117
  Murray _v._ Elliston        1822  5 B. and A., 804     114, 115, 121
  Murray _v._ Heath           1831  1 B. and A., 804     159, 180
  Murray _v._ MacFarquhar     1785  Mor. Dic., 8309      110

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

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

  PAGE _v._ Townsend          1832  5 Sim., 395          150
  Page _v._ Wisden            1869  20 L. T., 435        =31=, 51, 96
  Palin _v._ Gathercole       1844  1 Coll., 565         225, 226
  Parsons _v._ Chapman        1831  5 C. and P., 33      140, 141
  Paton _v._ Duncan           1828  3 C. and P., 336     228
  Perceval _v._ Phipps        1813  2 V. and B., 19      225, 226
  Petty _v._ Taylor            --   [1897], 1 Ch., 465   52, 63, 171,
                                                         176
  Piddington _v._ Philip      1893  14 N. S. W. Rep.,    95
                                    Eq., 159
  Pike _v._ Nicholas          1869  L. R., 5 Ch., 251    86, 95, =98=,
                                                         104, 105,
                                                         =108=
  Pitman _v._ Hine            1884  1 T. L. R.           119
  Pitt Pitts _v._ George       --   [1896], 2 Ch., 866   201
  Planché _v._ Braham         1837  4 Bing. N. C., 17    138
  Planché _v._ Colburn        1831  5 C. and P., 58      228
  Platt _v._ Button           1815  19 Ves., 447         87, 119
  Platt _v._ Walter           1867  17 L. T. (N. S.),    11, 67, 206,
                                    157                  229
  Pollard _v._ Photo Co.      1888  4 Ch. D., 345        172, 180, 220
  Pope _v._ Curl              1741  2 Atk., 342          220, 225
  Poplett _v._ Stockdale      1825  Ry. and M., 337      231
  Poulton, _ex parte_         1884  53 L. J. Q. B., 320  54
  Powell _v._ Head            1879  12 Ch. D., 686       65, 79, 142
  Power _v._ Walker           1814  4 Camp., 8           76, 77, 134,
                                                         164
  Price's Patent Candles      1858  4 K. and J., 727     86
    _v._ Bauwen
  Priestley's Case             --   2 Mer., 437          46
  Primrose Press _v._         1886  2 T. L. R., 404      48
    Knowles
  Prince Albert _v._ Strange  1849  2 De G. and Sm.,     37, 90, 117,
                                    652                  152, 172,
                                                         =216=, 219,
                                                         220, 221, 223
  Prowett _v._ Mortimer       1856  2 Jur. (N. S.), 414  48, =209=, 210

  QUEENSBERRY _v._ Shebbeare  1758  2 Eden, 329          79, 220

  READE _v._ Bentley          1857  3 K. and J., 271     81, 227, 228,
                                                         229
    "           "              --   4 K. and J., 656
  Reade _v._ Conquest         1861  9 C. B. (N. S.), 755 114, 120, 123,
                                                         206
    "           "             1862  11 C. B. (N. S.),    46, 102, 139
                                    479
  Reade _v._ Lacy             1861  1 J. and H., 524     101, 102
  Reeve _v._ Gibson            --   [1891], 1 Q. B.,     144, 156
                                    652
  Reg _v._ Closs              1857  6 W. R., 109         180
  Reichardt _v._ Sapte         --   [1893], 2 Q. B.,     =128=, 139
                                    308
  Reid _v._ Maxwell           1886  2 T. L. R., 790      41
  Reuter's Telegram Co.       1874  43 L. J. Ch., 661    =216=
    _v._ Byron
  Richardson _v._ Gilbert     1851  1 Sim. (N. S.), 336  71
  Rippon _v._ Norton          1839  2 Beav., 63          81
  Robb _v._ Green             1895  2 Q. B., 315         =218=
  Roberts _v._ Bignell        1887  3 T. L. R., 552      =124=, 142
  Robinson _v._ Wilkins       1805  8 Ves., 224 _n_      87
  Rock _v._ Lazarus           1872  L. R., 15 Eq., 104   52, 102, 152
  Rooney _v._ Kelly           1861  14 Ir. C. L. R.,     90, 229
                                    158
  Routledge _v._ Low          1868  L. R., 3 H. L, 100   40, =43=, 44,
                                                         56
  Roworth _v._ Wilkes         1807  1 Camp., 94          34, 47, 97,
                                                         100, 110,
                                                         112, 151, 158
  Rundell _v._ Murray         1821  Jac., 311            =24=, 87, 119,
                                                         164, 267
  Russell _v._ Briant         1849  8 C. B., 836         140
  Russell _v._ Smith          1848  12 Q. B., 217        47, =123=, 125,
                                                         126, 131. 133,
                                                         134, 136, 137,
                                                         140

  SAUNDERS _v._ Smith         1838  3 My. and C., 711    =28=, 87,
                                                         =111=, 119
  Saunders _v._ Will           --   [1892], 2 Q. B.,     18 144
  Sayre _v._ Moore            1785  1 East, 361 _n_      104, 112
  Schauer _v._ Field           --   [1893], 1 Ch., 35    203
  Schlesinger _v._ Bedford    1890  63 L. T. (N. S.),    120
                                    762
  Schlesinger _v._ Turner     1890  63 L. T. (N. S.),    120
                                    764
  Schove _v._ Schmincké       1886  33 Ch. D., 546       48, 208
  Scott _v._ Stanford         1867  L. R., 3 Eq., 718    20, =62=, 99,
                                                         101, =107=,
                                                         113
  Seeley _v._ Fisher          1841  11 Sim., 581         213
  Shackell _v._ Rosier        1836  2 Bing., N. C., 634  229
  Shelley _v._ Bethell        1883  12 Q. B. D., 11      136
  Shepherd _v._ Conquest      1856  17 C. B., 427        =64=, 67, 77,
                                                         80, 134
  Sims _v._ Marryat           1851  17 Q. B., 281        79
  Smiles _v._ Belford         1876  1 Tupp. App., 436    189
  Smith _v._ Chatto           1874  31 L. T. (N. S.),    112
                                    775
  Smith _v._ Johnson          1863  4 Gif., 632          72
  Southern _v._ Bailes        1894  38 Sol. J., 681      11, =24=
  Southey _v._ Sherwood       1817  2 Meriv., 435        87, 119, 223
  Spiers _v._ Brown           1858  31 L. T. (O. S.),    =25=, 101, 116
                                    16
  Spottiswoode _v._ Clarke    1846  2 Phillips, 154      211
  Stannard _v._ Harrison      1871  24 L. T. (N. S.),    62, 90, 148,
                                    570                  153
  Stannard _v._ Lee           1871  L. R., 6 Ch., 346    15, 47, 148,
                                                         149
  Stevens _v._ Benning        1855  6 De G. M. and G.,   83, 227
                                    223
  Stevens _v._ Bradbury       1854  1 K. and J., 168     81
  Stevens _v._ Brett          1864  10 L. T. (N. S.),    94
                                    231
  Stevens _v._ Wildy          1850  19 L. J. Ch., 190    78
  Stewart _v._ Black          1846  9 D., 1026           92
  Stiff _v._ Cassell          1856  2 Jur. (N. S.), 348  228
  Stockdale _v._ Onwhyn       1826  5 B. and C., 173     46
  Storace _v._ Longman        1788  2 Camp., 262         11, 75
  Strahan _v._ Graham         1867  16 L. T. (N. S.), 87 79, 118
  Strong _v._ Worskett        1896  12 T. L. R., 532     =35=
  Stubbs _v._ Howard          1895  11 T. L. R., 507     =68=
  Sweet _v._ Benning          1855  16 C. B., 459        12, 28, =69=,
                                                         73, 93, 97,
                                                         =111=
  Sweet _v._ Cater            1841  11 Sim., 572         79, 80, 82, 83
  Sweet _v._ Lee              1841  3 Man. and G.,       452 230
  Sweet _v._ Maughan          1840  11 Sim., 51          =28=, 86, 94
  Sweet _v._ Shaw             1839  3 Jur., 217          =28=, =76=,
                                                         79, 111

  TALBOT _v._ Judges          1887  3 T. L. R., 398      48, =208=
  Taylor _v._ Bayne           1776  Mor. Dic., 8308      16
  Taylor _v._ Neville         1878  26 W. R., 299        80, 82
  Taylor _v._ Pillow          1869  L. R., 7 Eq., 418    79
  Thomas _v._ Turner          1886  33 Ch. D., 292       27, 51
  Thombleson _v._ Black       1837  1 Jur., 198          79, 228
  Thompson _v._ Stanhope      1774  Amb., 737            225, 226
  Thompson _v._ Symonds       1792  5 T. R., 41          151, 152, 154
  Tinsley _v._ Lacey          1863  1 H. and M., 747     88, 98, 114,
                                                         116, 120, 123
  Tipping _v._ Clarke         1843  2 Hare, 383          =218=
  Tonson _v._ Collins         1760  1 W. Bl., 301        6, 206
  Tonson _v._ Walker          1752  3 Swanst., 672       6, 12, 26, 115,
                                                         221
  Toole _v._ Young            1874  L. R., 9 Q. B., 523  114, 120, 122,
                                                         123, =126=
  Trade Auxiliary _v._        1887  4 T. L. R., 130      71
    Jackson
  Trade Auxiliary _v._        1889  40 Ch. D., 425       11, =21=,
    Middlesborough                                       =48=, 52,67,
                                                         =69=, 71,
                                                         72, 80, 82,
                                                         89, 99, 100
  Tree _v._ Bowkett           1895  74 L. T. (N. S.),77  26, 64, 78, 80,
                                                         82
  Troitzsch _v._ Rees         1887  3 T. L. R., 773      176
  Trusler _v._ Murray         1789  1 East, 363 _n_
  Tuck _v._ Canton            1882  51 L. j. Q. B.,      82, 177
                                    363
  Tuck _v._ Continental       1887  3 T. L. R., 826      172
  Tuck _v._ Priester          1887  19 Q. B. D., 629     172, 179, 180,
                                                         220
  Turner _v._ Robinson        1860  10 Ir. Ch. R., 510   37, 39, 162,
                                                         169, 172, 184
    "            "            1860  10 Ir. Ch. R., 121   162, 169, 172,
                                                         184

  WALCOT _v._ Walker          1802  7 Ves., 1            46
  Walford _v._ Johnston       1846  20 D., 1160          20
  Walker, _ex parte_          1869  See Graves
  Wall _v._ Taylor            1883  11 Q. B. D., 102     95, =124=, 131,
                                                         136, 143
  Wallerstein _v._ Herbert    1867  16 L. T., 453        63
  Walter _v._ Emmott          1885  54 L. J. Ch., 1059   207, =212=
  Walter _v._ Howe            1881  17 Ch. D., 708       11, 48, =70=
  Walter _v._ Lane             --   [1900], A. C, 539    13, 15, =29=,
                                                         30, 31, 37,
                                                         62, =65=,
                                                         109, 139, 238
  Walter _v._ Steinkopff       --   [1892], 3 Ch., 489   95, =103=
  Walthoe _v._ Walker         1736  4 Burr., 2326        6
  Ward _v._ Beeton            1874  L. R., 19 Eq., 207   46, 207, 213,
                                                         229
  Warne _v._ Lawrence         1886  34 W. R., 452        47
  Warne _v._ Routledge        1874  L. R., 18 Eq., 497   83, 228
  Warne _v._ Seebohm          1888  39 Ch. D., 73        90, 97, 113,
                                                         =114=, 120,
                                                         123
  Webb _v._ Rose              1732  Amb., 694            =23=, 220
  Weekes _v._ Williamson      1886  12 Vict. L. R., 483  104
  Weldon _v._ Dicks           1878  10 Ch. D., 247       52, 53, 92,
                                                         119, 207
  West _v._ Francis           1822  5 B. and A., 737     152, 156, 157,
                                                         172, 183, 184
  White _v._ Geroch           1819  2 B. and A., 298     11, 12, 36, 38,
                                                         97
  Whittingham _v._ Wooler     1817  2 Swanst., 428       112
  Whitwood _v._ Hardman        --   [1891], 2 Ch., 416   227
  Wilkins _v._ Aikin          1810  17 Ves., 422         104, 105, 109,
                                                         112
  Willis _v._ Curtois         1838  1 Beav., 189         83
  Wilson _v._ Lake            1895  1 Vict., L. R., Eq., 104
                                    127
  Wood _v._ Boosey            1868  L. R., 3 Q. B., 223  113, 134
    "         "               1867  L. R., 2 Q. B., 340  26, 51, 78, 130
  Wood _v._ Chart             1870  L. R., 10 Eq., 193   203, 204
  Wooderson _v._ Tuck         1887  4 T. L. R., 57       174,175
  Wright _v._ Goodlake        1865  3 H. and C, 540      94
  Wright _v._ Tallis          1845  1 C. B., 893         46
  Wyatt _v._ Barnard          1814  3 V. and B., 77      15, =21=, 25,
                                                         102, 117

  YOUNG Duchess, _in re_      1891  8 T. L. R., 41       54



  CASES DECIDED IN THE UNITED STATES


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

  BACKERS _v._ Gould          1849  7 How., 798          290
  Baker _v._ Selden           1879  101 U. S. Rep., 99   237, 238, 239,
                                                         =242=
  Baker _v._ Taylor           1848  2 Blatchf., 82       251, =257=,
                                                         261, 262
  Banks _v._ M'Divitt         1875  13 Blatchf., 163     241, =258=,
                                                         278, 281, 282
  Banks _v._ Manchester       1888  128 U. S. Rep., 244  241, 251, 272,
                                                         296
  Bartlett _v._ Crittenden    1847  4 M'Lean, 301        262, 263, 299
  Belford _v._ Scribner       1892  144 U. S. Rep., 488  253, 289, 291
  Bennett _v._ Boston         1900  101 Fed Rep., 445    288
  Bennett _v. Carr_           1899  96 Fed. Rep., 213    253
  Binns _v._ Woodruff         1821  4 Wash. C. Ct., 48   245
  Black _v._ Allen            1890  42 Fed. Rep., 618    260, 262, 273,
                                                         291
    "          "              1893  56 Fed. Rep., 764    241, 244, =252=,
                                                         253, 270, 271,
                                                         274, 292
  Black _v._ Ehrich           1891  44 Fed. Rep., 793    298
  Bleistein _v._ Donaldson    1899  98 Fed. Rep., 608    246
  Blume _v._ Spear            1887  30 Fed. Rep., 629    253, 281
  Blunt _v._ Patten           1828  2 Paine, 397         262, 278
  Bolles _v._ Outing          1899  175 U. S. Rep., 262  245, =256=, 257
    "           "              --   77 Fed. Rep., 966    290
  Boucicault _v._ Fox         1862  5 Blatchf., 87       241, 263, 271,
                                                         296
  Boucicault _v._ Hart        1875  13 Blatchf., 47      251, 260, 263,
                                                         296
  Boucicault _v._ Wood        1867  2 Biss., 34          249, 260, 264,
                                                         293, 296
  Brady _v._ Daly             1899  175 U. S. Rep., 148  287, 292
    "         "               1897  83 Fed. Rep., 1007   277, 280
  Brightley _v._ Littleton    1888  37 Fed. Rep., 103    236, =237=, 239,
                                                         241, 242, 243,
                                                         283
  Broder _v._ Zeno            1898  88 Fed. Rep., 74     266, 281
  Bullinger _v._ MacKay       1879  15 Blatchf., 550     236, 239, 243,
                                                         270, 278, 283
  Burnell _v._ Chown          1895  69 Fed. Rep., 993    282
  Burrow-Giles _v._ Sarony    1884  111 U. S. Rep., 53   245, 256, 270

  CALLAGHAN _v._ Myers        1888  128 U. S. Rep., 617  240, 251, 253,
                                                         =257=, 267,
                                                         273, 289
  Carlisle _v._ Colusa        1893  57 Fed. Rep., 979    239
    County
  Carte _v._ Bailey           1874  64 Maine, 458        270, 273, 274,
                                                         299
  Carte _v._ Duff             1885  25 Fed. Rep., 183    279, 287, 296
  Carte _v._ Evans            1886  27 Fed. Rep., 861    =241=, 251,
                                                         =252=, 273,
                                                         274
  Carte _v._ Ford             1883  15 Fed. Rep., 439    296
  Chapman _v._ Ferry          1883  18 Fed. Rep., 539    251, 253
    "            "            1882  12 Fed. Rep., 693    289, 290
  Chase _v._ Sanborne         1874  4 Cliff., 306        241, 251
  Chicago Music _v._          1884  19 Fed. Rep., 758    251
    Butler
  Child _v._                  1901  110 Fed. Rep., 527   290
    _New York Times_
  Chils _v._ Gronland         1890  41 Fed. Rep., 145    239, 282
  Clayton _v._ Stone          1828  2 Paine, 382         236, =237=, 239,
                                                         242
  Clemens _v._ Belford        1883  14 Fed. Rep., 728    297
  Coffeen _v._ Brunton        1849  4 M'Lean, 516        243, =246=
  Collender _v._ Griffith     1878  11 Blatchf., 212     246
  Colliery Engineer Co. _v._  1899  94 Fed. Rep., 152    271, =291=
    United Correspondence
    Schools
  Connecticut _v._ Gould      1888  34 Fed. Rep., 319    240
  Corbett _v._ Purday         1897  80 Fed. Rep., 901    244
  Courier _v._ Donaldson      1900  104 Fed. Rep., 993   246
  Cowen _v._ Banks            1862  24 How. Pr., 72      240, 267
  Crowe _v._ Aiken            1870  2 Biss., 208         263, 264, 299

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

  EGBERT _v._ Greenberg       1900  100 Fed. Rep., 447   239, 267
  Ehret _v._ Pierce           1880  18 Blatchf., 302     245, 246, 282
  Elizabeth _v._              1877  97 U. S. Rep., 126   289
    Pavement Co.
  Emerson _v._ Davis          1845  3 Story, 768         241, 243, 278,
                                                         279, 281
  Estes _v._ Leslie           1886  27 Fed. Rep., 22     297
  Estes _v._ Williams         1884  21 Fed. Rep., 189    296, 297
  Ewer _v._ Coxe              1824  4 Wash. C. C., 487   251, 296

  FALK _v._ Brett             1891  48 Fed. Rep., 678    245
  Falk _v._ Curtis            1901  107 Fed. Rep., 126   290, 291
    "         "               1900  100 Fed. Rep., 77    290
    "         "               1900  98 Fed. Rep., 989    290
  Falk _v._ Donaldson         1893  57 Fed. Rep., 32     245, 253, 276,
                                                         280, 281, 283
  Falk _v._ Gast              1893  54 Fed. Rep., 890    259, 262, 289
    "         "               1891  48 Fed. Rep., 262    245, 251, 259
  Falk _v._ Heffron           1893  56 Fed. Rep., 299    290
  Falk _v._ Howell            1888  37 Fed. Rep., 202    276, 281, 283
  Falk _v._ Schumacher        1891  48 Fed. Rep., 222    255, 293
  Farmer _v._ Culvert         1872  5 Am. L. T. R., 168  280, 282
  Farmer _v._ Elstner         1888  33 Fed. Rep., 494    279, 289
  Fishel _v._ Lueckel         1892  53 Fed. Rep., 499    276, 277, 280,
                                                         291
  Folsom _v._ Marsh           1841  2 Story, 100         =243=, 277, 279,
                                                         280, 284
  French _v._ Kreling         1894  63 Fed. Rep., 621    262
  French _v._ Maguire         1878  55 How. (N. Y.) Pr., 263, 299
                                    471

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

  HARPER _v._ Holman          1897  84 Fed. Rep., 224    291, 296
  Harper _v._ Shoppell        1886  23 Blatchf., 431     276
  Hefel _v._ Whitely          1893  54 Fed. Rep., 179    256
  Hegemen _v._ Springer       1901  110 Fed. Rep., 374   290
  Heine _v._ Appleton         1853  4 Blatchf. C. C., 12 240, 269, 271,
                                                         =272=, 293
  Henderson _v._ Tompkins     1894  60 Fed. Rep., 758    240
  Higgins _v._ Keuffel        1891  140 U. S. Rep., 428  246
  Hill _v._ Epley             1858  31 Penn., 331        293
  Hoertel _v._ Raphael Tuck   1899  94 Fed. Rep., 844    294
  Holmes _v._ Donohue         1896  77 Fed. Rep., 179    263
  Holmes _v._ Hurst           1898  174 U. S. Rep., 82   263, 296
  Howell _v._ Miller          1898  91 Fed. Rep., 129    241, 280, 282
  Hubbard _v._ Thompson       1882  14 Fed. Rep., 689    291

  _ILLUSTRATED American_      1892  Cited, U. S., 594    =256=
    _v. New York Press_
  Isaacs _v._ Daly            1875  39 N. Y., 511        244, 245

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

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

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

  MACKAYE _v._ Mallory        1882  12 Fed. Rep., 328    273
  McDonald _v._ Hearst        1899  95 Fed. Rep., 656    292
  M'Lean _v._ Flemming        1877  96 U. S. Rep., 245   277, 296
  Maloney _v._ Foote          1900  101 Fed. Rep., 264   277
  Martinetti _v._ Maguire     1867  1 Abb. U. S., 356    266
  Mead _v._ West              1896  80 Fed. Rep., 380    241, 278, 281,
                                                         282, 283
  Menendez _v._ Holt          1888  128 U. S. Rep., 514  293
  Merrell _v._ Tice           1881  104 U. S. Rep., 557  251, 253, 296
  Merriam _v._ Famous Shoe    1891  47 Fed. Rep., 411    297, 298
    Co.
  Merriam _v._ Holloway       1890  43 Fed. Rep., 450    297
  Merriam _v._ Texas          1892  49 Fed. Rep, 944     298
    Siftings
  Mifflin _v._ Dutton         1901  107 Fed. Rep., 708   =256=, 263
  Millet _v._ Snowden         1848  1 West L. J., 240    277
  Morrison _v._ Pettibone     1897  87 Fed. Rep., 330    276, 277, =280=
  Mott _v._ Clow              1897  53 U. S. App., 461   237, =238=, 239,
                                                         242,
                                                         246
  Munro _v._ Smith            1890  42 Fed. Rep., 266    282
  Mutual Advertising Co.      1896  76 Fed. Rep., 961    240, 271, 272,
                                                         282
    _v._ Refo

  NASH _v._ Lathrop           1886  142 Mass., 29        240

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

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

  REED _v._ Carusi            1845  72 Fed. Cas., No.    241, 290
                                     11, 642; 8 L. R.,
                                     411
  Reed _v._ Holliday          1884  19 Fed. Rep., 325    277, 279, 291
  Rees _v._ Peltzer           1874  75 Ill., 475         263, 296, 299
  Richardson _v._ Miller      1877  3 L. and Eq. Rep.    246, 267
                                     (Am.), 614          262, 294
  Rigney _v._ Dalton          1896  77 Fed. Rep., 176
  Rigney _v._ Raphael Tuck    1896  77 Fed. Rep., 173    294
  Roberts _v._ Myers          1860  13 L. R. Mass., 398  244, 270
  Rogers _v._ Jewett          1858  12 L. R., 339        291
  Rosenbach _v._ Dreyfuss     1880  2 Fed. Rep., 217     247, 294
  Ross _v._ Raphael Tuck      1898  91 Fed. Rep., 128    294

  SANBORN _v._ Dakin          1889  39 Fed. Rep., 266    280, 282
  Sarony _v._ Ehrich          1886  28 Fed. Rep., 79     291
  Schreiber _v._ Thornton     1883  17 Fed. Rep., 603    245
  Schumacher _v._ Wogram      1888  35 Fed. Rep., 210    =246=, 257
  Schumacher _v._ Schwencke   1885  25 Fed. Rep., 466    271, 272
      "               "        --   23 Blatchf., 373     246
      "               "       1887  30 Fed. Rep., 690    277
  Scoville _v._ Toland        1848  6 West Law, J., 84   243
  Scribner _v._ Allen & Co.   1892  49 Fed. Rep., 854    251, 256, 293
  Serrana _v._ Jefferson      1888  33 Fed. Rep., 347    282
  Shook _v._ Daly             1875  49 How. Pr., 366     266
  Shook _v._ Rankin           1875  6 Biss., 477         241, 263
  Snow _v._ Laird             1900  98 Fed. Rep., 813    242, 245
  Snow _v._ Mast              1895  65 Fed. Rep., 995    257
  Social Register             1894  64 Fed. Rep., 270    296
    Association _v._ Howard
  Springer _v._ Falk          1894  20 U. S. App., 296   259, 276, 280,
                                                         283, 290, 292
  Stephens _v._ Cady          1852  14 How., 528         273, 275
  Stevens _v._ Gladding       1854  17 How., 447         273, 275, 289
  Story _v._ Holcombe         1847  4 M'L., 306          277, 279, 283,
                                                         284, 285
  Stowe _v._ Thomas           1853  2 Wall. Jr., 547     284, 286
  Struve _v._ Schwedler       1857  4 Blatchf., 23       251
  Stuart _v._ Smith           1895  68 Fed. Rep., 189    291

  TAFT _v._ Stephens          1889  39 Fed. Rep., 781    294
  Taylor _v._ Gilman          1885  24 Fed. Rep., 632    288, 290, 292
  Thomas _v._ Lennox          1883  14 Fed. Rep., 849    =241=, 263,
                                                         =279=
  Thompson _v._ Hubbard       1888  131 U. S. Rep., 123  251,259
  Thornton _v._ Schreiber     1887  124 U. S. Rep., 612  290
      "             "          --   8 Sup. Ct., 618      288, 290, 292
  Tompkins _v._ Halleck       1882  133 Mass., 32        263, 299
  Trow _v._ Boyd              1899  97 Fed. Rep., 586    291, 292

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

  YUENGLING _v._ Schile       1882 12 Fed. Rep., 97      246, 247, 248,
                                                         269, 273



PART I

THE LAW OF COPYRIGHT IN THE UNITED KINGDOM AND THE DOMINIONS OF THE
CROWN.



CHAPTER I

INTRODUCTORY


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

[Sidenote: The Royal Prerogative.]

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

[Sidenote: The Company of Stationers.]

[Sidenote: The Star Chamber.]

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

[Sidenote: The germ of Copyright.]

[Sidenote: Licences.]

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

[Sidenote: The Long Parliament.]

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

[Sidenote: Licensing Statute.]

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

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

[Sidenote: 8 Anne, c. 19. The beginning of Statutory Copyright.]

The Act of Anne created for the first time a statutory property in
books. The author of any book and his assignee or assigns were given
the sole liberty of printing and reprinting such book for the term of
fourteen years from publication "and no longer," and if at the end
of that period the author was still living, then such right returned
to the author for another term of fourteen years. The Act provided
that an offender should forfeit pirated copies and sheets to the
proprietor of the copyright, who was enjoined to "forthwith damask
and make waste paper of them." The Act further imposed a penalty of
one penny for every sheet found in the offender's possession, one
half of the penalties to go to the Crown and the other half to any
person who should sue for the same. The Act made registration in
the Register Book of the Company of Stationers before publication a
condition precedent to an action for the infringement of any book. A
provision was made in this Act for an adjustment of the price of books
by complaint to the Archbishop of Canterbury, the Lord Chancellor and
others, if booksellers or printers set too high a price upon their
publications. Provision was also made for the delivery of nine copies
at the warehouse of the Stationers' Company for the use of various
libraries.

[Sidenote: 41 Geo. III., ch. 107.]

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

[Sidenote: 54 Geo. III., ch. 156.]

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

[Sidenote: Copyright at Common Law.]

[Sidenote: Injunctions in Chancery.]

After the passing of the statute of Anne those booksellers who were
in the habit of purchasing and publishing authors' manuscripts were
not satisfied with the limited protection accorded to them by that
Act. They discovered, by the aid no doubt of legal advice, that a
further protection might be secured by setting up a common law right
of literary property which would ensure not merely a paltry term of
twenty-eight years, but a perpetual monopoly. The result of this
discovery led to half a century of litigation between the authors'
booksellers and those other smaller booksellers who contended that
they might without licence print those books in which the statutory
copyright had expired. At first the authors' men were successful, and
from 1735 there is a series of cases in Chancery in which a common law
right in published books was undoubtedly recognised and a preliminary
injunction granted, notwithstanding that the period of protection
given by 8 Anne, c. 19, had expired.[3]

[Sidenote: _Tonson_ v. _Collins_.]

[Sidenote: A collusive action.]

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

[Sidenote: _Osborne_ v. _Donaldson_.]

[Sidenote: _Millar_ v. _Taylor_.]

[Sidenote: _Donaldson_ v. _Beckett_.]

It was not long, however, until the question was again raised. In 1765
Messrs. Osborne & Millar, assignees of the copyright in Thomson's
"Seasons," filed their Bills in Chancery against Donaldson, an
Edinburgh bookseller, who had, without their authority, reprinted
the book after the statutory copyright had expired.[5] A preliminary
injunction was obtained, but subsequently dissolved. Lord Chancellor
Northington said it was a point of so much difficulty and consequence
that he should not determine it at the hearing, but should send it
to law for the opinion of the judges. The question therefore again
came to law, and, in _Millar_ v. _Taylor_,[6] was argued at great
length before Lord Mansfield and Justices Aston, Willis and Yates.
The authors' men were victorious. The Court decided (Yates, J.,
dissenting) that there was copyright at common law, and that the
period of protection thereunder was not cut down by the statute of
Anne. This great victory, however, afforded but a short-lived triumph
to literary men. In 1774, in _Donaldson_ v. _Beckett_,[7] the matter
came before the House of Lords on appeal from an order in Chancery,
with the result that the decision in _Millar_ v. _Taylor_[8] was
overruled. In this case all the judges were consulted. Eleven
consulted judges gave their opinion. The questions put to the judges,
and the answers given by them, are as follows:

[Sidenote: Opinions of the judges.]

1. 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?

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

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

  Seven answered         No.
  Four answered          Yes.

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

  Six answered           Yes.
  Five answered          No.

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

  Seven answered         Yes.
  Four answered          No.

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

  Six answered           Yes.
  Five answered          No.

[Sidenote: Decision of the House of Lords.]

[Sidenote: Defeat of the Authors' booksellers.]

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

[Sidenote: Relief for the Universities.]

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

[Sidenote: 5 & 6 Vict. c. 45.]

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

[Sidenote: Engravings.]

Meanwhile the engravers as well as the authors had been working for
the proper protection of their art. In 1734 they first obtained a
statute which, together with the amending statutes passed in 1766,
1776, and 1836 respectively, still contains the law of copyright in
engravings, prints, etchings, and similar productions.

[Sidenote: Sculpture.]

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

[Sidenote: Dramatic Work.]

[Sidenote: Musical Work.]

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

[Sidenote: Lectures.]

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

[Sidenote: Paintings, Drawings, and Photographs.]

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

[Sidenote: International Acts.]

[Sidenote: The Berne Convention.]

[Sidenote: The Paris Convention.]

From 1844 onwards there is a series of Acts known as the International
Copyright Acts which extend the protection of the copyright law to
works published in certain foreign countries. The last and principal
international copyright Act is the International Copyright Act, 1886.
That Act was passed in view of the Berne Convention of 1887 which
was then in contemplation. The Berne Convention is an international
copyright agreement whereby those states which are signatory to it
agree that, subject to its terms, a work first published in any one
of those states shall have copyright in all the others. The Berne
Convention is now amended by the Paris Convention, 1898, and read
together they form the present international agreement.

[Sidenote: Colonial Acts.]

There are several statutes dealing with the colonies dating from 1847.



CHAPTER II

WHAT BOOKS ARE PROTECTED


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

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


SECTION I.--WHAT IS AN ORIGINAL BOOK.

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

As an exhaustive definition this is of little value. It only indicates
what the outward visible form of the "book" must be, and gives no
indication of the nature or quality of the literary matter which it
must contain. Even as a guide to the form it is defective, since it is
only a definition by example and not exhaustively descriptive. In the
absence of an accurate statutory definition of a "book," the Courts
have given a very wide interpretation to the term, and both as to the
form and the matter have strained the ordinary dictionary meaning of
the word to the uttermost. In the light of the decided cases a "book"
might be defined as _original literary matter in such tangible form as
readily conveys ideas or information to the mind of a reader_.

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

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

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

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

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

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

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

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

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

_In Johnson_ v. _Newnes_[32] Romer, J., takes the view that
"separately" published means clearly distinguishable. He says:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Composition may consist in composition in the ordinary sense of
piecing together words, figures, sentences, and paragraphs, in order
to convey certain intellectual ideas, or it may consist in the
arrangement of material, as in the case of directories, lists of
statistics, &c. Sometimes part may be copied and part may be original,
as in the case of new editions,[63] translations,[64] abridgments,[65]
selections from non-copyright authors,[66] precedents of
conveyancing, &c.[67] The new matter only is the subject of copyright.

[Sidenote: Road Books.]

=Examples of what are Books.=--Road-books[68] were among the first
works in the protection of which by the Courts it was recognised
that copyright did not necessarily depend on the evidence of any
high mental qualities in the composition. In 1786 an injunction was
granted to restrain the piracy of "Paterson's Road-Book."[69] Lord
Chancellor Loughborough in his judgment said that a book in order to
acquire copyright did not require to be an operation of the mind like
the "Essay on Human Understanding." There might be copyright even
although the subject-matter lay _in medio_, so that every man with
eyes could trace it, and the whole merit of the work depended upon the
accuracy of the observation. In 1776 the Court of Session in Scotland
protected a "Traveller's Pocket-Book," which contained nothing but a
mere list of stages and their distances.[70] The compiler of such a
work may arrive at the same, or nearly the same, result as some other
compiler working over the same country, but if each has made his own
compilation, "counting the milestones for himself,"[71] he will have
copyright and can prevent any one else from infringing such copyright.

[Sidenote: Directories.]

Directories[72] soon followed road-books in their claim for
protection. Lord Chancellor Erskine in 1806 hesitated somewhat,
"thinking it dangerous to carry this doctrine of copyright too far,"
but ultimately decided that an East India calendar or directory[73]
containing the names and appointments on the Indian establishment,
obtained with considerable labour and expense from the repositories
in India House, was the subject of copyright. This decision was
followed by Lord Chancellor Eldon in 1809 in the case of "A
Court Calendar."[74] In 1861 a street directory of Birmingham was
protected,[75] and in 1866 "Kelly's Post Office London Directory."[76]
In this last-mentioned case it was suggested in defence that the
various residents had given their names for public use, and that
therefore any one could copy them; this contention, however, was
rejected, and it was held that the information contained in a
directory was similar to that in a road-book or map; it was open to
all mankind, but that he who collected and described it was entitled
to prevent any one else from taking the results of his labours. In
_Morris_ v. _Ashbee_,[77] a trade directory, called "The Business
Directory of London," was protected. This work contained the names
and occupations of merchants and traders carrying on business in or
about London. Those traders who paid the proprietor of the directory
one shilling annually were entitled to have their names printed in
capital letters, and a further payment entitled them to "extra lines"
descriptive of their vocations. The defendants took from this work the
names in capital letters and the "extra lines," and contended that
they were entitled to do so; but it was held that the payment by the
several persons whose names were inserted had not the effect of making
the names and descriptions when inserted common property, and that
as the plaintiff had incurred the labour and expense of getting the
necessary information and arranging it, he was entitled to protection.

[Sidenote: Trade Directory.]

[Sidenote: Sheet of Advertisements.]

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

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

[Sidenote: Catalogues.]

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

[Sidenote: Advertisements.]

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

The next case in which this question came before the Courts was
_Grace_ v. _Newman_.[84] The book infringed was a volume containing
lithographic sketches of monumental designs, and a little letterpress.
The sole object of the book was to serve as an advertisement in the
plaintiff's business of "Cemetery Stone and Marble Mason." Hall,
V. C., granted an injunction, evading _Cobbett_ v. _Woodward_[85]
and following _Hotten_ v. _Arthur_.[86] In 1882 _Cobbett_ v.
_Woodward_[87] was expressly overruled in the Court of Appeal in
the case of _Maple & Co._ v. _Junior Army and Navy Stores_.[88] The
plaintiffs published an illustrated catalogue consisting almost
entirely of engravings of furniture with short descriptions and
prices. The catalogue was prepared by selecting articles of furniture
which were drawn by artists in their employment and then engraved. The
Court of Appeal sustaining the opinion of Hall, V. C., in the Court
below, held that the catalogue was the subject of copyright as a book.
Jessel, M. R., said:

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

[Sidenote: Alphabetical Catalogue of Tradesmen's Goods.]

In _Collis_ v. _Cater_[92] North, J., protected a catalogue of
medicinal articles which the plaintiff kept for sale. The articles
were arranged by their common names in alphabetical order under
various headings and sub-headings. The learned judge strongly
negatived the contention that a tradesman's catalogue would only be
protected when, as in _Hotten_ v. _Arthur_,[93] some amount of skill or
literary merit was shown. He said:

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

[Sidenote: Telegraph Codes.]

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

[Sidenote: Shipping Statistics.]

[Sidenote: Mineral Statistics.]

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

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

[Sidenote: Lists taken from public documents.]

[Sidenote: List of Bills of Sale.]

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

[Sidenote: Specifications of Patents.]

In _Wyatt_ v._ Barnard_[103] Lord Chancellor Eldon refused protection
to a copy of specifications of patents taken from the patent office.
If this decision meant that a selection, arrangement, or abridgment
of the specifications in the patent office would not be protected, it
cannot be considered sound law.

[Sidenote: List of Foxhounds.]

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

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

[Sidenote: Time Tables.]

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

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

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

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

[Sidenote: Tables of Calculation.]

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

[Sidenote: Forms and Precedents.]

[Sidenote: Conveyancing Precedents.]

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

[Sidenote: Application Form.]

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

[Sidenote: Selections and Extracts from Non-copyright Works.]

[Sidenote: Collection of Cookery Recipes.]

[Sidenote: Topographical Dictionary.]

[Sidenote: Child's A B C.]

[Sidenote: "Guide to Science."]

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

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

[Sidenote: French Dictionary.]

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

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

[Sidenote: Selections of Poetry.]

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

[Sidenote: Abridgments.]

Lawfully made abridgments are protected on account of the judgment
which the abridger must exercise in order to do his work well.[118]

[Sidenote: Translations.]

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

[Sidenote: Adaptations.]

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

[Sidenote: New Editions and Notes.]

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

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

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

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

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

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

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

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

[Sidenote: Reports.]

[Sidenote: Law Reports.]

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

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

[Sidenote: Verbatim Reports.]

So far, therefore, as appears from the reports of these cases our
Courts had only recognised copyright in the matter of reports to the
extent to which that matter was the composition of the author, only,
in short, when it was a description in his own language of what had
taken place. The American Courts had held[140] that there was no
copyright in the verbatim report of a judgment of the Court, but
their decisions were based to a large extent on the ground of public
policy. The judgments of the Court, they said, were published to the
whole of the people of the United States, and no individual could
acquire a monopoly with respect to them. _Walter_ v. _Lane_[141]
has to a large extent cleared up the doubtful state of our law as
regards reports, but it cannot be said that it has done so entirely.
_Walter_ v. _Lane_[142] decides that a reporter can have copyright
in a verbatim report of the oral utterances of another from whom he
derives no title. In that case certain reporters of the _Times_ were
present at various meetings at which Lord Rosebery made speeches.
These speeches were taken down in shorthand and appeared in the
_Times_ the following morning, reproducing as nearly as possible
verbatim the words which Lord Rosebery had spoken. Lane, a publisher,
subsequently published a book entitled "Appreciations and Addresses:
Lord Rosebery," and purporting to be a collection of some of Lord
Rosebery's speeches. Five of the speeches in this book were taken
from the reports in the _Times_, as was admitted by the defendant,
substantially verbatim. The House of Lords reversing the judgment of
the Court of Appeal and restoring the judgment of North, J., held that
the reports in the _Times_ were copyright, and that the reporters'
assignees, the proprietors of the _Times_, were the owners of the
copyright. Lord Chancellor Halsbury in his judgment said:

    "My Lords, I should very much regret it if I were compelled to
    come to the conclusion that the state of the law permitted one
    man to make profit and to appropriate to himself the labour,
    skill, and capital of another. And it is not denied that in this
    case the defendant seeks to appropriate to himself what has been
    produced by the skill, labour, and capital of others. In the view
    I take of this case I think the law is strong enough to restrain
    what to my mind would be a grievous injustice.... The speeches
    and the sheets of letterpress in which they were contained were
    books first published in this country; and I confess, upon looking
    at the definition and the right conferred, I am wholly unable
    to discern why they are not protected by the statute from being
    pirated by unauthorised persons. The sole ground, as I understand
    the judgment of the Court of Appeal, is that in their judgment the
    producer of a written speech, unless he is the original speaker,
    cannot be an 'author' within the meaning of the Act. My Lords,
    it seems to me that this argument is based upon too narrow and
    misleading a use of the word 'author.'... The producer of this
    written composition is, to my mind, the person who is the author
    of the book within the meaning of the statute.... I do not find
    the word 'original' in the statute, or any word which imparts it
    as a condition precedent, or makes originality of thought or idea
    necessary to the right."[143]

We must be careful not to carry the doctrine of _Walter_ v.
_Lane_[144] further than the actual decision warrants. It should
be noticed, for instance, that the essence of the case is that the
reporter was entitled to copyright, because it was he who first
reduced to "book" form the literary composition contained in Lord
Rosebery's speeches. If, therefore, Lord Rosebery had, before
delivering his speeches, done as some statesmen and many clergymen
do, _i. e._, reduced them to writing, the reporter would probably not
have had copyright, since his report would then have been a mere copy
of the speaker's original manuscript, a very different thing from
being the first manuscript.[145] Again, it must be noticed that Lord
Rosebery claimed no proprietary right in his speeches. It was admitted
by counsel that he had freely abandoned his words to the world so that
any one might make of them what use he pleased. Lord Rosebery might
have secured a right in his own speeches if he had cared to do so. He
might have delivered them to a limited audience[146] under an implied
contract that those who heard his speeches should make no other use of
them except by listening to them and benefiting by the entertainment
and general information conveyed. Possibly he might also have secured
a statutory copyright in them as lectures by giving notice in writing
two days before delivering the same to two justices living within four
miles of the place of delivery.[147] If in either of these ways Lord
Rosebery had secured a proprietary right for himself it is doubtful
whether a reporter unauthorised by him could have acquired copyright
in his report. The report would have been an infringement of Lord
Rosebery's rights, but the reporter might nevertheless be held to
have a copyright against the rest of the world. It should also be
noticed in connexion with this case that it was expressly stated by
the judges in the House of Lords that any number of reporters could
make a report of the same speech, and each would have a separate
copyright. In _Walter_ v. _Lane_[148] the defendant admitted that
he took his book from the _Times'_ report. It is obvious, however,
that if a speech were reported in, say, six newspapers, any one
could reprint it, and by careful correction of the parts in which
the reports varied baffle any one of the newspaper proprietors in an
attempt to prove that the speech was taken from his newspaper. Another
question with regard to verbatim reports, which is not necessarily
covered by _Walter_ v. _Lane_,[149] is in reference to verbatim
reports of judgments in the Courts. Will the American doctrine be
adopted that it is against public policy that there should be any
monopoly in them?[150]

[Sidenote: Mechanical Devices.]

[Sidenote: Cricket Scoring Card.]

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

[Sidenote: Shadow Trick.]

[Sidenote: Barometer Face.]

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

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

[Sidenote: Sleeve Chart.]

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

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

[Sidenote: Railway Ticket.]

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

[Sidenote: Scroll for Mechanical Instrument and Directions thereon.]

In _Boosey_ v. _Whight_[158] it was held that a sheet of music was not
infringed by a perforated scroll for use in a mechanical instrument;
and further, that the directions in the printed music, _e. g. pp.,
crescendo_, were not the subject of copyright apart from the printed
sheet, and therefore might be taken and used in conjunction with the
perforated scroll. It seems to follow that neither the perforated
scroll nor the directions thereon would constitute a "book" within the
meaning of the Act.

[Sidenote: Sporting Tips.]

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

  ONE HORSE SELECTIONS.

  _Tuesday_          Keelson.
  _Wednesday_        Priestholm.
  _Thursday_         Coelus.
  _Friday_           Dromonby.

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

  THE SPECIALS, ONE HORSE TRIALS.

  _The Jockey_        Rusina
  _Racing World_      Keelson
  _Gale's_            Keelson
  _Chilton_           Keelson.
  _Grant's Opinion_   Juda.
  _Turf Marvel_       Kenney.

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

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

[Sidenote: Illustrations.]

[Sidenote: To Non-copyright Letterpress.]

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

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

[Sidenote: No Letterpress.]

[Sidenote: Christmas Card.]

[Sidenote: Plate issued separately.]

In _Maple & Co_. v. _Junior Army and Navy Stores_,[164] the engravings
in an illustrated catalogue, containing almost no letterpress, were
protected under 5 & 6 Vict. c. 45. "There may be such things,"
said Jessel, M. R., "as picture-books for those who cannot read
letterpress."[165] In _Hildesheimer & Faulkner_ v. _Dunn & Co._,[166]
protection was claimed for a Christmas card cut out and painted in
the form of a lady's hand. It opened out book-wise, and inside were
delineated the lines of life according to the rules of palmistry, and
on one side there was an original verse. This work was registered
both under 5 & 6 Vict. c. 45 as a book and 25 & 26 Vict. c. 68 as a
painting. Kekewich, J., in granting an injunction against a piracy,
said he would not decide whether the work was a picture or a book, but
as it was well registered under both Acts, an action lay. In _Comyns_
v. _Hyde_,[167] a coloured plate representing an Orpington cock was
issued with the weekly number of a serial publication called _The
Feathered World_. The plate was not in any way physically connected
with the rest of the publication, but it was illustrative of an
article in the journal, and a copy was given to every purchaser.
Stirling, J., held that it must be protected as part of the book. If
a plate or picture has been previously published in separate form,
without complying with the provisions of the Engravings Acts, it will
not subsequently receive protection by reason of its incorporation
into a volume.[168] In _Strong_ v. _Worskett_[169] a magazine was
before publication advertised by means of illustrated posters. The
same illustration as appeared on the posters was afterwards reproduced
in the magazine. It was held that it could not be protected as part
of the magazine. The result of these decisions appears to be that an
artistic work will be protected under the Literary Copyright Act,
1842, if it is bound up with other artistic works in the form of a
volume, or if it is published in connexion with letterpress. The
picture on a Christmas card on which there are also verses, would, it
is submitted, be protected as a book, and, it would seem, whether or
not the verses were copyright, and whether or not (but this is more
doubtful) the picture was in any way illustrative of the verses. It is
also submitted that an engraving published in a magazine without any
relation to the letterpress, except that of physical connexion, would
be protected as part of the book; but an engraving or print which had
neither any relation to the letterpress nor physical connexion would
probably not be protected even although issued gratis with every copy
of the magazine.

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

[Sidenote: Maps.]

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

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

[Sidenote: Music.]

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


SECTION II.--PUBLICATION.

Publication divests the author or proprietor of an unpublished work
of his common law rights therein. After publication his right to
protection depends solely upon the statute. Publication must be looked
at from two points of view--divestitive, _i. e._ as taking away the
author's common law right; and investitive, _i. e._ as clothing him
with the statutory right.

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

=Investitive Publication.=--Publication vests the statutory right of
copyright, but a publication which divests the common law right does
not necessarily invest the statutory right. An investitive publication
is of necessity also a divestitive publication, but not _vice versâ_.
The principal distinction is that an investitive publication must
be a publication of a book, while a divestitive publication is a
publication of the literary composition which is or may be contained
in a book. Thus the delivery of a lecture does not vest copyright,
although under certain circumstances it may divest the common law
right. The book itself must be given to the public, and not merely the
contents, in order to secure copyright. It has been suggested that a
book will not be published within the meaning of the Copyright Act
unless it is also printed. There is certainly some colour for this
suggestion. The Act 5 & 6 Vict. c. 45 gives protection to all books
which are "published" without any express restriction to printed
books. It seems to be assumed, however, throughout the Act that a
book when published must necessarily be in print. For instance,
section 6 requires "That a printed copy ... shall be delivered at the
British Museum." In section 11 again, where provision is made for
registration, it is not contemplated that a book in which there is
copyright could be in manuscript, although the section makes express
provision for the registration of manuscript dramatic and musical
pieces, in respect of performing right. There is no authority on
this point. In _White_ v. _Geroch_[179] it was said that publication
of a musical piece in manuscript vested the statutory copyright;
but this was under the statute of Anne, which seems expressly to
contemplate publication in manuscript which 5 & 6 Vict. certainly does
not. In _Boucicault_ v. _Chatterton_[180] James, L. J., says: "a book
is published by being printed and issued to the public;" but this
was said only in illustration of the point he was then making, viz.
that publication does not necessarily mean the same thing in dealing
with copyright as it does in dealing with performing right. On the
whole, although the point is extremely doubtful, I am of opinion that
printing is not required. Suppose an illuminated hand-made book, fifty
copies put on the market, is that to be denied copyright? If it is,
the result seems to be that it is unprotected from piracy, since the
common law right terminates with unconditional publication. Another
point on publication has been raised but not decided, viz.: Must there
be a distribution of copies to the public, or will it be sufficient if
one or more copies are made accessible to the public; for instance, by
deposit of a copy at the British Museum or in other public libraries.
Sir James Stephen, in his Digest appended to the "Report of the
Copyright Commission, 1878," Art. 4, says: "publication ... means in
reference to books, publication for sale;" and James, L. J., as cited
above, suggests that there must be an "issuing to the public." On the
other hand, the disjunctive use of the terms "published" and "offered
for sale " in section 6 of 5 & 6 Vict. c. 45 is rather in favour of
the view that there can be investitive publication without "offering
for sale." Analogy from other branches of the law is unreliable; the
exhibition of a picture in a public gallery is publication of the
picture,[181] but that is the only way in which a picture can be
published. On the whole, I think that if the public have free and
unrestricted access to a book there will be publication, even although
they may not be able to procure copies for themselves. Something might
depend on the rules of a library where the book was deposited.

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

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

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

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

If a dramatic or musical work is first performed abroad before
publication as a book, although that may destroy the performing right
within the British dominions, it probably will not affect the author's
right to acquire copyright by first publication here in "book" form.
It may be said that "first published" in 7 & 8 Vict. c. 12, sec. 19,
has been held to include "first performed."[195] That decision,
however, dealt only with a question of performing right. In _Boosey_
v. _Davidson_[196] there was first performance abroad, and it was held
that copyright was obtained here by first publication; but there was
no argument on section 19.


SECTION III.--AUTHOR'S NATIONALITY.

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

Lord Cranworth, L. C., said:

    "The statute (8 Anne) must be construed as referring to British
    authors only. _Primâ facie_ the legislature of this country must
    be taken to make laws for its own subjects exclusively, and
    where, as in the statute now under consideration, an exclusive
    privilege is given to a particular class at the expense of
    the rest of her Majesty's subjects, the object of giving that
    privilege must be taken to have been a national object and the
    privileged class to be confined to a portion of that community
    for the general advantage of which the enactment is made. When I
    say that the legislature must _primâ facie_ be taken to legislate
    only for its own subjects, I must be taken to include under the
    word 'subjects' all persons who are within the Queen's dominions,
    and who thus owe to her a temporary allegiance. I do not doubt
    but that a foreigner resident here, and composing and publishing
    a book here, is an author within the meaning of the statute: he
    is within its words and spirit. I go further: I think that if a
    foreigner having composed but not having published a work abroad
    were to come to this country, and the week or day after his
    arrival were to print and publish it here, he would be within the
    protection of the statute."

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

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

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

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

_Routledge_ v. _Low_[208] is followed as to its actual decision in
_Low_ v. _Ward_;[209] but as to the rights of a non-resident foreign
author the law remains, as left by _Routledge_ v. _Low_,[210] truly
in a most unsatisfactory state. It is difficult to escape from the
conclusion, however willingly one would, that there is really no
distinction between the application of the statute of Anne and that of
Victoria, and that, therefore, a case arising on this point under the
Act of Victoria is governed by _Jefferys_ v. _Boosey_,[211] a decision
which, if erroneous, was not so for want of deliberate research and
consideration. The general opinion, however, seems to be that Lords
Cairns and Westbury were right and Lords Cranworth and Chelmsford
wrong. This view is adopted by Stephen, J., in his digest.[212] Mr.
Scrutton is of the same opinion, and cites the Naturalisation Act and
the proviso that copyright is personal property.[213] Mr. Chamier does
the same.[214] It is respectfully submitted that the provisions of the
Naturalisation Act and the indisputable fact that a foreigner wherever
resident can acquire a British copyright are entirely beside the mark,
and do not in the least help one to decide whether the legislature is
to be presumed to have applied the Act of 5 & 6 Vict. to the works of
foreign authors. The decision that the work of a non-resident foreign
author will not be protected is in no way contrary to the provision
of the Naturalisation Act that an alien friend may acquire and hold
personal property in the same way in all respects as a British
subject. The logical conclusion from that provision is that an alien
friend as well as a British subject may acquire British copyright
wherever it exists; but it does not necessarily follow that British
copyright exists in the work of a foreign author, and that either an
alien friend or a British subject can acquire it. After the passing
of the Chace Act (1891) in the United States, the law officers of the
Crown in England were consulted by the American law officers, and
they advised that an American author could acquire copyright in his
work by simultaneous publication in this country and America, even
although he was not at any time resident within the British dominions.
Consequently on that advice the President of the United States
proclaimed Great Britain as one of the countries which gave by their
law reciprocal rights to American authors; and English authors are
thereby entitled to acquire copyright in the United States. It would
certainly be most unsatisfactory if the law of England were now to be
declared contrary to the advice then given by our law officers, but it
cannot be said that this should influence our Courts if their decision
on the point was called for.


SECTION IV.--IMMORAL WORKS.

Profane,[215] indecent,[216] seditious,[217] and libellous[218] books
will not be protected. Neither will those which are a fraud upon the
public.[219] For instance, a book published as translated from the
German of Sturm, which was entirely untrue and induced purchasers
to buy it, was refused protection.[220] _Quære_ whether a piratical
book would be protected in so far as it was original. Probably it
would.[221] If a book is not wholly mischievous, but only in part,
it will probably be protected except as to that part;[222] and if
a book is subsequently published purged of its immoral matter or
fraudulent nature it would be protected.[223] If an action is brought
in respect of a mischievous publication the practice of the Court is
to dismiss the action without costs.[224] In one case[225] Mathew,
J., would not take cognisance of immorality _mero motu_, and when it
was not pleaded by the defendant he gave the plaintiff his remedy.
Notwithstanding this, there can be no doubt that the Court may refuse
to interfere even when both parties are willing to waive the question
of immorality. The Court cannot be compelled to sit to take an account
between public malefactors.


SECTION V.--REGISTRATION.

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

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

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

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

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

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

=The Requisite Entry.=--Registration is made in the Book of Registry
which the Act enacts[244] shall be kept at the Hall of the Stationers'
Company. The fee for registration is five shillings. The Book of
Registry must at all convenient times be open to the inspection of
any person on payment of one shilling for every entry searched for or
inspected. This, however, does not entitle any one to make a copy of
an entry; but any one may demand a certified copy of an entry from the
keeper of the Registry on payment of five shillings.

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

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

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

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

_The Actual Title._--This must be registered: a description of the
book will not be sufficient, even although accurate. Thus in _Harris_
v. _Smart_[247] the plaintiffs' book was intituled "Illustrated
Catalogue and Price List," and they registered it as "Illustrated Book
of Shop-fittings." The Court of Appeal, reversing the decision of
Mathew and Grantham, JJ., held that the objection to the registration
was fatal. When there is a clear and distinct title, that title they
held must be registered. It might be different if a book had no title;
perhaps such a book could not be registered at all; but probably a
description of the book, stating that it had no title, would be
sufficient.[248] In _Collingridge_ v. _Emmott_[249] the plaintiff's
newspaper was intituled "Warehousemen and Drapers' Trade Journal and
Review of the Textile Fabric Manufacturers"; but it was registered as
"Warehousemen and Drapers' Trade Journal: Failures and Arrangements."
Kay, J., thought that the discrepancy was fatal to the registration.

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

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

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

_The Name and Place of Abode of the Publisher._--The publisher to
be entered is the first publisher of the book.[265] No subsequent
publisher, unless of a revised edition, need be entered on the
register.[266] If the publishers are a firm it is sufficient to enter
their firm name, such as _Newby & Co._; the individual names of the
members of the firm need not be entered.[267] A publisher's ordinary
place of business describes sufficiently his "place of abode": his
private residential address need not be entered.[268]

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

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

=Certificate of Registration.=--The officer appointed by the
Stationers' Company for the purposes of registration under the
Copyright Acts must, whenever reasonably required, give a copy of any
entry in the Book of Registry, certified under his hand and impressed
with the stamp of the Stationers' Company, to any person on payment
of five shillings, and such copies are to be received in evidence
in all Courts, and are _primâ facie_ proof of the proprietorship or
assignment of copyright or licence, but subject to be rebutted by
other evidence.[279] Registration does not, however, give a title
against the whole world except the true owner.[280]

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

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

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


SECTION VI.--DELIVERY OF COPIES TO LIBRARIES.

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

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

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

The following copies are to be delivered:

  I. _To the British Museum_:[295]

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

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

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

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

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

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

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

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

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

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

  Within one month after demand.

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

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

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

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

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


SECTION VII.--DURATION OF PROTECTION.

Protection dates from first publication.

_Generally._--The period of protection is for the natural life of the
author and for seven years after his death, or for forty-two years
from the date of publication, whichever period shall be longer.[301]

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

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

_Reviews_, _Magazines_, _and other periodical works of a like
nature_[304] have two separate copyrights, viz.:

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

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

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


SECTION VIII.--COPYRIGHT IN LECTURES.

There is no lecturing right, _i. e._ no exclusive statutory right to
deliver a lecture in public. The only Act applying to lectures is 5 &
6 Will. IV. c. 65, which, under pain of penalties, prohibits printing
or publishing, or knowingly selling lectures, which at the time of
delivery have not been published in book form, without leave of the
author thereof, or of the person to whom the author thereof has sold
or otherwise conveyed the same. The remedy is action in the High Court
for: (i) Forfeiture of copies. (ii) One penny per copy; half to the
Crown and half to informer. A condition precedent of protection under
this Act is the giving of notice in writing to two justices living
within five miles from the place where such lecture or lectures are
delivered, two days at least before delivering the same. The Act has
fallen into entire desuetude, partly, no doubt, on account of this
somewhat troublesome stipulation as to notice, but principally because
a lecturer has, in fact, full protection at common law, if, as is
usually the case, he can make out an implied contract between himself
and his audience that the delivery of the lecture is for purposes
of instruction only, and that those present are entitled to make no
other use of it whatsoever.[307] His remedy at common law will be for
damages and injunction. Of course he cannot sue for penalties, unless
he has brought himself within the Act.

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



CHAPTER III

THE OWNER OF THE COPYRIGHT IN BOOKS


SECTION I.--THE CROWN.

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

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

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

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

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

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

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

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

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

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

The ancient prerogative claimed by the Crown was a perpetual
copyright. The Crown is not mentioned in the Copyright Act, and it is
open to doubt whether it could enforce a perpetual copyright in works
compiled by its servants, or whether it could only claim the term of
copyright granted by the Copyright Act.


SECTION II.--THE UNIVERSITIES.

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

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

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

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

  (_a_) Forfeiture for destruction.

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

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

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


SECTION III.--THE AUTHOR.

Copyright in every book published in the lifetime of the author
thereof "shall be the property of such author and his assigns."[319]
Copyright therefore in the first instance ordinarily vests in the
author. The word author is not defined in the Act, and from time
to time difficult questions have arisen as to who is the author of
a particular book within the meaning of the Act. Difficulties have
generally arisen from the fact that two or more people have been
engaged in the production of a book. The rule appears to be that, if
the literary matter is composed by those who make the manuscript,[320]
the author is the man from whom emanates the general conception and
design, and that although much of the detail may have been the work of
subordinate brains and hands, he is the author of the entirety, and
may sue for any infringement of it. Thus in _Scott_ v. _Stanford_,[321]
where the plaintiff compiled and published periodically statistical
returns of the London coal market, Page Wood, V. C., in giving
judgment, said that it appeared to him quite immaterial whether the
plaintiff had been assisted in the compilation by his own clerks or
by those of the Corporation. In _Barfield_ v. _Nicholson_[322] a case
under the statute of Anne, Leach, V. C., said that he was of opinion
that under the statute the one who formed the plan and embarked on
the speculation of a work, and employed various persons to compose
different parts of it adapted to their own peculiar acquirements, was
the author and proprietor of the work, if not within the literal
expression, at least within the equitable meaning of the statute of
Anne. In _Hatton_ v. _Kean_[323] the defendant had arranged certain
of Shakespeare's plays with adjuncts of scenery, music, dancing, &c.,
and employed artists and authors to aid him in carrying his design
into effect; amongst others, the plaintiff was employed to compose
and arrange the orchestral accompaniments. The Court of Common Pleas
held that the defendant was the author of the entire production. Erle,
C. J., said:

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

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

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

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

The mere suggestion of a subject or idea which is then entirely
designed and executed by another does not constitute the originator
of the idea an author, even although the actual composer is his
employee.[329] In _Shepherd_ v. _Conquest_[330] the plaintiffs,
proprietors of a theatre, employed a "stock author" who, on payment
of a weekly salary and travelling expenses, composed plays for them.
Under this employment the author composed "Old Joe and Young Joe," a
dramatic piece, which he handed over to the plaintiffs, and which was
produced by them at their theatre. There was no contract or assignment
in writing, but there was an oral understanding that the plaintiffs
should have the sole right of representing the piece in London. It was
held in the Court of Common Pleas that the plaintiffs had acquired
no title under the Dramatic Copyright Act, 3 & 4 Will. IV. c. 15,
by reason of which they could sue an infringement of the performing
right.[331] Jervis, C. J., delivered the judgment of the Court:

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

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

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

And Keating, J., said:

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

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

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


SECTION IV.--THE EMPLOYER.

=Under Section 18.=--An employer is _ab initio_ entitled to the
copyright when he employs an author within the meaning of and subject
to the conditions imposed by section 18. Section 18[338] enacts that--

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

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

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

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

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

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

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

"_On the terms that the copyright therein shall belong to such
proprietor._"--The terms may be implied from the nature of the
employment and the circumstances under which the work is composed.
In _Sweet_ v. _Benning_[347] various members of the bar had furnished
reports of cases to the plaintiffs, the proprietors of the _Jurist_.
The reporters selected what cases they thought fit to report and were
paid for their work. The arrangements were entirely oral, and nothing
seems to have been said about copyright. The Court of Common Pleas
held that the proprietors of the _Jurist_ became the owners of the
copyright under the 18th section. Maule, J., in support of his opinion
said:

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

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

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

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

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

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

In _Aflalo_ v. _Lawrence_[354] the defendants published a work called
"The Encyclopædia of Sport." A, one of the plaintiffs, agreed with the
defendants that he would edit the work. He was to receive £500 for
his services, and to write without further remuneration 7000 words
of special articles. He was entitled to pursue his literary work in
so far as it did not interfere with the performance of his duties. A
contributed an article to the encyclopædia under this agreement. A,
by the request of the defendants, procured C, the other plaintiff,
to write certain articles for the encyclopædia at the rate of £2 per
thousand words. The articles of both plaintiffs were published in
the encyclopædia. Joyce, J., held that the contributions of neither
plaintiff came within section 18, since there was nothing to show that
they were contributed on the terms that the copyright therein should
belong to the defendants. The defendants were therefore not entitled
to publish the plaintiff's articles in any other form than as part
of the encyclopædia. In view of the earlier authorities I think this
decision is extremely doubtful.

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

_Payment._--Not only must there be employment for reward, but payment
is a condition precedent. If payment is not proved the section will
not operate to transfer the copyright from the author.[357] Payment
must be made before the commencement of an action.[358] It has been
suggested that it must be made before piracy, and this appears a sound
view since there is no copyright in the proprietor until payment, and
an infringement before copyright is assigned is no cause of action in
the assignee.[359] There is nothing to suggest that payment must be
made before publication.[360]

_Author's Separate Rights._--When an author has contributed to a
periodical and the conditions of the section have been fulfilled so as
to vest the copyright in the proprietor of the periodical, it would
seem that for twenty-eight years, _i. e._ until the right of publishing
in separate form reverts to the author, the author has no right to
sue third parties in respect of an infringement without joining the
proprietor of the periodical as co-plaintiff. If, however, the author,
while contributing on the terms that the proprietor should have the
copyright, reserves the right of publishing his composition in a
separate form within the meaning of the proviso at the end of the
section, when he does publish in separate form he will be entitled to
copyright concurrently with the proprietor, but semble that he will
have no right to sue alone until publication in separate form,[361] or
until the lapse of twenty-eight years.

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

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

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

=Employer's Rights where Section 18 does not Apply.=--A question of
some difficulty has been raised from time to time to which there is no
definite authoritative answer, viz. whether apart from the provisions
of section 18 the copyright ever vests _ab initio_ in the employer of
an author. We shall see in dealing with assignment that probably the
sole right before publication to acquire the copyright of a book on
first publication may pass from the author to his assignee without
writing, either by an implied gift on delivery of the manuscript or
by express oral assignment. The question now considered is whether by
the fact of employment alone the work of the employee may not _ipso
facto_ on production become the property of his employer. In _Sweet_
v. _Benning_[367] it was held that the employment of certain members
of the bar as reporters came within section 18, and that the copyright
vested in the employers themselves; but during the argument Maule, J.,
is reported to have said:

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

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

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


SECTION V.--THE ASSIGNEE.

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

If an assignment of manuscript, purporting to carry with it the
right to publish and acquire copyright, is made before publication,
it is submitted that no writing is required. The requirement that
an assignment of copyright after publication must be in writing
is founded not on an express enactment, but on implication from
section 15 of the Copyright Act, 1842.[370] This section prohibits
the reproduction of any book in which there is subsisting copyright
without the consent in writing of the proprietor thereof. From this it
is deduced by _a fortiori_ argument that an assignment of subsisting
copyright must be in writing.[371] It does not in the least follow
that the common law right in manuscript may not be assigned by any
mode by which property of that description might be assigned at
common law. The Courts have not, however, sufficiently distinguished
between an assignment before and an assignment after publication, and
as a result the case law on the subject is in a most unsatisfactory
condition. There are several cases under the statute of Anne, which
statute, in very similar words to the statute of Victoria, provides
that copyright shall belong to the author and his assignee or assigns.
There is no definition of "assigns," as in the statute of Victoria,
but the rule that assignment of copyright must be in writing is
deduced in the same way from the proviso that consent to copy must be
in writing. The cases under the statute of Anne should therefore be
equally applicable as authorities under the statute of Victoria. In
_Clementi_ v. _Walker_[372] a French author had assigned orally to
an English subject the exclusive right of printing and publishing a
musical composition in this country. The work had not been published
in England, and apart altogether from the question of a prior
publication in France, the Court was of opinion that the publication
in England did not give copyright to the English publisher, "because
there was not any assignment or consent in writing given to the author
previously to that publication. The case of _Power_ v. _Walker_[373]
is an authority to show that a parole assignment is not sufficient
to give to the assignee the privileges conferred by the legislature
upon the author." In _Colburn_ v. _Duncombe_[374] there was a written
publishing agreement whereby the author agreed to write a book and
assign the whole copyright therein. On completion the manuscript was
delivered to the publisher, and the author gave a written receipt for
the consideration and agreed to deliver a regular assignment when
called upon. This was never done, and in an action by the publisher
against an infringer it was held that he could not sue without the
author in whom the copyright had vested and remained. In _Sweet_ v.
_Shaw_[375] the plaintiffs agreed with A and B that A and B should
report cases for them. A and B accordingly took notes of cases,
and these were printed and published by the plaintiffs. Shadwell,
V. C., said that he thought the plaintiffs had a copyright in equity
but not in law. "I cannot," he said, "see how the agreement that
persons shall prepare a work for the plaintiffs gives the plaintiffs
a copyright in law, for there can be no assignment in law except of
that which actually exists." In all these three cases last cited it
is submitted that the whole right of the author should have been
held to have passed to the publisher by the delivery to him of the
manuscript with the mutual intention that he should acquire all rights
therein. The first case in which it is recognised that the author's
right may before publication pass without writing is _Jefferys_ v.
_Boosey_.[376] Erle, J.,[377] and Coleridge, J.,[378] decided that
no writing was required. Speaking of an oral assignment abroad of a
manuscript subsequently published here, Coleridge, J., said: "The
assignee is clearly within the enabling clause of the statute (8
Anne, c. 19); he is the assignee of an author, and even if these words
may in some cases mean an assignee under an instrument in writing
attested by two witnesses, it has not been shown or decided that
they must or can mean this in all cases. I think the contrary has
been shown. Larger words and less restrained the legislature could
scarcely have used, and on what sound principle are we to import a
restraint by implication?" Lord St. Leonards, however, in the same
case, seemed to be of opinion that the assignment must be in writing
and attested by two witnesses (under 8 Anne, c. 19) even although
made before publication. In some of the cases the publisher with whom
the author has agreed that he shall have the whole copyright, but to
whom there has been no assignment in writing, has been said to be an
equitable owner of the copyright.[379] But it is submitted that if
the manuscript passes before publication with mutual intention to
convey to the publisher all right, title, and interest therein, the
publisher is the legal assignee, and on publication is the legal owner
of the copyright, and there is no necessity for a formal assignment
in writing.[380] The same principle may not apply to performing
rights in dramatic and musical works under 3 & 4 Will. IV. c. 15. It
is probable that statutory performing rights vest in the author on
production,[381] and if this is so there would probably be no common
law performing right, and therefore no common law assignment; the
statutory mode of assignment would attach from the beginning.[382]

=After Publication.=--After publication an assignment must be in
writing.[383] It need not be by deed nor attested by witnesses,[384]
nor, it would seem, need it be signed by the proprietor or any
one.[385] The assignment may be given by an agent. An assignment does
not require to be registered in order to make it valid as a transfer
of the property: but an assignee who sues must be registered.[386]
If the assignor is registered as proprietor complete assignment may
be made by entry on the Book of Registry at Stationers' Hall.[387]
Probably an author, even although not registered, may make a valid
assignment by registering the book in the name of his assignee as
proprietor.[388] It has been held that an unregistered author may so
register himself and two others and give all three a title to sue as
joint proprietors, from which it seems to follow that he could have
registered the two others without himself.[389] An assignee may make
the entry on the register himself without the concurrence or consent
of his assignor.[390]

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

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

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

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

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

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

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

In any view of partial assignment I do not think there can be partial
assignment as to time.[413] Such an assignment would create an estate
in possession and reversion in personal property, and there is no
reason for holding that copyright is any exception to the general
rule that such an interest cannot be created in personalty. Equitable
estates, limited as to time, can no doubt be created as in the case of
any other personal property.[414] What purports to be an assignment
limited as to time must as a rule be treated as a licence.

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


SECTION VI.--THE LICENSEE.

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


SECTION VII.--THE EXECUTORS OR ADMINISTRATORS.

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


SECTION VIII.--THE TRUSTEE IN BANKRUPTCY.

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



CHAPTER IV

INFRINGEMENT OF COPYRIGHT IN BOOKS


SECTION I.--PROHIBITED ACTS, AND REMEDIES.

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

  For the following offences:[423]

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

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

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

  For the following offences:[426]

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

  The remedies are:

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

    An action in the High Court for

    4. An injunction.[432]

=Causing to be Printed.=--The prohibition in section 15 is against
"printing, or causing to be printed." Thus the author, publisher,[433]
and printer of a piratical book are all equally liable, and it is no
defence for the publisher, who has employed the printer, or for the
printer to say he was acting merely as an innocent agent.[434] There
may sometimes be difficulty in determining whether a person who, to
a certain extent, is interested in the publication has yet caused it
to be printed within the meaning of the section. Thus, in the case
of _Kelly's Directories_ v. _Gavin and Lloyds_,[435] the plaintiff
had published a directory of merchants and shipping statistics. The
defendant Gavin prepared a similar directory, and agreed with the
defendants Lloyds for its publication. Lloyds were to print part of it
and allow the use of their name in the title and receive some share
in the profits. The book was accordingly published under the title of
"Lloyds' Diary for Merchants, &c.," and bore on the title-page the
statement "printed at Lloyds, Royal Exchange, London." Part of the
book was held to be an infringement of the plaintiff's copyright;
but it was proved on the trial that that part was not printed by
Lloyds, but by a printer employed by Gavin, and that Lloyds had no
knowledge of its piratical nature. Byrne, J., found that Lloyds were
not partners in the undertaking with Gavin, and that the printing of
the piratical portion was not done by the printer as their agent. He
therefore held that Lloyds had not "caused" that portion to be printed
within the meaning of the section, and dismissed the action as against
Lloyds, but without costs, as they had allowed their name to appear on
the title-page as printers.

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

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

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

An interim injunction is usually granted on motion before trial
where the plaintiff shows a _primâ facie_ case on affidavit. In
doubtful cases weight will be given to the consideration which side
is more likely to suffer from an erroneous judgment.[443] The Court
will consider the balance of convenience on the one side and the
other.[444] The reason for granting an interim injunction is that
a continuing infringement might cause damage for which it would be
difficult or impossible to assess an adequate money compensation.
If the taking is of an inconsiderable part, an interim injunction
might not be given, although an injunction might go at the hearing.
In urgent cases an interim injunction may be granted _ex parte_. In
all interim injunctions the plaintiff is, as a rule, required to
undertake to give compensation to the defendant if on trial he fails
to establish his case.[445] When such an undertaking is given the
defendant is, if he succeed in his defence, entitled to an inquiry as
to the damage sustained on account of the interim injunction against
him.[446] When there has been undue delay in bringing an action, or
where the conduct of the plaintiff has been such as to induce the
defendant to believe that his conduct would not be objected to, an
interim injunction will probably be refused.[447] A mere expression
of opinion by the plaintiff that it would be legal to make a certain
use of his work is not a sufficient ground for refusing an injunction
if in point of law the use made by the defendant is illegal.[448]
"Copyright is not to be lost by the mere expression of opinion."[449]
At the hearing of the action a perpetual injunction will be granted
on the plaintiff proving his title and infringement. Delay or
acquiescence not amounting to fraud will not prevent an injunction
going at the hearing when the plaintiff proves his right;[450] "for
at the hearing of the cause it is the duty of the Court to decide
upon the rights of the parties, and the dismissal of the bill upon
the ground of acquiescence amounts to a decision that a right which
has once existed is absolutely and for ever lost."[451] When an
infringement has been shown the Court will not wait until it can
ascertain distinctly what parts have been pirated. It will grant an
injunction in general terms restraining the defendant, his agents,
servants, or workmen from further printing, publishing, selling, or
otherwise disposing of any copy or copies of the defendant's book
containing any passage or passages copied, taken, or colourably
altered from the plaintiff's book.[452] If it appears that the
piratical parts of the defendant's book can be distinguished from that
which is innocent, this will be done in the injunction.[453] For a
form of injunction against a servant restraining him from using blocks
and materials obtained while in the plaintiff's employment, see _Lamb_
v. _Evans_.[454] An injunction will be granted without any inquiry as
to actual damages;[455] but there must be probability of damage. In
_Borthwick_ v. _Evening Post_,[456] Cotton, L. J., said:

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

_Quære_ whether an injunction will be granted to protect the future
numbers of a periodical. In _Cate_ v. _Devon and Exeter Constitutional
Newspaper Company_,[458] North, J., in granting an injunction to
restrain a systematic infringement of a periodical, said:

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

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

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

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

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

But, whether or not in such a case the plaintiff would be entitled
under the section to extraction and delivery up for his benefit
of the pirated parts, he is under the general jurisdiction of the
Court entitled to delivery up for cancellation.[472] In _Warne_ v.
_Seebohm_[473] the order was that the defendant should first state
upon oath what copies of the work exist; secondly, extract from
those copies which are in his possession or power and deliver up
to the plaintiffs for cancellation all passages copied, taken, or
colourably imitated from the plaintiffs' book; thirdly, produce to the
plaintiffs, if required by them for examination, the copies after the
pirated passages have been extracted.[474] _Quære_ whether the Court
would order delivery up in an action to which the person who owned the
books and paper and at whose expense the printing was executed was not
a party.[475]

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

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

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

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

The notice of objections must be specific, and give full notice of
the nature of the defence.[486] If the defence is that the book has
not been registered at all, that must be stated.[487] If a faulty
registration is relied on, it is not sufficient to deny that the book
has been duly registered; the notice must state what the particular
objection to the registration is.[488] If the plaintiff's title is
denied, it will not do merely to state that the proprietor "is some
person unknown, but not the plaintiff;"[489] the full particulars
as required by the section must be given.[490] In objecting to the
registration, however, it is not necessary for the defendant to state
what the correct entry should he. Thus if he says the time of first
publication is wrongly entered, he does not require to specify the
true date of first publication.[491] It is unnecessary to deliver
a separate "Notice of Objections," as was the practice at one
time,[492] it is sufficient if it is incorporated in the defence. A
suggestion of defective title contained in an affidavit would not be
sufficient.[493] If a defective title is apparent from the plaintiff's
own statement of claim or evidence, the action would probably be
dismissed by the Court, _proprio motu_, even although the defendant
had not given notice of objection.[494] Leave to amend the pleadings
and take further objection may be allowed on conditions under the
judicial discretion given by the Rules of the Supreme Court,[495] but
if the objection be merely technical, the Court will not give leave to
amend,[496] unless, perhaps, the plaintiff had otherwise fair notice
that the objection might be taken.[497] It has been held by a County
Court judge that section 16 of the Copyright Act does not apply to
proceedings in the County Court, as that Court was created after the
date of the Act.[498]

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

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

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

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

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

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

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

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

=Costs.=--In copyright as in other actions a successful party
may be refused his costs. The plaintiff will not get his costs if
he has unduly acquiesced in the defendant's conduct, and thereby
induced the defendant to incur expenses,[507] or if after acquiescence
and delay an action is brought without fair warning.[508] So, too,
if the plaintiff has suffered no real harm, but brings an action for
the purpose of making money out of it;[509] and in one case where
the Court was of opinion that although the plaintiff was entitled
to nominal damages, the action was one which should never
have been brought, the plaintiff was ordered to pay the defendant's
costs as well as his own.[510] If the plaintiff has increased the
expenses by raising other questions in which he has failed, the
costs will be apportioned.[511] A defendant, although successful,
may lose his costs or part of them if he has acted in such a way
as was not fair and right as between man and man;[512] for instance,
if he has made some use of the plaintiff's book, but does not
acknowledge it at the hearing.[513] A successful defendant may
lose his costs if in his defence he challenges the plaintiff's title
and fails in his attack, but wins on the question of piracy. If a
defendant by his conduct in lending his name to a publication
has led the plaintiff to assume that he "caused it to be printed,"
he will probably not be allowed his costs.[514] A defendant may
also be refused his costs if the Court is of opinion that he
brought the action on himself by sailing too near the wind.[515]
The Court will not encourage a plagiarist or one who has made
an illiberal use of another's work, even although he has not
actually committed a piracy. Costs have also been refused
where, although the defendant succeeded, his defence was a
merely technical one, such as a defect in registration.[516] If copyright
is claimed in part of a book only, the whole of which is
registered without distinction, the notice of motion or statement
of claim should specify the parts in which copyright is claimed,
or the plaintiff may be liable in costs unnecessarily incurred by
the defendant.[517]


SECTION II.--WHAT IS A PIRATICAL COPY.

Literary property may be invaded in three ways:

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

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

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

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

=What is a Copy.=--A copy is that which will provide a substitute
for the whole or for a substantial part of the original book.[520]
The owner of the copyright has the sole and exclusive liberty of
printing or otherwise multiplying copies. It has been held that
the right is not in any way limited by section 15 of the Copyright
Act, 1842, which section applies its remedy only to cases where the
subject-matter is multiplied by printing.[521] Thus copies produced by
writing,[522] lithography,[523] type writing,[524] photography,[525]
are copies within the meaning of the Act. The symbols used matter
little in themselves; the question in each case is whether the
defendants are multiplying copies.[526] It is not necessary that the
copy should be primarily intended to be used for the same purpose
as the original. Thus a copy in shorthand characters intended for
instruction in shorthand was held to be an infringement of a story in
a magazine.[527] But the copy must provide a reasonable substitute
for the whole or part of the original work. A perforated scroll used
for the mechanical reproduction of music from an instrument is not a
copy, since no reasonable being would use it as a substitute for the
original sheet of music.[528]

=A Substantial Part must be Taken.=--In other words, _De minimis non
curat lex_.

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

In _Sweet_ v. _Benning_,[530] Jervis, C. J., said:

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

In _Chatterton_ v. _Cave_,[531] Brett, J., said:

    "Unless there is a taking of a material and substantial part there
    is no infringement of copyright. It is true that the question
    under the second section is not only whether the whole production
    has been copied, but also whether a part has been copied; but by a
    part this section must mean a material and substantial part."[532]

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

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

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

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

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

    "The principle of the cases is that, when one man for his own
    profit puts into his work an essential part of another man's work
    from which that other may still derive profit, or from which but
    for the act of the first he might have derived profit, there is
    evidence of piracy."[541]

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

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

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

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

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

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

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

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

=No Animus Furandi need be Proved.=--In _Cary_ v. _Kearsley_[548] Lord
Ellenborough's judgment contained a reference to the _animus furandi_
in cases of infringement, from which a mistaken idea seems to have
arisen that in all cases of infringement the _animus furandi_ must be
proved.[549] Lord Ellenborough said:

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

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

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

In _Scott_ v. _Stanford_,[553] Page Wood, V. C., after quoting
the above passage from Lord Ellenborough's judgment in _Cary_ v.
_Kearsley_,[554] said:

    "It is urged that this is a case in which no _animus furandi_ can
    be found on the part of Mr. Hunt, who has taken these statistics
    in perfect good faith and with the fullest acknowledgment[555]
    in his book of the source from which they are derived. But if in
    effect the great bulk of the plaintiff's publication--a large and
    vital portion of his work and labour--has been appropriated and
    published in a form which will materially injure his copyright,
    mere honest intention on the part of the appropriator will not
    suffice, as the Court can only look at the result and not at
    the intention in the man's mind at the time of doing the act
    complained of, and he must be presumed to intend all that the
    publication of his work effects."[556]

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

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

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

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

=Copying may be Indirect and Unintentional.=--If matter in which
copyright exists is taken it is immaterial that the appropriation
was made not directly from the original work but indirectly
through some other work, copyright or non-copyright, authorised or
unauthorised. Thus a book may be infringed by retranslating or copying
a translation of it,[562] and a drama may be infringed by dramatizing
a novel founded on the drama.[563] In _Cate_ v. _Devon and Exeter
Constitutional Newspaper Company_,[564] it was argued that an indirect
copying could not be considered an infringement, because since the
copyist is ignorant of what works he is indirectly copying, he cannot
know whether or not he is infringing any copyright books, but this
argument was rejected. Ignorance on the part of the copyist does not
excuse him from the consequences of his act.[565]

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

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

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

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

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

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

_No Infringement to take Facts._--It is no infringement to state a
fact or an opinion which another man has stated for the first time:
but you must not take his mode of expression or his selection or
arrangement of facts which he has thought proper to state. Thus there
is no copyright in a mere piece of news, for instance, "The Emperor of
China is dead." If one newspaper proprietor received a telegram from
abroad to that effect, another could take the information as published
and print it in his newspaper. But although there is no copyright in
news as such, the smallest taking of a selection or arrangement of
news will be prohibited. In a case in Victoria[575] the defendants
had taken the plaintiff's telegrams, rearranged them, and altered
the expression, and yet they were held to have been guilty of an
infringement.

_No Infringement to take the General Scheme or Idea of another Book
or the Theories therein._--Copyright does not extend to ideas or
schemes or systems or methods: it is confined to their expression; and
if their expression is not copied the copyright is not infringed.[576]
Thus in _Jarrold_ v. _Houlston_,[577] Page Wood, V. C., said that even
although Dr. Brewer's "Guide to Science," which purported to give
popular scientific information under various headings in the form of
question and answer, had been the first book of the kind, there was
nothing to prevent another person from originating another book in the
same general form, provided he did so from his own resources.[578] In
_Pike_ v. _Nicholas_, the case of two rival historical essays on "The
Origin of the English Nation," James, V. C., said:

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

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

_Every Author must do his own Work._--In _Longman_ v.
_Winchester_,[581] the action being for the infringement of copyright
in a court calendar, Lord Eldon drew an analogy to the case of a map
describing a particular county and a map of the same county afterwards
published by another person, which, if the description be accurate in
both, must be very much the same, yet he said:

    "It is clear the latter publisher cannot on that account be
    justified in sparing himself the labour and expense of actual
    survey."

In _Lewis_ v. _Fullarton_,[582] Lord Langdale, M. R., said:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

In this case the quotation was proved to have been taken directly from
the plaintiff's work, but this was considered to be so small a taking
that the bill was dismissed, though without costs, the Court being
satisfied "that the book of the defendant was his own composition in
this sense, that wherever he got the materials from they were worked
up by him into his own language."[602]

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

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

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

These _obiter dicta_ illustrate sufficiently well the distinction
between taking for a rival work and taking for an entirely different
object; it is probable, however, that some of them go too far and
tend to follow the mistake of the older view of infringement in
looking more to the value of the work done by the plagiarist than to
the value of the material taken. As authoritative _dicta_ they must,
therefore, be accepted with caution. The best test of infringement
or no infringement in a taking of this kind is to inquire whether
the subsequent work by reason of the taking provides a substitute
for the whole or any substantial part of the prior publication. In
_Bradbury_ v. _Hotten_,[607] nine cartoons, illustrative of the career
of Napoleon III., were published in _Punch_ in nine several weekly
numbers. The defendants published a volume entitled "Story of the
Life of Napoleon, as told by popular Caricaturists of the last thirty
years," which contained among numerous other illustrations taken from
French and English comic journals the nine cartoons first produced
in _Punch_. This was held to be an infringement of the copyright in
_Punch_. In _Nicols_ v. _Pitman_[608] the defendant published in an
educational work for the purpose of instruction in shorthand writing
a lecture delivered by the plaintiff on "The Dog as the Friend of
Man." The Court held there was an infringement, because although the
lecture was reproduced in shorthand characters, it might by those
who could read shorthand be reasonably used as a substitute for the
lecture printed in ordinary characters. A compiler of an encyclopædia
or similar work would probably be allowed to quote to a certain
extent from copyright monographs, but this must not be carried to
such an extent as to supersede the original work.[609] Several cases
have been before the Courts on the verbatim copying of law reports
in whole or in part into legal treatises of various kinds. The
collection of all the reports on a particular branch of law such as
"Poor Law"[610] or "Registration of Voters,[611] is an infringement
of copyright if they are copied verbatim from previously published
copyright reports. This will be so even although they are collected
from the reports of many different reporters.[612] In _Sweet_ v.
_Benning_,[613] a digest compiled by taking verbatim the head notes
from copyright law reports and arranging them under appropriate titles
was held to be an illegal publication, the Court being of opinion
that the defendant had been guilty of an abuse of the fair right of
extract, which the law allows for the purpose of comment, criticism,
or illustration. No doubt in text-books large portions of the head
notes, arguments of counsel, and judgments may be taken verbatim.
In an ordinary legal text-book it would require a very free use of
verbatim quotation to found the necessary argument that the text-book
provided even to the smallest extent a substitute for the original
reports. A more difficult question arises where volumes of leading
cases are published, the cases being reproduced verbatim from the
original reports but with extensive notes and comment. In _Saunders_
v. _Smith_,[614] the Court refused to decide whether "Smith's Leading
Cases" constituted an infringement of the original reports, judgment
going for the defendants on the ground of acquiescence. In the Irish
case of _Hodges_ v. _Welsh_[615] a similar problem was suggested but
not decided. The better view probably is that such a wholesale taking
is an infringement of the copyright of the original reporters.

_Extract for Purpose of Criticism._--Lord Eldon, in _Mawman_ v.
_Tegg_,[616 says:

    "Quotation is necessary for the purpose of reviewing, and
    quotation for such a purpose is not to have the appellation of
    piracy affixed to it; but quotation may be carried to the extent
    of manifesting piratical intention."

Considerable quotation may be made for the _bonâ fide_ purpose of
criticising a copyright book;[617] in one case[618] nearly a quarter
of a controversial article in a magazine was quoted in a reply
thereto published in another magazine, and the Court held that this
constituted no infringement, as the extracts were clearly inserted
for the purpose of criticism and argument. The question is whether so
much of the original work is extracted that the review substantially
communicates the same knowledge as the book reviewed.[619] Thus in
_Campbell_ v. _Scott_,[620] the defendant published "The Book of
Poets" containing, _inter alia_, an essay and biographical notice of
the poet Campbell, and, as the defendant said, by way of illustrating
the poet's works, a large number of his poems and extracts therefrom
were appended to the biographical notice without any particular
observations in the way of notes to individual pieces or extracts.
This was clearly an infringement of the poet's copyright. In a similar
case, _Smith_ v. _Chatto_,[621] the defendants published a book
entitled "Thackerayana." It purported to be a critical essay on the
life and works of Thackeray, and contained extensive quotations from
his writings, prefaced and interspersed with comments by the writer of
the book. Hall, V. C., held in fact that the defendants had inserted
the extracts for the purpose of increasing and enhancing the value of
their book, and that they had therefore infringed the copyright in
Thackeray's works.

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

    "If an erroneous chart be made, God forbid it should not be
    corrected even in a small degree if it thereby become more
    serviceable and useful for the purposes to which it is applied."

In _Cary_ v. _Kearsley_,[623] Lord Ellenborough said:

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

In _Martin_ v. _Wright_,[624] Shadwell, V. C., says:

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

The theory of these early cases on infringement seems to have
been--colourable alteration is not to be allowed, but no check must
be put on the taking of material when it is taken _bonâ fide_ in the
interests of scientific or literary knowledge. Gradually, however,
the Courts in questions of infringement came to look more to the
interests of the author than to those of the public, and regarded the
law of copyright more as a means of securing rights of property to
the individual than as an unnatural monopoly created for the purpose
of encouraging and developing literary effort. Thus in _D'Almaine_ v.
_Boosey_,[625] in 1835, it was held to be an infringement to publish
the music of an opera in the form of waltzes and quadrilles, and this
notwithstanding that these waltzes and quadrilles would, if taken from
the music of a non-copyright opera, have been protected as original
works.[626] Since then many cases have followed on the same lines,
and no addition, correction, or improvement will now be accepted as
an excuse for taking a material part of a copyright publication.[627]
But although improvement and addition is no excuse for taking a
substantial portion of another author's work, the fact that there
has been such improvement and addition is not to be entirely ignored
in questions of infringement. It may be an important factor in
determining whether or not there has been a taking of a substantial
part.[628] We have seen that to determine that question the two
works must be taken as a whole and their relation to one another
considered, and particularly the relative value of the material
taken.[629]

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

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

_Abridgments._--Probably an abridgment in the ordinary sense of the
word, that is, the reproduction of a book in a shorter form, retaining
the general scheme and arrangement, and the sequence of ideas, would
now be held to be an infringement.[634] In the earlier cases, which
tend to excuse a taking by reason of the utility of additional work
bestowed upon the material taken, an abridgment is recognised as
a lawful use of a copyright book. In 1740 Lord Hardwicke, L. C., in
dealing with an alleged abridgment of Sir Matthew Hale's _Historia
Placitorum Coronæ_,[635] said:

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

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

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

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

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

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

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

_Translations._--There are two recent decisions in India to the effect
that the translation of an English book into an Indian language is
not an infringement of the author's copyright.[644] If we are to
be guided by the general principles of the law of copyright now
accepted by our Courts, I think these Indian decisions must be held
to be wrong. A translation takes everything in a book but the actual
words; it takes the selection of material and its arrangement, and is
certainly a very material taking of the work and labours of another.
The translator is making a profit from the author's work by using it
in a manner in which the author might have himself used it and made
a similar profit. The only real answer which the translator has is
that he has expended a great deal of skilled labour in putting the
author's book into another form. This might have been a defence fifty
years ago, but I do not think it is a good defence now. In England
there is no direct decision; although there are several _obiter
dicta_ to the effect that a translation is not an infringement. In
_Burnett_ v. _Chetwood_,[645] in 1720, there is a _dictum_ of Lord
Chancellor Macclesfield, in which he expressed his opinion that a
translation might not be within the prohibition of the Act (8 Anne
c. 19), "on account that the translator had bestowed his pains upon
it." In _Millar_ v. _Taylor_,[646] Yates, J., and in _Prince Albert_
v. _Strange_,[647] Knight Bruce, V. C., suggest that a translation
is not an infringement. In _Wyatt_ v. _Barnard_[648] it was held
that a translation would be protected as a new work, but it does not
follow that it is not an infringement of an old one. I think that
these English _dicta_ are practically useless as authorities, since
it cannot now be maintained that the translator will be permitted to
take the work of an original author merely because he "bestows his
pains upon it." In _Murray_ v. _Bogue_,[649] Kindersley, V. C., said
that if an English book were translated into a foreign language and
then retranslated into English without authority such translation
would be an infringement of the original work. If this is so, it is
difficult to see why the translation into the foreign language is not
also an infringement if done without authority. The translation and
the retranslation appear to be exactly on the same footing, both take
the substance of the book, the plot, the arrangement, the selection of
material; neither takes the author's words. If it is said that one
competes with the original which the other does not, the answer is
that it is no defence to say that an infringement is made for a wholly
different market from that which the original commands.[650] An author
is entitled not only to the uses which he does make of his work, but
also to the uses which he might make of it.

=Licence.=--A licence in writing[651] granted by the plaintiff to
the defendant is a good defence to an action for infringement. The
licence need not be written or signed by the proprietor himself. It
may be granted by an agent having authority.[652] It would seem that
a licence might be valid without being signed by any one. The onus
of proving a written licence lies upon the defendant in an action.
An assignee of the copyright is not bound by the licence granted by
his assignor, unless at the date of assignment he has notice of the
licence.[653] A licence, unlike an assignment, may be given before
the copyright has come into existence, or even before the work is
composed.[654] A licence from the Dramatic Authors' Society was held
to include the dramas composed by the members of the society after the
date of the licence.[655]

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

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

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

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

=Acquiescence and Delay.=--This is no ground of defence, unless in
the view of the Court it would make it a fraud afterwards to insist
on the legal right. It would seem that the defendant must show some
act on the part of the plaintiff inducing the defendant to infringe
or continue an infringement of the copyright.[662] At the best,
the defence is only an equitable one, and will avail no more than
to prevent the plaintiff from getting an injunction or substantial
damages, and as the costs are always in the discretion of the Court,
he might be ordered to pay the defendant's costs.

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



CHAPTER V

PERFORMING RIGHTS


SECTION I.--NATURE OF PERFORMING RIGHT.

As copyright is the exclusive right of making copies of a book, so
performing right is the exclusive right of representing or performing
in public dramatic or musical works. In a dramatic or musical work,
the two rights--the copyright and the performing right--exist side
by side; but they are quite distinct from one another, and may pass
into different hands. The copyright can only be infringed by copying,
the performing right by representation or performance. It is no
infringement to dramatize and represent on the stage a copyright
novel, since the only exclusive right as to non-dramatic work is the
multiplication of copies;[664] but a drama on which a novel has been
founded may be infringed by another drama taken from the novel.[665]
A writes and publishes a novel. He then dramatizes it, but does not
publish the drama. B represents a drama founded on the novel. Such a
representation is no infringement either of A's drama[666] or of his
novel. It makes no difference even if A has published his drama.[667]
In dramatizing a copyright novel, however, the making of a single
copy of the drama may be an infringement of the copyright in the
novel.[668] It is no infringement of performing right to print and
publish as a book a play which has been publicly performed,[669] but
it may be an infringement of the common law right in the MS.,[670] or
the statutory copyright in the book if already printed and published,
or it may be a breach of implied contract.[671] If a dramatic piece
or musical composition is first published as a book, this does not
take away the performing right. This was decided in _Chappell_ v.
_Boosey_[672] in respect of music, and is equally applicable to
dramatic work. Conversely the representation or performance of a
dramatic piece or musical composition in public does not deprive
the author of his common law right to publish as a book, or of
his copyright when he so publishes.[673] Performing right extends
throughout the British dominions.[674]


SECTION II.--PERFORMING RIGHT AT COMMON LAW.

It is doubtful whether there ever was any performing right at common
law. The only case from which it could be gathered that there was is
_Morris_ v. _Kelly_,[675] where an injunction was granted by Lord
Eldon restraining the performance of a comedy. The play was apparently
in manuscript, but it does not appear whether it had been performed
or not. The ground of the decision is very uncertain. From the fact
that the Lord Chancellor asked for proof that the assignment was in
writing, it might almost appear that protection was given under the
statute of Anne, which would certainly have been unsound. The decision
may also have been on the ground of common law right in unpublished
manuscript, _i. e._ the right to prevent any one but the owner from
interfering with it in any way, or it may have been on the ground of
breach of implied contract. Altogether the decision is unsatisfactory;
the application seems to have been _ex parte_, and the law hardly to
have been considered, so that it is impossible to base any definite
proposition of law on the case. On the other hand Erie, C. J., stated
in the course of the argument in _Marsh_ v. _Conquest_,[676] that
there was no performing right at common law. For his authority,
however, he cites _Murray_ v. _Elliston_,[677] which is hardly
sufficient to support the proposition. In _Murray_ v. _Elliston_
a tragedy by Lord Byron was printed and published for sale. The
defendants abridged it and represented it on the stage in the abridged
form. It was argued for the defendant that the tragedy having been
printed and published as a book, must depend for protection entirely
on the statute of Anne in accordance with the decision in _Donaldson_
v. _Beckett_.[678] The statute of Anne gave no performing right, and
therefore there was no protection. The Court gave judgment for the
defendant, but the ground of their judgment is not quite clear. Some
stress seems to be laid on the fact that the tragedy was abridged, and
it is therefore left doubtful whether the judges would have considered
the representation of an unabridged version to be an infringement
of the plaintiff's rights. In either view it is not a decision that
there was no performing right at common law. Another case which may be
relied on for the contention against performing right at common law is
_Coleman_ v. _Wathen_,[679] but on examination it will be seen that
all that case decides is that the statute of Anne gave no performing
right, and that representation on the stage was not an infringement of
copyright.

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


SECTION III.--WHAT IS A DRAMATIC WORK.

The subject of dramatic performing right must be--

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

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

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

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

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

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

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

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

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

    "The fact that it is sung in costume does not make it a dramatic
    piece. If the dress of the singer could have that operation,
    the singer and not the author of the song would be the person
    who caused it to be a dramatic piece. The same may be said of
    the manner in which the singer treats the song. The question
    must be what was the character of the composition when it was
    first written and published. I can quite understand that it is
    possible that a thing to be performed by one person only may be a
    dramatic piece. But whether the composition is to be sung by one
    or more persons, if a song is sung, and only a song, there is no
    performance of a dramatic piece."

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

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

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

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

Yet it was held that it was no infringement of the author's right to
put this novel into dramatic form and represent it on the stage. If
the novel could have been considered a dramatic piece on account of
its "dramatic character," it ought to have been protected against the
performance of an adaptation. Mr. Scrutton in his book on copyright
considers that "the dramatic character consists in the representative
as opposed to the narrative element:" but this seems rather a return
to the older theory in _Russell_ v. _Smith_[691] and contrary to
_Fuller_ v. _Blackpool Winter Gardens_.[692] For instance, a poem,
song, or piece for recitation may be representative in that it depicts
action and dialogue rather than narrates events: this according to
_Russell_ v. _Smith_[693] would constitute it a "dramatic piece," but
according to _Fuller_ v. _Blackpool Winter Gardens_[694] we must find
not only the "representative element" but an element which requires
acting in order to represent it adequately.[695]


SECTION IV.--WHAT DRAMATIC WORKS ARE PROTECTED: DURATION OF PROTECTION.

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

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

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

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

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

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

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

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

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

The whole difficulty lies in the meaning of the words "first
published" as applied to the performing right. In _Boucicault_ v.
_Delafield_,[703] and _Boucicault_ v. _Chatterton_,[704] it was held
that when an unpublished play was first performed outside the British
dominions the performing right in this country was extinguished. "First
published" was held to include the "first performance" of a drama.
This, however, only provides for one possible contingency. As the
literary exchange with America, with which we have no international
convention, is becoming larger every year, it may be useful to consider
some of the other contingencies which may arise, and the difficulties
of which are not yet judicially solved. The cases suggested are in
connexion with the United States, but apply equally to any foreign
country, except in so far as rights may be acquired under International
Convention.

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

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

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

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

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


SECTION V.--WHAT IS A MUSICAL COMPOSITION.

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


SECTION VI.--WHAT MUSICAL WORKS ARE PROTECTED: DURATION OF PROTECTION.

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

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

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

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

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


SECTION VII.--REGISTRATION OF PERFORMING RIGHTS.

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

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

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

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

This is probably correct, although it may not strictly be in
accordance with the proviso in section 20, viz.: "save and except
that the first public representation or performance of any dramatic
piece or musical composition shall be deemed equivalent in the
construction of this Act to the first publication of any book." If,
however, the provision as to registration in section 11 were strictly
construed in accordance with this proviso, the result is that the
proper registration would be:

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

It is obviously absurd that this should be the form of registration
when the dramatic piece or musical composition has been printed and
published, and that the form in section 20 should be the form of
registration when it is in manuscript. The distinction between the two
forms is meaningless.

Section 24 of 5 & 6 Vict. c. 45, which enacts that no action for
infringement of copyright shall be brought unless the book is
registered, provides "that nothing herein contained shall prejudice
the remedies which the proprietor of the sole liberty of representing
any dramatic piece shall have by virtue of the Act 3 & 4 Will. IV. c.
15, or of this Act, although no entry shall be made in the book of
registry aforesaid."

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

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

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

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


SECTION VIII.--ASSIGNMENT OF PERFORMING RIGHTS.

The performing right in dramatic pieces and musical compositions can
only be transferred by a written assignment[727] or by entry on the
register.[728] See decisions as to assignment of copyright;[729] but
note that as regards performing right the assignment, even if before
publication or performance, must be in writing.[730] The performing
right will not pass by a mere conveyance of the copyright in a
dramatic or musical work[731] unless an entry shall be made of such
assignment in the register expressing the intention of the parties
that such right should pass.[732] As in the case of copyright, there
is no express enactment that assignment must be in writing; but it is
inferred from the fact that a licence which is a smaller right cannot
be given except by writing.[733] The assignment does not require
to be by deed,[734] and if by written document it is valid without
registration.[735] Section 22 of 5 & 6 Vict. c. 45 appears at first
sight to make registration necessary in every assignment of performing
right, at least if the copyright is assigned with it; but this is not
so. If in the written assignment there is a specific conveyance of the
performing right,[736] or if general words are used such as "all other
the estate, right, title, and interest," showing that something else
than the copyright was intended to be conveyed, the performing right
will pass without registration.[737] Cotton, L. J., in considering this
section, says:

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

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

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

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


SECTION IX.--INFRINGEMENT OF DRAMATIC PERFORMING RIGHTS.

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

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

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

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

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

In the judgment of Brett, M. R., in _Wall_ v. _Taylor_[746] there
is a suggestion that although a single item in a programme might
be dramatic, that would not be sufficient to render the whole
entertainment dramatic or to make the place a place of dramatic
performance. In _Duck_ v. _Bates_[747] the defendant represented a
dramatic piece without the author's consent. The representation took
place in a room of Guy's Hospital, and was provided entirely for the
amusement of the nurses and attendants of the hospital. The medical
officers of the hospital, the students and some of their friends were
present. A reporter to a theatrical newspaper was also present by
invitation. It was held by Brett, M. R., and Bowen, L. J. (Fry, L. J.,
dissenting), that the room was not a place of dramatic entertainment.
Neither profit[748] nor habitual use were essential elements, but
there must be a representation to which a portion of the public is
admitted. Brett, M. R., said:

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

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

    "We should take away a part of the protection conferred on authors
    if we hold that there could be no public representation without
    these accompaniments."[749]

=Substantial Part.=--As in literary copyright the part taken must
be material and substantial in order to infringe performing right.
In _Chatterton_ v. _Cave_,[750] Lord Chief Justice Coleridge at the
trial found as a fact "that two scenes or points of the drama of the
defendant had been taken directly from the drama of the plaintiff;"
there was no further copying. He thereupon gave judgment for the
defendant. On a rule for a new trial, Lord Coleridge, sitting in the
Court of Common Pleas, stated orally that what he meant to convey
by his finding was, "that looking to the general character of the
plaintiff's and defendant's dramas, the extent to which the one was
taken from the other was so slight, and the effect upon the total
composition was so small, that there was no substantial and material
taking of any one portion of the defendant's drama from any portion
of the plaintiff's." On this explanation the rule was discharged, and
the judgment subsequently affirmed by the Court of Appeal and the
House of Lords. Lord Hatherley said that the principle _de minimis non
curat lex_ applied to a supposed wrong in taking a part of dramatic
works as well as in reproducing a part of a book. He could not read
the word "part" in the Dramatic Copyright Act as "particle," so that
the crowing of the cock in "Hamlet," or the introduction of a line
in the dialogue might be held to be an invasion. In _Planché_ v.
_Braham_,[751] Tindal, C. J., directed the jury that if either one
song, or more than one song be taken from a piece and be performed on
the stage or any place of theatrical entertainment, that would be a
"representing" within the Act of Parliament. The jury, having found
that the defendant had represented "a part of the plaintiff's opera,"
a rule for a new trial was refused.[752] In _Beere_ v. _Ellis_,[753]
two plays purported to be founded on the same novel. The defendant's
play contained some of the dialogue and several dramatic incidents and
situations taken directly from the plaintiff's play. Baron Pollock
held that a small piece of dialogue would not alone amount to an
infringement, but the defendant had taken two dramatic incidents on
which the plot of the play depended. He had therefore taken a material
part, and although he had done a considerable quantity of work for
himself, he had "extracted the plums" from the plaintiff's work, and
this he was not entitled to do. An indirect taking is, as in literary
copyright, an infringement, _e. g._ to copy and perform passages from
a play by dramatizing a novel founded on that play.[754] It is no
infringement to produce a play almost identically similar to that of
another author, if this is the result of coincidence and not of any
piracy direct or indirect.[755] As to the taking of a plan or idea,
see the chapter on infringement of literary copyright.[756] There must
be more than the taking of a general idea or scheme. Lord Blackburn,
in _Chatterton_ v. _Cave_,[757] said:

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

=Causing to be Represented.=--The "penalty" prescribed by the Act of 3
& 4 Will. IV. c. 15 is recoverable from those who "represent or cause
to be represented" an unauthorised work. Section 20 of 5 & 6 Vict. c.
45 provides "that the sole liberty of representing, or performing, or
causing or permitting to be represented or performed, any dramatic
piece or musical composition, shall endure," &c. Notice that this
section uses the word "permitting," whereas 3 & 4 Will. IV. c. 15
only uses "represent or cause to be represented." The later statute,
however, does not purport to extend the nature of performing right,
and therefore the word "permitting," if it have any meaning at all,
can only be explanatory of the words "cause to be represented" in the
earlier statute. When then does a person "cause a dramatic piece to be
represented"? Shortly, the answer probably is, that if he does not
actually take part as an actor, the defendant must be shown to have
had some initiation in or control over the performance. In _Parsons_
v. _Chapman_,[758] an acting manager, who paid the performers'
salaries, and was entitled to dismiss them, was held to have caused a
dramatic piece to be represented within the meaning of 10 Geo. III.
c. 28, sec. 1. In _Russell_ v. _Briant_,[759] the defendant was the
landlord of "The Horns" Tavern, at Kennington. His premises included
a large assembly room which was hired for evening entertainments. The
defendant furnished the platform and the lights, and allowed bills to
be put up in the tavern, and tickets of admission to be advertised to
be sold at the bar. At one entertainment a song, "The Ship on Fire,"
which in _Russell_ v. _Smith_[760] was held to be a copyright dramatic
piece, was sung. It was held that the defendant had not represented or
caused to be represented the dramatic piece in question. Wilde, C. J.,
said that no one could be considered as an offender unless by himself
or his agent he actually took part in the representation. In _Lyon_
v. _Knowles_[761] the defendant let his theatre. He provided and paid
for the scenery, lights, printing, advertising, band, doorkeepers,
scene-shifters, and supernumeraries. His servants collected the money
at the door, and he retained half the gross profits to recoup himself.
The lessee brought his own company, and represented pieces of his own
choice, the defendant having no control over any person employed in
the representation. It was held that the defendant had not caused the
piece to be represented within the meaning of the Acts. In _Marsh_ v.
_Conquest_[762] the defendant was the proprietor of a theatre, and
his son, the acting manager, hired it for a "benefit." The Court held
that the defendant came within the statute. Erle, C. J., delivered the
judgment of the Court:

    "It appears that the defendant is the proprietor of the Grecian
    Theatre, and the employer of the dramatic corps attached thereto;
    that his son, the stage manager, hired for his benefit-night the
    theatre, together with the company of actors, and servants, and
    lights, for the sum of £30; and that the son, in the defendant's
    theatre, and with the aid of his actors and actresses, musicians,
    servants, lights, and other paraphernalia, represented the
    dramatic piece in question, in violation of the plaintiff's
    sole and exclusive right of representing or causing it to be
    represented. I think the defendant is responsible for that
    representation. He was the proprietor of the theatre, and had
    entire control over the establishment and all belonging to it, and
    what was done by his son was done with his permission."

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

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

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

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

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

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


SECTION X.--INFRINGEMENT OF MUSICAL PERFORMING RIGHTS.

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

    "Substantially the piracy is when the appropriated music, though
    adapted to a different purpose from that of the original, may
    still be recognised by the ear."

This test, however, will hardly apply to the piracy of an adaptation
where the air or melody is a non-copyright one. A comparison of the
actual notes and treatment of the phrases would have to be made.

=Public Performance.=--It has been contended that the protection
afforded by 3 & 4 Will. IV. c. 15 to musical compositions is only an
exclusive right of performance in places of dramatic entertainment.
That is the protection given to dramatic pieces, and it was said
that 5 & 6 Vict. c. 45, in applying 3 & 4 Will. IV. c. 15 to musical
compositions did not give them a wider protection than dramatic pieces
had. In _Wall_ v. _Taylor_[775] the Court held that this view was
wrong. Bowen, L. J., said:

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

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

=Causing to be Represented.=--The offence is representing or "causing
to be represented." As to what the latter includes see page 139, on
performing right in dramatic pieces. The liability for "causing to
be represented" differs from that in the case of dramatic pieces
in that since the Copyright (Musical Compositions) Act, 1888, "the
proprietor, tenant, or occupier of any place of dramatic entertainment
or other place at which any unauthorised representation or performance
of any musical composition shall take place ... shall not by reason
of such representation or performance be liable to any penalty or
damages in respect thereof, unless he shall wilfully cause or permit
such unauthorised representation or performance, knowing it to be
unauthorised."[776] In respect of those who are not proprietors,
tenants, or occupiers the liability is the same as in the infringement
of dramatic performing right.


SECTION XI.--REMEDIES FOR INFRINGEMENT OF DRAMATIC PERFORMING RIGHTS.

An action for--

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

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


SECTION XII.--REMEDIES FOR INFRINGEMENT OF MUSICAL PERFORMING RIGHTS.

An action for--

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

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



CHAPTER VI

COPYRIGHT IN ENGRAVINGS


SECTION I.--WHAT WORKS ARE PROTECTED.

The following works are protected under the Engraving Acts:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Mellish, L. J., said:

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

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

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

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

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

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

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

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

Before 1886 the work had to be published in the United Kingdom.[809]
Now first publication anywhere within the British dominions will be
sufficient to secure the copyright.[810]

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

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

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

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

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

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

But Buller, J., in the same case, thought the proprietor always meant
the inventor and first proprietor, notwithstanding the property had
passed to his assignee. The point is certainly doubtful, but the
latter view that the name of the first proprietor only need be on
the print seems the more reasonable, and not contrary to the wording
of the Act. The proprietor need not be described as such on the
plate.[816] If his name is there it is sufficient, even if there is
more than one name and it is uncertain which is the proprietor.[817]
The proprietor need not be described by his full name, his surname
is sufficient.[818] When a partnership firm are proprietors of an
engraving the trading name of the firm is a sufficient designation,
inasmuch as it enables parties to know whom to apply to for
information.[819] If a single proprietor trades under the designation
of A. B. & Co. that is a sufficient designation.[820]

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

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

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

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


SECTION II.--THE OWNER OF THE COPYRIGHT.

=The Engraver.=--The persons to whom the copyright is given by the
Acts are, "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, etched, or worked in mezzotinto or chiaro oscuro any prints
... and every person who shall engrave, etch, or work in mezzotinto or
chiaro oscuro, or cause to be engraved, etched, or worked any print
taken from any picture."

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

=The Employer.=--When one man employs another to execute an engraving
it would seem that by the Acts[825] the copyright vests _ab initio_ in
the employer:

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

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

    "As to whether the design or invention is that of the plaintiff
    or not is a mere matter of character.... The compiler has proved
    that it is the design of the plaintiff; that the plaintiff brought
    to him his rough sketch or draught, a drawing of the same size
    as the stone on which it was to be engraved, pointing out, as
    the compiler has said, 'a rough sketch of the forts and towns to
    give me an idea; he furnished me also with a large French map,
    and some maps published in the _Times_ and _Daily Telegraph_; he
    gave me notice also daily of the earthworks that were made and
    produced, besides a picture published in the _Illustrated London
    News_.' That the plaintiff cannot draw himself is a matter
    wholly unimportant if he has caused other persons to draw for
    him. He invents the subject of the design beyond all question.
    He prescribes the proportions and the contents of the design;
    he furnishes a part of the materials from which the drawing has
    to be made in the first instance, and afterwards collects daily
    from the proper sources, and even, if it be necessary to say so,
    from official sources, the decrees, the reports, the bulletins
    and accounts contained in the newspapers of the different phases
    of the war, and especially of the places in which earthworks are
    thrown up. These he communicates to the man whom he has employed
    to make a drawing for him.... It is clear to my mind that this
    is a work of diligence, industry, and for aught I know of genius
    on the part of the plaintiff, for the notion never seems to have
    occurred to the compiler himself."

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

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

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

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

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


SECTION III.--INFRINGEMENT OF THE COPYRIGHT.

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

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

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

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

Further it is an offence--

  5. Innocently to publish, sell, or expose for sale, any
     pirated copy.[842]
  6. To make a copy or copies, whether for sale or not.[843]
  7. To cause or procure any of these acts to be done.

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

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

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

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

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

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

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

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

=What is a Piratical Copy.=--The right under the Acts is "the sole
right and liberty of printing and reprinting the same,"[856] and the
prohibition is against "engraving, etching, or working in mezzotinto
or chiaro oscuro or otherwise, or in any manner copying, in the whole
or in part, by varying, adding to or diminishing from, the main
design."[857]

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

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

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

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

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

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

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

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

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

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

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



CHAPTER VII

COPYRIGHT IN SCULPTURE


SECTION I.--WHAT WORKS ARE PROTECTED.

The following works are protected under the Sculptures Act:

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

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

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

=What is an Original Sculpture.=--The work protected is "any new and
original sculpture, or model, or copy, or cast of the human figure or
human figures, or of any bust or busts or of any part or parts of the
human figure clothed in drapery or otherwise, or of any subject being
matter of invention in sculpture, or of any alto or basso-relievo
representing any of the matters or things hereinbefore mentioned, or
any cast from nature of the human figure or of any part or parts of
the human figure, or of any cast from nature of any animal or of any
part or parts of any animal, or of any such subject containing any
of the matters or things hereinbefore mentioned, whether separate or
combined."[882]

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

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

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

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

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

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

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

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

=Immoral Works.=--Profane, libellous, or indecent works will not be
protected. There are no direct authorities in respect of unlawful
works of sculpture, but as in books,[899] paintings,[900] and
engravings[901] the general policy of the law not to take an account
between wrong-doers will apply.

=Duration of Protection.=--Statutory protection commences on
publication.[902] Before publication the unpublished work will
be protected at common law from any use which may be made of it
without the permission of the owner. After publication the statutory
protection alone exists and subsists for fourteen years[903] with a
further term of fourteen years if at the expiration of the first term
the person who originally made or caused the sculpture to be made is
alive and has not parted with the copyright.[904]


SECTION II.--THE OWNER OF THE COPYRIGHT.

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

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

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


SECTION III.--INFRINGEMENT OF THE COPYRIGHT.

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

The prohibited Acts are[906]--

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

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

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

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

_Limitation of Action._--All actions under the Act must be commenced
within six months of the discovery of the offence sued on.

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

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

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

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



CHAPTER VIII

COPYRIGHT IN PAINTINGS, DRAWINGS, AND PHOTOGRAPHS


SECTION I.--WHAT WORKS ARE PROTECTED.

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

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

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

Protection is limited to the United Kingdom.[916]

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

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

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

=Publication outside the British Dominions.=--Copyright in works of
art under the Act of 1862 begins on the making thereof, and is not
dependent on publication. It is immaterial where the work is made,
whether in the British dominions or elsewhere, and it would be as
immaterial where it was first published, or whether it was published
or not, but for the provision of the International Copyright Act,
1844. Section 19 of this Act provides that the maker of a work of art
which shall be first published out of the British dominions shall not
have copyright therein otherwise than such as he may become entitled
to under the International Acts; which means that where there is no
treaty a work first published abroad is not protected at all. The
result of this section was evidently not contemplated when the Fine
Arts Act, 1862, was framed. There seems to be no doubt that the work,
wherever made, will acquire copyright immediately on the making, but
that that copyright may be lost if the work is published abroad before
it is published in the British dominions.

_Published._--A painting, drawing, or photograph is probably published
when it is so exhibited as to give the public an opportunity of
viewing it. The leading case on publication of works of art is
_Turner_ v. _Robinson_[923] in the Court of Chancery in Ireland. This
case was decided before 1862, and therefore before there was any
statutory copyright in paintings. The subject-matter was a painting
from which certain stereoscopic views had been taken without the
proprietor's consent. The painting had been previously, with the
consent of the proprietor, published in the form of an engraving
in a magazine, and exhibited at the Royal Academy in London and in
Manchester. It was then exhibited with the proprietor's consent
in Dublin for the purpose of obtaining contributors to a proposed
engraving, and while so exhibited the defendant, without consent,
copied it and produced his stereoscopic photographs. The Master of the
Rolls[924] thought that the picture had never been published, because
the exhibitions to the public in the Academies and in Dublin were on
the condition that no copies should be taken, and the engraving in the
magazine was not a publication of the picture, but only of a rough
representation of it. He therefore held that the common law right in
the picture had not been lost by publication, and that the proprietor
could recover against the taker of the stereoscopic views as against
an infringer of common law rights. The Court of Appeal in Chancery
upheld the judgment of the Master of the Rolls, but on different
grounds. They said it was unnecessary to decide whether there had been
publication in London and Manchester since, in their opinion, the act
of the defendant in taking stereoscopic views from the painting was a
breach of faith. He was admitted to the view in Dublin for one purpose
only, _i. e._ to become if he wished a subscriber to an engraving; but
he abused his privilege by taking a copy of the painting which might
well compete with the plaintiff's proposed engraving. The defendant
was, therefore, restrained on the ground of breach of faith or implied
contract. In his judgment the Lord Chancellor disapproved of the
view of the Master of the Rolls that there had been no publication
in London or Manchester. He thought exhibition in the Academy,
even although to a certain extent conditional, would be sufficient
publication to vest the copyright, _e. g._ in a work of sculpture
under the statutes applicable to such works. Exhibition in a public
gallery, therefore, would be publication, but not a private view in
the artist's studio to which only a small and selected portion of
the public are invited. Whether the publication of a print would be
publication of the picture from which it was taken, _quære_; the
Master of the Rolls thought not, and on this point the Court of Appeal
neither approved nor disapproved.

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

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

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

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

_The Requisite Entry._--There must be registered:

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

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

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

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

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

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

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

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

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

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

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

apply _mutatis mutandis_ to registration of paintings, drawings, and
photographs.

The charge for making an entry is one shilling.

_Name._--The trading style of a firm is a sufficient registration of
the name of a proprietor.

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

_Short Description of the Nature and Subject of the Work._--The title
of the work will sometimes be a sufficient description. The following
were held sufficient descriptions of Sir John Millais' well-known
pictures, viz.: "Painting in oil, 'Ordered on Foreign Service'";
"Painting in oil, 'My First Sermon'"; "Photograph, 'My Second
Sermon.'"[940] Blackburn, J., said:

    "It is the object of the legislature that enough be stated to
    identify the production, and that the registration must be _bonâ
    fide_, that a man shall not first claim one thing and then sue
    for another. The description must be such as shall earmark the
    subject.... The picture 'Ordered on Foreign Service' represents
    an officer who is ordered abroad taking leave of a lady, and no
    one can doubt that is the picture intended.... There may be a
    few instances in which the mere registration of the name of the
    picture is not sufficient: for instance, Sir Edwin Landseer's
    picture of a Newfoundland dog might possibly be insufficiently
    registered under the description of 'A Distinguished Member of the
    Humane Society.' So also of a bullfinch and a couple of squirrels
    described as 'Piper and a Pair of Nut-crackers.' ... It would be
    advisable for a person proposing to register to add a sketch or
    outline of the work."[941]

In the learned judge's opinion deficient description although it would
not be sufficient in itself, may be made sufficient by the addition of
a photograph, sketch, or outline. It would seem, however, that there
must be a description of some kind, and that a photograph or sketch
would not by itself be sufficient.

=Immoral Works.=--There will be no copyright in profane, libellous, or
indecent[942] works of art.

=Duration of Protection.=--The copyright under the Fine Arts Act
endures for the term of the natural life of the "author" and seven
years after his death.[943]

Copyright will cease if and when any painting or drawing or the
negative of any photograph is sold by the first owner thereof without
either the express reservation in writing of such copyright to the
vendor signed by the vendee or his agent, or the express assignment in
writing of such copyright to the vendee signed by the vendor or his
agent.[944]

The copyright will also cease (probably) if the work is published out
of the British dominions before publication within the dominions.[945]


SECTION II.--THE OWNER OF THE COPYRIGHT.

=The Author.=--The copyright is given to "the author and his assigns,"
except when the work is executed for or on behalf of any other person
for a good or valuable consideration.[946] The author is the actual
artist whose mind has created the work.[947] The giving of ideas and
suggestions to another is not sufficient to constitute an author,[948]
but, on the other hand, there might be an author who had done little
or nothing of the manual work required in the execution. In _Nottage_
v. _Jackson_ the question of authorship in works of art was fully
discussed. Brett, M. R., said:

    "The author of a painting is the man who paints it, the author of
    a drawing is the man who draws it,... of a photograph the author
    is the person who effectively is as near as he can be the cause
    of the picture which is produced, that is, the person who has
    superintended the arrangement, who has actually formed the picture
    by putting the people into position and arranging the place in
    which the people are to be--the man who is the effective cause of
    that. Although he may only have done it by standing in the room
    and giving orders about it, still it is his mind and act, as far
    as anybody's mind and act are concerned, which is the effective
    cause of the picture such as it is when it is produced."

Cotton, L. J., in the same case, said:

    "In my opinion 'author' involves originating, making,
    producing, as the inventive or master mind, the thing which is
    to be protected, whether it be a drawing or a painting or a
    photograph.... It is not the person who suggests the idea but the
    person who makes the painting or drawing who is the author."

=The Employer.=--When an artistic work, protected by 25 & 26 Vict. c.
68, is executed by the author for or on behalf of any other person for
a good or valuable consideration, the copyright vests in the employer
and his assigns, unless it be expressly reserved to the author by
agreement in writing signed by the employer.[949] This provision
applies to the everyday case of a person employing and paying a
painter or photographer to take his portrait. The copyright vests
in the customer.[950] The case, however, is not always so simple.
Difficult questions arise where the artist, usually a photographer,
requests the sitter, probably an actress or athlete, to allow his
portrait to be taken on the understanding that the artist may publish
and sell copies.[951] The sitter probably receives free copies or
copies at a reduced price. The difficulties to be solved are purely
questions of fact in each case, viz.:

  1. Was the portrait taken for or on behalf of some person
     other than the artist?
  2. Did the artist receive good and valuable consideration?

As a rule, where a photographer invites celebrities to sit for
him, the understanding will be that the portrait is taken on the
photographer's behalf;[952] but at the same interview some plates
might be taken on behalf of the photographer and some on behalf of the
sitter.[953] The valuable consideration received by the photographer
need not be a money payment, but may consist merely in the right given
to him to publish and sell copies.[954]

When a managing director of a company employed A to make drawings for
a trade catalogue, the letterpress of which he wrote himself, it was
held that he was acting merely as agent for the company, and that as
the drawings were made not on his behalf but on behalf of the company
he was not the proprietor.[955]

=The Assignee.=--Assignment is required to be by some note or
memorandum in writing signed by the proprietor of the copyright or his
agent appointed for that purpose in writing.[956] Registration is not
necessary to effect assignment,[957] although the assignee must be
registered before he can sue.[958]

No particular words are required in an assignment,[959] but there must
be a present grant and not only an executory contract.[960]

_Partial Assignment._--It is doubtful whether a copyright can be
partially assigned, either limited as to a copying of a particular
kind or limited as to place or time.[961] What is called by the
parties an assignment may only amount to a licence. In _Lucas_ v.
_Cooke_[962] the proprietor of the copyright in a picture granted the
following document to an engraver: "I assign to you for the purposes
of an engraving of one size the copyright of the picture painted by
Mr. E. V. Eddie, entitled "Going to Work," and being a portrait of my
daughter." Fry, J., said:

    "The result of this instrument in my view was that after the
    preparation of the engraving and the registration, Mr. Lucas (the
    engraver) became the owner of the copyright of the print or
    engraving, and Mr. Halford remained the owner of the copyright of
    the painting."

It was held that the engraver, in order to succeed against a copyist,
would have to show that the alleged infringement was a copy of his
engraving, another copy of the picture itself was no infringement of
his rights. The transaction was a licence, and probably a licensee can
never sue in his own name. In one case,[963] however, Mathew, J., held
that a sole licensee for a limited time could sue, and did not require
to be registered. The plaintiff had acquired from the proprietor of
the copyright in a picture the sole right to reproduce it in chromo
for two years. The defendants also produced a chromo of the picture
taken directly from the picture and not from the plaintiff's chromo.
Mathew, J., held that the plaintiff, as sole licensee, was entitled to
prevent any one infringing his right, and that being a licensee and
not an assignee, his name was not required to be on the register. This
is a very doubtful decision.


SECTION III.--INFRINGEMENT.

=Prohibited Acts and Remedies.=--The right given is "the sole and
exclusive right of copying, engraving, reproducing, and multiplying a
painting or drawing and the design thereof, or a photograph and the
negative thereof by any means and of any size."[964]

It is an offence for the author having parted with the copyright, or
for any other person not being the proprietor[965]--

  1. To repeat, copy, colourably imitate or otherwise
     multiply for sale, hire, exhibition, or distribution.
  2. Knowingly to import into the United Kingdom, or sell,
     publish, let to hire, exhibit, or distribute, or offer
     for sale, hire, exhibition, or distribution any copy
     unlawfully made.

And for any of the above offences an action lies at the instance of
the proprietor for[966]--

    i. Sum not exceeding £10 on each copy made or dealt
       with.[967]
   ii. Forfeiture of copies to the proprietor.[968]
  iii. Inspection and account.[969]
   iv. Damages.[970]
    v. Injunction.[971]

Penalties and forfeiture of copies may also be obtained by summary
proceedings before any two justices having jurisdiction where the
party offending resides.[972]

It is further an offence--

  3. Innocently to import or sell, publish, let to hire, exhibit,
     or distribute, or offer for sale, hire, exhibition,
     or distribution any copy made without the
     owner's consent.

For any of which an action lies at the instance of the proprietor of
the copyright for[973]--

    i. Damages.
   ii. Delivery up of copies,
  iii. Inspection and account.[974]
   iv. Injunction.[975]

In addition to sections 6 and 11, where importing is treated as an
infringement involving penalties and damages, section 10 contains a
direct prohibition against importing copies "made contrary to the
provisions of the Act," and on the declaration of the proprietor such
copies may be detained by the officers of Customs.[976]

_Cause or Procure._--It is equally an offence to "cause or procure"
any of the above acts.[977] It may be sometimes difficult to determine
whether a person has "caused or procured" within the meaning of the
section. In _Bolton_ v. _London Exhibitions_[978] the defendants
ordered a poster for the advertisement of their exhibition at Earl's
Court; they gave the lithographer a general idea of what was wanted,
and told him to do his best. The lithographer, in preparing the
poster, infringed the copyright in the plaintiff's photograph of
a lion. It was held that as the defendants did not authorise the
reproduction of the plaintiff's lion they had not "caused or procured"
the infringement complained of; the action against them was therefore
dismissed, but without costs, as they should have exercised more care
in the matter.

_Innocent Agent._--If a publisher procures a printer to strike off
copies of an infringement, the printer is liable even although
he is entirely innocent. It was argued in _Baschet_ v. _London
Illustrated_[979] that the printer was only liable if he printed for
his own use, and that if another caused or procured him to print, it
was only the person causing or procuring who was liable. It was held
that both the employers and employees were liable for the same offence.

_Unlawful Copy._--If a copy is made in a foreign country in which
the proprietor's copyright is not protected, such copy is not a copy
"unlawfully made," and therefore no penalties will attach under
section 6 for knowingly importing or selling such copy;[980] but
under section 11 damages may be sued for, since under that section
it is an offence to import or sell copies made without consent, and
delivery up may be claimed under the same section, because such copies
when offered for sale become unlawful copies although not unlawfully
made.[981] The same distinction applies to selling or importing copies
made before registration, such copies not being "unlawfully made."[982]

_Separate Offence._--Each piratical copy made or dealt with, and not
only each transaction, is an offence under section 6, and involves a
separate penalty.[983] Blackburn, J., says in _ex parte Beal_:[984]

    "It would be a monstrous absurdity if a man might import a cargo
    of pirated works from France and £10 be the utmost penalty that
    could be imposed. Such a state of the law would render it worth a
    man's while to do wrong."[985]

It was held in several cases[986] that as 1/4d. was the smallest coin
of the realm, the minimum penalty must be 1/4d. for each copy. This
has now been overruled in the Court of Appeal in _Hildesheimer_ v.
_Faulkner_,[987] and a fraction of 1/4d. can be assessed as the penalty.

_Copying for Private Use_ will probably not be actionable, since
the offence is to copy, &c., for sale, hire, exhibition, or
distribution.[988] Gratuitous distribution would, however, be
actionable.

_Action on Breach of Contract._--Although no action may lie for
infringement, either because the party aggrieved has no copyright
or is not duly registered, there may be a remedy for breach of
contract express or implied. Thus if A contract to make copies of B's
drawing, even although B has no copyright therein, it is a breach of
contract for A to make any copies other than for the use of B.[989]
And again, a photographer who has been employed by a customer to
take his portrait is not justified in striking off copies of such
photograph for his own use, or selling or exhibiting them by way of
advertisement or otherwise, without the authority of such customer
express or implied, and even although the customer is not registered
as proprietor of the photograph.[990]

_Fraudulent Acts._--The following acts if committed fraudulently are
rendered penal by the Act:[991]

  1. To affix any name, initials, or monogram on any
     work.[992]
  2. To sell, exhibit, &c., a work bearing false name, initials,
     or monogram.
  3. To represent a copy as the work of an original
     "author."
  4. To sell or publish an altered work as the unaltered
     work of an original "author."

For any of these fraudulent acts the person aggrieved may recover by
action[993]--

    i. Sum not exceeding £10 or double the full value of
       the fraudulent works.
   ii. Delivery up of the fraudulent works.
  iii. Injunction.

But such penalties will not be incurred if the person whose name or
work has been fraudulently dealt with has been dead for more than
twenty years.

_Limitation of Action._--There is no special limit fixed by the Act of
1862, and therefore the remedy on an offence within the statute will
not be barred for six years.[994]

_Evidence._--In any action for the infringement of copyright in a
picture, it will be sufficient to produce in evidence an authenticated
copy of the picture, _e. g._ a photograph with the oral evidence of the
photographer.[995]

=What is a Piratical Copy.=--_No Monopoly._--There can be no monopoly
of the subject-matter of a painting, drawing, or photograph. Another
artist may independently represent the same scene or object as that
represented in a copyright work.[996]

_What is a Copy._--A piratical copy need not necessarily be an
artistic work of the same kind as the work pirated. Thus an oil
painting is infringed by a photograph of it,[997] and a photograph
may be infringed by a pencil sketch.[998] An infringement may consist
of either a taking of the design or a taking of the method of
execution, or both. Thus an infringement need not even be a kind of
work which would be protected by this Act. Although there is no direct
authority, it is clear from section 2, which gives the exclusive
right to the design of the work protected, that an engraving would
be an infringement of a painting, drawing, or photograph, and so
perhaps might a piece of sculpture.[999] Then again the design may
not be copyright, for instance, in the case of a photograph of a
non-copyright picture, and yet it would be an infringement to take a
photograph of such a photograph. That would be a taking of the method
of execution.[1000]

The infringement must be an artistic work of some kind, _i. e._ such
a work that would be protected if not under the Act of 1862, under
the Engraving Acts or Sculpture Act. In _Hanfstaengl_ v. _Empire
Palace_[1001] the Court held that the grouping of people on a stage so
as to form _tableaux vivants_ was not an infringement in the copyright
of a picture thus represented. Kay, L. J., in his judgment, said:

    "Could it possibly have been said the _tableaux vivants_ were
    pictures within the sense of this Act, and does not a reproduction
    mean something in which, if the original author of the painting
    had himself produced it, he might have had copyright."

_General Idea may be Taken._--It is not an infringement to take
merely the general idea of subject-matter and treatment from a
copyright work of art. In _Hanfstaengl_ v. _Baines_,[1002] the
_tableaux vivants_ which were the subject of the last case cited were
sketched and reproduced in the _Daily Graphic_. It was contended that
these sketches infringed the copyright in the pictures from which
the _tableaux vivants_ were taken. The House of Lords, affirming
the judgment of the Court of Appeal, held that they did not. Lord
Herschell, L. C., in giving judgment, pointed out that the essence of
the design varied according to the nature of the picture. Sometimes it
might be principally in the grouping of the figures, sometimes in the
pose and countenances. Referring to one of the sketches complained of,
he said:

    "There is no doubt a resemblance between the sketch and the
    photograph from the painting. In each case a young man and a
    young woman are standing beside one another close to a stile or
    fence. In each case the woman is shading her head by a parasol,
    and the dress of the man is somewhat similar in the two, but
    the idea of a young man courting a young woman at a country
    stile is of great antiquity. It has often formed the subject of
    pictorial representation. This cannot be said to be the design
    of the plaintiff's painting within the meaning of the Act. Much
    more must be comprehended than this. There can only be a copy of
    such design if the treatment of the subject be the same. Now,
    comparing the sketch of the photograph from the painting, I do not
    think this can be said to be the case. The faces are different,
    the dress especially in the case of the woman is different, the
    pose is different, the attitudes are different, the backgrounds
    are different, and in the case of the sketch the foreground is
    wanting. In the artistic design all these things play a part,
    although I do not say that a variation in one or even more of
    these respects would prevent the sketch being a copy of the
    design. Yet, comparing the two and considering the design of
    the painting as a whole, I cannot avoid the conclusion that the
    sketch is not a copy of the painting or of the design thereof, and
    therefore there has been no infringement."

His lordship concluded by saying that such questions really depended
on the effect produced on the mind by a study of the picture and
of that which is alleged to be a copy of it. In _Guggenheim_ v.
_Leng_[1003] the plaintiff was the owner of the copyright in a
photograph of a football team. The defendant, without authority,
made from the photograph rough sketches of the various individual
portraits, and published them in his newspaper. It was held not to be
an infringement.

_Material Part._--There is no piracy of an artistic work unless a
material part of the work is taken. What amounts to a material part
must be a question of fact in each case, and it is impossible to lay
down any definite rule. In _Moore_ v. _Clarke_[1004] a horse was
taken from a copyright print and inserted in another print among
different surroundings. In the second print the horse appeared to
be going in a different direction, and the jockey on his back was
differently dressed. The judge directed the jury to consider whether
the defendant's engraving was substantially a copy of the plaintiff's,
and the jury came to the conclusion that it was not. In _Brooks_ v.
_Religious Tract Society_[1005] a collie dog, identical in expression,
attitude, and position, was, together with a wall in the background
and a table, taken from a copyright picture and inserted in a woodcut.
The woodcut differed from the picture in that the figure of a child
was omitted, and in its place two cats and a tortoise and other
details were inserted. Romer, J., held that there was a piracy:

    "It was not only the dog that was taken, but also the feeling and
    artistic character of the plaintiff's work.... If a person were
    to take an historical picture, and take out of it the principal
    figure, and reproduce that figure without the other surroundings,
    that would be an infringement. The present case was a stronger
    case, because the defendants had not only taken the principal
    figure of a dog, but copied as well the sentiment of the picture."

_Indirect Taking._--It is equally an infringement, although the
copying is indirect.[1006] Thus, for instance, the photograph of an
engraving may infringe the copyright of the picture from which it is
taken.[1007]

_Guilty Knowledge._--It is no defence to say that the taking was
an innocent one and unintentional.[1008] In the case of a claim
for penalties in respect of importing or selling piratical copies,
knowledge of infringement must necessarily be proved, but in no
other case. But the question of intention cannot always be wholly
disregarded, as it may guide the Court in determining whether the
alleged infringement is a copy or not.[1009]

_Replicas._--It is an infringement of the proprietor's right for an
author who has parted with his copyright to make a replica of the
work; but if he has made replicas before selling his copyright it
would be no infringement to sell these replicas. _Quære_ whether it
would be an infringement after selling his copyright in the original
work to take photographs or engravings of the replicas; probably it
would.

_Licence a Defence._--Licence must be in writing, signed by the
proprietor of copyright or by his agent authorised in writing;[1010]
but probably an oral consent would be a good defence.[1011]

An assignee is not bound by a licence granted by the assignor before
the assignment, unless he has notice of it.[1012]

The licensee will be kept strictly within the limits of his licence.
When a licence was granted to reproduce a photograph in one magazine,
it was held an infringement of copyright to reproduce it in another,
and the contention that there was a custom in the publishing trade
allowing this to be done on tender of payment was characterised as
ridiculous.[1013]



CHAPTER IX

COLONIAL COPYRIGHT


Every British Possession has the power to legislate independently
as regards the protection within its own territory of literary or
artistic works first produced therein.[1014] In respect of such
works they may either limit or extend the protection afforded by the
Imperial Acts. Most of our larger colonies have local Acts.[1015]
Some of the colonies[1016] have, for instance, created a copyright in
the news contained in foreign telegrams, a monopoly unknown under the
Imperial Acts. It is not proposed here to deal with the colonial local
Acts. They are of interest only in the various colonies themselves.
This chapter will be restricted to the rights of a work published in
one part of the British dominions to receive protection in any other
part of the British dominions. This is controlled by the Imperial
Copyright Acts, which extend since 1886 to every British Possession,
and protect works published anywhere therein apart from any local
legislation.

=Books.=--Before 1886, the Copyright Act, 1842, although it applied
to the whole of the British dominions, only protected those books
which were first published in the United Kingdom. A book, therefore,
published first, say in Canada or Australia, received no copyright
protection except by local legislation, if any, within the territory
of the particular colony where it was first published.

A book first published in the United Kingdom was protected in every
British colony, not only against copying but against the importation
of reprints. The smaller and poorer colonies found this a considerable
grievance. They alleged that they were unable to afford the price of
English books, and that as they were prohibited from importing foreign
reprints and had little or no contemporary literature of their own,
they were reduced to reading the classics or nothing at all. The
Colonial Copyright Act, 1847,[1017] was passed to give them relief.
It enacts that when reasonable protection to the British author shall
be provided in any British possession by the legislature of such
possession, Her Majesty may, by Order in Council, declare that so long
as such protecting provision shall be in force all Acts prohibiting
the importation or sale or hire of foreign copies shall be in respect
of such possession suspended. Altogether twenty colonies[1018] have
taken advantage of this Act. It has been found, however, that the
protecting provisions are of little value, and that the duties which
are supposed to be levied on foreign reprints for the benefit of the
British author are continually evaded, and the colonies under the
Foreign Reprints Act are overrun with foreign reprints of popular
books which, coming in practically free of duty, make the authors'
copyright in such colonies absolutely valueless.

Books first published in the colonies received Imperial protection
in 1886, when the International Copyright Act[1019] of that year was
passed. It enacts that the Copyright Acts shall apply to a literary or
artistic work first produced in a British Possession in like manner
as they apply to a work first produced in the United Kingdom,[1020]
with a proviso, firstly, that the enactments as to registration
shall not apply if the law of the Possession in question provides
for registration; and, secondly, that no delivery of copies shall
be required. There is also a provision for evidence of colonial
copyright by certified extract from the colonial register.

_Canada_ came under the Foreign Reprints Act, and, as a result, was so
inundated with cheap reprints from the United States that the Canadian
publishers, in 1875, obtained a local Act for their protection.[1021]
This Act enacts that works of which the copyright has been granted and
is subsisting in the United Kingdom, and copyright of which is not
secured or subsisting in Canada under any Canadian or provincial Act,
shall, upon being printed and published or reprinted and republished
in Canada, be entitled to copyright under the Canadian Act.[1022] It
prohibits _inter alia_ copying and importation of foreign copies, but
nothing in the Act is to be held to prohibit the importation from the
United Kingdom of copies of such works legally printed there. The
Canadian Act is confirmed by an Imperial Act, the Canada Copyright
Act, 1875,[1023] and this enacts that the Canadian copies of a British
book may not be imported into the United Kingdom without the author's
consent.

Although Canada came under the Foreign Reprints Act, 1847,[1024] and
in accordance therewith imposed duties on foreign reprints for the
benefit of the owner of the copyright, the collection of those duties
has now been abandoned by the Tariff Customs Act (Canada), 1894,[1025]
the result of which is that as regards Canada the provisions of the
Imperial Copyright Act, 1842,[1026] section 17, are revived and the
importation of foreign copies of works having an Imperial copyright is
again prohibited.[1027] The same result will occur in other colonies
which may by statute abandon their enactments for the collection of
authors' duties.

The Canadian Legislature has recently passed a Copyright Act[1028]
purporting to affect the importation into Canada of books published
under an Imperial Copyright. The Act provides that if a book has
acquired Imperial Copyright by first publication in the British
dominions outside Canada, and a licence has been granted for its
reproduction in Canada, the Canadian Minister of Agriculture may
prohibit the importation into Canada of any copies of such book
printed out of Canada and imported without the licensee's consent.

I think it is doubtful whether the last-mentioned Act is not _ultra
vires_ of the Canadian Legislature. The Canadians have, since the
British North American Act, 1867, claimed that they have the exclusive
power of legislating in respect of and regulating copyright within
the Dominion of Canada. This claim, however, has not been recognised
in the Canadian courts. In _Smiles_ v. _Belford_[1029] a book was
copyrighted in England, but not under the local Act of 1875 in Canada.
An action was brought by the proprietor to restrain a reprint of
the book in Canada. The defendants pleaded that the book was not
protected in Canada since it was not copyrighted under the local Act.
They argued that the British North American Act, in giving to the
Parliament of Canada "exclusive legislative authority" in certain
matters, including copyrights, excluded the operation of the Imperial
Acts in Canada. They further argued that the confirmation of the
Canadian Copyright Act, 1875, by the Imperial Parliament impliedly
repealed the Imperial Copyright Act of 1842 in so far as it extended
to Canada. The Court held that neither of these arguments was sound.
With reference to the argument on the British North American Act,
Burton, J. A., in the Court of Appeal, said:

    "It is clear, I think, that all the Imperial Act intended to
    effect was to place the right of dealing with colonial copyright
    within the Dominion under the exclusive control of the Parliament
    of Canada, as distinguished from the provincial legislatures.... I
    entirely concur with the learned Vice-Chancellor in the opinion he
    has expressed that under that Act no greater powers were conferred
    upon the Parliament of the Dominion to deal with this subject than
    had been previously enjoyed by the local legislatures."

As regards the Imperial Act confirming the Canada Copyright Act, 1875,
the Court held that it was passed merely to resolve doubts which would
otherwise have arisen as to whether the Canada Copyright Act was not
repugnant to the provisions of the Foreign Reprints Act, 1847, and
the Order in Council thereunder applicable to Canada. Burton, J. A.,
said:

    "It is scarcely reasonable to suppose that if the Imperial
    Parliament had thought fit to accept the Canadian enactment as
    a substitute for the 5 & 6 Vict. they would not have repealed
    it so far as it affected Canada in express terms, or that when
    stating a reason for Imperial legislation they would have confined
    themselves to a reference to the Order in Council, which dealt
    only with a portion of the prohibition referred to in that
    statute. I am of opinion, therefore, that they have stated the
    only reason which rendered it expedient to seek a confirmation of
    the Provisional Act, and that it was intended to preserve intact
    so much of the Imperial Act as prohibits the printing of a British
    copyright work in Canada, but giving to the author a further right
    on certain conditions of securing a Canadian copyright and thus
    preventing the importation into Canada of foreign reprints."

For some considerable time before the passing of the Canadian Act of
1900, the Canadians were negotiating for a clause in the Copyright
Bill in this country enabling them to pass a similar provision to that
which they have now passed without Imperial sanction. A clause was
inserted in Lord Monkswell's Literary Copyright Bill, 1900, proposing
to give to all the colonies such a power of protecting licensees. The
Canadians, however, impatient of the delay in copyright reform in this
country, passed their own Act without waiting to obtain authority. It
would certainly be satisfactory to see it confirmed by an Imperial
statute.

_Summary of Provisions in respect of Books._--The result of the
various enactments with reference to the colonies is that, as regards
copying, every book first published in any part of the British
dominions is protected in every other part of the British dominions.
The book must be duly registered either in the colony or dependency
where it is produced, or, if such colony or dependency does not
provide a proper system of registration, at Stationers' Hall in
London. The protection within the colony in which a book is first
produced depends on local legislation if such overrides the Imperial
legislation. As to importation of copies, the result is not so simple,
but it may be summarised thus:

If a book has been first published anywhere within the British
dominions, the following prohibitions apply:

I. _The United Kingdom._--There shall not be imported into, or sold
in, without the consent in writing of the owner of the copyright--

  Copies printed outside the British dominions.[1030]
  Copies printed in Canada under the Canadian Act.[1031]

II. _Canada._--If the book has been printed and published, or
reprinted and republished,[1032] and registered in Canada, there shall
not be imported into, or sold in, without the consent in writing of
the owner of the copyright--

    Copies printed outside Canada[1033] unless legally printed in the
    United Kingdom under an Imperial copyright existing prior to the
    acquirement of a Canadian local copyright.[1034]

If a book has acquired Imperial copyright by first publication within
the British dominions outside Canada, and the owner of the copyright
has granted a licence to reproduce it in Canada, there shall not be
imported (if the Minister of Agriculture so order) without the consent
in writing of the Canadian licensee--

    Copies printed outside Canada.[1035]

In other cases these shall not be imported or sold without the written
consent of the owner of the copyright--

    Copies printed outside the British dominions.

III. _Colonies under the Act of 1847 other than Canada._--There is no
prohibition except the nominal import duty on copies printed outside
the British dominions.

IV. _Other Colonies._--There shall not be imported into or sold in
without the consent in writing of the owner of the copyright--

    Copies printed outside the British dominions.[1036]

=Artistic Works.=--We have seen that since the International Copyright
Act, 1886, there is complete protection throughout the whole of the
British dominions for books first published anywhere therein. It was
evidently intended that artistic works should be placed on the same
footing, but unfortunately the distinction between the literary and
artistic Acts was overlooked. The Copyright Act, 1842, protected
books published in the United Kingdom, but expressly extended the
protection to the whole of the British dominions. None of the
artistic copyright Acts extend their protection beyond the United
Kingdom. The Engraving Acts expressly limit their protection to the
United Kingdom;[1037] the Paintings, Drawings, and Photographs Act
expressly limits its remedies to the United Kingdom;[1038] and the
Sculpture Act is silent as to the extent of its protection.[1039]
The result seems to be that although since 1886 all works of art
first published anywhere throughout the British dominions will be
protected by Imperial legislation, that protection extends no further
than the United Kingdom. This has been decided by a divisional Court
in Canada in respect of the Paintings, Drawings, and Photographs
Act, 1862.[1040] The decision will apply _a fortiori_ to engravings.
Sculptures may be different, in that there is no express limit
contained in the Sculptures Act; but probably a limitation of
protection to the United Kingdom will be implied. The result is that
artistic works are only protected in the Colonies and dependencies
under local legislation.



CHAPTER X

INTERNATIONAL COPYRIGHT


=Works first produced in His Majesty's Dominions= are protected in
those foreign countries with which there is a treaty for the mutual
protection of literary and artistic rights. These countries are the
signatories of the Berne Convention,[1041] and Austria-Hungary, with
which there is a separate treaty on similar lines. Generally it may
be presumed that each of these countries has by domestic legislation
given full effect to the international agreement, and that all works
which are protected in this country, and would have been protected if
first produced in the foreign country in question, will receive the
same protection there as would be accorded to a work first produced
in such foreign country. The protection, however, must be sought in
the foreign country and not here. The Courts of this country will not
grant any redress for the infringement of a British author's copyright
in a foreign State, even although such infringement be perpetrated by
a British subject resident in England.[1042]

=Works first produced in foreign countries with which this country has
no treaty= are in no way protected from infringement in the United
Kingdom, unless they are produced within His Majesty's dominions
simultaneously with their production elsewhere.[1043]

=Works first produced in foreign countries with which this country has
a treaty= are protected from infringement in His Majesty's dominions
by the domestic legislation of the United Kingdom.

Before December 6, 1887, foreign works were protected by virtue of the
International Copyright Acts of 1844, 1852, and 1875, and numerous
Orders in Council, now revoked, giving effect to treaties with various
foreign States. As the subsequent provisions under the International
Copyright Act, 1886, are retrospective, it is unnecessary to examine
the old law in any detail. On one important point, however, it will
be necessary to mention some of the provisions of the International
Copyright Acts which were applicable before December 6, 1887, since
the subsequent legislation, in giving protection to works which were
produced before that date and were then unprotected, enacts that its
retrospective effect shall not prejudice rights and interests lawfully
acquired before it came into operation. The law before 1887 has to be
examined to determine what these rights and interests are.

Since December 6, 1887, the rights of foreign authors in His Majesty's
dominions have depended on the provisions of the International
Copyright Acts of 1844, 1852, 1875, and 1886, the Berne Convention
of 1887, and an Order in Council of November 28, 1887. To these are
now added the Additional Act of Paris, 1896, and an Order in Council
of March 7, 1898. These may now all be read together, and apply to
all foreign works first produced in the countries to which they are
applicable. It should be mentioned here that Austria-Hungary has
a convention of its own, and in dealing with works produced there
that convention and the Orders in Council giving it effect must be
substituted for the Berne Convention and Additional Act of Paris
and the Orders in Council above mentioned. Norway has not become a
signatory of the Additional Act of Paris, and therefore in dealing
with works produced there the Berne Convention must be read as
unmodified by the Additional Act.

It is proposed to deal here in detail with the provisions of the
Acts, Orders in Council, and treaties as they apply to the majority
of the foreign countries, _i. e._ those which are signatories of the
Berne Convention and the Additional Act of Paris. As regards Norway
and Austria-Hungary the law differs very slightly. The law applicable
to Norway can easily be ascertained by reading the Berne Convention
without the Additional Act. The law applicable to Austria-Hungary is
almost identical, except that it affords protection in the United
Kingdom and all colonies except Canada, the Cape, New South Wales,
and Tasmania, and not in the whole of His Majesty's dominions, as in
the case of the signatories to the Berne Convention.

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

    Germany         }
    Belgium         }
    Spain           }
    France          }
    Haiti           }  Signatories of the Berne
    Italy           }    Convention, 1887, and Additional
    Switzerland     }    Act of Paris, 1896.
    Tunis           }
    Monaco          }
    Luxembourg      }
    Japan           }
    Norway             Signatory of the Berne Convention, 1887.
    Austria-Hungary    Having a separate convention,
                         April 24, 1893; given effect to by
                         Orders in Council, April 30, 1894,
                         and February 2, 1895.

=What Foreign Works are entitled to Protection.=--Those works are
protected which are first produced in any of the foreign countries of
the Union, and which--

  (_a_) Are protected by the law of the country of origin, and:
  (_b_) Would have been protected in the United Kingdom
      if first produced in the United Kingdom.

_Produced._--"Produced" means, as the case requires, published or
made, or performed, or represented,[1044] or, in other words, the
act which is deemed to vest the author or publisher of the work
with exclusive rights of reproduction or publication. Thus in the
United Kingdom a book or an engraving or sculpture is produced when
it is first published. A painting is produced when it is made. A
musical or dramatic work as regards the performing right is probably
produced[1045] when it is first performed or represented. But it
would seem that, in considering when a work is produced, the law of
the foreign country or countries in question must first be inquired
into, and it will be considered to be produced in the country where an
act is done which first invests it with protection in the nature of
copyright.

If a work is produced simultaneously in two or more countries of
the Union, it is deemed to be first produced in that country where
the term of copyright accorded to it is shortest. And if a work is
produced simultaneously in His Majesty's dominions and in one or more
of the foreign countries of the Union, and according to the above
rule is deemed to be first produced in a foreign country, it will be
protected under the International Acts and not under the Copyright
Acts applicable to works first produced in the United Kingdom, and
_vice versâ_. If a work is produced simultaneously in a foreign
country not within the Union and in a foreign country within it, it
would no doubt be deemed to be first produced in the foreign country
within the Union, although there is no legislative enactment to this
effect.

_Character of Work._--In order to obtain protection in this country,
a foreign work must be such as is protected in the country of
origin.[1046] In each case, therefore, it is necessary to inquire into
the laws of the country where the work is deemed to have been first
produced.[1047]

The work must also be such as would have obtained protection if first
produced in the United Kingdom,[1048] and it is therefore necessary in
each case to inquire also into the law of this country.[1049]

_Unpublished Works._--Unpublished works of foreign authors
are expressly included in the convention as works entitled to
protection.[1050] If, therefore, they are protected in the country
of origin, and would be protected if they had been the works of
British authors, they are entitled to protection within His Majesty's
dominions. In the case of unpublished works the country to which the
author belongs is considered the country of origin.[1051]

_Special Provisions._--There is also express stipulation in the
conventions as to the inclusion of the following works:

  Posthumous works:[1052]
  Authorised translations (to be protected as original works):[1053]
  Photographic works and works produced by an analogous process:[1054]
  Choregraphic works.[1055]

=Works produced in Foreign Countries before December 6, 1887.=--As is
explained above the international treaties and domestic legislation
in this country are retrospective, and apply to all works whenever
produced. The International Act, 1886, sec. 6 (1),[1056] provides
that--

    "When an Order in Council is made under the International
    Copyright Acts with respect to any foreign country, the author
    and publisher of any literary or artistic work first produced
    before the date at which such order comes into operation, shall
    be entitled to the same rights and remedies as if the said Acts
    and this Act and the said Order had applied to the said foreign
    country at the date of the said production."

The Berne Convention, article 14, provides that--

    "The present convention applies to all works which at the moment
    of its coming into force have not yet fallen into the public
    domain in the country of origin."[1057]

It was suggested that these retrospective provisions only applied
to works produced between the date of the Act of 1886 and December
6, 1887, _i. e._ the date at which the Order in Council of November
28, 1887, came into operation.[1058] Charles, J., however, refused
to accept such a construction, and said that he felt no doubt that
section 6 of the International Copyright Act, 1886, applied to all
literary and artistic works produced before the date at which the
Order in Council came into operation, whether they were produced
before or after the passing of the Act.[1059]

In _Lauri_ v. _Renad_[1060] it was held by the Court of Appeal that
when under the older law a right of translation in this country had
existed, and had expired by lapse of time, the Act of 1886 would
not operate to revive such a right, even although the rights of
reproduction and translation still subsisted in the country of origin.
This is generally thought to be an unsound decision, as the proper
test in such cases is whether the right has fallen into the public
domain, not in this country but in the country of origin.

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

_In the Country of Origin_--

    All such formalities must be observed as are necessary to entitle
    to protection under the domestic law of such country.[1061]

_In the United Kingdom_--

  1. Registration or delivery of copies to the libraries is
     unnecessary.[1062]
  2. Musical works must bear a notice of reservation on
     each authorised copy, otherwise the performing
     right will be lost.[1063]
  3. Whether other formalities such as name and date
     of publication on an engraving,[1064] name and date on
     sculpture,[1065] are necessary _quære_.

Before 1886 registration and delivery of copies of a foreign work
was required by the Act of 1844[1066] and various Orders in Council
in pursuance thereof. The Act of 1886, however, enacts[1067] that
the provisions of the Act of 1844 as to registration and delivery
shall not apply to works produced in a foreign country except in so
far as provided by the Order in Council referring thereto. The Order
in Council of 1887[1068] makes no provision as to registration and
delivery, and revokes all the previous Orders in Council which did.
In _Fishburn_ v. _Hollingshead_[1069] the question came before the
Court whether since 1886 any registration or delivery was necessary.
Stirling, J., held that although none of the formalities prescribed by
the International Copyright Act of 1844[1070] need be observed, yet
a foreign work must comply with the provisions of the Copyright Acts
as to registration and delivery applicable to works first produced
in this country. His _ratio decidendi_ was that a foreign work was
only entitled to the protection afforded to natives,[1071] and the
Act of 1844[1072] provided that all and singular the enactments of
the Copyright Acts in this country should apply to foreign works in
such and the same manner as if such works were published in the United
Kingdom. Charles, J., in _Hanfstaengl_ v. _Holloway_[1073] differed
from this view, and finally the Court of Appeal in _Hanfstaengl_
v. _American Tobacco Company_[1074] held that no registration in
this country was necessary. The ground of this decision is that the
enactments of 1844 as to registration of foreign works superseded the
enactments of 1842, and when the provisions of 1844 were repealed the
provisions of 1842 did not revive. This reasoning, which appears to be
undoubtedly sound, applies equally to the provisions as to delivery
of copies. It does not, however, apply to the question whether such
formalities as the name and date of publication on an engraving are
necessary. At present the position seems to be this. The reasoning of
Stirling, J., in _Fishburn_ v. _Hollingshead_[1075] equally applies
to the formalities as to name and date on engravings and sculpture as
it does to registration and delivery. The judgment of Stirling, J.,
was overruled in _Hanfstaengl_ v. _American Tobacco Company_[1076]
in the Court of Appeal, but on grounds which do not apply to these
formalities. As to them, therefore, the judgment of Stirling, J.,
stands. It is very doubtful whether this is the correct view of the
law, but it is submitted that until _Fishburn_ v. _Hollingshead_[1077]
is further overruled the law is that formalities under heading 3
_supra_ are necessary. In _Avanzo_ v. _Mudie_[1078] it was held that
a foreign print could not claim copyright under 7 & 8 Vict. c. 12,
unless the date and name were engraved thereon as required by 8 Geo.
II. c. 13. Mr. Scrutton, whose opinion in these matters carries great
weight, thinks that these formalities are not required.[1079] As a
matter of expediency they should always be observed where practicable.

=Who are entitled to sue in respect of a Foreign Work.=--The author of
a foreign work or his assignee is probably entitled to sue in the case
of all foreign works which are protected in this country.[1080]

The publisher of a foreign work published anonymously or
pseudonymously is entitled to sue if his name is indicated on the
work.[1081]

=Evidence of Title.=--Where the name of the author is indicated on a
foreign work or in the case of an anonymous or pseudonymous work the
name of the publisher, such author or publisher is, in the absence
of proof that he is disentitled, entitled to sue in respect of such
foreign work.[1082]

An extract from a register, or a certificate or other document
authenticated by the official seal or signature of a minister of
state of the foreign country of origin, or of a British diplomatic or
consular officer, lawfully acting in such foreign country, is admitted
as _primâ facie_ evidence of the owner of the copyright.[1083]

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

  1. The same right of copyright and during the same period
     as if the work had been first produced in the United
     Kingdom:[1084] but
  2. No greater right or longer term of protection than it
     enjoys in the country of origin.[1085]

Section 10 of the International Copyright Act, 1844,[1086] provides
that all copies of foreign books in which there is copyright under the
International Acts, if printed or reprinted in any foreign country
_except the country of origin_, shall not be imported into the
British dominions without the consent of the proprietor. It has been
held,[1087] however, that this section does not supply a complete code
as to the importation of copies of a foreign book, and that copies
printed in the country of origin will also be prohibited in the same
way as if the book had been first published in the United Kingdom.
Section 3 of the International Copyright Act, 1844, applies to foreign
works, _inter alia_, the provisions 5 & 6 Vict., sections 15 and 17,
which prohibit the importation of any copies printed outside the
British dominions. Section 10 was held not to curtail the general
application in section 3 of the provisions of the Copyright Act, 1842,
to foreign books.

As to certain foreign works which are dealt with below, there is
express provision in the International legislation which results in
giving such foreign works a narrower right or shorter term than they
would have if first published in this country. Where there is no
express limitation, the above general rules apply. The law of both the
country of origin and of the United Kingdom must be examined, and the
right given will be limited according to the law which affords least
protection. Where, however, according to this rule there is a right,
the Courts here will give the same remedies as they would extend to
the author of a work first published in the United Kingdom. Thus
in _Baschet_ v. _London Illustrated Standard_,[1088] Kekewich, J.,
refused to consider whether a French Court would or would not award
penalties for infringement.

_Works published before December 6, 1887_, are protected, except in so
far as such protection may prejudice rights or interests arising from
or in connection with works lawfully produced before, and subsisting
and valuable at, that date.[1089]

This limitation is introduced by the retrospective section of the Act
of 1886, which enacts that--

    "Where any person has before the date of the publication of an
    Order in Council lawfully produced any work in the United Kingdom,
    nothing in this section shall diminish or prejudice any rights or
    interests arising from, or in connection with, such production
    which are subsisting and valuable at the said date."

The following are some of the classes of literary or artistic works
which were not protected before 1886 but to which the retrospective
section and its saving clause applies:

    i. Works not registered in this country under the International
       Copyright Act, 1844, section 6.[1090]
   ii. Works which had not acquired the translating right
       under the International Copyright Act, 1852, sections 2, 4, 8.
  iii. Dramatic works, as to the liberty to make fair imitations
       or adaptations to the English stage under the
       International Copyright Act, 1852, section 6.

"Lawfully Produced" means that the work has been produced without
contravening any right existing at the date of its production.[1091]

"Rights" and "Interests" are to be distinguished, the latter word
bearing a wider interpretation than the former. Right does not mean
the right to reproduce in common with all mankind, but right in the
strict legal sense of the term under the English Copyright Acts,
_i. e._ an exclusive right of property.

When any capital has been embarked in the production of a work,
and the publisher depends on the sale of copies in stock or on
the proceeds of a future edition to recoup himself for his outlay,
there is clearly an interest although there may be no right. Where
a bandmaster had purchased a copy of a French musical composition
and instructed his band to perform it, he was held to have such an
interest as would entitle him to continue performing it after the
French composer had acquired protection under the Act of 1886.[1092]
Even where no capital has been embarked, if the publisher has a
special interest as distinct from the rest of the public in the
reproduction of the work, he has an interest within the meaning of
the section.[1093] Thus where a firm had adopted a German picture
as a trade mark for their candles, they were held to have such an
interest in the reproduction as would constitute a good defence to an
action for infringement of copyright acquired under the retrospective
operation of the Act of 1886.[1094] It has been suggested that not
only the interests of the lawful producer will be safeguarded, but
also interests arising in a third person from or in connection with
such production, and this seems to be sound.[1095]

_Translating Right_ expires if not exercised within ten years.

The exclusive right of translation is expressly given to the foreign
author by the Act of 1886 and the Additional Act of Paris for the
full term of his copyright in the original work, but if an authorised
translation in the English language is not published after the
expiration of ten years next after the end of the year in which
the work was first produced the translating right of the author
shall cease.[1096] If a book is published in numbers, the ten years
run from the date of publication of the last part.[1097] When a
book is composed of a number of volumes, each volume is considered
as a separate work.[1098] A translation in order to preserve the
translating right must be full and substantial.[1099] A translation
might be such as, if made without the consent of the author, would
constitute a piracy, and yet not be such a translation as is required
by the Act--

    "What is required is that the English people should have the
    opportunity of knowing the foreign work as accurately as it is
    possible to know a foreign work by the medium of a version in
    English."[1100]

_Articles in Newspapers and Periodicals._[1101]--Articles, not being
serial stories or tales, appearing in a newspaper or periodical in a
foreign country, may be republished or translated in a newspaper or
periodical in this country without the consent of the owner of the
copyright, provided--

  (_a_) In the case of articles of political discussion, the news
      of the day, or miscellaneous information, the source
      from which the same is taken be acknowledged.
  (_b_) In the case of articles relating to any other subject,
      the source from which the same is taken be acknowledged,
      and the author has not signified his intention
      in a conspicuous part of the newspaper or periodical
      of preserving the copyright and right of translation.

_Photographic Works._--The Additional Act of Paris runs as
follows: "It is understood that an authorised photograph of a work of
art shall enjoy legal protection in all the countries of the Union, as
contemplated by the Berne Convention, and by the present Additional
Act, for the same period as the principal right of reproduction of the
work itself subsists, and within the limits of private arrangements
between those who have legal rights."[1102]

It would seem, therefore, that photographs of protected works of art
are not protected as original works, and that, whenever produced,
their protection stands and falls with the right in the original work.
Other photographs, including photographs of unprotected works of art,
are protected as original works.

_Performing Right in Dramatic or Dramatic Musical Works._--Exclusive
performing right in dramatic or dramatico-musical works subsists
during the existence of the exclusive right of translation. If
the translating right is allowed to fall into the public domain
by non-exercise within ten years, the performing right falls with
it.[1103]

There is not now as formerly any right in the public to make fair
imitations or adaptations to the English stage.[1104]

_Express Provision as to Particular Kinds of Infringement._--The
Berne Convention, article 8, provides that the question of the right
of extract is to be decided by the legislation of the different
countries of the Union, or by special arrangement between them.
There is no special arrangement as to this with the United Kingdom,
therefore the law as to extract and quotation applicable to works
produced in this country applies.

Article 10 of the Berne Convention enacts that indirect appropriations
such as adaptations and arrangements are included among illicit
reproductions when they do not bear the character of original work.
Here also, therefore, the law is similar to that applicable to works
produced in this country.



CHAPTER XI

COMMON LAW


As to works which have been published within the meaning of the
Copyright Acts, the common law affords no protection in the nature
of copyright, that is to say, as regards the exclusive right of
reproduction, the author must rely entirely on the statutes. There
is no copyright at common law after the expiration of the period
prescribed by statute,[1105] neither is there any greater right
during that period than the statute gives.[1106] Common law remedies,
however, may be applied when the statute gives a right without a
sufficient remedy.[1107] But apart altogether from rights in the
nature of copyright, the principles of common law and equity do apply
to both published and unpublished works to prevent or to remedy the
consequences of fraud or breach of contract.

As to works which have been composed[1108] but have not been
published, the common law affords protection to the author against
reproduction or interference of any kind.[1109]

The rights and remedies at common law are perpetual, and are neither
limited in duration nor as regards the time within which action must
be brought, except in so far as the general rules of equity as to
acquiescence and delay or the statutes of limitation may be applicable.

=Title: Passing off.=--_No Copyright in Title._--There is no
copyright in a title consisting, as a title usually does, of only a
few words. Thus _Belgravia_,[1110] _Sporting Life_,[1111] "Splendid
Misery,"[1112] _The Licensed Victuallers' Mirror_,[1113] and "The
Post Office Directory,"[1114] have all been decided not to be the
subject of copyright. In two decisions "The Birthday Scripture
Text-Book"[1115] and "Trial and Triumph"[1116] (as the title of a
novel) were protected on the ground of copyright in title, but since
_Dicks_ v. _Yates_[1117] in which these two decisions were cited,
and in so far as they were based on a claim of copyright in title,
disapproved, no such claim could be entertained, and the exclusive
user of a title will only be protected on the general principles of
common law and equity which prevent one man passing off his wares as
those of another man. As was pointed out by Jessel, M. R., in _Dicks_
v. _Yates_,[1118] it is conceivable that there might be a title in
which there was copyright; for instance, if it was extremely long and
elaborate, but since _Dicks_ v. _Yates_ there is no case in the books
where a title has been protected on the ground of copyright.

_Whether Protection is based on a Right of Property in the
Title._--The great bulk of authority is to the effect that the right
to prevent others passing off their literary works under the same
or a similar title does depend on a right of property in the title
as applied to a particular class of work, which right can only be
acquired by user.[1119] This right is regarded as a chattel interest
capable of assignment,[1120] and may be a partnership asset.[1121]
In _Walter_ v. _Emmott_,[1122] however, Cotton and Bowen, L. JJ.,
expressed a strong opinion that the right to prevent a deceitful use
of title was not founded on a right of property in the title, but
on the ground of deceit alone. It is submitted that the plaintiff
in an action of this kind need not prove deceit on the part of the
defendant, and that the right is strictly a proprietary right which
must have been acquired by user before the Court will intervene.

_Knowledge of Existence and Value on part of the Public._--This is
necessary before an author or proprietor of a literary or artistic
work can acquire a right to the exclusive use of a title in connexion
with works of a certain class. It is not sufficient that the title of
a proposed book or magazine has been extensively advertised or that it
has been registered, even although great expenditure has been incurred
in the preparation and advertisement.[1123] Any one, it would seem,
can seize the opportunity of another's advertisements and bring out
a similar book under the same or a similar title, either before the
publication of that other's book or immediately after its publication,
and before it became known to the public as an actually existing
publication which they have had an opportunity of reading and forming
an opinion of on its merits. The sale of a few copies only will not
establish a common law right in title.[1124] Not only must the work
be well known to the public, but it must also be distinctively known
under the title in which a proprietary right is claimed.[1125]

No right can be acquired by attaching an original title to an old
work in which the publisher has no proprietary right. In _Talbot_
v. _Judges_[1126] the plaintiffs published a work in which they had
no copyright of any kind under a title of their own invention, "The
Liberal and Radical Year-Book." The defendant published a similar
work, intituled "The Liberal Year-Book." It was held that they were
entitled to do so, as the plaintiffs could have no right in the title
when the material was in no sense their own.

_Non-user of title_ for a considerable period will leave it open
to others to adopt the same title and to acquire a right therein
to the exclusion of the original user,[1127] but no representation
must be made, express or implied, that the subsequent publication
is a continuation of the first. If the proprietor of a magazine
incorporates it with another publication, such as the _John Bull_ with
the _Britannia_, and intitules the future publication with a joint
name such as the _John Bull and Britannia_, he can prevent any taking
of the original titles either _simpliciter_ or colourably altered, as,
for instance, _The True Britannia_.[1128]

_No Fraud need be Proved._--When the exclusive right to a title has
been established, an innocent invasion is equally as actionable as one
tainted with fraud or intent to deceive.[1129] It is a question what
the public are likely to believe, not what it was intended they should
believe.

_Must be Calculated to Deceive._--The question is whether the man
of ordinary intelligence is likely to be deceived, and purchase the
later publication while intending to purchase the original. It is not
sufficient to show that some thoughtless or stupid people have made
mistakes and taken the one for the other.[1130] The exclusive right to
the use of a title only extends so far as to prevent the whole or any
part of the title being used in such a way as to deceive the public,
to the injury of the proprietor of the title. Thus a part of the
title may be taken and so used in conjunction with other words, that
there can be no possibility of confusion, or the whole title may be
taken and used for an entirely different class of work, or otherwise
put before the public in such a way that mistake is practically
impossible. Thus in questions of passing off, besides the similarity
of title, the result depends on the peculiar circumstances under which
the works are produced: the time and place of publication, appearance,
such as similarity in print and binding and price, may all be of vital
importance.

_Cases in which an Injunction was Granted._--In _Hogg_ v.
_Kirby_[1131] the defendant was interested in the sale and profits
of a magazine called _The Wonderful Magazine_. A dispute arose
between him and the proprietor of the magazine, and the defendant
thereupon published a magazine under the same title, described as _New
Series Improved_. This publication was restrained. In _Constable_
v. _Brewster_,[1132] a Scotch case, an interdict was granted on
very similar facts. In _Chappell_ v. _Sheard_[1133] the plaintiffs
published a song, the words of which were original, but set to an old
American air, "Lillie Dale," in which there was no copyright. This
song had become popular, and was sung at concerts by a Madame Thillon.
The plaintiffs published their song under the title of "'Minnie,'
sung by Madame Anna Thillon, written by George Linley," and the cover
bore a lithographed drawing of Madame Thillon. The defendants set
other words to the same air and published it as "Minnie Dale," sung
by Madame Thillon, and their cover also bore a portrait of Madame
Thillon. The defendants' song had, in fact, never been sung by Madame
Thillon. An injunction was granted. In _Chappell_ v. _Davidson_[1134]
the same song was similarly pirated by one intituled "Minnie,
dear Minnie," and an injunction was also granted. In _Prowett_ v.
_Mortimer_[1135] _The True Britannia_ was restrained as tending to
interfere with the sale of the plaintiff's paper, _The John Bull
and Britannia_, which had incorporated the plaintiff's previous
publication, _The Britannia_. In _Clement_ v. _Maddick_[1136] the
plaintiff owned a sporting periodical paper, intituled _Bell's Life_.
The defendants were restrained from publishing a similar paper under
the title, _Penny Bell's Life_. In both publications the name Bell was
entirely pseudonymous. In _Ingram_ v. _Stiff_[1137] the defendant was
the proprietor of a weekly paper, _The London Journal_, and assigned
all his interest therein to the plaintiff, covenanting not to publish
any rival weekly paper. Two years afterwards the defendant published a
daily newspaper, _The Daily London Journal_. The Court restrained him
from continuing the publication, but their judgment seems to have gone
on the ground of breach of covenant. In _Clowes_ v. _Hogg_[1138] the
proprietors of _London Society_ were held entitled to an injunction
against _English Society_, but this was also on the ground of a
covenant between the parties. In _Corns_ v. _Griffiths_[1139] the
plaintiff published a weekly newspaper under the title, "_Iron Trade
Circular_ (Ryland's)." The defendant had for some considerable time
published a weekly report headed "_The Iron Trade_ (Griffith's Weekly
Report)," but changed his title to "_The Iron Trade Circular_
(edited by Samuel Griffiths)," and published it in type and form very
similar to the plaintiff's newspaper. The defendant's publication
was restrained. In _Metzler_ v. _Wood_[1140] the plaintiffs were the
publishers of "Henry's Royal Modern Tutor for the Pianoforte." This
work had a very large sale. The defendants took an old work, intituled
"Jousie's Royal Standard Pianoforte Tutor," which had entirely fallen
into disuse, and employed Henry to revise it, and then published it as
"Henry's New and Revised Edition of Jousie's Royal Standard Pianoforte
Tutor." In both publications the word "Henry's" was published in large
letters, and was more conspicuous than any other part of the title.
The Court granted an injunction. James, L. J., in his judgment, said:

    "The defendants' title-page was calculated to deceive, and I
    cannot conceive any reasonable theory to explain the defendants
    taking an obsolete work, getting it revised by Mr. Henry, and
    putting Henry's name as the prominent and striking distinguishing
    mark of his work except that he intended to do that which the name
    was calculated to do, viz., to mislead the public into believing
    that when they were buying the defendants' work they were buying
    the plaintiffs'. If it was so calculated to mislead, the case of
    the plaintiffs is made out."

_Cases where an Injunction was Refused._--In _Spottiswoode_ v.
_Clarke_[1141] Lord Cottenham, L. C., refused an interlocutory
injunction in a case of two Pictorial Almanacks, where the covers were
very similar and could hardly have been so accidentally. In a similar
case to-day an injunction would probably have gone. In _Jarrold_ v.
_Houlston_[1142] an injunction was refused to the author of "Why and
Because," in respect of a similar work intituled "The Reason Why."
There was no such similarity or colourable imitation in the title as
to support the claim. In _Bradbury_ v. _Beeton_[1143] the proprietors
of _Punch_ craved an injunction against _Punch and Judy_. There was,
however, no evidence that any one had been misled, and although the
papers were similar in size and general appearance, the colour of
the paper was slightly different, and the design on the cover was
entirely different. Malins, V. C., refused an injunction. In _Kelly_ v.
_Byles_[1144] the plaintiff had published numerous directories called
"post office" directories. Among them was "The Post Office Directory
of the West Riding of Yorkshire." An injunction was refused against
the defendant who proposed to issue a directory under the title "Post
Office Bradford Directory." The publications in no way resembled one
another. The plaintiff claimed that he had acquired an exclusive
use to the words "post office" in connection with a directory. It
was held that he could have no such exclusive right. In _Dicks_ v.
_Yates_[1145] a serial story, entitled "Splendid Misery, or East End
and West End, by C. H. Hazlewood," was being published in a magazine
called _Every Week_. Another weekly, _The World_, commenced a serial
story intituled "Splendid Misery, by the Author of Lady Audley's
Secret, Vivian, &c." The two weekly papers were of an entirely
different character, and it was held that there was nothing in the
publication of the serial story in _The World_ which was calculated to
deceive. In _Cowen_ v. _Hulton_[1146] the plaintiff was proprietor of
_The Newcastle Weekly Chronicle_ and _The Newcastle Daily Chronicle_.
He claimed an exclusive right to the use of the word "Chronicle" in
connection with newspapers in Newcastle, and craved an injunction
against the sale in Newcastle of _The Sporting Chronicle_. The Court
of Appeal, reversing the decision of North, J., refused an injunction.
In _Walter_ v. _Emmott_[1147] _The Mail_ was published three days
a week at 11 A. M., price twopence. The Court refused an injunction
against _The Morning Mail_, price one halfpenny. Both papers were
published in London. In _Borthwick_ v. _The Evening Post_[1148] the
proprietors of _The Morning Post_ claimed an injunction against _The
Evening Post_. The Court was of opinion that there was no probability
of injury to _The Morning Post_ since the papers were not competing
papers. Bowen, L. J., in his judgment, said:

    "He must be an extremely unintelligent person if he thinks
    that the _Evening Post_, which disclaims all connection with
    the _Morning Post_, and writes upon different topics and in a
    different style, is connected with the _Morning Post_. The idea
    would explode itself before he got half-way through the first
    page."

The injunction was refused. The commonest form of passing off is
by means of a similar title and binding, but any act which induces
the public to believe that A's book is the book of B is equally
actionable, and will be sustained. Thus for A to announce his book as
a continuation of B's book,[1149] or in any other way to so advertise
it as to induce the public to believe that it is B's work[1150] is
actionable.

=Malicious Criticism.=--It would be actionable to publish of an
author's work that which was obviously untrue; for instance, that it
was an immoral or a libellous work, when no suggestion of immorality
or libel could be found in it. Apart from absolute falsehood of this
kind there is no limit to the range of criticism;[1151] a man is
entitled to form what opinion he pleases of another's work, and to
publish these opinions. So long as he confines himself to the work
criticised and the author thereof as author, he has very full liberty
of saying what he thinks.

It may be actionable to say that a man is the author of a work which
is not his. The offence if anything would be defamation of the
author.[1152]

=Slander of Title.=--No doubt an action would lie against any one
publishing statements in disparagement of the owner's right to a
literary or artistic work.[1153] Special damage is of the essence of
such an action.

=Author who has parted with Copyright is entitled to protect his
Reputation.=--Although a purchaser of copyright may do what he
pleases with what he has purchased, he may not mutilate an artistic
or literary work and present it to the public in its mutilated form
as the work of the original author. The copyright in a law book
was purchased by a bookseller. The author refused to edit a third
edition, and the bookseller had the necessary alterations made for
himself. The third edition was then published without any notice
that it was prepared by any one other than the author. It contained
numerous errors. In an action by the author against the bookseller,
Lord Tenterden, C. J., in summing up, put it to the jury that if they
were of opinion that the third edition would be understood by those
who bought it to have been prepared by the plaintiff, the plaintiff
was entitled to a verdict; but if they were of opinion that persons
using reasonable care would think that this third edition was not
prepared by the plaintiff, their verdict should be for the defendant.
The jury returned a verdict of five pounds for the plaintiff.[1154]
The nature of the remedy is really an action for the defamation of the
plaintiff's reputation as an author. The Court is slow to grant an
interlocutory injunction in such an action. No doubt it would be done
in an extreme case, for instance, if the owner of performing rights
in a play inserted indecent or scandalous matter without the consent
of the author, but the Court prefers to have the legal question as to
whether the altered version is injurious to the plaintiff's reputation
tried first. In _Cox_ v. _Cox_[1155] the plaintiff had written a legal
article for the purpose of insertion in the defendant's book. The
defendant revised and shortened the article to a considerable extent,
and the plaintiff applied for an injunction in Chancery to restrain
the defendant from publishing the article in its mutilated form. Page
Wood, V. C., refused an injunction, and, in his judgment, said:

    "In respect to what was said about the plaintiff's reputation
    suffering from having the legal matter supplied by him published
    in a mutilated and erroneous form, according to Sir J. Clark's
    case,[1156] the loss of reputation, unless connected with
    property, was not a ground for coming to this Court, though it
    might be an ingredient for the Court to consider when there was
    property."

One might almost infer from this judgment that if the plaintiff had
parted with his property no right of action lay for injury to his
reputation. It must be observed, however, that this was a claim for an
injunction in equity, and the judgment of Lord Tenterden in _Archbold_
v. _Sweet_[1157] was not referred to. That and the subsequent cases
make it clear that there is a right of action on the ground of injury
to reputation alone, and that in urgent cases the Court will interfere
by interlocutory injunction. In _Gilbert_ v. _Boosey_[1158] the owner
of a performing right in an opera inserted without the permission of
the author two songs, and one of the author's songs was left out. The
opera was advertised and performed _simpliciter_ as the plaintiff's
opera without any mention of alterations. On an application for an
interlocutory injunction, Denman, J., refused to interfere at such an
early stage, but he intimated that if the songs had been indecent or
such as would obviously damage the plaintiff's reputation, he might
have granted an injunction. In _Lee_ v. _Gibbings_[1159] the defendant
had acquired the copyright in the plaintiff's "Autobiography of
Edward, Lord Herbert of Cherbury." He published a condensed edition,
on the title-page of which the plaintiff was stated _simpliciter_ to
be the author. The plaintiff alleged that the work was unscholarly
and injurious to his reputation, and craved an interim injunction.
Kekewich, J., refused the motion. The plaintiff's remedy, he said,
was founded on libel by reason of the injury to his reputation. Of
late years there had been no such thing as an injunction to restrain
a libel (except in the case of a trade libel) on an interlocutory
application or before the point had been submitted to a jury. He saw
no reason for making an exception in the case before him, and he would
express no opinion as to whether there was a libel or not.

The Court would restrain one who published a book falsely representing
that it was the work of another.[1160]

=Protection from Breach of Faith or Contract.=--The relationship
of parties may give rise to rights and obligations in reference
to literary or artistic matter which could not exist as between
strangers. Such rights and obligations are supported on the various
grounds of express contract, implied contract, and breach of faith.
As to express contract there is little difficulty, the ordinary rules
of contract will apply. As to implied contract or breach of faith,
these are really the same, only common law based its remedy on the
former and equity on the latter. It usually arises in the case of a
clerk or other employee between whom and the employer a confidential
relationship exists. As regards employees, the law stated briefly is
this, that during his employment he must do nothing which is contrary
to the interests of his employer; he may not in any way assist in
the production of literary or artistic work which may compete with
the work of his employer. After the termination of his employment,
apart from express contract, he is entitled to compete with his late
employer, and for that purpose may make use of the general knowledge
and information which he acquired in his employment: but he may not
for such purpose use any materials such as documents, notes, printing
blocks, &c., which he acquired in his capacity of employee and _a
fortiori_ if he acquired them surreptitiously.

In _Jovatt_ v. _Winyard_[1161] a veterinary surgeon employed a
journeyman for the purpose of selling his medicine. While in such
service the journeyman surreptitiously got access to his books of
recipes and copied them. It was held that there was a breach of
trust, and the journeyman was restrained from selling the medicines
or printing or selling printed directions for their use. In _Prince
Albert_ v. _Strange_[1162] a workman, who was entrusted by the
Prince Consort with certain plates for the purpose of reproducing
privately drawings which had from time to time been made by Queen
Victoria and the Prince Consort, in breach of the trust reposed in
him sold impressions to the defendant, who published a descriptive
catalogue of the drawings. Knight Bruce, V. C., granted an injunction
against the publication of the catalogue. In _Reuter's Telegram
Co._ v. _Byron_[1163] the defendants had for some time acted as
agents in Australia of the plaintiff company, sending on and
receiving telegraphic messages on their behalf. In the course of
this agency they became acquainted with the cypher used by many of
the company's customers. On the termination of their employment the
defendants started a rival telegram business and sent circulars to
the plaintiffs' customers, mentioning that they had their cyphers. On
a motion to restrain the defendants from making use of the list of
cyphers acquired in the plaintiffs' employment, Jessel, M. R., refused
an interim injunction. He said:

    "The Court will always restrain a man from publishing or divulging
    that which has been communicated to him in confidence. But this
    is a totally different case. The plaintiffs do not here seek to
    restrain the defendants from publishing anything but from making
    use of knowledge acquired while the relation of principal and
    agent subsisted after that relation terminated."

In _Lamb_ v. _Evans_[1164] the defendants had been employed by the
plaintiff as canvasser for his trade directory. On the termination
of their employment they published a rival directory and made
use of blocks and notes which they had acquired in the plaintiff's
employment. The Court held that this was an improper use
for the defendants to make of materials so acquired. Bowen,
L. J., in his judgment, said:

    "It is not a question of copyright--that must be kept out of sight
    altogether--nor is it, on the other hand, a simple question of
    the absolute property at law in the documents themselves or in
    the blocks themselves. It is a question of whether the plaintiff,
    whatever the property in the documents may be or whatever the
    property in the materials may be, has not sufficient special
    property in them to entitle him to restrain the use of them
    against him when they had been obtained for his use by his agents
    in the course of their employment. That depends entirely, I think,
    on the terms upon which the employment was constituted, through
    which the fiduciary relation of principal and agent came into
    existence."

In commenting on _Reuter's Telegram Co._ v. _Byron_, the same judge
said:

    "I think if Reuter's case is to be judged by the result, it no
    doubt is right--and Sir George Jessel was generally right--but I
    do not think that the propositions reported in the _Law Journal_
    as laid down by him can be considered to be sound. It seems to me
    that as a matter at law or as a matter of equity, the conduct of
    the defendants in that case cannot be justified to the extent to
    which the learned judge is made by the report to justify it. If
    Reuter's case is cited as an authority for the propositions which
    the Master of the Rolls is there stated to have laid down, I am
    not prepared to follow it."

In _Merryweather_ v. _Moore_[1165] a clerk while in the employment
of a firm of engine-makers had made a table of dimensions of various
types of engines. After he had left their employment he was restrained
from publishing or communicating the table or its contents to any one.
In _Louie_ v. _Smellie_[1166] the plaintiff carried on a business
as a process server, the defendant while in his employment secretly
made extracts from the plaintiff's register and index of agents and
copies of the plaintiff's forms. He was restrained from making use of
such extracts in competition with the plaintiff after he had left his
employment and set up as a process server on his own account. Lindley,
L. J., in his judgment, said:

    "As to the law it has been clearly laid down in _Lamb_ v. _Evans_.
    It is not new law, it is as old as the hills. The good faith that
    existed between employer and employed rendered it improper for the
    employed to make use of any information acquired by him during the
    period of the confidential relationship."

The injunction was granted in these terms:

    "An injunction to restrain the defendant, his servants, and agents
    from making use of any copies or extracts from the plaintiff's
    register of agents, or index of agents, or any memoranda made or
    obtained by the defendant when in the plaintiff's employ relating
    to any person named in these books or either of them."

In _Robb_ v. _Green_,[1167] the defendant having been employed as
manager of the plaintiff's business, secretly copied a list of the
names and addresses of his customers. On leaving the plaintiff's
employment he set up a similar business, but was restrained from
making use of the list of his late master's customers. In _Gilbert_ v.
_Star Newspaper_[1168] the members of a theatrical company taking part
in the rehearsal of a new opera were held to be under an obligation
not to disclose any information concerning it until it should be
publicly performed, and the Court restrained a critique published in a
daily newspaper on the ground that the material for it must have been
unlawfully procured.

In these cases it is not only the party who is in breach of contract
or confidential relationship that will be restrained. The Court will
restrain any one who, knowing how the material has been acquired,
makes use of it.[1169] In _Tipping_ v. _Clarke_,[1170] Wigram, V. C.,
said that if the defendant availed himself surreptitiously of the
information which he could not have had except from a person guilty of
a breach of contract in communicating it, he could not be permitted
to avail himself of such breach of contract. In _Abernethy_ v.
_Hutchinson_,[1171] Lord Eldon said:

    "How the gentleman who had published the letters came by them he
    did not know; but whether an action would be maintained against
    them or not on the footing of implied contract, an injunction
    undoubtedly might be granted, because if there had been a breach
    of contract on the part of the pupil who heard these lectures,
    and if the pupil could not publish for profit, to do so would
    certainly be what this Court would call a fraud upon a third
    party."

Thus in _Prince Albert_ v. _Strange_[1172] the defendant obtained
the information from the person in whom the plaintiff's confidence
was placed, and was on that account restrained. In the _Exchange
Telegraph Co._ v. _Central News_[1173] the Court restrained a third
party from publishing information which he had obtained by inducing a
subscriber to the Telegraph Company to break his contract. If there
has been a breach of contract or trust the Court will assume a guilty
knowledge in the case of a third person, who, being in possession
of the material, cannot give any satisfactory explanation.[1174]
If a third party acquire innocently and for value materials or
information originally procured in breach of trust or contract, it
seems questionable, apart from any absolute right in the plaintiff,
such as a right to manuscript, whether he can be restrained from
making use of them in any publication. If the original act amounts to
fraud or crime, certainly the Court will not protect even an innocent
purchaser. "Let the hand receiving it be ever so chaste, if it comes
through such a corrupt and polluted channel, the obligation of
restitution must follow."[1175] But if the original act amounted to no
more than breach of confidence or contract, it may be different, and a
purchaser for value and without notice may be excused.[1176] The point
must be considered doubtful.[1177] The ground of action on breach
of faith or contract may sometimes exist concurrently with a ground
of action on copyright, and may be useful if there are any technical
difficulties in the plaintiff's way as to copyright.[1178]

=Unpublished Works.=--The author and his assignees have the right
of first publication; this right at common law is unaffected by the
Copyright Acts, and is a right in perpetuity. The right in literary
matter in manuscript is clearly one of property, and is independent
of any confidential or contractual relation between the author and
those who interfere with his property without authority. "It cannot,"
said Lord Halsbury in _Caird_ v. _Sime_,[1179] "be denied that in
the present state of the law an author has a proprietary right in
his unpublished literary productions." An author may choose his own
time to publish or may choose never to publish at all, and he may
proceed against any one who attempts to publish or otherwise deals
without his authority with his unpublished work. This was definitely
decided in _Donaldson_ v. _Beckett_[1180] when the question among
others was put to the judges: "Whether at common law an author of any
book or literary composition had the sole right of first printing or
publishing the same for sale; and might bring an action against any
person who printed, published, and sold the same without his consent?"
Ten out of eleven judges consulted answered that there was such a
right, and eight of them that an action lay in cases of infringement.
Two of the judges, however, were of opinion that an action lay against
an infringer only when the manuscript had been obtained by fraud
or violence. Only one judge held that there was no right of first
publication. In _Prince Albert_ v. _Strange_[1181] Lord Cottenham,
L. C., considered the law as well settled and beyond dispute. He says:

    "The property of an author or composer of any work, whether of
    literature, art, or science, in such work unpublished and kept for
    his private use or pleasure, cannot be disputed after the many
    decisions in which the proposition has been affirmed or assumed."

The right of an author to his unpublished work is of a much wider and
more exclusive nature than his right to published matter. It probably
extends to prohibit any kind of interference whatsoever.[1182] The
public have not the right of "fair use" comment and criticism which
they have in a published work. In _Prince Albert_ v. _Strange_ Knight
Bruce, V. C.,[1183] says:

    "A work lawfully published in the popular sense of the term stands
    in this respect, I conceive, differently from a work which has
    never been in that situation. The former may be liable to be
    translated, abridged, analysed, exhibited in morsels, complimented
    and otherwise treated in a manner that the latter is not."

The reason that private documents of a man should be protected from
any interference whatsoever is sufficiently obvious. "A man," says
Knight Bruce, V. C., in the same case,[1184] "may employ himself in
private in a manner very harmless, but which disclosed to society
may destroy the comfort of his life or even his success in it." In
_Miller_ v. _Taylor_[1185] Yates, J., expresses the principle of the
common law protection:

    "Ideas are free. But while the author confines them to his study
    they are like birds in a cage which none but he can have a right
    to let fly; for till he thinks proper to emancipate them they are
    under his own dominion. It is certain every man has a right to
    keep his own sentiments if he pleases: he has certainly a right
    to judge whether he will make them public or commit them only
    to the sight of his friends. In that state the manuscript is in
    every sense his peculiar property, and no man can take it from him
    or make any use of it which he has not authorised without being
    guilty of a violation of his property."

The common law right in manuscript ceases upon "communication to
the public" with the consent of the author,[1186] but it may still
continue notwithstanding some kind of communication to others. The
communication in order to divest the owner of common law right must
be an abandonment of his ideas and words to the use of the public at
large. Representation on the stage, delivery as a lecture, a gift or
loan of the manuscript to a friend do not _ipso facto_ determine the
author's right of property.[1187] The questions in cases of alleged
unlawful publication of manuscript are usually: What is to be presumed
as the reasonable understanding between the author and the persons
to whom literary matter in the manuscript is communicated? Are they
intended to have the right of making any use they please of it, or do
the circumstances raise a presumption that they may only use it for
a limited purpose? In _Macklin_ v. _Richardson_[1188] the Court held
that although a play had been performed on the stage, that was only
a limited publication of it, and therefore the exclusive right to
publish remained in the author.[1189] In _Nicols_ v. _Pitman_[1190]
a lecture delivered at a Working Men's College from a manuscript
previously prepared, was reproduced by the defendant without the
plaintiff's consent. Kay, J., granted an injunction. In _Caird_ v.
_Sime_[1191] the professor of moral philosophy in Glasgow University
delivered a course of lectures in pursuance of his duty as professor.
These were published by a bookseller from notes taken by a student. It
was strenuously argued that the professorship being a _munus publicum_
and the classes being open to all comers, the delivery of the lectures
was really a publication without reserve to the whole world. The House
of Lords rejected this argument, and held that the right to publish
was reserved, the persons who were present at the lecture not being
the general public, but a limited class of the public selected and
admitted for the sole and special purpose of receiving individual
instruction. Lord Halsbury, L. C., in giving judgment, suggested
possible cases where it would be implied from the circumstances that
there was publication to the world at large:

    "It is intelligible that when a person speaks a speech to which
    all the world is invited, either expressly or impliedly, to
    listen, or preaches a sermon[1192] in a church, the doors of which
    are thrown open to all mankind, the mode and manner of publication
    negative, as it appears to me, any limitation."[1193]

The same rules apply to communication by delivery of the manuscript
or a copy. If I give my manuscript to another to read or for any
other limited purpose, he may not exceed the limits of use expressly
or impliedly agreed. Publication by printing and circulation among a
limited class will not destroy the common law right.[1194]

The common law right in a manuscript may be abandoned by neglect or
acquiescence in an adverse use. Thus it was said that Southey had no
right to complain when having left his poem "Wat Tyler" in the hands
of a publisher for twenty-three years the publisher published it for
his own profit.[1195]

A man's right to the exclusive use of his unpublished work does not
depend on its value, and it is immaterial whether he did or did not
intend to make profit by its publication.[1196] It is also immaterial
whether the publication would prove creditable or discreditable,
advantageous or disadvantageous.[1197]

The question has been raised whether the Courts would prevent an
unauthorised person from publishing manuscript of an immoral nature
which the author may have repented of and refused to place before the
public.[1198]

Ignorance of the author's right is no defence to an action for
interfering with unpublished literary matter. A _bonâ fide_ purchaser
for value gets no better title than the original pirate.[1199]

=Speeches and Sermons.=--Literary matter delivered orally from an
extempore composition without having been previously reduced to
writing, is protected at common law from unauthorised use. The extent
of the protection as in the case of delivery from manuscript is
defined by the terms of the relationship existing between the speaker
and his audience. He may have freely abandoned all exclusive interest
in the matter of his address, or he may give them only the right to
listen, or he may give them the right of taking notes and using them
for their own instruction. It seems to be doubtful, however, whether
the right in unwritten speeches is one based on property, or whether
it must depend entirely on implied contract between the speaker and
his audience. In _Abernethy_ v. _Hutchinson_[1200] Dr. Abernethy
delivered surgical lectures to students at St. Bartholomew's Hospital.
These lectures had not been previously reduced to writing. Lord Eldon,
L. C., granted an injunction against their unauthorised reproduction
in the _Lancet_. There was no evidence as to how the defendants
got possession of the lectures, but Lord Eldon thought that was
immaterial:

    "They must have been taken from a pupil or otherwise in such a
    way as the Court would not permit, and the injunction ought to go
    on the ground of property, and although there was not sufficient
    to establish an implied contract as between the plaintiffs and
    the defendants, yet it must be decided that as the lectures must
    have been procured in an undue manner from those who were under
    a contract not to publish for profit, there was sufficient to
    authorise the Court to say the defendants shall not publish."

In _Nicols_ v. _Pitman_[1201] a case of previously written lectures,
Kay, J., reviews the judgment of Lord Eldon in the last cited case:

    "Now it is quite true that the learned judge seems at one moment
    to refer to the ground of property and at another to that of
    implied contract. But I take his meaning to be this, that when
    a lecture of this kind is delivered to an audience, especially
    when the audience is a limited one admitted by tickets, the
    understanding between the lecturer and the audience is that,
    whether the lecture has been committed to writing beforehand or
    not, the audience are quite at liberty to take the fullest notes
    they like for their own personal purposes, but they are not at
    liberty having taken those notes to use them afterwards for the
    purpose of publishing the lecture for profit."

The question of whether the right in an oral speech is property or
not might well be of the highest importance in a question between the
speaker and a publisher who acquired the matter in entire ignorance of
his right. The facts might be such that the Court would not, as they
did in _Abernethy_ v. _Hutchinson_,[1202] presume that the material
"must have been procured in an undue manner." If there was no such
presumption from the facts, it would appear that, apart from a right
of property, the speaker must be without remedy unless he has given
notice as a lecturer within 5 & 6 Will. IV. c. 65.[1203]

=Letters.=--Private letters are protected from publication as much as
any other manuscript. In an early case[1204] it was suggested that
there could be no property in business letters or others with no
literary merit; but as the idea of literary merit in connection with
copyright is now entirely exploded, the _obiter dicta_ in this case
may be disregarded. In all letters then there is a literary property
in the writer which entitles him or his executors to prohibit any
publication without his consent, express or implied.[1205] It is
immaterial whether the publication is for the purpose of profit or
not.[1206] If a letter is written by one as agent for another the
property is in the principal, and the agent cannot restrain him from
publishing.[1207] The receiver of a letter has a property in the paper
on which it is written[1208] and is entitled to retain possession
even against the writer. The receiver may make no use of a letter
except such as is implied in the sending or with the consent of the
writer.[1209] The receiver may even be restrained from parting with
possession or showing the letters to any one.[1210] The receiver is
probably entitled to prevent the publication of the letters from
copies not in his possession or from the originals which have passed
from his possession.[1211]

Although the sender has a right of property in the literary matter in
the letters, the receiver may without his consent destroy the letters
and so destroy the writer's chance of obtaining benefit from them. The
literary property of the writer and the property in the paper of the
receiver descend to their respective executors.[1212] The question
has been suggested but never answered: What would be the rights of
trustees in bankruptcy to publish for the benefit of creditors private
letters?[1213] Letters may be published against the will of the
writer when published _bonâ fide_ for the purpose of vindication of
character.[1214]



CHAPTER XII

PUBLISHING AND PRINTING AGREEMENTS


_Publishers' Agreements._--These agreements are governed by the law
of contract, and only incidentally involve questions of copyright.
The contract between an author and his publisher is a personal one
and cannot be assigned; each party is presumed to have relied on the
personal skill or reputation of the other.[1215] Thus it was held that
a half profit agreement could not be assigned by a publisher's firm
to a firm which had succeeded to their business but which contained
none of the partners of the original firm.[1216] The same principle
has been applied in the case of a limited company carrying on a
publishing business.[1217] A publishing agreement ought to provide for
an assignment of the publisher's rights and obligations to the person
or persons who may succeed to the business. Unless otherwise agreed,
the death or bankruptcy of a publisher will terminate a publishing
agreement.[1218] Similarly if an author had not performed his part of
an agreement, viz. to write and revise the manuscript, his death[1219]
or bankruptcy[1220] would terminate his obligations in that respect.
The publisher could not insist on the author's representatives
completing the work, nor could they if they completed the work insist
on the publisher publishing.[1221]

An agreement to write a book or an article cannot be enforced by
specific performance.[1222] The only remedy for breach is an action
for damages,[1223] or, if the author has agreed not to write on
a particular subject for any one else, that may be enforced by an
injunction.[1224] An agreement to assign a copyright may be enforced
by specific performance,[1225] and probably also an agreement to
furnish an unpublished manuscript already completed. An undertaking to
write a book on a particular subject is not fulfilled by furnishing
a translation of a foreign work on that subject.[1226] If A agrees
with B to write an article for a certain publication or series
of publications, and if before the article can be published the
publication or series has been discontinued, A is not bound to deliver
his article for publication in another form; but he is entitled to a
_quantum meruit_ for the work he has done.[1227]

If an author has entered into a royalty agreement with a publisher
he is not, apart from express agreement, under any obligation not to
publish the work through another publisher before the first edition
has been sold out.[1228] An author should therefore be bound not to
publish elsewhere so long as the publisher is willing and ready to
publish, and if this is done the publisher may restrain the author or
another publisher who publishes with notice of his agreement.[1229] In
a half profit agreement where nothing was said as to future editions,
it was thought that the contract might probably be determined by
either party on the expiry of each edition and before any expense had
been incurred in respect of a future edition; but until that was done
the publisher had the exclusive right to publish and recoup himself
for his outlay and earn profits.[1230]

It is not illegal as being in restraint of trade for an author
to contract to write only for a single publisher or theatrical
manager,[1231] nor for a publisher to contract not to publish a
particular class of work.[1232] If an editor engages to give his
whole time to a publication, he will be restrained from engaging in
or advertising any rival work.[1233] Unless there is an express
stipulation an author will not be prevented under a publishing
agreement from writing and publishing other books on the same subject
provided they do not reproduce in whole or in part the former
book.[1234] If there is an express stipulation against publishing
similar works, both the author and his publisher would be restrained
from doing so.[1235] Apart from express agreement a publisher is
probably free to publish any other rival work he pleases, even
although it may seriously affect the sale of the former book.[1236]

In the absence of express stipulation, the publisher under a half
profit agreement has been held entitled to fix the selling price,
choose the embellishments, and generally control the publication.[1237]

In a publishing agreement it should always be expressly stated who is
to hold the copyright. It has been held that where no mention of the
copyright was made a half profit agreement did not import a transfer
of the copyright to the publisher.[1238] In editorial agreements as to
newspapers or magazines similar careful provision should be made as to
who is to own the copyright and the goodwill in the name, otherwise
difficult questions may arise.[1239]

Where the author of a novel sold the copyright therein to the owners
of a periodical, reserving to himself the right to publish in "volume
form," it was held that under this agreement he was entitled to
publish the work in weekly parts, which when completed could be bound
into a volume.[1240]

An indemnity given by an author to a publisher against proceedings
for libel is void if the publisher knew or ought to have known that
the matter was libellous.[1241] The publisher, however, would be
entitled to rely on such an indemnity if he acted innocently. The same
principle would apply to proceedings for infringement of copyright.

A publishing agreement may be made orally unless, which will seldom
happen, it cannot be performed within a year from the making thereof,
in which case there must be a written memorandum of the terms to
satisfy the Statute of Frauds.[1242]

The agreement, if in writing, must be stamped with the usual sixpenny
agreement stamp. If it contains a conveyance of a copyright it will
probably have to be stamped with _ad valorem_ duty under section 53
of the Stamp Act.[1243] If the work is unpublished at the time of
the agreement the whole interest in the manuscript can be conveyed
by delivery; in the case of a published work the copyright could
be conveyed by entry on the register, so that in neither case need
there be a conveyance in the agreement, and the stamp duty can thus
be avoided. If a copyright is conveyed by entry on the register the
Copyright Act expressly exempts the conveyance from duty.[1244]

_Printers' Agreements._--A printer has a lien on the books printed
by him for his printing charges.[1245] He has no lien on stereotype
plates for the amount of the bill for printing from them.[1246] If
the printer does not print his name and address on a book as required
by Act of Parliament[1247] he will not be entitled to recover his
printing charges.[1248] An order to print a certain number of copies
of a book must as a rule be treated as an entire order, and no payment
will fall due until the whole are complete and ready for delivery, so
that if when half finished they are destroyed by fire he will not be
entitled to recover for the work done.[1249] A printer does not insure
the manuscript when in his possession,[1250] but is only liable for
loss occasioned by his negligence.

A printer cannot maintain an action in respect of his charges for
printing an immoral or seditious work, knowing it to be such.[1251]
If while a book is being printed by him he discovers that it contains
libellous, seditious, or immoral matter, he would be entitled to
discontinue the printing and sue for the work already done.[1252]

       *       *       *       *       *



ADDENDUM


=Musical Copyright, Summary Remedies.=--A Bill has passed both Houses
of Parliament and awaits the Royal Assent whereby, after October
1902, owners of copyright in music may proceed in a Court of summary
jurisdiction against persons dealing in pirated music. Piratical
copies which are being hawked or offered for sale may be seized by
a constable without warrant and brought before the Court, which, on
proof, may order the copies to be forfeited or destroyed, and inflict
a penalty not exceeding twenty pounds on any one offender in respect
of the same transaction. This Act will not apply outside the United
Kingdom.



PART II

THE LAW OF COPYRIGHT IN THE UNITED STATES



CHAPTER I

INTRODUCTORY


The law of copyright in the United States, especially in relation
to literary work, is daily becoming of more interest to the owners
of copyright in this country. Since the _Act of Congress_, 1891,
commonly known as the _Chace Act_, those who are neither citizens of
nor resident in the United States can acquire a copyright therein
if copies of their books are printed from type set up in the United
States and if their books are duly recorded there before publication
either within or outside the United States. There is thus created
for English authors a property which may be of considerable value if
before publishing here they incur the trouble and expense of printing
and recording their books in America.

Apart from this commercial interest which English authors and
publishers have in a knowledge of American copyright law, there
is the further interest to English lawyers in the large body of
analogous case law to which the American statutes have given rise.
These statutes were originally founded on our own statute of Anne,
and, although the difference between the Acts now in force in the two
countries is very wide in many respects, a great deal remains the
same in substance, and the decisions of the American Courts afford
us valuable precedents. These cases, however, must not be cited in
our Courts at random, as has too frequently been done. In citing
from the American reports, it is essential to compare the statutory
provisions in America with the statutory provisions in this country,
and ascertain whether the decisions are really applicable or not.
It is for this reason that I have thought it expedient to keep the
American law and the English law entirely separate. The practice of
citing American cases promiscuously throughout a treatise on English
Copyright Law I have found to be confusing and misleading.



CHAPTER II

WHAT WORKS ARE ENTITLED TO COPYRIGHT


In order to acquire copyright in the United States the work must
fulfil the following conditions:

  1. It must be an original literary or artistic work.
  2. The (owner/author) must be a citizen of the United States (or
     resident therein), or of a foreign country proclaimed
     to that intent by the President.[1253]
  3. It must have complied with the formalities prescribed
     by the statutes of the United States.[1254]
  4. It must be innocent.[1255]


SECTION I.--AN ORIGINAL LITERARY OR ARTISTIC WORK.

In the United States literary and artistic works are treated similarly
under the same series of statutes. The works protected are enumerated
in section 4952 of the Revised Statutes as amended by the Act of March
3, 1891 (_The Chace Act_). The protection extends to any book, map,
chart, dramatic or musical composition, engraving, cut, print, or
photograph or negative thereof, and to any painting, drawing, chromo,
statue, statuary, and to models or designs intended to be perfected as
works of the fine arts.

[Sidenote: The scope of the Constitution.]

In considering whether a work is within the protection of the
Copyright Acts, not only must the enacting words of the statutes
be considered, but also, and perhaps principally, the scope of the
provision in the Constitution, which grants power to Congress to
secure the protection of authors and artists.[1256] The language
of the Act must be read in connection with the Constitutional
provision and be so construed as to promote the object and conform
to the purpose expressed therein. The power given to Congress by
the Constitution is a power "to promote the progress of science and
useful arts by securing for limited times to authors and inventors
the exclusive right to their respective writings and discoveries." In
consideration of this restricted power the earlier decisions[1257]
construed the Acts of Congress as including only those works which
showed a certain degree of intellectual labour in the arts or
sciences. In _Clayton_ v. _Stone_[1258] protection was refused to a
daily price current or review of the markets issued in a newspaper.
Thompson, J., in giving judgment, said:

    "The Act was passed in execution of the power given by Congress,
    and the object therefore was the promotion of science; and it
    would certainly be a pretty extraordinary view of the sciences to
    consider a daily or weekly publication of the state of the market
    as falling within any class of them. They are of a more fixed,
    permanent, and durable character. The term science cannot with any
    propriety be applied to a work of so fluctuating and fugitive a
    form as that of a newspaper or price current, the subject-matter
    of which is daily changing, and is of mere temporary use.... The
    title of the Act of Congress is for the encouragement of learning,
    and was not intended for the encouragement of mere industry
    unconnected with learning and the sciences."

[Sidenote: Illustrated Catalogues.]

This high standard of intellectual requirement was not, however,
strictly maintained. In _Brightley_ v. _Littleton_[1259] a blank
form of application for a licence to sell liquor at retail, drawn in
pursuance of the statutes in that behalf, was protected, and it was
said that, although the matter claiming copyright must be original and
possess some possible utility, "the originality may be of the lowest
order and the utility barely perceptible." In _Ladd_ v. _Oxnard_[1260]
the English cases of _Lamb_ v. _Evans_[1261] and _Leslie_ v.
_Young_[1262] were cited with approval, and the Court agreed that
"the quality and grade of original work required by the Courts under
the Copyright Statutes are very moderate." Until the case of _Mott_
v. _Clow_,[1263] the tendency seems to have been to follow the
English judges to their extreme view, as expressed by Lord Halsbury
in _Walter_ v. _Lane_,[1264] _i. e._ "that the copyright law requires
neither literary merit nor intellectual labour nor originality
either in thought or in language." The Court, however, in _Mott_ v.
_Clow_[1265] refused to follow the English decisions. After reviewing
the American, and particularly the earlier American decisions, they
say:

    "The result of these decisions would seem to place this
    construction upon the Constitutional provisions under
    consideration that only such writings and discoveries are
    included which are the result of intellectual labour; that the
    term writings may be liberally construed to include designs for
    engravings and prints that are original and are founded in the
    creative powers of the mind, the fruits of intellectual labour;
    that prints upon a single sheet might be considered a book if
    it otherwise met the spirit of the constitutional provision;
    and that to be entitled to a copyright, the article must have,
    by and of itself, some value as a composition, at least to the
    extent of serving some purpose other than a mere advertisement or
    designation of the subject to which it is attached."

The "book" before the Court was a catalogue in the form of a bound
volume, containing illustrations of household wares offered for sale,
and giving the dimensions and price of each. The Court referred
to _Maple_ v. _Junior Army and Navy Stores_[1266] where a similar
catalogue in England was protected.

    "It is to be observed in this case that it was ruled largely upon
    the language of the Act of Parliament (5 & 6 Vict. c. 45)....
    It is to be here remarked that the Parliament of Great Britain,
    unlike the Congress of the United States, is unlimited in power,
    and with the construction and effect placed upon the preamble
    of the Act by the Court, there would seem to be little escape
    from the conclusion at which the Court arrived. In this country
    under the Constitution the power lodged with the Congress is not
    unlimited, but is restricted to the promotion of the progress
    of science and useful arts. The ruling of the English Court is
    therefore not pertinent except as it illustrates the subject."

The Court cited with approval _Baker_ v. _Selden_,[1267] which had
expressly approved _Cobbett_ v. _Woodward_,[1268] an English case
overruled in _Maple_ v. _Junior Army and Navy Stores_;[1269] they
further cited and approved the judgment of Thompson, J., in _Clayton_
v. _Stone_,[1270] quoted above. The judgment concludes with the
following paragraph:

    "It is possibly not beyond comprehension that pictures of
    slop-sinks, wash-bowls, and bath-tubs, with or without letterpress
    statement of dimensions and prices, though intended mainly for
    advertisement, may in localities where such conveniences are not
    in common use, be the means of instruction and of advancement in
    knowledge of the arts, and, when they are the products of original
    intellectual thought, may possibly come within the scope of the
    Constitutional provision. It is enough for the present purpose to
    say that, in our judgment, the Congress has not seen fit to enact
    a law which can reasonably be given so broad a construction."

[Sidenote: Directories. Dictionaries.]

[Sidenote: Mercantile Statistics.]

[Sidenote: Forms of Application.]

In considering the authority of some of the cases cited below, the
judgment in _Mott_ v. _Clow_[1271] must not be lost sight of. It is
probable that some of these cases are not in accordance with it, or
with the older cases, such as _Clayton_ v. _Stone_[1272] and _Baker_
v. _Selden_[1273] therein expressly approved. Subject to this note
of warning, the following may be taken as examples of what have and
what have not been accepted as works of art or literature within the
scope of the Constitution and the Acts of Congress. Directories[1274]
and dictionaries[1275] have both been protected. In the case of the
latter, there is copyright in the definitions of the words, however
short. A list of the credit ratings of marble, granite, and stone
dealers of the United States and Canada was protected in _Ladd_
v. _Oxnard_.[1276] In _Clayton_ v. _Stone_,[1277] which has been
approved as sound law,[1278] a daily state of the market was refused
protection. A racing guide containing a list of race-horses and
statistics as to their age and performances was protected in one
case,[1279] and in the other case a list of trotting horses and their
paces.[1280] In _Brightley_ v. _Littleton_[1281] a blank form of
application for liquor licence was held to be copyright. In _Carlisle_
v. _Colusa County_[1282] copyright was denied to a blank form of
property statement for assessment purposes.

This latter decision appears, however, to have been partly on the
ground that as the assessors were obliged to issue a form, it would
embarrass their duties if forms drawn up by private persons were
entitled to copyright.

A circular in pamphlet form used as an advertisement, and explaining
a certain method of distribution of coupons to cash purchasers
from certain merchants named in the pamphlet, has been held to be
the subject of copyright.[1283] The circuit judge, however, in his
judgment, says: "It requires some stretch of imagination to say that
this pamphlet comes within the purpose of Congress, the encouragement
of learning, and the increase of useful knowledge, but the official
charged with the duty has granted a copyright to this pamphlet, and
his decision is accepted."[1284]

[Sidenote: Dramatic Works.]

Dramatic works[1285] have been protected, although not of a very high
literary standard. In _Henderson_ v. _Tompkins_[1286] protection was
given to a topical song which was designed merely to amuse. It was
sufficient if it accomplished that purpose.

[Sidenote: Law Reports.]

[Sidenote: Statutes.]

Law Reports are protected so far as they consist of original
intellectual matter;[1287] the protection may thus extend to the
title-page, table of cases, the head notes, the statements of facts,
the argument of counsel, the index, the order and arrangement of
cases, the numbering and pagination of the volumes, the table of cases
cited in the opinions, the subdivision of the index into condensed
titles, and the cross references.[1288] The original work of the
reporter is alone protected.[1289] In the opinion of the Court there
is no copyright;[1290] these constitute part of the law of the land
open to all to make use of as they please, and neither the state,
the judge, nor the reporter can acquire or confer any conclusive
privilege of copying them. The same rule applies to the head notes
in those states where they are prepared by the judge.[1291] On the
same grounds of public policy no one can have copyright in the
statutes;[1292] the legislature of the state cannot confer it on any
one.[1293] There may be copyright in the head notes and arrangement of
a digest of the statutes.[1294]

[Sidenote: Notes and Additions. New Arithmetic. Adaptations.]

The contents of a book do not require to be entirely new; if
partially old there will be copyright _quoad_ the new material or new
arrangement.[1295] Thus there is copyright in notes and additions to
an old work,[1296] in a new arithmetic combining old material in new
form,[1297] in translations,[1298] in the adaptation of an old drama
introducing a new title, new dialogue, minor characters, scenery, and
dramatic situations with the orchestration and orchestra part songs
and music,[1299] and in the dramatization of a novel.[1300]

[Sidenote: Musical Arrangement.]

In one case it was held that the adaptation of a musical piece
from the notation suitable to one instrument to that suitable to
another was not a sufficiently intellectual process to entitle the
adapter to copyright in his adaptations.[1301] It was said that "a
mere mechanic could make the adaptation and accompaniment." Since
then, however, it has been held that a musical arrangement is the
subject of copyright. In _Thomas_ v. _Lennox_[1302] an orchestral
accompaniment for a non-copyright oratorio by Gounod was held to be
the subject of copyright. In _Carte_ v. _Evans_[1303] an arrangement
for the pianoforte of the orchestral score of an opera was held to be
copyright.

[Sidenote: New Editions.]

Copyright in new editions runs _quoad_ the new material from the date
of the new edition.[1304] The additions or corrections must be of
substantial value. A work which is _publici juris_ cannot be reclaimed
by colourable and immaterial alterations or additions.[1305]

[Sidenote: Form of Publication.]

[Sidenote: Mechanical Devices.]

[Sidenote: Letter File.]

[Sidenote: Account Book.]

A book need not be a book in the ordinary sense of the word; the word
in the Act is not to be construed by reference to lexicographers: "the
literary property to be protected by the Act is not to be determined
by the size, form, or shape in which it makes its appearance, but by
the subject-matter."[1306] A single sheet containing literary matter
will be protected as a book.[1307] No doubt, however, the subject
to be protected must be _ejusdem generis_ as a book or leaflet. The
subject-matter must convey, and the form must be suitably adapted
for conveying, information to the reader. The copyright law embraces
those things that are printed and published for information and not
for use in themselves. Thus what is really a mechanical instrument,
and if original entitled to protection under the patent law, will not
be protected by the copyright law. In _Amberg File_ v. _Shea_[1308]
protection was claimed in a letter file. It was said that the spaces
between the index letters were adjusted to the average requirements
of the correspondent. These average requirements were ascertained by
exhaustive research in different directories. Copyright was refused.
In _Baker_ v. _Selden_[1309] blank account books of an original type
or pattern were refused protection. The judge in that case drew the
distinction between what was a proper subject of the patent laws and
what was a proper subject of copyright law--"The object of the one
is explanation, the object of the other is use."[1310] In _Drury_ v.
_Ewing_[1311] a "ladies' chart for cutting dresses and basques for
ladies, and coats, jackets, &c., for boys" was protected. It is almost
certain, however, that this decision would not now be accepted as
sound. Mere labels will not be protected as copyright works.[1312]
They may be protected by registration in the Patent Office.[1313]

[Sidenote: Originality.]

Copyright may be obtained for works of the imagination, or for a mere
collection and arrangement of material open to all mankind.[1314] What
is meant by originality as a requisite of copyright is that what is
claimed as the subject of copyright, whether it be the composition or
arrangement of matter, must not have been taken from some literary
or artistic work already in existence. It need not be the first of
its kind; the same thing may have been done before so as to produce
identically the same result.[1315] If the second author, artist, or
composer goes about his work independently, searching out his material
from the original sources, he is equally entitled to copyright with
the first. Herein copyright law differs from the law of patents;
in the former there may be two concurrent copyrights in what is
identically the same creation, in the latter there can only be one
patent, the first inventor being entitled.

[Sidenote: Letters.]

Letters may be the subject of copyright, whether of a business or
private nature, and although never intended by the writer to be
published as literary productions. In _Folsom_ v. _Marsh_[1316] the
letters of George Washington were the subject of controversy. Story,
J., in giving judgment, laid down the law as to the property in
letters at some length:

    "There is no small confusion in the books with reference to the
    question of copyright in letters. Some of the _dicta_ seem to
    suppose that no copyright can exist except in letters which are
    professedly literary, while others again recognise a much more
    enlarged and liberal doctrine upon the whole subject. In the
    first place I hold that the author of any letter or letters (and
    his representatives), whether they are literary compositions or
    familiar letters or letters of business, possess the sole and
    exclusive copyright therein; and that no persons, neither those
    to whom they are addressed nor other persons, have any right
    or authority to publish the same upon their own account or for
    their own benefit. But consistently with this right the persons
    to whom they are addressed may have, nay, must by implication
    possess the right to publish any letter or letters addressed to
    them upon such occasions as require or justify the publication or
    public use of them, but this right is strictly limited to such
    occasions. Thus a person may justifiably use and publish in a
    suit at law or in equity such letter or letters as are necessary
    and proper to establish his right to maintain the suit or defend
    the same. So if he be aspersed or misrepresented by the writer or
    accused of improper conduct in a public manner, he may publish
    such parts of such letter or letters, but no more, as may be
    necessary to vindicate his character and his reputation, or free
    him from unjust obloquy and reproach. If he attempt to publish
    such letter or letters on other occasions not justifiable, a
    Court of Equity will prevent the publication by an injunction
    as a breach of private confidence or contract or of the rights
    of the author, and _a fortiori_ if he attempt to publish them
    for profit, for then it is not a mere breach of confidence or
    contract, but it is a violation of the exclusive copyright of the
    writer. In short, the person to whom letters are addressed has but
    a limited right or special property (if I may so call it) in such
    letters as a trustee, or bailee for particular purposes, either of
    information or of protection or of support of his own rights and
    character. The general property and the general rights incident to
    property belong to the writer, whether the letters are literary
    compositions or familiar letters or details of facts or letters of
    business. The general property in the manuscript remains in the
    writer and his representatives as well as the general copyright.
    _A fortiori_ third persons standing in no privity with either
    party are not entitled to publish them to subserve their own
    private purposes of interest or curiosity or passion."

It is not quite accurate to say that the receiver of a letter is
merely a trustee or bailee for particular purposes. Clearly the
receiver of a letter is entitled to destroy it unless there is any
express or implied stipulation to the contrary, and probably he can
prevent the sender from publishing it by refusing to produce it if it
is in his possession.

[Sidenote: No Copyright in Titles.]

As a rule there can be no copyright in a title.[1317] The deposit
of the title-page with the Librarian of Congress does not give the
author any exclusive right to the use of that title.[1318] A title
can only be protected as a trade mark in connection with a particular
literary or artistic production which has become known to the public.
The public must be shown to be deceived or to be in danger of being
deceived.[1319] A title may be protected by registration as a trade
mark.[1320]

[Sidenote: Photographs.]

Photographs were first protected by the Statute of March 3, 1865;
before then protection was refused to them under the head of prints,
cuts, or engravings.[1321] It seems to have been doubted at one time
whether the protection of photographs was not _ultra vires_ of the
powers conferred by the Constitution. There is certainly an apparent
difficulty in bringing a photograph within the expression "writings"
used in the Constitution; but this word has received an extremely wide
and liberal construction, and has been held to be capable of including
any literary or artistic production of the intellect. Photographs have
been now frequently protected, but it is not every photograph that
will be protected, there must be some evidence that the photographer
has exercised an intellectual choice of subject-matter, expression,
arrangement, light, or other circumstances or conditions which go to
the production of an artistic photograph.[1322] It will be a question
of fact for the Court or jury whether the photograph is a mere manual
reproduction of subject-matter or an original work of art.[1323] In
a portrait there may be copyright in so far as the photographer has
relied on his own judgment for the choice of light, background, pose,
or attitude.[1324] In one case the photograph of a yacht under sail
was protected. It required the photographer to select and utilise the
best effects of light, cloud, water, and general surroundings, and
combine them under favourable conditions for depicting vividly and
accurately the view of a yacht under sail.[1325]

A slight colourable alteration in a non-copyright photograph will not
entitle it to copyright.[1326]

[Sidenote: Engravings.]

Engravings, cuts, and prints will be protected,[1327] but there
must be at least some merit in them as artistic or instructive
productions. Thus the prints of common articles of household use
in a tradesmen's catalogue,[1328] drawings of billiard tables in a
similar catalogue,[1329] a card of specimen colours and tints of
zinc paints,[1330] and a poster with coloured drawings of a circus
performance[1331] have all been refused protection. If there is real
artistic merit in a drawing it will not be disentitled to protection
merely on the ground that it has been used as an advertisement.[1332]

It has been held that playing cards printed in colours are entitled to
protection as "prints."[1333]

[Sidenote: Pictures.]

The Act of June 18, 1874, enacts that the protection of the Copyright
Acts conferred on "engravings," "cuts," and "prints" shall not
extend to prints or labels designed to be used for any articles of
manufacture. This Act cannot be evaded by attempting to copyright the
picture or drawing from which the label is designed. In _Schumacher_
v. _Wogram_[1334] the Court refused protection under the Copyright
Acts to a picture representing a young woman holding a bouquet
of flowers intended to be reproduced on labels for cigar boxes.
The reason for refusing protection of the copyright law to such
productions is that their only real value is as a trade mark connected
with a particular article of manufacture.[1335] They are not designed
in themselves to instruct or amuse. As trade marks they will be
protected if registered in the Patent Office. The fact that a picture
could be readily lithographed and used as a label does not deprive it
of copyright;[1336] it must in order to lose its copyright have been
made with the intention of being used as a label. If the painting
itself were to be considered a label because copies might be so used,
no masterpiece would be entitled to copyright. A painting, engraving,
or print in order to be protected must be a pictorial representation
of something and not merely a design.[1337]


SECTION II.--NATIONALITY OF THE AUTHOR.

Unfortunately the Acts of Congress are not clear as to how far the
works of foreign authors, or the works of non-residents in the United
States are protected.

Until 1891 the works of foreign authors not resident in the United
States were denied protection. Sec. 4971 of the Revised Statutes ran
as follows:

    "Sec. 4971. Nothing in this chapter shall be construed to prohibit
    the printing, publishing, importation, or sale of any book, map,
    chart, dramatic or musical composition, print, cut, engraving, or
    photograph, written, composed, or made by any person not a citizen
    of the United States nor resident therein."[1338]

By the Act of 1891, the benefits of copyright are extended to the
citizens of foreign countries which are proclaimed by the President as
conferring reciprocal rights on American citizens. Sec. 4971 of the
Revised Statutes is repealed. The Act of March 3, 1891, section 13,
enacts--

    "That this Act shall only apply to a citizen or subject of a
    foreign state or nation when such foreign state or nation permits
    to citizens of the United States of America the benefit of
    copyright on substantially the same basis as its own citizens, or
    when such foreign state or nation is a party to an international
    agreement which provides for reciprocity in the granting of
    copyright by the terms of which agreement the United States of
    America may at its pleasure become a party to such agreement.
    The existence of either of the conditions aforesaid shall be
    determined by the President of the United States by proclamation
    made from time to time as the purposes of this Act may require."

The Act of March 3, 1891, section 5, amending the Revised Statutes,
sec. 4959, enacts that--

    "... the alterations, revisions, and additions made to books by
    foreign authors heretofore published, of which new editions shall
    appear subsequently to the taking effect of this Act, shall be
    held and deemed capable of being copyrighted as above provided
    for in this Act, unless they form a part of the series in course
    of publication at the time this Act shall take effect." (July 1,
    1891.)

On these sections two questions seem to be left open:

  (1) Is the test to be applied the nationality of (_a_) the
      author, or of (_b_) the proprietor of the manuscript,
      or other unpublished work, at the time of publication;
      or will it satisfy the Act if (_c_) either of these persons
      complies with the requisite conditions of nationality?
  (2) Will residence in the United States or in one of the
      proclaimed countries confer the privileges on one
      who is not a citizen or subject of any of them?

1. It may be that it would be a sufficient compliance with the
requirements of the Act if either the author or his assignee before
publication were a citizen of the United States, or a subject or
citizen of a proclaimed country. Section 1 amending the Revised
Statutes, sec. 4952, gives the sole liberty to "the author, inventor,
designer, or proprietor, and to the executors, administrators, or
assigns of any such person." Section 13 "applies the Act" to citizens
or subjects of certain foreign states or nations. Under the Revised
Statutes, section 4971, before 1891 it was the nationality of the
author alone that was considered, and it would have been no answer to
have said that the assignee before publication was an American citizen
or resident in the United States. Perhaps in 1891 the benefit was
designedly extended to assignees before publication, who complied with
the conditions and who had taken assignments from foreign authors who
did not. On the whole, however, I am inclined to the opinion that it
will not do merely to allege that the assignee of the uncopyrighted
and unpublished work is a citizen of the United States or a subject
or citizen of one of the proclaimed countries. It must, I think, be
alleged that the author, inventor, designer, or proprietor _ab initio_
has complied with the conditions as to nationality. By proprietor _ab
initio_ (and probably this is the true meaning of "proprietor" in
section 1 of the Act of March 3, 1891[1339]), I mean one who compiles
a work by his servants or agents, for instance, a body corporate,
which cannot be said to be an "author, inventor, or designer," and yet
is entitled to the whole property in the work of its servants as it
grows up from day to day. I have not considered the assignee after
publication. I think it must be abundantly clear that his nationality
cannot be taken as the test, since if he took his assignment from a
foreign author who did not comply with the conditions of nationality
when the work was published, the work at the time of assignment would
have become _publici juris_. If he took his assignment from one who
complied with the conditions of nationality and copyrighted the work,
the fact of his being an alien would not prevent him acquiring the
copyright already secured.

2. Before 1891 residence in the United States, which was interpreted
to mean permanent residence and not merely for the purposes of
publication,[1340] was sufficient to entitle an author to the
privileges of the Copyright Acts. The provision now, under the Act
of March 3, 1891, is that the Act shall only apply to a citizen of a
foreign country which has been proclaimed. Reading the Act strictly
a foreign resident in the United States but not a citizen thereof is
excluded from protection which he formerly had, unless he is a citizen
or subject of a proclaimed country. No doubt this was not intended
to be the result of the Act of 1891, but the words are plain and
unambiguous, and there seems no reason why they should not have effect
according to their plain meaning. _A fortiori_ a foreigner resident
in, but not a subject of, one of the proclaimed countries would not be
entitled to copyright.

The following States have been proclaimed as fulfilling one or other
of the required conditions, and their citizens are therefore entitled
to acquire copyright in the United States in the same way as an
American citizen:

  Belgium         }
  France          }
  Great Britain   }           July 1, 1891.
  Switzerland     }
  Germany                     April 15, 1892.
  Italy                       October 31, 1892.
  Denmark                     May 8, 1893.
  Portugal                    July 20, 1893.
  Spain                       July 10, 1895.
  Mexico                      Feb. 27, 1896.
  Chili                       May 25, 1896.


SECTION III.--NECESSARY FORMALITIES.

No person is entitled to copyright unless he--[1341]

I. In the case of a book, map, chart, dramatic or musical
composition, engraving, cut, print, photograph, or chromo--

   (i.) Delivers (or mails within the United States) to the
        Librarian of Congress, _on or before the day of publication_,
        in the United States or elsewhere a _printed copy of the
        title_ of the work.
  (ii.) Delivers (or mails within the United States) to the
        Librarian of Congress, _not later than the day of publication_,
        in the United States or elsewhere _two copies_ of
        the work.

II. In the case of a painting, drawing, statue, statuary, or
a model or design for a work of the fine arts--[1342]

   (i.) Delivers (or mails within the United States) to the
        Librarian of Congress, _on or before the day of publication_,
        in the United States or elsewhere a _description of
        the work_.
  (ii.) Delivers (or mails within the United States) to the
        Librarian of Congress, _not later than the day of publication_,
        in the United States or elsewhere _a photograph of
        the work_.

The proprietor of every copyright book or other article must deliver
(or mail within the United States) to the Librarian of Congress a copy
of every subsequent edition wherein any substantial changes shall be
made.[1343] Each volume of a book in two or more volumes, when such
volumes are published separately, and the first one has not been
issued before July 1, 1891, and each number of a periodical is to be
considered an independent publication.[1344] The requirements of the
statute as to delivery of title and copies, and printing of notice
must therefore be complied with in the case of each volume of a book
or number of a periodical.

=Conditions Precedent.=--The deposit of title and delivery of copies
as prescribed by the statutes are conditions precedent to copyright
and not merely declaratory.[1345] There is no common law right after
publication, and therefore if a work is published without the proper
formalities having been observed it becomes _publici juris_, and any
one may make what use of it he pleases.[1346] Ignorance of the law is
no excuse even although a new Act has just been passed altering the
time within which copies must be delivered.[1347] In an action for
infringement the declaration must set out in detail a compliance with
the law as to formalities,[1348] and the burden of proof thereof is on
the complainant.[1349] He must prove the deposit of title, delivery of
copies, notice of copyright, and the date of publication. The latter
is essential, as on it depends the validity of the entry.[1350]

=Delivery of the Title.=--The copy of the title to be delivered must
be "printed," _i. e._ the characters used must be those ordinarily
used in printing, but they may be made by hand with a pen.[1351] The
work must be published within a reasonable time after the deposit
of the title-page, otherwise the formalities will not have been
complied with.[1352] Two months' delay in mailing to the Librarian of
Congress copies of a photograph after the filing of its title is not
unreasonable.[1353]

It will not do to publish a book under a substantially different title
from that deposited. Immaterial variations in the title, or sub-title,
or complete alteration of a description on the title-page will not
make the deposit void. In _Donnelley_ v. _Ivers_[1354] the title
deposited was "Over One Thousand Recipes. The Lake Side Cook Book: A
Complete Manual of Practical, Economical, Palatable, and Healthful
Cookery. Chicago: Donnelley, Lloyd & Company, 1878." The title on the
book as published was "The Lake Side Cook Book, No. 1. A Complete
Manual of Practical, Economical, Palatable, and Healthful Cookery.
By N. A. D." It was held that the requirement as to the deposit of
title having been "substantially, in good faith complied with," the
objection was not tenable. What is required is, that the deposited
title be sufficient to identify the book with substantial certainty.
In _Carte_ v. _Evans_,[1355] the title filed was "Pianoforte
Arrangement of the Comic Opera, The Mikado, or the Town of Titipu,
by W. S. Gilbert and Sir Arthur Sullivan. By George L. Tracey." The
book as published bore the title "Vocal Score of the Mikado, or The
Town of Titipu. Arrangement for Pianoforte by George Lowell Tracey
(of Boston, U. S. A.) of the above-named opera by W. S. Gilbert and
Arthur Sullivan." This was held a sufficient deposit to protect the
pianoforte accompaniment. In _Black_ v. _Allen_[1356] the title
deposited was "An Outline of the Political and Economic History of
the United States, with Maps and Charts: I. History and Constitution
by Alexander Johnson, M. A.; II. Population and Industry by Francis A.
Walker, LL. D." The title of the book as deposited was "United States:
Part III. Political Geography and Statistics, copyright, 1888, by
Francis A. Walker." In the absence of evidence that the defendant was
deceived or misled by the change of the title the Court held that it
was valid. In _Daly_ v. _Brady_[1357] the title of a drama deposited
was "Under the Gaslight: A Drama of Life and Love in these Times." The
actual title as published was "Under the Gaslight: A Romantic Panorama
of the Streets and Homes of New York." The Court held that the change
of title might deceive the public, and therefore the deposit of title
was bad; but this decision was reversed in _Daly_ v. _Webster_;[1358]
the variance was in the description. "The title required may include
a sub-title, but it does not include a description of the book upon
the title-page."

An author may wish to change his title entirely after he has deposited
the title-page. He may do this before the deposit of copies by
depositing a fresh title-page; but it is questionable whether the
duration of his copyright will run from the first deposit of title or
from the deposit of the altered title.[1359]

=Delivery of Description.=--Probably a short description is all that
is required. If the title is in itself descriptive, probably that
will be sufficient. The photograph of a painting, or other work of
art which is required to be delivered, does not take the place of a
description.[1360]

=Delivery of Copies.=--Under the Revised Statutes before 1891
the printed copies had to be delivered "within ten days from the
publication thereof." This was sufficiently complied with by the
delivery of two copies on the day before publication.[1361] The Act of
1891 now requires that the two printed copies shall be delivered "not
later than the day of publication."

The copies deposited with the Librarian of Congress do not require to
bear the statutory notice as to copyright.[1362]

The memorandum given by the librarian is sufficient _primâ facie_
evidence of the fact and date of deposit.[1363] The librarian's date
stamp on the book is not conclusive, and may be rebutted by other
evidence of the actual date of deposit.[1364] If the copyright matter
is ordinarily bound up with other matter, the Librarian of Congress
cannot insist on the delivery of the bound volume complete. It is a
sufficient delivery to take the volume to pieces and deliver the loose
sheets on which the copyright matter is printed.[1365] Before 1891
the two copies deposited had to be of the "best edition," but this
appears to be no longer necessary.

=Printing in the United States.=--In the case of

    i. books,
   ii. chromos,
  iii. lithographs,
   iv. photographs,

the two copies required to be delivered must be printed from type set
within the limits of the United States or from plates made therefrom,
or from negatives or drawings on stone made within the limits of the
United States, or from transfers made therefrom.[1366]

This requirement was introduced in 1891, when the privileges of
copyright were extended to subjects and citizens of foreign countries.
Formerly there was no obligation to print within the United States.

It has been held that a volume of music is not a "book" within the
meaning of the provision in the statute enacting that the two copies
delivered shall be printed in the United States.[1367] It would seem
to follow that the necessity of printing in the United States does
not extend either to maps or charts, or even to dramatic compositions
in book form. These are all dealt with specifically in the Act, and
therefore, on the authority of _Littleton_ v. _Oliver_,[1368] do not
come within the generic term "books."

=Retrospective Provision.=--By an Act of March 3, 1893, it is enacted--

    "That any author, inventor, designer, or proprietor of any book or
    other article entitled to copyright, who has heretofore failed to
    deliver in the office of the Librarian of Congress two complete
    copies of such book, or description or photograph of such article
    within the time limited by title sixty, chapter three of the
    Revised Statutes relating to copyrights and the Acts in amendment
    thereof, and has complied with all other provisions thereof, who
    has before the 1st day of March 1893 delivered at the office of
    Librarian of Congress or deposited in the mail addressed to the
    Librarian of Congress two complete printed copies of such book,
    or description or photograph of such article, shall be entitled
    to all the rights and privileges of such title sixty, chapter
    three of the Revised Statutes and the Acts in amendment thereof."

=Notice of Copyright.=--No person can maintain an action for
infringement of his copyright unless each published copy of his work
bears one or other of the following notices:[1369]

    "Entered according to Act of Congress in the year ----, by A. B.,
    in the office of the Librarian of Congress at Washington.

Or:

    "Copyright, 18--, by A. B."

Books must bear the notice:

    "On the title-page or page immediately following."[1370]

Designs for moulded decorative articles, tiles, plaques, or articles
of pottery:

    "Upon the back or bottom of such articles or on such other place
    upon them as it has heretofore been usual ... for the placing of
    manufacturers, merchants, and trade marks thereon."[1371]

Other works, including musical compositions, photographs, pictures,
engravings:

    "Upon some visible portion thereof, or of the substance upon which
    the same shall be mounted."[1372]

The statutory requirements as to notice must be strictly complied
with, and a departure from the exact words of one or other of the
alternative forms may be fatal to the right of action. When the only
notice on a book was "Entered according to Act of Congress, in the
year 1878, by H. A. Jackson," it was held an insufficient notice as
complying with neither of the two alternative forms.[1373]

[Sidenote: Slight variation.]

A very slight variance in the words or the orders of the slight words,
if the matter is substantially the same, will not, however, make a bad
notice. Thus "1889, Copyrighted by B. J. Falk, N. Y.," has been held
a good notice.[1374] So also has "Copyright entered according to Act
of Congress, 1889, by T. C. Hefel, civil engineer." It was held to
comply with the short alternative notice, viz.: "Copyright, 18--, by
A. B.," the superfluous words being disregarded on the doctrine of
_utile per inutile non vitiatur_.[1375]

_The name of the proprietor_ who takes out the copyright is an
essential part of the notice. In _Osgood_ v. _Aloe_[1376] the
following notice was printed on the page following the title-page,
"Copyright, 1891; all rights reserved." This was held a bad notice,
and the name of the publishers, who were also the proprietors, printed
on the title-page was insufficient. There was nothing to show that
they were proprietors as well as publishers. Copyright may be taken
out in the name of a firm or a conventional trade name, and if that
name is on the notice it is sufficient.[1377] But it must be the full
and proper name under which the proprietors are trading. Thus when
_The Illustrated American Publishing Company_ issued a paper entitled
_The Illustrated American_, the following was held an insufficient
notice on a crayon drawing published by the Company, viz.:
"Copyrighted 1891, by _The Illustrated American_."[1378] It seems,
however, that it is not necessary for an individual to give his full
name if what is given is sufficient for the purposes of identity. Thus
the surname and the first letter of the Christian name,[1379] and in
one case the surname alone have been held sufficient.[1380] The latter
case was that of a photographer in Brooklyn. It was shown that there
was only one photographer of that name in Brooklyn, and the notice ran
"Copyright, '93, by Bolles, Brooklyn."[1381] If the full name is given
there is no necessity to give the address of the proprietor, even
although he be a foreigner resident abroad.[1382]

It will not do to put the name of an agent on the notice. In _Nifflin_
v. _Dutton_[1383] the authoress of "The Minister's Wooing" took out
a copyright in the whole book in her own name. Subsequently several
chapters of the story were published serially in the _Atlantic
Monthly_. The only notice of copyright in that magazine was in the
name of the publishers, Ticknor and Fields. It was held that these
chapters had not a sufficient notice. Great care must be taken in the
case of serial publications. If a story is published in a magazine
each part must be treated as a separate book, and must contain a
notice of copyright by the author if he is the owner. When the book is
published as a whole these notices must be repeated; it will not do
merely to copyright the whole book afresh and print a new notice.

_Date of Entry._--The date required is the year only; neither the day
nor the month is necessary. The statement of a wrong year has been
held fatal to the notice. In _Baker_ v. _Taylor_[1384] the true date
of taking out copyright was 1846. The notice stated 1847 as the year,
and this was held as bad notice, even although the error arose from
mistake. But in _Callaghan_ v. _Myers_[1385] the notice put an earlier
instead of a later date than the actual date of deposit; the true date
being 1867, the notice declared copyright to have been entered in
1866. This was held an immaterial error, since it deceived no one, and
would only operate to shorten the claimant's copyright by one year.
In _Schumacher_ v. _Wogram_[1386] Wallace, J., doubted whether the
declaration in the notice of a date earlier than the true date would
not make the notice void. It is immaterial that the date on the notice
is abbreviated if it is sufficiently clear what date is meant; thus,
"Copyright, '94, by A. B.," is a good notice.[1387]

It is extremely difficult to determine what date the law requires to
be placed upon the second or subsequent edition of a book wherein
substantial alterations or additions have been made. In the case of
a reprint, I think it is clear that the date of the first edition,
and that only, is the correct date; and even where alterations or
additions have been made I think that that date is necessary, and
I doubt whether it is necessary to add another notice giving the
date of the revised edition. It would seem that a subsequent edition
does not require to be "entered" in the same manner as the original
edition; the statute is complied with by the deposit of a copy of
every subsequent edition wherein any substantial changes shall be
made. If this is done copyright in the alterations seems to have been
procured. In _Lawrence_ v. _Dana_[1388] Clifford, J., held that it
was not necessary in a subsequent edition to give the date of the
entry of the first edition[1389]; but I doubt if this is sound. On the
whole, I think the correct view is that the matter peculiar to the
first edition, whether it be printed in the first or any subsequent
edition, must bear a notice with the date when that matter was first
entered, and that the matter peculiar to any subsequent edition will
be protected until the expiry of the copyright in the first edition,
if it bears a notice with the date of the first edition only, and if
a copy has been sent to the Librarian of Congress. I further think
that the matter peculiar to subsequent editions may be protected for
the full term of twenty-eight or thirty-two years from the date of the
first publication of the edition in which it is first contained, if
such edition is separately entered, by two copies of the title-page
and of the book being deposited, and if it bears a notice with the
date of such separate entry. I think, therefore, in every new edition
in which there is a substantial alteration or addition there should
as a matter of practice be a separate entry of copyright and separate
notices on the title-page, one for each edition of the book.

The question may be raised as to whether a book is a subsequent
edition or an entirely new book. In _Banks_ v. _M'Divitt_,[1390] the
plaintiff had annotated the rules of the Supreme Court of New York.
He had published such annotated editions in 1858 and 1871. In 1874
the rules were extensively amended, and the plaintiff published an
annotated copy. It was held that this was not a subsequent edition of
the original annotated rules, and therefore no notice of the original
date of publication was required. I very much doubt whether this is a
sound decision. It seems to me that in so far as the new book was the
same as the old, it was a subsequent edition, and in order to retain
protection required a notice of original publication.

_Every published copy_ of every edition[1391] of a work must have
the statutory notice thereon; every proprietor who sues must have
printed the notice on every copy published by him. If an assignee of
a copyright fail to print a proper notice he will have no remedy even
against his assignor for infringement.[1392] From the wording of the
Act of June 18, 1874, it seems that the printing of the notice is not
now a condition precedent to copyright, but is only a condition of
the right of action upon infringement. It is, I think, questionable
whether the failure of A to print a proper notice will affect the
right of B, his assignee, to sue for an infringement subsequent to
the assignment. One who makes an unauthorised copy of a literary or
artistic work is not exempt from liability merely because he can
show that the copy from which he copied had no notice. His defence
must be that such copy left the proprietor's hands without a proper
notice.[1393] The question has been raised, but not answered, whether
if the proprietor grant a licence, and the licensee omits to insert a
proper notice, the proprietor is without a remedy.[1394]

Formerly if a book were published in several volumes at different
times, it was sufficient to place the notice on the first volume
only,[1395] but now since the Act of 1891[1396] each volume of a book
and each number of a periodical is to be considered an independent
publication, and the notice must be placed on each volume or part
accordingly.

There is no special provision in the law of the United States as to
newspapers and other periodical works, therefore each issue must be
considered a separate work, and the requisite formalities complied
with in each case.

_Notice on Painting._--It was contended in one case[1397] that there
was no necessity to place the notice on an original painting, the Act
only requiring notices to be placed on copies made therefrom. The
Court held, however, that the original work was a "copy" within the
meaning of the provision in the Act, and must be inscribed with the
notice accordingly.

_Maps in Atlas._--Each map contained in an atlas does not require to
be separately copyrighted, or bear a separate notice of copyright.
They are protected by a copyright of the entire work.[1398] The same
would, no doubt, apply to a volume of engravings or other works of art.

=Publication.=--There appears to be some doubt as to whether
publication is necessary as a condition precedent to the statutory
rights. The duration of copyright is to be measured from the date
of the deposit of the title or description with the Librarian of
Congress; but probably that in itself gives no proprietary right
either in the title or the book. It has been suggested that it gives
an "inchoate right," or an "equitable right, which Chancery will
protect until the other acts may be done."[1399] It may be that
when the formalities have been completed by deposit of copies the
right then acquired dates back to the deposit of title so as to give
a statutory remedy against an infringement made between the two
dates.[1400] When the copies of the book have been deposited, the
express conditions precedent of the statute have been performed; but
the question has been raised whether there will be copyright unless
within a reasonable time thereafter the book or other work is put
in circulation among the public. In _Boucicault_ v. _Hart_[1401]
the Court held that although the title-page had been filed there
could be no copyright without "a deposit of copies and publication."
In _The Jewellers' Mercantile Agency_ v. _Jewellers' Publishing
Company_[1402] the New York Supreme Court, on a question as to
whether an action should be founded on the Statute or at Common
Law, held that although there had been deposit of title and deposit
of copies in accordance with the Acts there could be no copyright,
but only a common law right unless there had been a "publication."
In _Ladd_ v. _Oxnard_,[1403] the circuit judge, Putnam, thought
that the statutory right was perfected by deposit of copies, and
that from then, until "publication," there were concurrent remedies
under the Statute and at Common Law. After the decision in _Ladd_ v.
_Oxnard_[1404] the decision in _The Jewellers' Mercantile Agency_ v.
_Jewellers' Publishing Company_ was reviewed by the Appeal Court of New
York.[1405] The Court was unanimous in reversing the judgment below,
and holding that the plaintiff's right of action was a statutory right
and not a common law right. Three of the judges gave their decision on
the ground that the facts proved showed a publication subsequent to
deposit; but the other three gave it on the ground that the deposit
itself was a publication and completed the statutory copyright. It is
submitted that this latter is the correct view, and that, therefore,
after deposit of the title-page and deposit of copies in due form
nothing further is necessary to acquire copyright.

Apart from the question as to whether publication is necessary to
complete the statutory right, several questions of importance may
arise on the fact or date of publication, _e. g._:

  1. The remedy at Common Law depends entirely on the
     absence of publication.
  2. The due performance of the formalities of deposit
     of title and copies are relative to the date of
     publication.

The essence of publication consists in a disclosure of the thing
itself, so that the public without discrimination of persons have
an opportunity of enjoying its use.[1406] The most usual method of
publication of a literary or artistic work is the offering for sale,
selling, or giving away of copies.[1407] It is not necessary that a
copy of the book be actually sold, it is sufficient if it be offered
to the public. The act of publication is the act of the author, and
cannot be dependent on the act of the purchaser.[1408] Gratuitous
distribution to members of the public, or leaving copies in a place to
which the public have access, such as an hotel, is publication.[1409]
The sale or distribution of copies, however, may be so limited to
individuals, or particular classes of individuals, as not to amount
to publication. When before the advertised date of publication
an advance lot of books in quires unbound were sent to different
publishers, with a request not to publish until bound copies should
be sent, it was held, in the absence of evidence that the request
was not complied with, that there had been no publication.[1410] The
author of a literary or artistic work may circulate it among his
friends, or among a restricted class subject to conditions, and at
the same time retain his common law right in unpublished work.[1411]
A teacher may circulate copies of his work among the members of his
class without publishing the work.[1412] In one case a sheet of
miniature copies of engravings was sent round to picture dealers
solely for their inspection and to solicit orders. This was held not
to be a publication.[1413] Copies of an unpublished opera given to the
performers marked "Right of Representation and Reproduction Reserved"
is not a publication.[1414] The transmission of news over telegraphic
instruments does not constitute a general publication.[1415] In order
to protect the common law right the distribution of copies must be
strictly confined to individuals or to a class. If the man in the
street may buy it there is a publication even although the work is of
such a nature (_e. g._ a trade journal) as will practically be confined
to a limited class.[1416] It does not make it the less a publication
that every purchaser of, or subscriber to, a literary or artistic work
is bound by restrictive conditions as to its use. So long as the work
is put within the reach of all and not limited to a class, it matters
not what conditions are imposed on the individual subscriber.[1417]
Thus the sale of a book to all who paid for a course of instruction
in a system for training the memory was held to be a publication
notwithstanding that each sale was made under a contract not to
disclose the contents to others.[1418] A book may be published
although it is not sold but issued on loan to subscribers with an
express condition that the copy must be returned on the expiry of the
subscription.[1419] Publication of a book in a serial form reserving
all other rights to the author, is such a publication as to abandon
the copyright to the world, if steps have not been taken to copyright
it before such publication.[1420]

I have little doubt, but there is no definite authority, that a book
may be published so as to destroy the common law right, although it is
not printed. Circulation in manuscript would be enough.[1421]

The public performance of a dramatic piece is not a publication of
it so as to deprive the proprietor of his common law right in the
manuscript.[1422] The same rule probably applies to the oral delivery
of a lecture or sermon, unless there is some act or circumstance from
which it can be implied that the speaker intended to abandon the
literary matter to the free use of the public.

It has been held by the Circuit Court of Appeals[1423] that the
exhibition of a picture in a public gallery is a publication of the
picture so as to destroy the owner's rights, unless he has taken steps
to secure a copyright. One of the three judges dissented from the
judgment, but on what ground does not appear. In a case decided by a
district judge,[1424] shortly before the one just cited, the judge
thought that the exhibition of a painting in a public saloon did not
work a forfeiture of the right to obtain copyright unless the general
public was permitted to take copies at pleasure, and such permission
would not be assumed in the absence of direct evidence. The same judge
decided that neither the sale of a replica in a different size made
before the principal picture by way of a study nor the publication of
a crayon sketch in an exhibition catalogue was a publication of the
picture. It is submitted that the exhibition of a picture in a public
gallery is a publication. It seems to afford the public an opportunity
of making every legitimate use of the contents of the picture. They
could not make any greater use of the contents if they bought an
engraving of the picture. It would not even then be lawful for them to
make copies of the picture. As to the replica and the rough sketches
in the catalogue, no doubt they were not "copies" of the picture, and
therefore their publication could not entirely destroy the copyright
in the picture; but if these were published without being copyrighted
or without statutory notice, clearly the public could copy them, and
to that extent the copyright in the design of the original picture
would have been forfeited.

An unauthorised publication will not operate to forfeit the common law
rights;[1425] but if authorised by the owner it is immaterial that the
publication constitutes a breach of contract with a licensee or part
assignee.[1426] Thus the author of a German unpublished play conveyed
the performing rights in the United States to a citizen of the States,
and contracted with him that he would not publish the play as a
book. In breach of this contract the play was published in Germany
under the authority of the author. It was held that such publication
destroyed all literary rights in the United States.[1427] When the
defendant relies on previous publication he must definitely prove such
publication, and that it was made with the consent of the owner.[1428]

_The Library of Congress._--All the copyright records are in the
Library of Congress at Washington, and are kept by the Librarian of
Congress, who makes an annual report to Congress of the number and
description of copyright publications.

The Librarian of Congress must record the name of each copyright work
in a book kept for the purpose. The form of entry is as follows:

    "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 copyright.--C. D., Librarian of Congress."

The librarian must give a copy of the title or description under
the seal of the Librarian of Congress to the proprietor whenever he
requires it.

The Librarian of Congress is entitled to receive from the persons to
whom the services are rendered the following fees:[1429]

  1. For recording title or description                      50 c.
  2. For a copy of such record under seal                    50 c.
  3. For recording and certifying a written consignment      $1
  4. For a copy of an assignment                             $1

All fees so received must be paid into the Treasury of the United
States.

The charge for recording the title or description of the work of a
person not a citizen of, or resident in, the United States is $1.

The Librarian forwards a note of the title-entries to the Secretary
of the Treasury, who must prepare and print, at intervals of not more
than a week, catalogues of such title-entries for distribution to the
collectors of customs of the United States and to the postmasters of
all post-offices receiving foreign mails; and such weekly lists as
they are issued are furnished to all parties desiring them at a sum
not exceeding $5 per annum.[1430]

The Secretary and Postmaster-General are empowered and required to
make and enforce such rules and regulations as will prevent the
importation into the United States of all articles prohibited by the
Copyright Acts.[1431]

The Postmaster to whom a copyright book, title, or other article is
delivered for the Librarian of Congress must, if requested, give
a receipt therefor, and when so delivered he must mail it to its
destination.[1432]

For every failure on the part of the proprietor of any copyright to
deliver or deposit in the mail either of the published copies, or
description, or photograph, the proprietor of the copyright is liable
to a penalty of $25, 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.[1433]


SECTION IV.--IMMORAL WORKS.

A work containing immoral matter will not receive the protection of
the Courts.[1434] A song containing the verse, "She's the hottest
thing you ever seen," was not protected.[1435] The introduction of
obscene, profane, or libellous matter into a literary or artistic
work does not render it _publici juris_; the copyright remains, but
the Court will not entertain any action upon it. Thus in _Broder_ v.
_Zeno_[1436] the Court said that their decision to refuse protection
would not prevent the complainants from republishing their song, and
by omitting the objectionable word thus secure a valid copyright.
If an action is brought for the piracy of immoral matter it will be
dismissed without costs to either party. The fact that a work such
as playing cards may, and probably will, be used for an unlawful
purpose, does not disentitle it to protection.[1437] A guide to the
turf has been protected,[1438] so has a list of records and trotters
and pacers.[1439]


SECTION V.--DURATION OF COPYRIGHT.

    "Copyrights shall be granted for the term of twenty-eight years
    from the time of recording the title thereof."[1440]

    "The author, inventor, or designer, if he be still living, or his
    widow or children if he be dead, shall have the same exclusive
    right continued 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 copyright, within six months before the
    expiration of the first term: and such persons 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."[1441]

In _Callaghan_ v. _Myers_[1442] it was said that if by an error the
notice of copyright on a published book bore a date prior to the
actual year of publication the result would be not that the notice was
bad, but that the term of copyright would date from the year specified
in the notice.

Notice that the right to obtain an extended term is not given to the
"proprietor;" therefore an employer whose servant did literary or
artistic work in his employment would not be entitled to an extension.
It seems doubtful whether the servant in such a case, although the
actual author, would be entitled to an extension: it is thought not.

If the author, inventor, or designer assigns his copyright, he does
not part with his right to an extension unless this is clearly
intended by the transfer.[1443] From the terms of the statute one
might doubt whether the right to obtain an extension is assignable.
No doubt a contract to assign it would be valid, and a document
purporting to assign it would be held equivalent to such, so that on
the extension being acquired the purchaser could compel an assignment.

If the author of an unpublished work conveys all right, title, and
interest in it to another, he certainly cannot take out an extended
term to run against his grantee.[1444] It seems doubtful whether he
can take it out at all. Certainly his grantee cannot, and probably the
author could not for his benefit.

If the original term is invalid there will be no right to a
renewal.[1445]



CHAPTER III

WHO IS THE OWNER OF THE COPYRIGHT?


Under Section 4952 of the Revised Statutes as amended by the Act of
March 3, 1891, the statutory right is vested in "the author, inventor,
designer, or proprietor, and the executors, administrators, or assigns
of any such person."

Care must be taken in entering a copyright that it is entered by and
in the name of the owner of the common law right in the literary or
artistic work. The entry does not require to be in the name of the
author or to disclose who he is. It must be in the name of the owner,
and if entered in the name of any other person it will be a bad
entry.[1446] Thus, when a printer in his own name copyrighted a book
of which he was not the owner, he could not maintain an action either
for his own use or for the use of the owner.[1447] Every action for
infringement must be brought in the name of the owner of the copyright
for the time being; and it would seem, if he is not the author
himself, he must show a derivative title from the author.[1448] The
owner of a manuscript by an author unknown would not be entitled to
copyright as "proprietor" and first publisher.[1449]


SECTION I.--THE AUTHOR.

_Primâ facie_ the author is owner of the copyright. If he is in a
position of employment the right in his work may vest on creation
in his employer; or he may have contracted in such a way that the
property passes to another.[1450] But some relationship or contract
must be shown whereby the right passes, otherwise it remains the
property of the author. The author who does work on commission does
not necessarily part with his copyright, it may be expressly or
impliedly reserved;[1451] neither does an author under a publishing
agreement necessarily convey his rights to the publisher.[1452] In
either case it will depend on a construction of the contract between
the parties.

The author of a literary or artistic work is the man who creates
it in his mind.[1453] He may employ others in the execution of the
details or in the merely manual or mechanical work and yet remain the
sole author. The author of a photograph is the man who arranges the
subject and makes choice of the time and light. It does not make him
any less the sole owner of the work that he employs some one to take
off the cap or perform other manual details. A man who compiles a
dictionary or a directory may be the sole owner of it, although he has
had scores of employees working up the separate parts for him.[1454]
But to constitute one an author he must show that his was the
"inventive" or "creative" mind; it will not do that he has suggested
a scheme and employed or procured some one else to carry it out
independently;[1455] he must by his own intellectual labour applied to
the material of his composition produce an arrangement or compilation
new in itself.[1456] There may be joint authorship resulting in
co-ownership.

When an unpublished work or copyright belongs to two or more persons
in common, whether as co-authors or co-assignees, either of the two
may alone sue a wrongdoer,[1457] and either may at his own expense
publish the book without accounting to his co-owner.[1458]


SECTION II.--THE EMPLOYER.

Probably in the case of a paid servant who does literary or artistic
work for his master in the course of his employment, the master is the
proprietor of the work even in its embryo state, and no conveyance,
transfer, or consent by or on behalf of the servant is necessary
to entitle the master to enter the copyright in his own name as
proprietor. In such a case he does not require to show that he is
the "author" of the work; he is a proprietor, and is entitled to the
copyright as such.[1459]

In the case of work done on commission the relationship of the parties
is somewhat different. The author is not a servant but an independent
contractor, and therefore his work does not _ab initio_ vest in his
employer. There is a strong presumption in the case of a commission to
execute work not in existence at the time, that the work when executed
is to belong unreservedly to the person giving the order.[1460] The
question depends, however, entirely on what the actual agreement
between the parties was.[1461] An author, although he does work on
commission, may well reserve the copyright to himself, giving to his
employer a licence for a particular purpose only.[1462] If it has
been agreed expressly or impliedly that the employer is to become
owner of the copyright, then the delivery of the manuscript or other
work in fulfilment of the contract will pass the author's literary or
artistic common law right to the employer, and the latter may take
the copyright in his own name as proprietor.[1463] If the term of the
contract were that the author should retain the copyright, copyright
must be entered in the author's name.


SECTION III.--THE STATE.

It has been questioned whether the Government of the United States or
an individual State could take out a copyright for itself.[1464] It
does seem doubtful whether the State can _ab initio_ be the proprietor
of a copyright. As was pointed out in _Banks_ v. _Manchester_:[1465]

    "The State cannot properly be called a citizen of the United
    States or a resident therein, nor could it ever be in a condition
    to fall within the description in the Revised Statutes, section
    4952 or section 4954."

A corporation, however, has been held capable of entering itself as
the original proprietor of a copyright.[1466] In the case of _Heine_
v. _Appleton_,[1467] where an artist was employed on a Government
expedition to Japan on the terms that all his artistic and scientific
work should be the property of the United States Government, and the
artistic material was, with the artist's consent, published by order
of Congress in the report of the expedition, it was said that the
artistic matter had been abandoned to the free use of the public.
It does not appear, however, whether Congress, if they had taken
steps, could or could not have secured a copyright in the literary
or artistic matter in the report. Whether or not the Government
of the United States or a State could be lawfully entered as the
original proprietors of a work, it cannot be seriously doubted that as
assignees they could acquire a copyright in matter already copyrighted
by an individual. This they would be entitled to purchase and hold
as any other Government property, such as ships, guns, and stores. A
copyright might be taken out by an individual minister for the benefit
of the people.[1468]


SECTION IV.--THE ASSIGNEE.

Before copyright has been secured the common law rights in a
manuscript or other unpublished work may be conveyed by parol; no
writing or evidence in writing is required.[1469] If a publisher takes
a copyright in his own name with the knowledge and acquiescence of the
author, the publisher is the lawful owner of the copyright subject
to his accounting to the author in terms of the contract between
them.[1470] Under the Act of 1831, and until the Revised Statutes,
1874, were passed, it would seem that a manuscript could not be
assigned except by writing.[1471] Although the common law exclusive
right of first production may pass by parol or delivery, it does not
necessarily pass with possession or even with the ownership of the
manuscript or other work. An author or other proprietor may sell
documents, pictures, or other literary or artistic articles, reserving
to himself the right of publication and right to acquire copyright
and subsequently multiply copies.[1472] If an author's manuscripts
are sold in execution, the purchaser does not acquire the right of
publication.

After copyright has been secured the assignment is governed by
statute. Section 4955 of the Revised Statutes, 1874, provides that
copyrights are assignable in law by any instrument in writing, and
such assignment must be recorded in the office of the Librarian of
Congress within sixty days after its execution; in default of which
it is void as against any subsequent purchaser or mortgagee for a
valuable consideration without notice.

It must be considered at least doubtful whether this section affects
a question between the parties or between the assignee and one who
does not claim through the assignor.[1473] Mr. Drone, in his work on
copyright, expresses an opinion that the first part of the section is
merely permissive, and intended to show that if the assignment is
in writing no formalities are required. I doubt if this is sound. I
think that even as between assignor and the assignee the assignment
must be in writing; but I think the assignee can, without recording
the assignment, sue his assignor or any third person, except those who
claim a title through the assignor.

An agreement to assign may be made by parol, and where there was no
subsequent assignment in proper form damages could be recovered for
breach of the agreement.[1474]

Any alien friend may be an assignee of a copyright in the United
States.[1475]

The assignee appears to take with the copyright an assignment of the
assignor's choses in action; he has been held entitled to sue in
respect of infringements committed prior to assignment.[1476]

An assignment need not necessarily be made by conveying the author's
entire right to one person. It may be conveyed to two or more persons
in common, or an undivided interest may be conveyed to one or more
persons.[1477] We have seen that the statutory right of reproduction
is divisible from the right of property in the concrete work.[1478]
Thus an author may sell his painting or manuscript and retain the
right to multiply copies. Further, the various rights of copyright
may be split up as the holder pleases;[1479] one may have the right
of printing, another the right of translating, and a third the right
of performing. The assignment may also be limited as to a particular
country or countries,[1480] the right to perform or print in America
may be given to A, and the right to perform or print in Great Britain
to B. Probably an assignment cannot be limited to a portion of the
United States.[1481] I do not think that a copyright could be assigned
for a limited time.[1482]

As a rule a licensee cannot sue in respect of an infringement; but
a licensee has been held the proper party to sue when he was an
exclusive licensee, and by the terms of his licence was to bring all
necessary suits.[1483] Copyright passes by bequest or on intestacy to
the executors or administrators of the owner.[1484] On bankruptcy the
bankrupt's copyrights may be applied for the benefit of the estate;
but it would probably be necessary for the Court to order a transfer
in conformity with the requirements of the Copyright Acts.[1485]
Probably a bankrupt's manuscripts and other private matter could not
be published for the benefit of the estate without the consent of the
bankrupt.



CHAPTER IV

INFRINGEMENT OF COPYRIGHT


The exclusive right given by the statute is "the sole liberty of
printing, reprinting, publishing, completing, copying, executing,
finishing, and vending ... and, in the case of a dramatic composition,
of publicly performing or representing it or causing it to be
performed or represented by others; and authors or their assigns shall
have exclusive right to dramatize and translate any of their works for
which copyright shall have been obtained under the laws of the United
States."[1486]


SECTION I.--WHAT IS A PIRATICAL COPY.

A copy of a literary or artistic work is such a reproduction of the
original as will serve in whole or in part as a substitute for the
original. Thus the plate from which a piratical engraving is intended
to be struck is not a copy of the original engraving amounting to
an infringement.[1487] Neither when several stones are required to
produce a lithograph is an impression of the first stone only giving
a mere outline an infringement.[1488] But a lithograph may be an
infringement of a photograph if it produces the general conception
even although the artistic detail and peculiar merit of the photograph
are not reproduced.[1489] It has also been held that a photograph may
be infringed by the design thereof being stamped on leather for a
chair seat.[1490] A perforated scroll used for a mechanical musical
instrument, such as a pianola or æolian, is not a piratical copy of
the original music.[1491]

It is equally an infringement to make copies of a copyright work for a
private distribution as it is to make them for sale.[1492] Strictly,
even a single copy made for private use would be an infringement.

=Copying may be Indirect.=--A piratical taking need not necessarily
be made direct from an authorised copy of the work alleged to be
infringed. It may be taken from a derivative work, for instance, a
painting may be infringed by copying an engraving made from it;[1493]
or it may be taken from another unauthorised work. It would seem that
it is not considered an infringement of copyright to publish and sell
copies taken from the work before it was copyrighted, even although
published and sold after it was copyrighted.[1494] It might be a
breach of contract or common law right.

=The Intention need not be Bad.=--There is no necessity for the
plaintiff in an action for infringement to show either that the
defendant when he took the matter knew that it was protected by
copyright, or that he believed the use which he was making of the
plaintiff's work was an unfair one.[1495] The defendant may have been
equally ignorant of fact and law, and yet he will be responsible
for the result of his actions. Conversely, if in fact the defendant
has not made an unfair use of the plaintiff's copyright work, it
is immaterial to show either that he thought he was infringing the
plaintiff's copyright or that he intended to carry his work further
and actually to infringe the plaintiff's rights.[1496] The intention
of the defendant, however, may be material as evidence in a doubtful
case.[1497]

=Proof of Copying.=--The onus of proving an infringement is on the
party making the charge.[1498] Mere similarity is not sufficient;
he must show that the work charged as a piracy was taken from his
copyright work. The strongest evidence is usually in the coincidence
of errors; but a few solitary instances are not conclusive. In a
question between the authors of two rival law works,[1499] it was held
that the duplication of a few errors in citations was not sufficient
evidence of piracy where there was obviously a great deal of further
work and labour expended in the preparation of the alleged infringing
work. In a question of an alleged infringing digest,[1500] it was held
that the mere verbal identity of the summary of one case where a large
number of cases had been digested was not sufficient proof.

=No Monopoly in Subject-Matter.=--The right of copyright is an
exclusive right of reproducing the whole or any part of an original
literary or artistic work. It differs from a right of patent in that
it does not prohibit another from producing and reproducing a work
identically the same as the protected work, provided that he does so
by going to the common sources of information and not by copying the
protected work. Copyright creates no monopoly in the subject-matter.
One man may compile tables of shipping and railway statistics; another
may, without infringing the former's copyright, collect the same
material and work it up for himself, producing, if accurately done and
on the same principle, a very similar result.[1501] In the same way
arithmetics,[1502] translations,[1503] school grammars,[1504] maps
of a particular country,[1505] biographies,[1506] lithographs,[1507]
law books,[1508] and other works[1509] do not entitle their author
to say to a subsequent worker in the same field that as he was there
first he has a right to exclude others from competition. In one
case[1510] it was attempted to set up a monopoly in the biography of
President Garfield, on the ground that the President had selected
a particular person for the work. The contention was rejected by
the Court. Probably the only case in which an argument in favour of
monopoly in a certain subject-matter has been sustained is that of
_Thomas_ v. _Lennox_.[1511] The subject of the action was Gounod's
Oratorio _The Redemption_. A pianoforte arrangement had been published
without acquiring copyright, but the orchestral score had never
been published. The defendants procured a composer to compose an
orchestral score from the pianoforte arrangement. This they publicly
performed. In an action for infringement of the common law right in
the plaintiff's unpublished orchestral score, the Court, in granting
an injunction, said:

    "In this respect an opera is more like a patented invention than
    a common book; he who shall obtain similar results, better or
    worse, by similar means, though the opportunity is furnished by
    an unprotected book, should be held to infringe the rights of the
    composer."

It is almost certain that this is bad law;[1512] it is contrary to the
whole principle of copyright, and there is no substantial reason why
an exception should be made in favour of a musical adaptation and not
in that of a map or any other literary or musical work.

=Taking a Substantial Part.=--In _Lawrence_ v. _Dana_, Clifford, J.,
said:

    "Copying is not confined to literal repetition, but includes also
    the various modes in which the matter of any publication may be
    adopted, imitated, or transferred, with more or less colourable
    alterations to disguise the source from which the material was
    derived; nor is it necessary that the whole, or even the larger
    portion of the work, should be taken in order to constitute an
    invasion of copyright."[1513]

In _Folsom_ v. _Marsh_, Story, J., said:

    "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 any property."[1514]

To constitute an infringement there must be a taking of a material
part of the original matter from another's work.[1515] To determine
what is a material part is often a question of extreme difficulty and
nicety. It depends on the quantity and quality of the matter taken,
the object with which it is taken, the relation of the works to one
another, the proportion of the matter taken to the complete works, but
more particularly to the work of the borrower, the extent to which the
work borrowed from is injured, and the extent to which the borrower
makes profit from the introduction of the borrowed matter.[1516] In
the case of _Morrison_ v. _Pettibone_,[1517] a district judge held
that the taking of the mere outline of a copyright photograph was
not a copying within the meaning of the statutes. In this case it
had been intended by the defendant to make an entire reproduction of
the photograph by the process of lithography. The stones were all
in actual readiness, but only one had been used, giving the initial
colour and exterior lines of the intended lithograph. In one case
where a few references had been taken by the author of one law book
from another, a preliminary injunction was refused on the ground of
small amount.[1518] The alleged infringement of a copyright photograph
need not, however, be substantially identical in order to ensure
conviction; it is sufficient if a substantial portion of the main
design, distinctive ideas, or characteristic features are taken.[1519]
Taking the boundaries of townships from a copyright map has been held
to be an infringement.[1520] The taking of a single scene from the
drama of another may be an infringement.[1521] It is no answer to an
action for infringement to say that the defendant's book in no way
rivals or competes with the plaintiff's work.[1522] That is merely a
question of damages.

=Fair Use.=--Although a man is not permitted to take the whole or
part of another's work in the compilation of his own, he is entitled
to make of that other's work what is known as a "fair use," for the
purpose of a new work. One may use another's book as a guide to
authorities;[1523] for supplying suggestions as to treatment of a
subject;[1524] and for the purpose of checking the accuracy[1525] of
a completed work. One may use it as a storehouse of information; but
in a rival work it will be an infringement to take any of the facts as
arranged, or to take any of the language of the other's book, except
for the purposes of criticism.

Shipman, J., says in _Banks_ v. _M'Divitt_:[1526]

    "I do not understand that the rule prohibits an examination of
    previous works by the compiler before he has finished his own
    book, or the mere obtaining of ideas from such previous works.

    "It may be laid down as the clear result of the authorities 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."[1527]

A dramatist must not take the plot, the characters, the scenes, or
situations from the drama of another.[1528] A musician must not
take his melody from that of another composer.[1529] The compiler
of a digest must not borrow verbatim from the headnotes in the
reports.[1530] The compiler of a directory must discover and make his
own selection of the matter to be comprised in it.[1531] The designer
of a map must not take the position of his towns and boundaries from
a copyright map.[1532] The compiler of a dictionary must not take his
definitions from another's copyright dictionary.[1533] The writer
of a law book must not take his citations and references from the
work of another.[1534] It is no answer to a charge of infringement
for the defendant to say he could have produced the same result with
a little extra trouble. He is not thereby entitled to appropriate
the plaintiff's labours.[1535] A man may take ideas from the work
of another and put his own material into a similar form.[1536] If
one man writes a book on physiognomy on a new system, another may
adopt his system and from his own research write a similar book. So
the copyrighting of tables showing the standing and credit of the
citizens of a state does not prevent another from compiling similar
tables.[1537] The sketch of a detective which was said to convey an
original idea was held not to have been infringed by another drawing
carrying out the same idea but differently executed.[1538] There is
no copyright in a method of advertising,[1539] so that if a tradesman
issues a circular describing a particular method of obtaining goods
by collecting discount coupons, although another tradesman may not
copy his circular he may adopt the same system and issue a catalogue
of his own, describing the system in his own words.[1540] There
is no infringement of a drama in adopting from it a mechanical
contrivance, such as a tank filled with water to represent a river
on the stage.[1541] In the case of _Bullinger_ v. _MacKay_[1542] it
is suggested by Benedict, J., in his judgment that there might be
copyright in a novel system of arranging matter in a statistical work.
It is submitted that this is wrong, and that even if the arrangement
was an original one there would be no infringement in taking the
method of arrangement and applying it independently.

=Improvement no Excuse.=--It is no answer to an action for
infringement for the defendant to say that he has made a good work out
of a bad one, and so benefited the literary or artistic world.[1543]
Even although I correct errors and make necessary additions so as
to create from a worthless a useful book, I am not entitled so to
deal with another author's work without his permission. Good or bad,
an author is entitled to do what he likes with his own work and to
prevent others making an unfair use of his labours.[1544]

=Different Object.=--When a subsequent book is written with a
different object from a previous publication it may be legitimate to
take considerable extracts from the earlier work. To what extent this
will be permitted must depend upon the relative value of the matter
taken, and the purpose for which it is taken.[1545] It is not an
absolute answer to an action for infringement to say that the matter
was taken for an entirely different purpose from that for which it was
used in the original work. If the taking in any way supersedes the
uses to which the matter taken might have been put by its original
author there is an infringement.[1546] Thus where the main design of
a photograph was reproduced on stamped leather,[1547] and where the
author of a life of Garfield for the young borrowed largely from a
biography of Garfield written for political campaigns,[1548] there was
held to be infringement. It is the nature and value of the extracts
more than their length or number that must determine whether it was
legitimate to take them or not.

In _Gray_ v. _Russell_,[1549] Story, J., says:

    "_Non numerantur, ponderantur_; the quintessence of a work may
    be piratically extracted so as to leave a mere _caput mortuum_,
    by a selection of all the important passages in a comparatively
    moderate space."

=Extract for Review.=--Extracts may be taken from a work for the
purpose of reviewing or criticising it, or writing a treatise in
answer.

    "Reviewers may make extracts sufficient to show the merits or
    demerits of the work, but they cannot so exercise the privilege as
    to supersede the original work. Sufficient may be taken to give a
    correct view of the whole; but the privilege of making extracts
    is limited to those objects, and cannot be exercised to such an
    extent that the review shall become a substitute for the book
    reviewed."[1550]

A reviewer must not tear the heart out of a book.

=Abridgments.=--What is called a _bonâ fide_ abridgment is held to be
a fair use of another's work.[1551] The opinions of the judges in the
older cases were derived from the English case law on the subject. I
think it is doubtful whether the English abridgment cases would now be
sustained, as the principle involved is clearly against all the more
recent doctrines as to infringement. In America, however, the judges,
although disagreeing more or less with the case law as to abridgment,
have felt themselves bound by precedent to hold that a fair abridgment
is not a piracy.

In _Story_ v. _Holcombe_,[1552] M'Lean, J., said:

    "If this was an open question, I should feel little difficulty in
    determining it. An abridgment should contain an epitome of the
    work abridged--the principles in the condensed form of an 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 who will be satisfied with the
    abridgment.... 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.... But
    a contrary doctrine has been long 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 precedent, and I yield to it in this instance
    more as a principle of law than a rule of reason or justice."[1553]


In _Lawrence_ v. _Dana_,[1554] Clifford, J., took a similar view:

    "Whatever might be thought, if the question was an open one, it is
    too late to agitate it at the present time, as the rule is settled
    that the publication of an unauthorised but _bonâ fide_ abridgment
    or digest of a published literary copyright, in a certain class of
    cases at least, is no infringement of the original."

The learned judge then lays down some restriction on the free right to
abridge:

    "Unless it be denied that a legal copyright secures to the
    author 'the sole right and liberty of printing, reprinting,
    publishing, and binding the book' copyrighted, it cannot be held
    that an abridgment or digest of any kind of the contents of the
    copyrighted publication, which is of a character to supersede
    the original work, is not an infringement of the franchise
    secured by the copyright. What constitutes a fair and _bonâ fide_
    abridgment in the sense of law is, or may be, under particular
    circumstances, one of the most difficult questions which can well
    arise for judicial consideration; but it is well settled that a
    mere selection or different arrangement of parts of the original
    work into a smaller compass will not be held to be such an
    abridgment."[1555]

I think that to-day the Courts in America as well as England would,
if the question of abridgments were to come before them, cut down the
right of the abridger very considerably. I could not advise any one
that he was safe in making an abridgment of another's work; certainly
he must avoid making any extracts from the work abridged; the use
of any of the author's language literally or colourably taken would
undoubtedly be piratical.

=Translations.=--Authors and their assigns have the exclusive
right of translating their works into any language.[1556] Before
1891 the translating right had to be expressly reserved by the
author, presumably by notice printed on every published copy of his
work.[1557] No reservation is now required. Before 1870 there was no
exclusive right of translation at all.[1558] The same remarks apply
to the right of dramatization. The right of dramatization probably
does not prevent a stranger from making a dramatic version for his own
private use; but it would prohibit any public use of such a version
whether by publication in print or representation on the stage.

=Dramatic Performing Right.=--In the case of dramatic works the
author and his assigns have the sole right of performing the same
in public.[1559] This right was first given by Act of Congress in
1856.[1560] In _Daly_ v. _Palmer_,[1561] Blatchford, J., defines the
scope of the Act:

    "A composition, in the sense in which that word is used in the Act
    of 1856, is a written or literary work invented or set in order.
    A dramatic composition is such a work in which the narrative is
    not related, but is represented by dialogue and action. When a
    dramatic composition is represented in dialogue and action by
    persons who represent it as real by performing or going through
    with the various parts or characters assigned to them severally,
    the composition is acted, performed, or represented; and if the
    representation is in public, it is a public representation.
    To act in the sense of the Statute is to represent as real by
    countenance, voice, or gesture that which is not real. A character
    in a play who goes through with a series of events on the stage
    without speaking, if such be his part in the play, is none the
    less an actor in it than one who, in addition to motions and
    gestures, uses his voice. A pantomime is a species of theatrical
    entertainment, in which the whole action is represented by
    gesticulation without the use of words. A written work consisting
    wholly of directions, set in order for conveying the ideas of
    the author on a stage or public place by means of characters who
    represent the narrative wholly by action is as much a dramatic
    composition designed or suited for public representation as
    if language or dialogue were used in it to convey some of the
    ideas."[1562]

It will be an infringement of performing right to take a single scene
from another's drama.[1563] It is more important to consider what is
a dramatic representation than what is a dramatic composition. If a
composition not primarily intended for representation is publicly
represented without permission, even if it was not a "dramatic
composition," the person representing will be liable for having
dramatized it if the representation is dramatic. There can be a
dramatic representation by one actor only, and many music hall songs
are undoubtedly dramatically represented.

=Musical Rights.=--Before 1897 there was no exclusive performing right
in musical compositions as such. It might have been protected from
performance if it could be shown to be part of a dramatic piece.[1564]
By the Act of January 6, 1897, performing right in musical
compositions was first created. The protection is now substantially
the same as in the case of dramatic pieces.


SECTION II.--PROHIBITED ACTS, AND REMEDIES.

It is an infringement, subject to the remedies stated below, to do any
of the following acts in respect of a copyright work.

In the case of:

  I. _Books_:[1565] without the consent of the proprietor in
      writing signed in the presence of two witnesses.

    1. To print or publish.
    2. To dramatize or translate.
    3. To import.
    4. Knowingly to sell or expose for sale copies unlawfully made or
       imported.

The owner's remedies are:

    1. Forfeiture of copies.
    2. Damages.
    3. Injunction.
    4. Account of profits.

  II. _Maps,_[1566] _charts, dramatic or musical compositions, prints,
      art engravings, photographs, chromos, paintings, drawings,
      statues, statuary models and designs for the fine arts_:
      without the consent of the proprietor in writing
      signed in the presence of two witnesses.

    1. To engrave, etch, work, or copy.
    2. To print or publish.
    3. To dramatize or translate.
    4. To import.
    5. Knowingly to sell or expose for sale copies
       unlawfully made or exported.

The owner's remedies are:

    1. Forfeiture of plates and sheets.
    2. Penalty of $1 for every sheet found in
       defendant's possession.
    3. Penalty of $10 for every copy of a painting,
       statue, or statuary.
    4. In the case of a photograph made from any
       object not a work of fine art, the sum to
       be recovered shall not be less than $100
       nor more than $5000.
    5. In the case of a work of the fine arts or
       photograph thereof, the sum to be recovered
       shall not be less that $250 nor
       more than $10,000.
    6. Injunction.

One-half of the penalties under the Act of March 2, 1895,
go to the proprietor of the copyright and the other half to the
use of the United States.[1567]

A series of sheets containing tabulated information has
been held not to be entitled to protection as charts but only
as a book.[1568] An engraving or cut contained in a book or
volume will not be protected as a cut unless it is separately
copyrighted as such.[1569]


  III. _Dramatic or musical compositions_:[1570] without the consent
       of the proprietor.

    1. Publicly to perform or represent.

The owner's remedies are:

    1. Damages not less than $100 for the first,
       and not less than $50 for every subsequent
       performance.
    2. If done wilfully and for profit it is a misdemeanour,
       and the offender may on conviction be imprisoned for
       a period not exceeding a year.
    3. Injunction.

Damages cannot be recovered in a suit in equity, the remedy being
limited to an injunction and profits.[1571]

=Account of Profits.=--The right to an account of profits is an
equitable remedy, and incidental to the statutory right, although not
expressly conferred by the statute.[1572]

If a work is in part piratical and in part innocent, then if the
piratical part can be distinctly separated it will be separately
condemned and the profits apportioned.[1573] If the piratical matter
is so mixed up with the rest that it cannot be distinctly separated,
the profits awarded will be the whole profits on the sale of the
book.[1574] When the defendant has sold a book twice, having bought it
back second-hand, the profits include the profits on both sales.[1575]
The cost of producing copies which the defendant did not sell cannot
be estimated in reduction of profits.[1576] There will be no decree
for profits unless there are means of determining in a reliable manner
what sum the defendant received for books.[1577]

=Damages.=--Damages may be awarded in lieu of or as supplementary to
an account of profits. The measure of damages is the diminution in the
plaintiff's sales due to the publication of the defendant's book.

The minimum statutory damages given for infringement of performing
rights are remedial but not penal, and the strict rules of evidence
in criminal cases do not apply.[1578] The penalties given for
infringement of maps, &c., are of a penal nature.[1579]

In respect of maps, musical and dramatic compositions, works of art,
&c., there is no right of action to recover damages merely as such;
the remedy is limited to the prescribed forfeiture and penalties.[1580]

=Penalties.=--Penalty for "each sheet" does not mean for each copy.
Where a large number of lithograph copies of a photograph were printed
on one sheet it was held that only one penalty was recoverable for the
whole sheet.[1581] Cutting up or binding the sheets does not increase
nor diminish the number of the sheets.[1582] Only those sheets which
are "found in the defendant's possession" are penalised.[1583] They
must be alleged and proved to have been actually discovered in the
defendant's possession before the bringing of the action,[1584] and
not merely be found by the jury to have been in his possession. They
need not necessarily have been found by the plaintiff or any one
acting on his behalf.[1585] An employee who holds possession for his
master is not liable in penalties.[1586] Penalties cannot be recovered
in a suit in equity.[1587]

=Forfeiture.=[1588]--It seems doubtful whether the forfeiture of
copies of a book under section 4964 of the Revised Statutes can be
enforced unless the whole book is copied. It was held under the Act of
1831 that they could not,[1589] but I doubt if this is sound.

The statutes give no right of action to the proprietor of a map,
photograph, dramatic or musical work, artistic work, &c., to recover
from an infringer the value of copies which have passed from his
possession.[1590]

=Injunction.=[1591]--A preliminary injunction is granted, but only
in a plain case,[1592] to stay further damage. The Court will always
consider which party is likely to suffer most from the erroneous
granting or refusing of an injunction. In doubtful cases an injunction
will not be granted simpliciter, but the defendants may be required to
keep an account and give a bond to answer damages.[1593] An injunction
will go at the hearing without reference to the question of special
damage.[1594]

=Who is Liable.=--The sale of a play with a view to unauthorised
representation makes the seller a joint infringer of the performing
right.[1595] The manager of a company is not personally liable for an
infringement made by the company without his knowledge and against
his express instructions.[1596] A company is liable in penalties as
well as an individual.[1597] The printer and publisher of a piratical
book are liable equally with the writer.[1598] One who procures an
infringement to be made is liable.[1599]

An employer whose servants or agents infringe the copyright of others
is undoubtedly liable in damages for the wrongful acts of his servants
done in the course of their employment. Thus one who compiles a
directory is responsible for the piratical acts of his canvassers,
even although they acted contrary to his express instructions.[1600]
But it has been held that a man is not liable for forfeitures or
penalties on account of acts done without his knowledge or consent
by his servants or agents in his employment. When an agent had full
authority to advertise his principal's teas as he thought fit and
pirated some election statistics in doing so, it was held that his
principal could not be liable in forfeitures or penalties for acts
done in his absence and without his authority or knowledge.[1601] In
another case it was held that the proprietor of a newspaper was not
responsible in forfeiture or penalties for a piratical copy of a map
which appeared in his newspaper during his absence from the management
and control.[1602] It will be observed that if these cases are sound
the proprietor of the copyright in a map, &c., or artistic work has
no remedy in either penalties or damages against the proprietor of
an infringing publication unless he can show that the piratical
matter was inserted with his knowledge or consent. This follows from
the above decisions that the specific penalties constitute the only
remedy by way of damages which the proprietor of these works can
recover.[1603]

=Limitation of Action.=--No action can 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.[1604]
This includes all claims, not only those for forfeiture and penalty
so-called, but for damages under Revised Statutes, sec. 4964, in
respect of books.[1605]

=Acquiescence.=--Mere delay on the part of the plaintiff in pursuing
his remedy is no defence to an action for infringement.[1606] A
preliminary injunction may be refused on the ground of delay.
The remedy on the final hearing will not be barred by laches or
acquiescence, unless it is tantamount to fraud for the plaintiff to
insist on his legal rights.[1607] A right may perhaps be abandoned by
allowing numerous members of the public to exercise it without licence
or objection.[1608]

=Pleading.=--In pleading, the plaintiff does not have to allege the
facts which make him proprietor.[1609] If it is disputed, it is for
the defendant to allege and prove facts to the contrary.[1610] The
plaintiff, however, must allege specifically a compliance with the
statutory formalities, although he need not allege that publication
took place within a reasonable time after the deposit of the
title.[1611]

In all actions arising under the laws respecting copyrights, the
defendant may plead the general issue, and give the special matter in
evidence.[1612]

=Penalties for affixing False Notice.=--Every person who shall insert
or impress a copyright notice, "or words of the same import, in or
upon any book, map, chart, dramatic or musical composition, print,
cut, engraving or photograph or other article, whether such article
be subject to copyright or otherwise, for which he has not obtained
a copyright, or shall knowingly issue or sell any article bearing
a notice of United States copyright which has not been copyrighted
in this country; or shall import any book, photograph, chromo or
lithograph, or other article bearing such notice of copyright, or
words of the same purport which is not copyrighted in this country,
shall be liable to a penalty of $100, recoverable one-half for the
person who shall sue for such penalty, and one-half to the use of the
United States."[1613]

This section was amended in 1891 and again in 1897. It now reads as
above. Before 1897 the penalty was not recoverable from one who sold
copies, knowing them to contain a false notice, unless he had made
the book or caused the notice to be inserted.[1614] Before 1897 also
there could be no conviction unless the article on which the false
notice was impressed was a copyrightable article.[1615]

The penalty is not recoverable for each copy, but for each issue.
Where chromos were struck off in large numbers for advertising
purposes, each separate batch being printed with a different trade
name for different customers, it was held that the penalty was
recoverable on each batch.[1616] For a notice to incur the penalty as
a false notice, it is not necessary that it should have been printed
as directed by the Acts. It will be subject to the penalty even
although printed in another part of the book.[1617] Rough prints of
a picture made for the purpose of advertisement bore a false notice,
and were held to have incurred the penalty.[1618] It is not unlawful
to impress a notice of copyright on a rough copy of a copyright
picture, even although such copy is not separately copyrighted.[1619]
Liability will not attach unless the notice contains the essentials
of a sufficient copyright notice, viz. "name," "claim of exclusive
right," and "date when obtained." Thus where the date was omitted no
penalties were recovered.[1620] Any one who causes a false notice to
be impressed is equally liable with the person who himself impresses
it.[1621]

=Importing Books Printed Outside the United States.=--If copyright has
been secured in the United States, importation of any book, chromo,
lithograph, or photograph, or any plates of the same, not made from
type set, negatives, or drawings on stone made within the limits of
the United States,[1622] is prohibited, either with or without the
consent of the owner of the copyright.

Except--

  1. Works printed or manufactured more than twenty years
     at the date of importation.[1623]
  2. Books and pamphlets printed exclusively in languages
     other than English.[1624]
  3. Books and music in raised print used exclusively by
     the blind.[1625]
  4. Works imported by authority for the use of the U. S. or
     the Library of Congress.[1626]
  5. Books, maps, lithographic prints and charts specially
     imported, not more than two copies in any one
     invoice, in good faith, for the use of societies, schools,
     colleges, &c.[1627]
  6. Books imported for use and not for sale subject to
     payment of duty, and not more than two copies at
     any one time.[1628]
  7. Newspapers and magazines, if they contain no infringement
     of U. S. copyright.[1629]



CHAPTER V

COMMON LAW RIGHTS


SECTION I.--PUBLISHED WORK.

After a work has been published it has no protection in the nature
of copyright except under an Act of Congress.[1630] If either from
the nature of the work, or from the want of conforming with the
formalities of the Act, there is no statutory protection, then there
can be no exclusive right of copying the work. After a drama or
musical piece has been published as a book, not only the copyright
in it but also the performing right depends entirely on statutory
protection.[1631] Performance on the stage not being a publication,
affects neither the right of copy nor the performing right.

Although there is no right of copy in a published work except under
statute, there are certain common-law rights based on fraud or implied
contract which are incident thereto, and which neither depend on nor
are affected by statutory protection.

=Passing off.=--One man is not entitled so to produce his book as
to lead the public to believe it is the work of another.[1632] The
same or a similar title is the most usual method of passing off. One
cannot monopolise a purely descriptive title such as "Latin Grammar"
or "Guide to the Alps;" but it was held a passing off to take the
title, "The _Fram_ Expedition--Nansen in the Frozen World;"[1633] so
the title "Social Register" to a select list of residents in a certain
district was infringed by a similar list bearing the title "Howard's
Social Register."[1634] It is immaterial in a question of passing off
that the book itself is unprotected from copying. Thus an English
magazine called "Chatterbox" was largely sold in the United States,
but was not copyright. Although it would have been quite legal to have
copied the English magazine and sold such copies under its own title,
it was not permissible to publish another magazine under the title of
"Chatterbox."[1635] In another case it was held that one might not
adopt the title of another's operetta for his own, even although the
songs and vocal scores of the operetta had been published under the
title without securing copyright.[1636]

It is not a passing off to reprint another man's book and sell
it in his own name, and if the copyright has expired he has no
redress.[1637] He has no property in his own name as such. After the
copyright had expired in "Webster's Dictionary," Webster's assignee
was held to have no ground for restraining any one from reprinting and
selling "Webster's Dictionary" under that title.[1638] Even where the
name was a pseudonym, "Mark Twain," the author was not entitled to
prevent others from printing and selling some non-copyright work of
his as "Sketches by Mark Twain."[1639]

A man may prevent the publication under his name of a book of
which he is not the author or which has been mutilated without
his authority.[1640] Henry Drummond, the evangelist, delivered a
series of lectures at Boston, Massachusetts, on "The Evolution of
Man." Eight out of twelve lectures were partially printed with
the author's consent in the British Weekly, and no copyright was
secured in America. It was held that Professor Drummond was entitled
to restrain a reprint of these published lectures reproduced with
material alterations, and represented as being the complete series of
lectures.[1641] An author who has parted with or lost his copyright
has no right to regulate the manner in which his work may be
published, provided that there is no misrepresentation causing injury
to the author's name.[1642]

In one case,[1643] however, the defendants were restrained from a
similar proceeding on the ground of unfair trading. They bought
second-hand school books published by the plaintiff, and rebound them
so as to have the exact appearance of the plaintiff's books when new.
It was held that they were entitled to do this without infringing
any right of the plaintiff in their copyright book; but it was also
held that it was not fair trading to sell the rebound books without
sufficient notice that they were rebound.

If there have been several editions of a book, the copyright in the
first of which only has expired, the author may restrain a publisher
from reprinting and publishing the first edition so as to lead the
public to believe that it is a later edition still copyright.[1644]
The owner of a series of novels, published in two editions, cannot
prevent a third person buying a large quantity of the sixth edition
and binding them so as to somewhat resemble the dearer edition.[1645]
When the "Encyclopædia Britannica" was published, only a few of
the articles were copyright in America. It was held that it was
permissible for an American publisher to reprint the whole work so far
as not copyright, and to substitute new articles for the copyright
articles, and so long as there was no attempt to defraud the public to
publish it as the "Encyclopædia Britannica" so revised.[1646]


SECTION II.--UNPUBLISHED WORK.

Unpublished work is protected from interference by the common law of
England, which was brought to and adopted by the United States.[1647]
When the common law is asserted one must look to the law of the
State in which the controversy originated,[1648] since although the
common law of England was adopted, it was adopted only so far as its
principles were suited to the conditions of the colonies at the time,
and some States have incorporated with their laws more and some less.
The rights at common law in unpublished work were not abrogated by
Acts of Congress establishing copyright in published work.

The author of an unfinished work has the right at common law to
prevent any one from making any unauthorised use of his work.[1649]
The author may without publishing make a communication of the contents
of his work to a limited number,[1650] and he may prescribe to them
what conditions he pleases.[1651] A play or song is not published
by performance nor a lecture by delivery.[1652] A work of art is
probably published by public exhibition,[1653] but not by a private
view. A spectator of an unpublished play is not entitled to reproduce
substantial parts of it even from memory.[1654] Similarly with a
musical work or lecture.

An alien author has an equal right with a citizen of the United States
to sue at common law for interference with his manuscript.[1655] A
statutory remedy is given for the unauthorised printing or publishing
of any manuscript. The offender is liable "for all damages occasioned
by such injury."[1656] This statutory remedy neither destroys nor
limits the common law right.[1657] No new right is secured.[1658]
The practical result is that an alternative remedy in the Federal
tribunals is provided where the parties are subjects of the same
State. The plaintiff may proceed either in the State Court or the
Federal Court.[1659] Manuscript under this section is limited to the
meaning of a written document. It does not include a picture.[1660]



APPENDIX



BRITISH STATUTES


THE ENGRAVING COPYRIGHT ACT, 1734.

8 GEO. II. c. 13.

    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.

[Sidenote: Preamble.]

I. WHEREAS divers Persons have by their own 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 whereas Printsellers, and other Persons, have of late, without the
Consent of the Inventors, Designers, and Proprietors of such Prints,
frequently taken the Liberty of copying, engraving, and publishing,
or causing to be copied, engraved, and published, base Copies of such
Works, Designs, and Prints, to the very great Prejudice and Detriment
of the Inventors, Designers, and Proprietors thereof:

[Sidenote: After 24th June, 1735, the property of historical and other
prints vested in the Inventor for 14 Years.]

[Sidenote: Proprietor's Name to be affixed to each Print.]

[Sidenote: Penalty on Printsellers or others pirating same.]

For Remedy thereof, and for preventing such Practices for the future,
be it enacted, That from and after the Twenty-fourth Day of June,
which shall be in the Year of our Lord One thousand seven hundred
and thirty-five, every Person who shall invent and design, engrave,
etch, or work in Mezzotinto or Chiaro Oscuro, or, from his own Works
and Invention, shall cause to be designed and engraved, etched, or
worked in Mezzotinto or Chiaro Oscuro, any historical or other Print
or Prints,[1661] shall have the sole Right and Liberty of printing
and reprinting the same for the Term of Fourteen Years, to commence
from the Day of the first Publishing thereof, which shall be truly
engraved with the Name of the Proprietor on each Plate, and printed
on every such Print or Prints; and that if any Printseller, or other
Person whatsoever, from and after the said Twenty-fourth Day of June,
One thousand seven hundred and thirty-five, 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 Record 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:

[Sidenote: Not to extend to Purchasers of Plates from the original
Proprietors.]

II. Provided nevertheless, That it shall and may be lawful for any
Person or Persons, who shall hereafter purchase any Plate or Plates
for printing, from the Original Proprietors thereof, to print and
reprint from the said Plates, without incurring any of the Penalties
in this Act mentioned.

[Sidenote: Limitation of Actions.]

[Sidenote: General Issue.]

III. _And if any Action or Suit shall be commenced or brought
against any Person or Persons whatsoever, for doing or causing to be
done any Thing in pursuance of this Act, the same shall be brought
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
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:_[1662]

IV. Provided always, That if any Action or Suit shall be commenced
or brought against any Person or Persons, for any Offence committed
against this Act, the same shall be brought within the Space of Three
Months after the Discovery of every such Offence, and not afterwards;
any Thing in this Act contained to the contrary notwithstanding.

[Sidenote: Clause relating to J. Pine.]

V. _And whereas John Pine of London, Engraver, doth propose to engrave
and publish a Set of Prints copied from several Pieces of Tapestry in
the House of Lords, and His Majesty's Wardrobe, and other Drawings
relating to the Spanish Invasion, in the Year of our Lord One thousand
five hundred and eighty-eight; be it further enacted by the Authority
aforesaid, That the said John Pine shall be entitled to the Benefit of
this Act, to all Intents and Purposes whatsoever, in the same Manner
as if the said John Pine had been the Inventor and Designer of the
said Prints._[1663]

[Sidenote: Public Act.]

VI. _And be it further enacted, by the Authority aforesaid, That 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_.[1664]


THE ENGRAVING COPYRIGHT ACT, 1766.

7 GEO. III. C. 38.

[Sidenote: Preamble reciting Act 8, G 2.]

    An Act to amend and 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 Preamble Prints; _and for vesting in,
    and securing to, Jane Hogarth, Widow, the Property in certain
    Prints_.[1665]

[Sidenote: The original Inventors, Designers, or Engravers, &c., of
Historical and other Prints, and such who shall cause Prints to be
done from Works, &c., of their own Invention, and also such as shall
engrave, &c., any Print taken from any Picture, Drawing, Model, or
Sculpture, are entitled to the Benefit and Protection of the recited
and present Act; and those who shall engrave or import for Sale Copies
of such Prints are liable to Penalties.]

I. WHEREAS an Act of Parliament 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, 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,
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, 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, shall have, and are
hereby declared to have, the Benefit and Protection of the said Act,
and this Act, under the Restrictions and Limitations hereinafter
mentioned.

II. And from and after the said First Day of January One thousand
seven hundred and sixty-seven, all and every 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,
and are hereby declared to have, the Benefit and Protection 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 Draughtsman; 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 be liable to the Penalties
contained in the said Act, to be recovered as therein and hereinafter
is mentioned.

[Sidenote: The sole Right of printing and reprinting the late W.
Hogarth's Prints,]

[Sidenote: vested in his Widow and Executrix for the Term of 20 years.]

[Sidenote: Penalty of copying, &c., of any of them, before the
Expiration of the said Term; such Copies excepted as were made and
exposed to Sale after the Term of 14 Years, for which the said Works
were first licensed, &c.]

III. _And whereas William Hogarth, late of the City of Westminster,
Painter and Graver, did etch and engrave, and cause to be etched
and engraved, several Prints from his own Invention and Design, the
Property and sole Right of vending all such Prints being secured to
him the said William Hogarth for the Term of Fourteen Years from
their first Publication, by the said former Act of Parliament; which
said Property, by his last Will, became vested in his Widow and
Executrix: And whereas since the first Publication of several of the
said Prints, the Term of Fourteen Years is expired, and several base
Copies of the same have been since printed and published, whereby the
Sale of the Originals has been considerably lessened, to the great
Detriment of the said Widow and Executrix: And whereas since the
Publication of others of the said Prints, the Term of Fourteen Years
is now near expiring: Be it enacted by the Authority aforesaid, That
Jane Hogarth, Widow and Executrix of the said William Hogarth, shall
have the sole Right and Liberty of printing and reprinting all the
said Prints, Etchings, and Engravings, of the Design and Invention of
the said William Hogarth, for and during the Term of Twenty Years, to
commence from the said First Day of January One thousand seven hundred
and sixty-seven; and that all and every Person and Persons who shall
at any Time hereafter, before the Expiration of the said Term of
Twenty Years, engrave, etch, or work in Mezzotinto or Chiaro Oscuro,
or otherwise copy, sell, or expose to Sale, or cause or procure to be
etched, engraved, or worked in Mezzotinto or Chiaro Oscuro, any of
the said Works of the said William Hogarth, shall be liable to the
Penalties and Forfeitures contained in this and the said former Act of
Parliament; to be recovered in like Manner as in and by this and the
said former Act are given, directed, and appointed._[1666]

IV. _Provided nevertheless, That the Proprietor or Proprietors of such
of the Copies of the said William Hogarth's Works, which have been
copied and printed, and exposed to Sale, after the Expiration of the
Term of Fourteen Years from the Time of their first Publication by
the said William Hogarth, and before the said First Day of January,
shall not be liable or subject to any of the Penalties contained in
this Act; anything hereinbefore contained to the contrary thereof in
anywise notwithstanding._[1667]

[Sidenote: Penalties may be sued for as by the recited Act is
directed; and be recovered with full Costs; provided the Prosecution
be commenced within 6 months after the Fact.]

V. And all and every the Penalties and Penalty inflicted by the said
Act, and extended, and meant to be extended, to the several Cases
comprised 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 Informer in every such Action (in case such Plaintiff or common
Informer shall recover any of the Penalties incurred by this or the
said former Act) shall recover the same, together with his full Costs
of Suit.

VI. Provided also, That the Party prosecuting shall commence his
Prosecution within the Space of Six Calendar Months after the Offence
committed.

[Sidenote: The Right intended to be secured by this and the former
Act, vested in the Proprietors for the Term of 28 Years from the first
Publication.]

[Sidenote: Limitation of Actions.]

[Sidenote: General Issue.]

[Sidenote: Full Costs.]

VII. And the sole Right and Liberty of printing and reprinting
intended to be secured and protected by the said former Act and this
Act, shall be extended, continued, and be vested in the respective
Proprietors, for the Space of Twenty-eight Years, to commence from
the Day of the first Publishing of any of the Works respectively
hereinbefore and in the said former Act mentioned.

VIII. _And if any Action or Suit shall be commenced or brought against
any Person or Persons whatsoever for doing, or causing to be done,
anything 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; and if,
upon 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 ham 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._[1668]


THE COPYRIGHT ACT, 1775.[1669]

(UNIVERSITY COPYRIGHT), 15 GEO. III. C. 53.

    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 Copyright
    in Books, given or bequeathed to the said Universities and
    Colleges for the Advancement of useful Learning and other Purposes
    of Education:

[Sidenote: Preamble]

[Sidenote: Universities, &c., in England and Scotland to have for ever
the sole Right of printing, &c., such Books as have been, or shall be,
bequeathed to them, unless the same have been, or shall be given for a
limited Time.]

I. 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,[1670] and in or 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 and 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: Be it enacted, 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
heretofore published[1671] or assigned) shall at any time hereafter
be bequeathed, 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
given, or shall after be bequeathed or given, for any Term of Years or
other limited Term: any Law or Usage to the contrary hereof in anywise
notwithstanding.

[Sidenote: After 24th June, 1775, Persons printing or selling such
Books shall forfeit the same, and also id. for every sheet;]

[Sidenote: one Moiety to His Majesty, and the other to the Prosecutor.]

II. And if any Bookseller, Printer, or other Person whatsoever, from
and after June 24, 1775, shall print, reprint, or import, or cause
to be printed, reprinted, or imported, any such Book or Books; or,
knowing the same to be so printed or reprinted, shall sell, publish,
or expose to Sale, or cause to be sold, published, or exposed to Sale,
any such Book or Books; 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 and Successors, and the other Moiety thereof to any Person
or Persons who shall sue for the same; 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, Essoign, Privilege, or Protection, or more than One
Imparlance, shall be allowed.

[Sidenote: Nothing in this Act to grant any exclusive Right longer
than such Books are printed at the presses of the Universities.
Universities may sell Copy Rights in like manner as any Author.]

III. Provided nevertheless, That nothing in this Act shall extend
to grant any exclusive Right otherwise than so long as the Books or
Copies belonging to the said Universities or Colleges are printed only
at their own Printing Presses within the said Universities or Colleges
respectively, and for their sole Benefit and Advantage; and that
if any University or College shall delegate, grant, lease, or sell
their Copy Rights, or exclusive Rights of printing the Books hereby
granted, 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[1672]; but
the said Universities and Colleges, as aforesaid, shall nevertheless
have a Right to Sell such Copies so bequeathed or given as aforesaid,
in like Manner as any Author or Authors now may do under the
Provisions of the Statute of 8 Anne.

[Sidenote: No person subject to Penalties for printing, &c., Books
already bequeathed, unless they be entered before 24th June, 1775. All
Books that may hereafter be bequeathed must be entered within]

[Sidenote: two months after such Bequest shall be known. 6d. to be
paid for each entry in the Register Book, which may be inspected
without Fee. Clerk to give a Certificate, being paid 6d.]

IV. And Whereas many Persons may through Ignorance offend against
this Act, unless some Provision be made whereby the Property of
every such Book as is intended by this Act to be secured to the said
Universities, Colleges, and Houses of Learning within the same, and
to the said Universities in Scotland, and to the respective Colleges
of Eton, Westminster, and Winchester, may be ascertained and known;
be it therefore enacted that nothing in this Act contained shall be
construed to extend to subject any Bookseller, Printer, or other
Person whatsoever, 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 June 24, 1775; and of all
and every such Book or Books as may or shall hereafter be bequeathed
or given as aforesaid, be entered in such Register within the space
of two Months after any such Bequest or Gift shall have come to the
knowledge of the Vice-Chancellors of the said Universities, or Heads
of Houses and Colleges of Learning, or of the Principal of any of
the said four Universities respectively; for every of which Entries
so to be made as aforesaid the Sum of Sixpence shall be paid, and no
more; which said Register Book shall and may, at all seasonable and
Convenient Times, be referred to and inspected by any Bookseller,
Printer, or other Person without any Fee or Reward; and the Clerk of
the said Company of Stationers shall, when and as often as thereunto
required, give a Certificate under his Hand of such Entry or Entries,
and for every such Certificate may take a Fee not exceeding Sixpence.

[Sidenote: If Clerk refuse or neglect to make Entry, &c., Proprietor
of such Copy Right to have like Benefit as if such Entry had been
made, and the Clerk shall forfeit £20.]

V. And if the Clerk of the said Company of Stationers for the Time
being shall refuse or neglect to register or make such Entry or
Entries, or to give such Certificate, being 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 aforesaid, being the Proprietor of such Copy
Right or Copy Rights as aforesaid (Notice being first given of such
Refusal by Advertisement in the Gazette) shall have the like Benefit
as if such Entry or Entries, Certificate or Certificates, had been
duly made and given; and the Clerk so refusing shall, for every such
Offence, forfeit £20 to the Proprietor or Proprietors of every such
Copy Right; 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 Wages of Law, Essoign,
Privilege, Protection, or more than One Imparlance, shall be allowed.

[Sidenote: 8 Anne. Delivery of Copies.]

VI. [_Clause enacting that no person shall be entitled to penalties
under_ 8 _Anne unless the Title to the copy of the whole book be
entered at Stationer? Hall and_ 9 _copies delivered for the use of the
several libraries_: Repealed Stat. Law Rev. Act, 1861.]

[Sidenote: Limitation of Actions.]

VII. _And if any Action or Suit shall be commenced or brought against
any Person or Persons whatsoever, for doing or causing to be done,
any thing in pursuance of this Act, the Defendants in such Action may
plead the General Issue, and give the Special Matter in Evidence;
and if upon such Action a Verdict, or if the same shall be brought
in the Court of Session in Scotland, a Judgment be given for the
Defendant, or the Plaintiff become nonsuited and discontinue his
Action, then the Defendant shall have and recover his full Costs, for
which he shall have the same Remedy as a Defendant in any Case by Law
hath._[1673]

[Sidenote: Public Act.]

VIII. [_Clause providing that the Act shall be deemed a Public Act:_
Repealed Stat. Law Rev. Act, 1887.]


THE PRINTS COPYRIGHT ACT, 1777.

17 GEO. III. C. 57.

    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.

[Sidenote: Recital of Acts 8 G. 2,]

[Sidenote: and 7 G. 3.]

[Sidenote: After 24th June, 1777, if any Engraver, &c., shall, within
the Time limited by the aforesaid Acts, engrave or etch, &c., any
Print, without the Consent of the Proprietor, he shall be liable to
Damages, and Double Costs].

Whereas an Act of Parliament 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, 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 engraved, 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 mentioned, 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 hereinafter mentioned and contained;
be it enacted that, from and after the Twenty-fourth Day of June One
thousand seven hundred and seventy-seven, if any Engraver, Etcher,
Printseller, or other Person, shall, within the Time 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,
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 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 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_.[1674]


THE SCULPTURE COPYRIGHT ACT, 1814.

54 GEO. III. 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.]

[Sidenote: 38 G. 3 c. 71.]

[Sidenote: The sole Right and Property of all new and original
Sculpture Models, Copies, and Casts, vested in the Proprietors, for 14
Years.]

I. Whereas by an Act, passed in the Thirty-eighth Year of the Reign
of His present Majesty, intituled An Act for encouraging the Art
of making new Models and Casts of Busts, and other Things therein
mentioned; the sole Right and Property thereof were vested 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 of the said Arts: Be it enacted 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,[1675] 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 new and original
Sculpture, Model, Copy and Cast in Alto or Basso-Relievo, 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[1676] 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.

[Sidenote: Works published under the recited Act, vested in the
Proprietors for 14 Years.]

II. And 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-mentioned Works respectively were put forth or
published.

[Sidenote: Persons putting forth pirated Copies or pirated Casts, may
be prosecuted.]

[Sidenote: Damages and Double Costs.]

III. And if any Person or Persons shall, within such Term of Fourteen
Years, make or import, or cause to be made or imported, or exposed
to Sale, or otherwise disposed of, any pirated Copy or pirated Cast
of any such new and original Sculpture, or Model or Copy, or Cast of
the Human Figure or Human Figures, 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 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 and in a Special
Action upon the Case to be brought against the Person or Persons so
offending, receive such Damages as a Jury on a Trial of such Action
shall give or assess, _together with Double Costs of Suit_.[1677]

[Sidenote: Purchasers of Copy Right secured in the same.]

IV. Provided nevertheless, That no Person or Persons who shall or
may hereafter purchase the Right or Property of any new and original
Sculpture or Model, or Copy or Cast, or of any Cast from 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 respectively, 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, any Thing contained in this Act to the
contrary notwithstanding.

[Sidenote: Limitation of Actions.]

V. Provided always, That all Actions to be brought as aforesaid,
against any Person or Persons for any Offence committed against this
Act, shall be commenced within Six Calendar Months next after the
Discovery of every such Offence, and not afterwards.

[Sidenote: An additional Term of 14 Years, in case the Maker of the
original Sculpture, &c., shall be living.]

VI. Provided always, That from and immediately after the Expiration
of the said Term of Fourteen Years, the sole Right of making and
disposing of such new and original Sculpture, or Model, or Copy, or
Cast of any of the Matters or Things hereinbefore mentioned, shall
return to the Person or Persons who 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, or Model, or Copy, or Cast of any of the
Matters or Things hereinbefore mentioned, previous to the passing of
this Act_.[1678]


THE DRAMATIC COPYRIGHT ACT, 1833.

3 & 4 WILL. IV.

    An Act to amend the Laws relating to Dramatic Literary Property.

  [10th June 1833.]

[Sidenote: 54 G. 3 c. 156.]

[Sidenote: The Author of any Dramatic Piece shall have as his Property
the sole Liberty of representing it or causing it to be represented at
any Place of Dramatic Entertainment.]

I. _Whereas by an Act passed in the Fifty-fourth year of the Reign of
His late Majesty King George the Third, intituled An Act to amend the
several Acts for the Encouragement 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 Books
or Books for the full Term of Twenty-eight Years, to commence from
the Day of first publishing the same, and also, if the Author should
be living at the End of that Period, for the Residue of his natural
Life: And whereas it is expedient to extend the Provisions of the said
Act:[1679] Be it therefore enacted_, That the Author of any Tragedy,
Comedy, Play, Opera, Farce, or any other Dramatic Piece[1680] or
Entertainment, composed, and not printed and published by the Author
thereof or his Assignee, or which hereafter shall be composed, and
not printed or published by the Author thereof or his Assignee, or
the Assignee of such Author, shall have as his own Property the sole
Liberty of representing, or causing[1681] to be represented, at any
Place or Places of Dramatic Entertainment[1682] whatsoever, in any
Part of the United Kingdom of Great Britain and Ireland, in the Isles
of Man, Jersey, and Guernsey, or in any Part of the British Dominions,
any such Production 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 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 Publication 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,[1683] 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 shall prejudice,
alter, or affect the Right or Authority of any Person to represent
or cause to be represented, at any Place or Places of Dramatic
Entertainment whatsoever, any such Production as aforesaid, in all
Cases in which the Author thereof or his Assignee shall, previously
to the passing of this Act, have given his Consent to or authorised
such Representation, but that such sole Liberty of the Author or his
Assignee shall be subject to such Right or Authority.

[Sidenote: Proviso as to Cases where, previous to the passing of this
Act, a Consent has been given.]

[Sidenote: Penalty on Persons performing Pieces contrary to this Act.]

II. If any Person shall, during the Continuance of such sole Liberty
as aforesaid, contrary to the Intent of this Act, or Right of the
Author or his Assignee, represent, or cause to be represented, without
the Consent in Writing[1684] of the Author or other Proprietor first
had and obtained, at any Place of Dramatic Entertainment within the
Limits aforesaid, any such Production 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_,[1685] 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 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.

[Sidenote: Limitation of Actions.]

III. Provided nevertheless. That all Actions or Proceedings for any
Offence or Injury that shall be committed against this Act shall be
brought, sued, and commenced within Twelve Calendar Months next after
such Offence committed, or else the same shall be void and of no
effect.

[Sidenote: Explanation of Words.]

IV. 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.


THE LECTURES COPYRIGHT ACT, 1835.[1686]

5 & 6 WILL. IV. C. 65.

    An Act for preventing the Publication of Lectures without Consent.

  [9th September 1835.]

[Sidenote: Authors of Lectures, or their Assigns, to have the sole
Right of publishing them.]

[Sidenote: Penalty on other persons publishing, &c., Lectures without
Leave.]

I. _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_[1687] 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 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 otherwise 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 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, lithographed, or copied, or printing, lithographing,
or copying, published or exposed to sale, contrary to the true Intent
and Meaning of this Act, the one Moiety thereof to His Majesty, 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 Record in 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_.[1688]

[Sidenote: Penalty on Printers or Publishers of Newspapers publishing
Lectures without Leave.]

II. Any Printer or Publisher of any Newspaper who shall, without such
Leave as aforesaid, print and publish in such Newspaper any Lecture
or Lectures, shall be deemed and taken to be a Person printing and
publishing without Leave within the Provisions of this Act, and liable
to the aforesaid Forfeitures and Penalties in respect of such printing
and publishing.

[Sidenote: Persons having Leave to attend Lectures not on that Account
licensed to publish them.]

III. No Person allowed for certain Fee and Reward, or otherwise, to
attend and be present at any Lecture delivered in any Place, shall
be deemed and taken to be licensed or to have Leave to print, copy,
and publish such Lectures only because of having Leave to attend such
Lecture or Lectures.

[Sidenote: Act not to prohibit the publishing of Lectures after
Expiration of the Copyright.]

[Sidenote: 8 Anne, c. 19.]

[Sidenote: 54 G. 3 c. 156.]

IV. Provided always, That nothing in this Act shall extend to prohibit
any Person from printing, copying, and publishing any Lecture or
Lectures which have or shall have been printed and published with
Leave of the Authors thereof or their Assignees, and whereof the
Time hath or shall have expired within which the sole 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 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 Learning, 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.

[Sidenote: Act not to extend to Lectures delivered in unlicensed
Places, &c.]

V. Provided further, That nothing in this Act shall extend to any
Lecture or Lectures, or the printing, copying, or publishing any
Lecture or Lectures, or Parts thereof, of the delivering of which
Notice in Writing shall not have been given to Two Justices living
within Five Miles from the Place where such Lecture or Lectures shall
be 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
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.


THE PRINTS AND ENGRAVINGS COPYRIGHT ACT, 1836.

6 & 7 WILL. IV. c. 59.

    An Act to extend the Protection of Copyright in Prints and
    Engravings to Ireland.

  [13th August 1836.]

[Sidenote: 17 G. 3 c. 57.]

[Sidenote: Provisions of Recited Act extended to Ireland.]

I. WHEREAS an Act was passed (17 G. III. c. 57): And whereas it is
desirable to extend the Provisions of the said Act to Ireland: Be it
therefore enacted, That from and after the Passing of this Act all the
Provisions contained in the said recited Act and of all other Acts
therein recited, shall be and the same are hereby extended to the
United Kingdom of Great Britain and Ireland.

[Sidenote: Penalty on engraving or publishing any Print without
Consent of Proprietor.]

II. From and after the Passing of this Act, if any Engraver, Etcher,
Printseller, or other Person shall, within the Time limited by the
aforesaid recited Acts, engrave, etch, or publish, or cause to
be engraved, etched, or published, any 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_.[1689]


THE COPYRIGHT ACT, 1836.

6 & 7 WILL. IV. C. 110.

    An Act to repeal so much of 54 Geo. III. c. 156 as requires the
    delivery of a Copy of every published Book to the Libraries of
    Sion College, the Four Universities of Scotland and of the King's
    Inns in Dublin.

  [20th August 1836.]

I. [Clause repealing 54 Geo. III. c. 156 in so far as it requires the
delivery of books to the above libraries: Repealed Stat. Law Rev. Act,
1874.]

II. It shall be lawful for the Treasury from time to time to issue
and pay out of the consolidated fund of the United Kingdom of Great
Britain and Ireland to the person or persons or body politic or
corporate, proprietors or managers of each of the aforesaid libraries,
such an annual sum as may be equal in value to and compensation for
the loss which any such library may sustain by reason of the said
Act being repealed so far as relates to such library; such annual
compensation to be ascertained and determined according to the value
of the books which may have been actually received by each such
library in such manner as the Treasury shall direct upon an average of
the three years ending June 30, 1836.

III. The person or persons or body politic or corporate, proprietors
or managers of the library for the use whereof any such book would
have been delivered, shall and they are hereby required to apply the
annual compensation hereby authorised to be made in the purchase of
books of literature, science and the arts, for the use of and to be
kept and preserved in such library. Provided always that it shall not
be lawful for the Treasury to direct the issue of any sum of money
for such annual compensation until sufficient proof shall have been
adduced before them of the application of the money last issued to the
purpose aforesaid.


THE COPYRIGHT ACT, 1842.

5 & 6 VICT. C. 45.

    An Act to amend the Law of Copyright.
  [1st July 1842.]

I. _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[1690]: Be it enacted, That from
the passing of this Act an Act passed in the Eighth Year of the Reign
of Her Majesty Queen Anne, intituled An Act for 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 also
an Act passed in the Forty-first Year of the Reign of His Majesty
King George the Third, intituled An Act for the further Encouragement
of Learning in the United Kingdom of Great Britain and Ireland, by
securing the Copies and Copyright 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 Encouragement of Learning, by securing the Copies and 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 Proceedings at Lain 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._[1691]

[Sidenote: Repeal of former Acts;]

[Sidenote: 8 Anne, c. 19.]

[Sidenote: 41 G. 3 c. 107.]

[Sidenote: 54 G. 3 c. 156.]

[Sidenote: Interpretation of Act.]

II. In the Construction of this Act the Word "Book"[1692] shall be
construed to mean and include every volume, Part or Division of a
Volume, Pamphlet, Sheet of Letterpress, Sheet of Music, Map,[1693]
Chart, or Plan separately published[1694]; the Words "Dramatic
Piece"[1695] shall be construed to mean and include every Tragedy,
Comedy, Play, Opera, Farce, or other scenic, musical, or dramatic
Entertainment; 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; the Words
"personal Representative" shall be construed to mean and include every
Executor, Administrator, and next of Kin entitled to Administration;
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[1696]; 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 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.

[Sidenote: Endurance of Term of Copyright in any Book hereafter to be
published in the Lifetime of the Author;]

[Sidenote: if published after the Author's Death.]

III. The Copyright in every Book which shall after the passing of
this Act be published[1697] in the Lifetime of its Author[1698] 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 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.

[Sidenote: In cases of subsisting Copyright, the Term to be extended,
except when it shall belong to an Assignee for other Consideration
than natural Love and Affection; in which Case it shall cease at the
Expiration of the present Term, unless its Extension be agreed to
between the Proprietor and the Author.]

IV. _And whereas it is just to extend the Benefits of this Act to
Authors of Books published before the passing thereof, and in which
Copyright still subsists_,[1699] the Copyright which at the Time of
passing this Act shall subsist in any Book theretofore published
(except as hereinafter mentioned) shall be extended and endure for
the full Term provided by this Act in Cases of Books thereafter
published, and shall be the Property of the Person who at the Time
of passing of this Act shall be the Proprietor of such Copyright:
Provided always, that in all Cases in which such Copyright shall
belong in whole or in part to a Publisher or other Person who shall
have acquired it for other Consideration than that of natural Love
and Affection, such Copyright shall not be extended by this Act, but
shall endure for the Term which shall subsist therein at the Time of
passing of this Act, and no longer unless the Author of such Book, if
he shall be living, or the personal Representative of such Author, if
he shall be dead, and the 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 hereinafter 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.

[Sidenote: Judicial Committee of the Privy Council may license the
Republication of Books which the Proprietor refuses to republish after
Death of the Author.]

V.[1700] _And whereas it is expedient to provide against the
Suppression of Books of Importance to the Public_,[1701] it shall be
lawful for the Judicial Committee of Her Majesty's Privy Council,
on Complaint made to them that the Proprietor 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, to grant a Licence
to such Complainant to publish such Book in such Manner and subject to
such Conditions as they may think fit, and it shall be lawful for such
Complainant to publish such Book according to such Licence.

[Sidenote: Copies of Books published after the passing of this Act,
and of all subsequent Editions, to be delivered within certain Times
at the British Museum.]

VI.[1702] A printed Copy of the whole of every Book which shall be
published after the passing of this Act, together with all Maps,
Prints, or other Engravings belonging thereto, finished and coloured
in the same Manner as the best Copies of the same shall be published,
and also of any second or subsequent Edition which shall be so
published with any Additions or Alterations, whether the same shall
be in Letterpress, or in the Maps, 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 or 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.

[Sidenote: Mode of delivering at the British Museum.]

VII. Every Copy of any Book which under the Provisions of this Act
ought to be delivered as aforesaid shall be 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 authorised 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
shall to all Intents and Purposes be deemed to be good and sufficient
Delivery under the Provisions of this Act.

[Sidenote: A Copy of every Book to be delivered within a Month after
Demand to the Officer of the Stationers Company, for the following
Libraries: the Bodleian at Oxford, the Public Library at Cambridge,
the Faculty of Advocates at Edinburgh, and that of Trinity College,
Dublin.]

VIII.[1703] A Copy of the whole of every Book, and of any second or
subsequent Edition of every Book containing Additions and Alterations,
together with all Maps and Prints belonging thereto, which after the
passing of this Act shall be published, shall, on Demand thereof in
Writing, left at the Place of Abode of the Publisher thereof at any
Time within Twelve Months next after the Publication thereof, under
the Hand of the Officer of the Company of Stationers who shall from
Time to Time be appointed by the said Company for the Purposes of
this Act, or under the Hand of any other Person thereto authorised by
the Persons or Bodies Politic and Corporate, Proprietors and Managers
of the Libraries following, (_videlicet_), the Bodleian Library at
Oxford, the Public Library at Cambridge, the Library of the Faculty
of Advocates at Edinburgh, the Library of the College of the Holy
and 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, within One
Month after Demand made thereof in Writing as aforesaid, 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.

[Sidenote: Publishers may deliver the Copies to the Libraries, instead
of at the Stationers' Company.]

IX. Provided also, That if any Publisher shall be desirous of
delivering the Copy of such Book as shall be demanded on behalf of
any of the said Libraries at such Library, it shall be lawful for
him to deliver the same at such Library, free of Expense, to such
Librarian or other Person authorised to receive the same (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.

[Sidenote: Penalty for Default in delivering Copies for the Use of the
Libraries.]

X. If any Publisher of any such Book, or of any second or subsequent
Edition of any such Book, shall neglect to deliver the same, pursuant
to this Act, he shall for every such Default forfeit, besides the
Value of such Copy of such Book or Edition which he ought to have
delivered, a Sum not exceeding Five Pounds, to be recovered by the
Librarian or other Officer (properly authorised) 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.

[Sidenote: Book of Registry to be kept at Stationers' Hall.]

XI.[1704] A Book of Registry, wherein may be registered, as
hereinafter enacted, the Proprietorship in the Copyright of Books,
and Assignments thereof, and in Dramatic and 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 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 _primâ facie_ Proof[1705]
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 _primâ facie_ Proof of
the Right of Representation or Performance, subject to be rebutted as
aforesaid.

[Sidenote: Making a false Entry in the Book of Registry a
Misdemeanour.]

XII. 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 Misdemeanour, and shall be punished
accordingly.

[Sidenote: Entries of Copyright may be made in the Book of Registry.]

XIII.[1706] 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 it shall be lawful
for every such registered Proprietor to assign his Interest,[1707] 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.

[Sidenote: Persons aggrieved 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.]

XIV.[1708] 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 of such Courts
in Vacation_,[1709] for an Order that such Entry may be expunged
or varied; and upon any such Application _by Motion or Summons to
either of the said Courts, or to a Judge as aforesaid_,[1710] such
Court _or Judge_[1711] shall make such Order for expunging, varying,
or confirming such Entry, either with or without Costs, as to such
Court _or Judge_[1712] shall seem just; and the Officer appointed by
the Stationers Company for the Purposes of 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.

[Sidenote: Remedy for the Piracy of Books by Action on the Case.]

XV. If any Person shall, in any Part of the British Dominions, print
or cause to be printed,[1713] either for Sale or Exportation, any Book
in which there shall be subsisting Copyright, without the Consent in
Writing[1714] 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.

[Sidenote: In Actions for Piracy the Defendant to give Notice of the
Objections to the Plaintiff's Title on which he means to rely.]

XVI. In any Action brought within the British Dominions against any
Person for printing any such Book for Sale, Hire, or Exportation, or
for importing, selling, publishing, or exposing to Sale or Hire, or
causing to be imported, sold, published, or exposed to Sale or Hire,
any such Book, the Defendant, on pleading thereto, shall give to the
Plaintiff a Notice in Writing of any Objections on which he means
to rely on the Trial of such Action[1715]; 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 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 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
Publication with the Title, Time, and Place specified in such Notice.

[Sidenote: No Person, except the Proprietor, &c., shall import into
the British Dominions for Sale or Hire any Book first composed, &c.,
within the United Kingdom, and reprinted elsewhere, under Penalty of
Forfeiture thereof, and also of £10 and Double the Value.]

[Sidenote: Books may be seized by Officers of Customs or Excise.]

XVII.[1716] It shall not be lawful for any Person, not being the
Proprietor of the Copyright, or some Person authorised 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 and published in any Part of the said
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 authorised 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 this 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[1717] 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 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.

[Sidenote: As to the Copyright in Encyclopædias, Periodicals, and
Works published in a Series, Reviews, or Magazines.]

[Sidenote: Proviso for Authors who have reserved the Right of
publishing their Articles in a separate Form.]

XVIII.[1718] When any Publisher or other Person shall, before or at
the Time of the passing of this Act, have projected, conducted, and
carried on, or shall hereafter project, conduct, and carry on, or
be the Proprietor of any Encyclopædia, Review, Magazine, Periodical
Work, or Work published in a Series of Books or Parts, or any Book
whatsoever,[1719] 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 such Employment,[1720]
on the Terms[1721] that the Copyright therein shall belong to such
Proprietor,[1722] Projector, Publisher, or Conductor, and paid[1723]
for by such Proprietor, Projector, Publisher, or Conductor, the
Copyright in every such Encyclopædia, Review, Magazine, Periodical
Work, and Work published in a Series of Books or Parts, and 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[1724] 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, Article, or Portion
separately or singly without the Consent previously obtained of the
Author thereof, or his Assigns: Provided also, that nothing herein
contained shall alter or affect the Right of any Person who shall have
been or who shall be so employed as aforesaid to publish any such
his Composition in a separate Form, who by any Contract, express or
implied, may have reserved or may hereafter reserve to himself such
Right; but every Author reserving, retaining, or having such Right
shall be entitled to the 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.

[Sidenote: Proprietors of Encyclopædias, Periodicals, and Works
published in a Series, may enter at once at Stationers' Hall, and
thereon have the Benefit of the Registration of the Whole.]

XIX.[1725] The Proprietor of the Copyright in any Encyclopædia,
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, on entering in
the said Book of Registry the Title of such Encyclopædia, 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 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.

[Sidenote: The Provisions of 3 & 4 W 4. c. 15, extended to Musical
Compositions, and the Term of Copyright, as provided by this Act,
applied to the Liberty of representing Dramatic Pieces and Musical
Compositions.]

XX. _And whereas an Act was passed in the Third Year of the Reign
of His late Majesty, to amend the Law relating to Dramatic Literary
Property, and it is expedient to extend the Term of the sole
Liberty of representing Dramatic Pieces given by that Act to the
full Time by this Act provided for the Continuance of Copyright:
And whereas it is expedient to extend to Musical Compositions the
Benefits of that Act, and also of this Act_;[1726] the Provisions of
the said Act of His late Majesty, and of this Act, shall apply to
Musical Compositions,[1727] and the sole Liberty of representing or
performing, or causing or permitting to be represented or performed,
any Dramatic Piece or Musical Composition, shall endure and be the
Property of the Author thereof, and his Assigns,[1728] for the Term
in this Act provided for the Duration of Copyright in Books; and the
Provisions hereinbefore enacted in respect of the Property of such
Copyright, and of registering[1729] the same, shall apply to the
Liberty of representing or performing any Dramatic Piece or Musical
Composition, as if the same were herein expressly re-enacted and
applied thereto, save and except that the first public Representation
or Performance of any Dramatic Piece or Musical Composition shall
be deemed equivalent, in the Construction of this Act, to the first
Publication of any Book: 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.

[Sidenote: Proprietors of Right of Dramatic Representations shall have
all the Remedies given by 3 & 4 W. 4 c. 15]

XXI. The Person who shall at any time have the sole Liberty of
representing such Dramatic Piece or Musical Composition shall have and
enjoy the Remedies given and provided in the said Act of the Third and
Fourth Years of the Reign of His late Majesty King William the Fourth,
passed to amend the Laws relating to Dramatic Literary Property,
during the whole of his Interest therein, as fully as if the same were
re-enacted in this Act.

[Sidenote: Assignment of Copyright of a Dramatic Piece not to convey
the Right of Representation.]

XXII. No Assignment of the Copyright of any Book 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 said
Registry Book shall be made of such Assignment,[1730] wherein shall be
expressed the Intention of the Parties that such Right should pass by
such Assignment.

[Sidenote: Books pirated shall become the Property of the Proprietor of
the Copyright, and may be Recovered by Action.]

XXIII.[1731] All Copies of any Book wherein there shall be Copyright,
and of which Entry shall have been made in the said Registry Book,
and which shall have been unlawfully printed or imported without the
Consent of the registered Proprietor of such Copyright, in Writing
under his Hand first obtained, shall be deemed to be the Property of
the Proprietor of such Copyright, and who shall be registered as such,
and such registered 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.

[Sidenote: No Proprietor of Copyright commencing after this Act shall
sue or proceed for any Infringement before making Entry in the Book of
Registry.]

[Sidenote: Proviso for Dramatic Pieces.]

XXIV.[1732] No Proprietor of Copyright in any Book which shall be
first published after the passing of this Act shall maintain any
Action or Suit, at Law or in Equity, or any summary Proceeding, in
respect of any Infringement of such Copyright, unless he shall, before
commencing such Action, Suit, or Proceeding, have caused an Entry to
be made, in the Book of Registry of the Stationers' Company, of such
Book, pursuant to this Act: Provided always, that the Omission to
make such Entry shall not affect the Copyright in any Book, but only
the Right to sue or proceed in respect of the Infringement thereof
as aforesaid: Provided also, that nothing herein contained shall
prejudice the Remedies which the Proprietor of the sole Liberty of
representing any Dramatic Piece shall have by virtue of the Act passed
in the Third Year of the Reign of His late Majesty King William the
Fourth, 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.[1733]

[Sidenote: Copyright shall be Personal Property.]

XXV. All Copyright shall be deemed Personal Property, and shall be
transmissible by Bequest, or, in 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 Movable Estate.

[Sidenote: General Issue.]

[Sidenote: Limitation of Actions;]

[Sidenote: not to extend to Actions, &c., in respect of the Delivery
of Books.]

XXVI. _If any Action or Suit shall be 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 Defendant shall have and recover his full Costs,
for which he shall have the same Remedy as a Defendant in any Case
by Law hath_;[1734] and all Actions, Suits, Bills, Indictments, or
Informations for any Offence that shall be committed against this
Act shall be brought, sued, and commenced within Twelve Calendar
Months[1735] 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 construed to extend to any Actions, Suits, or
other Proceedings which under the Authority of this Act shall or may
be brought, sued, or commenced for or in respect of any Copies of
Books to be delivered for the Use of the British Museum, or of any One
of the Four Libraries hereinbefore mentioned.

[Sidenote: Saving the Rights of the Universities, and the Colleges of
Eton, Westminster, and Winchester.]

XXVII. Provided always, 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.

[Sidenote: Saving all subsisting Rights, Contracts, and Engagements.]

XXVIII. Provided also, That nothing in this Act contained shall
affect, alter, or vary any Right subsisting at the Time of passing
of 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, any thing herein contained to the contrary notwithstanding.

[Sidenote: Extent of the Act.]

XXIX. This Act shall extend to the United Kingdom of Great Britain and
Ireland, and to every Part of the British Dominions.

[Sidenote: Act may be amended this Session.]

XXX. _This Act may be amended or repealed by any Act to be passed in
the present Session of Parliament._[1736]


SCHEDULE TO WHICH THE PRECEDING ACT REFERS.

No. 1.

FORM 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 Representative of the Author, _as
the Case may be_], and _C. D._ of ---- do hereby certify, That we have
consented and agreed to accept the Benefits of the Act passed in the
Fifth Year of 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 _C. D._

    Dated this ---- Day of ----   18--.

                                             (Signed)  _A. B._
             Witness                                   _C. D._

  To the Registering Officer appointed by the Stationers' Company.

No. 2.

FORM of REQUIRING ENTRY of PROPRIETORSHIP.

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  | Name of Publisher,    | Name and Place    | Date of First
  of     | and                   | of Abode of       | Publication.
  Book.  | Place of Publication. | the Proprietor    |
         |                       | of the Copyright  |
  -------+-----------------------+-------------------+--------------
  _Y. Z._|                       | _A. B._           |
  -------+-----------------------+-------------------+--------------

  Dated this ---- Day of ---- 18--.

  Witness, _C. D._ ----    (Signed)   _A. B._

NO. 3.

ORIGINAL ENTRY of PROPRIETORSHIP of COPYRIGHT of a BOOK.

  --------+----------+----------------+-----------------+--------------
  Time of | Title of | Name of the    | Name and Place  | Date of First
  making  | Book.    | Publisher, and | of Abode of the | Publication.
  the     |          | Place of       | Proprietor of   |
  Entry.  |          | Publication.   | the Copyright.  |
  --------+----------+----------------+-----------------+--------------
          |_Y. Z._   | _A. B._        | _C. D._         |
  --------+----------+----------------+-----------------+--------------

NO. 4.

FORM of CONCURRENCE of the PARTY 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
Assignment of the Copyright therein.

  ---------------+----------------------------+-----------------------
  Title of Book. | Assigner of the Copyright. | Assignee of Copyright.
  ---------------+----------------------------+-----------------------
  _Y. Z._        | _A. B._                    | _C. D._
  ---------------+----------------------------+-----------------------

  Dated this ---- Day of ---- 18--.

                                              (Signed) _A. B._

No. 5.

  Date of Entry.    Title of Book.       Assigner of the    Assignee of
                                             Copyright.      Copyright.

                    [_Set out the Title of
                    the Book, and refer
                    to the Page of the
                    Registry Book in           _A. B._           _C. D._
                    which the original
                    Entry of the Copyright
                    thereof is made._]


THE INTERNATIONAL COPYRIGHT ACT, 1844.

7 & 8 VICT. C. 12.

    An Act to amend the Law relating to International Copyright.

  [10th May 1844.]

[Sidenote: 1 & 2 Vict. c. 59.]

[Sidenote: 3 & 4 W. 4. c. 15]

[Sidenote: 5 & 6 Vict. c. 45.]

[Sidenote: 8 G. 2c. 13.]

[Sidenote: 7 G. 3c. 38.]

[Sidenote: 17 G. 3 c. 57.]

[Sidenote: 6 & 7 W. 4 c. 59.]

[Sidenote: 38 G. 3 c. 71.]

[Sidenote: 54 G. 3 c. 56.]

[Sidenote: Repeal of International Copyright Act.]

I. _Whereas 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 hereinafter, for the sake
of Perspicuity, designated as "the International 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 published 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 Representatives the Copyright in the
Books to which any such Order in Council 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 Representatives 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 Property (and
which Act is hereinafter, for the sake of Perspicuity, 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 made 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 representing 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, 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
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 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 King William the Fourth, intituled An
Act to extend the Protection of Copyright in Prints 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 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 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 Proprietor 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 the Third, intituled An Act for encouraging the
Art of making new Models and Casts of Busts and other Things therein
mentioned, and of an Act passed in the Fifty-fourth Year of the
Reign 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 Encouragement
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 Cast, 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 Date of the Publication thereof,
is to be put on all such Sculptures, Models, Copies, and Casts, and
Remedies are provided for the Infringement 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 published 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 vest 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:[1737] the
said recited Act herein designated as the International Copyright Act
shall be and the same is hereby repealed._[1738]

[Sidenote: Her Majesty, by Order in Council, may direct that Authors,
&c., of Works first published in Foreign Countries shall have
Copyright therein within Her Majesty's Dominions.]


II. It shall be lawful for Her Majesty, by any Order of Her Majesty
in Council, to direct that, as respects all or any particular Class
or Classes of the following Works, (namely,) Books, Prints, Articles
of Sculpture, and other Works of Art, to be defined in such Order,
which shall 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, their respective Executors, Administrators, and
Assigns, shall have the Privilege of Copyright therein during such
Period or respective Periods as shall 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 may be then entitled to under the hereinbefore recited Acts
respectively, or under any Acts which may hereafter be passed in that
Behalf.

[Sidenote: If the Order applies to Books, the Copyright Law as to
Books first published in this Country shall apply to the Books to
which the Order relates, with certain Exceptions.]

III. In case any such Order shall apply to Books, all and singular
the Enactments of the said Copyright Amendment Act, and of any other
Act for the Time being in force with relation to the Copyright in
Books first published in this Country, shall, from and after the Time
so to be specified in that Behalf in such Order, and subject to such
Limitation as to the Duration of the Copyright as shall be therein
contained, apply to and be in force in respect of the Books 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 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.

[Sidenote: If the Order applies to Prints, Sculptures, &c., the
Copyright Law as to Prints or Sculptures first published in this
Country shall apply to the Prints, Sculptures, &c., to which such
Order relates.]

IV. In case any such Order shall apply to Prints, Articles of
Sculpture, or to any such other Works of Art as aforesaid, all and
singular the Enactments of the said Engraving Copyright Acts and
the said Sculpture Copyright Acts, or of any other Act for the Time
being in force with relation to the Copyright in Prints or Articles
of Sculpture first published in this Country, and of any Act for the
Time being in force with relation to the Copyright in any similar
Works of Art first published in this Country, shall, from and after
the Time so to be specified in that Behalf in such Order, and subject
to such Limitation as to the Duration of the Copyright 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.

[Sidenote: Her Majesty may, by Order in Council, direct that Authors
and Composers of Dramatic Pieces and Musical Compositions first
publicly represented and performed in Foreign Countries shall have
similar Rights in the British Dominions.]

V. It shall be lawful for Her Majesty, by any 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 be
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 Amendment 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 Limitation as lo 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 Compositions 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.

[Sidenote: Particulars to be observed as to Registry and to Delivery
of Copies.]

VI. Provided always, That no Author of any Book, Dramatic Piece or
Musical Composition, or his Executors, Administrators, or Assigns,
and no Inventor, Designer, or Engraver of any Print, or Maker of
any Article of Sculpture, or other Work of 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 Behalf 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 performing 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 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 or 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 Publication
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.

[Sidenote: In case of Books published anonymously, the Name of the
Publisher to be sufficient.]

VII. Provided always, 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.

[Sidenote: The Provisions of the Copyright Amendment Act as regards
Entries in the Register Book of the Company of Stationers, &c., to
apply to Entries under this Act.]

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 Searches therein, and
the Delivery of certified and stamped Copies thereof, the Reception
of such Copies in Evidence, the making of false Entries in the said
Book, and the Production in Evidence of Papers falsely purporting to
be Copies of Entries in the said Book, the Applications 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 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 prescribed by the said
Copyright Amendment Act 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.

[Sidenote: As to expunging or varying Entry grounded in wrongful first
Publication.]

IX. Every Entry made in pursuance of this Act of a first Publication
shall be _primâ facie_ Proof of a rightful first Publication; but if
there be a wrongful first Publication, and any Party have availed
himself 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 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.

[Sidenote: Copies of Books wherein Copyright is subsisting under this
Act printed in Foreign Countries other than those wherein the Book was
first published prohibited to be imported.]

X. All Copies of Books wherein there shall be any subsisting Copyright
under or by virtue of this Act, or of any Order in Council made in
pursuance thereof, printed or reprinted in any Foreign Country except
that in which such Books were first published, shall be and the same
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 thereof, or his Agent authorised in
Writing, and if imported contrary to this Prohibition the same 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 unlawfully 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 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 authorised to be brought by Proprietors
of Copyright against Persons importing or selling Books unlawfully
printed in the British Dominions.

[Sidenote: Officer of Stationers' Company to deposit Books, &c., in
the British Museum.]

XI. 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.

[Sidenote: Second or subsequent Editions.]

XII. Provided always, 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 contain Additions or Alterations.

[Sidenote: Orders in Council may specify different Periods for
different Foreign Countries and for different Classes of Works.]

XIII. 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 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.

[Sidenote: No Order in Council to have any Effect unless it states
that reciprocal Protection is secured.]

XIV. _Provided always, 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._[1739]

[Sidenote: Orders in Council to be published in Gazette, and to have
same Effect as this Act.]

XV. 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.

[Sidenote: Orders in Council to be laid before Parliament.]

XVI. 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 Parliament be then sitting, and if not,
then within Six Weeks after the commencement of the then next Session
of Parliament.

[Sidenote: Orders in Council may be revoked.]

XVII. _It shall be lawful for Her Majesty by an Order in Council from
Time to Time to revoke or alter any Order in Council previously made
under the Authority of this Act, but nevertheless without Prejudice to
any Rights acquired previously to such Revocation or Alteration._[1740]

[Sidenote: Translations.]

XVIII. _Provided always, That nothing in 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._[1741]

[Sidenote: Authors of Works first published in Foreign Countries not
entitled to Copyright except under this Act.]

XIX.[1742] Neither the Author of any Book, nor the Author or Composer
of any Dramatic Piece or Musical Composition, nor the Inventor,
Designer, or Engraver of any Print, nor the Maker of any Article of
Sculpture, or of such other Work of Art as aforesaid, which shall
after the passing of this Act be first published out of Her Majesty's
Dominions, shall have any Copyright therein respectively, or any
exclusive Right to the public Representation or Performance thereof,
otherwise than such (if any) as he may become entitled to under this
Act.

[Sidenote: Interpretation Clause.]

XX. In the Construction of this Act the Word "Book" shall be construed
to include "Volume," "Pamphlet," "Sheet of Letterpress," "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 Privileges of Copyright are thereby conferred;
and the Words "printing" and "reprinting," shall include engraving
and any other Method of multiplying Copies; 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.

[Sidenote: Act may be repealed this Session.]

XXI. _This Act may be amended or repealed by any Act to be passed in
this present Session of Parliament._[1743]


THE COLONIAL COPYRIGHT ACT, 1847.[1744]

10 & 11 VICT. C. 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.]

[Sidenote: 5 & 6 Vict. c. 45.]

[Sidenote: 8 & 9 Vict. c. 93.]

[Sidenote: Her Majesty may suspend in certain Cases the Prohibitions
against the Admission of pirated Books into the Colonies in certain
Cases.]

I. _Whereas by an Act passed in the Session of Parliament holden in
the Fifth and Sixth Years of Her present Majesty, intituled An Act
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 authorised 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 Her present Majesty, intituled An Act
to regulate the Trade of the British Possessions abroad, Books
wherein the Copyright is subsisting, first composed or written or
printed in the United Kingdom, and printed or reprinted in any other
Country, are absolutely 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 endeavoured 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:_[1745] In case the Legislature or proper
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 or make an Ordinance
for that Purpose, and shall transmit the same in the proper Manner
to the Secretary of State, in order that it may be submitted to Her
Majesty, and in case Her Majesty shall 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, 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, any thing in the said last-recited Act or in any
other Act to the contrary notwithstanding.

[Sidenote: Orders in Council to be published in Gazette. Orders
in Council and the Colonial Acts or Ordinances to be laid before
Parliament. Act may be amended, &c.]

II. Every such Order in Council shall, within One Week after the
issuing thereof, be published in the _London Gazette_, and a Copy
thereof, and of every such Colonial Act or Ordinance so approved
as aforesaid by Her Majesty, shall be laid before both Houses of
Parliament within Six Weeks after the issuing of such Order, if
Parliament be then sitting, or if Parliament be not then sitting, then
within Six Weeks after the opening of the next Session of Parliament.

III. _And be it enacted, This Act may be amended or repealed by any
Act to be passed in the present Session of Parliament._[1746]


COPYRIGHT IN DESIGNS ACT, 1850.

13 & 14 VICT. C. 104.

    An Act to extend and amend the Acts relating to the Copyright of
    Designs.

  [14th August 1850.]

[Sidenote: Registration of Sculpture, Models, &c.]

VI. _The Registrar of Designs, upon Application by or on 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._[1747]

[Sidenote: Benefits conferred by Registration of Sculpture, &c.]

VII. _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, or Cast which shall be
published by him after such Registration shall be marked with the Word
"registered" and with the Date of Registration._[1748]


THE INTERNATIONAL COPYRIGHT ACT, 1852.

15 & 16 VICT. 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 concluded
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 France: 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 as
follows:

I. _The 18th Section of 7 Vict. c. 12 shall be repealed so far as the
same is inconsistent with the provisions hereinafter contained._

II. _Her Majesty may by Order in Council[1749] 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
of such Books not authorised 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 authorised Translations of such Books
hereinafter 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 authorised
Translation of such Part is first published._

III. _Subject to any Provisions or Qualifications contained in such
Order and to the provisions herein 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 therein referred to._

IV. _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 hereinafter mentioned or referred to, be
empowered to prevent the Representation in the British Dominions of
any Translation of such Dramatic Pieces not authorised 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 Authorised
Translations of such Dramatic Pieces hereinafter mentioned are first
published or publicly represented._

V. _Subject to any Provisions or Qualifications contained in such
last-mentioned Order and to the Provisions hereinafter contained
or referred to, the Laws and Enactments for the Time being in force
for ensuring to the Author of any Dramatic Piece first publicly
represented in the British Dominions, the sole Liberty of representing
the same shall be applied for the Purpose of preventing the
Representation of any Translations of the Dramatic Pieces to which
such last-mentioned Order extends, which are not sanctioned by the
Authors thereof._[1750]

VI. Nothing herein contained shall be so construed as to prevent fair
Imitations or Adaptations to the English Stage of any Dramatic Piece
or Musical Composition published in any Foreign Country.

VII. Notwithstanding any thing in the said International Copyright Act
or in this Act contained any Article of Political Discussion which has
been published in any Newspaper or Periodical in a Foreign Country
may, if the source from which the same is taken be 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 International 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:_

4. _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 protected, 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 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 separate form, but shall not apply to such Articles as
originally published._[1751]

IX. All Copies of any Works of Literature or Art wherein there is
any subsisting Copyright by virtue of the International Copyright
Act and this Act, or of any Order in Council made in pursuance of
such Acts or 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 unauthorised Translations of any Book
or Dramatic Piece, the Publication or public Representation in the
British Dominions of Translations whereof not authorised 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 6f such Work or of such Book or Piece, or his Agent
authorised in Writing; and the Provision of 5 & 6 Vict. c. 45, for
the Forfeiture, Seizure, and Destruction 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
imported into any Part of the British Dominions by any Person not
being the Proprietor of the Copyright, or a Person authorised 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
this Act.

X. The Provisions hereinbefore contained shall be incorporated with
the International Copyright Act, and shall be read and construed
therewith as One Act.

XI. [_Clause dispensing with a further Order in Council in respect of
the Convention with France_, Rep. Int. Cop. Act, 1886, sec. 12].

XII., XIII. [_Clauses dealing with Duties on imported Works_, Rep.
Stat. Law Rev. Act, 1875].

XIV. And Whereas by the Four several Acts of Parliament following;
(that is to say) 8 Geo. II. c. 13; 7 Geo. III. c. 38; 17 Geo. III.
c. 57; 6 & 7 Will. IV. c. 59, Provision 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 designed, engraved, etched, or
worked in Mezzotinto or Chiaro oscuro any Historical Print or Prints,
or any Print or Prints of any Portrait, Conversation, Landscape,
or Architecture, Map, Chart or Plan, or any other Print or Prints
whatsoever, and to 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 Copyrights 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
intended to include Prints taken by Lithography, or any other
Mechanical Process by which Prints or Impressions of Drawings or
Designs are capable of being multiplied indefinitely, and the said
Acts shall be construed accordingly.


THE FINE ARTS COPYRIGHT ACT, 1862.

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, and
it is expedient that the Law should in that respect be amended:

[Sidenote: Copyright in Works hereafter made or sold to vest in the
Author for his Life and for Seven Years after his Death.]

I. The Author, being a British Subject or resident[1752] within
the Dominions of the Crown, of every original Painting, Drawing,
and Photograph[1753] which shall be or shall have been made either
in the British Dominions or elsewhere, and which shall not have
been sold or disposed of before the Commencement of this Act, and
his Assigns, shall have the sole and exclusive Right of copying,
engraving, reproducing, and multiplying such Painting or Drawing,
and the Design thereof,[1754] 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,[1755] or shall be made or executed for or on behalf of any other
Person for a good or a valuable Consideration,[1756] 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 oi 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 authorised, shall have been made to that Effect.

[Sidenote: Copyright not to prevent the Representation of the same
Subjects in other Works. Assignments, Licences, &c., to be in Writing.]

II. Nothing herein contained shall prejudice the Right of any Person
to copy or use any Work in which there shall be no Copyright, or to
represent any Scene or Object, notwithstanding that there may be
Copyright in some Representation of such Scene or Object.

III. All Copyright under this Act shall be deemed Personal or Movable
Estate, and shall be assignable at Law, and every Assignment thereof,
and every License to use or copy by any Means or Process the Design or
Work which shall be the subject of such Copyright, 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.

[Sidenote: Register of Proprietors of Copyright in Paintings,
Drawings, and Photographs to be kept at Stationers' Hall as in 5 & 6
Vict. c. 45.]

IV.[1757] There shall be kept at the Hall of the Stationers' Company
by the Officer appointed by the said Company for the Purposes of the
Act passed in the Sixth Year of Her present Majesty, intituled An Act
to amend the Law of Copyright, a Book or Books, entitled "The Register
of Proprietors of Copyright in Paintings, Drawings, and Photographs,"
wherein shall be entered a Memorandum of every Copyright to which any
Person shall be entitled under this Act, and also of every subsequent
Assignment of any 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 Description 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 Copyright shall be
entitled to the Benefit of this Act until such Registration, and no
Action shall be sustainable nor any Penalty be recoverable in respect
of anything done before Registration.

[Sidenote: Certain Enactments of 5 & 6 Vict. c. 45 to apply to the
Books to be kept under this Act.]

V. The several Enactments in the said Act of the Sixth Year of Her
present Majesty contained, with relation to keeping the Register Book
thereby required, and the Inspection thereof, the Searches therein and
the Delivery of certified and stamped Copies thereof, the Reception
of such Copies in Evidence, the making of false Entries in the said
Book, and the Production in Evidence of Papers falsely 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.

[Sidenote: Penalties on Infringement of Copyright.]

VI. If the Author of any Painting, Drawing, or Photograph in which
there shall be subsisting Copyright, after having sold or disposed
of such Copyright, or if any other Person, not being the 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,
or, knowing that any such Repetition, Copy, or other Imitation has
been unlawfully made,[1758] 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[1759]
shall forfeit to the Proprietor of the Copyright for the Time being
a Sum not exceeding Ten Pounds[1760]; 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.

[Sidenote: Penalties on fraudulent Productions and Sales.]

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
    Painting, 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 Imitation 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 the
    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:

[Sidenote: Penalties.]

Every Offender under this Section shall, upon Conviction, forfeit to
the Person aggrieved a Sum not exceeding Ten Pounds, or not 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 Monogram 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.

[Sidenote: Recovery of pecuniary Penalties.]

VIII. All pecuniary Penalties which shall be incurred, and all such
unlawful Copies, Imitations, and all other Effects and Things as
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:

[Sidenote: In England and Ireland.]

[Sidenote: In Scotland.]

    In England and Ireland, either by Action against the Party
    offending, or by summary Proceeding before any Two Justices having
    Jurisdiction where the Party offending resides:

    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 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_,[1761] 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_,[1762] Suspension,
    Reduction, or otherwise.

[Sidenote: Superior Courts of Record in which any Action is pending
may make an Order for an Injunction, Inspection, or Account.]

IX. In any Action in any of Her Majesty's Superior Courts of Record at
Westminster and in Dublin, for the Infringement of any such Copyright
as aforesaid, it shall be lawful for the Court in which such Action is
pending, if the Court be then sitting, or if the Court be not sitting
then for a Judge of such Court, on the Application of the Plaintiff
or Defendant respectively, to make such Order for an Injunction,
Inspection, or Account, and to give such Direction respecting such
Action, Injunction, Inspection, and Account, and the Proceedings
therein respectively, as to such Court or Judge may seem fit.

[Sidenote: Importation of pirated Works prohibited.]

[Sidenote: Application in such Cases of Customs Acts.]

X. All Repetitions, Copies, or Imitations of Paintings, Drawings,
or Photographs, wherein or in the Design whereof there shall be
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 authorised in
Writing; and if the Proprietor of any such Copyright, or his Agent,
shall declare that any Goods imported are Repetitions, 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.

[Sidenote: Saving of Right to bring Action for Damages.]

XI. If the Author of any Painting, Drawing, or Photograph, in which
there shall be subsisting Copyright, after having sold or 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[1763] 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 without
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 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.

[Sidenote: Provisions of 7 & 8 Vict. c. 12 to be considered as
included in this Act.]

XII. This Act shall be considered as including the Provisions of
the Act passed in the Session of Parliament held in the Seventh and
Eighth Years of Her present Majesty, intituled An Act to amend the Law
relating to International Copyright, in the same Manner as if such
Provisions were Part of this Act.


THE INTERNATIONAL COPYRIGHT ACT, 1875.

38 VICT. C. 12.

    An Act to amend the Law relating to International Copyright.

  [13th May 1875.]

[Sidenote: 15 Vict. c. 12.]

_Whereas by an Act passed in the fifteenth year of the reign of Her
present Majesty, chapter twelve, intituled "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" 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 referred to, be empowered to prevent the representation in the
British dominions of any translation of such dramatic pieces not
authorised 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 authorised 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 qualifications contained in such order, and to
the provisions in the said Act contained or referred to, the laws and
enactments for the time being in force for ensuring to the author of
any dramatic piece first publicly represented in the British dominions
the sole liberty of representing the same shall be applied for the
purpose 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 adaptations 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
provision under certain circumstances.[1764] Be it therefore enacted
as follows, viz.:_--

[Sidenote: Section 6 of recited Act not to apply to dramatic pieces in
certain cases.]

I. In any case in which, by virtue of the enactments hereinbefore
recited, any Order in Council has been or may hereafter be made for
the purpose of extending protection to the translations of dramatic
pieces first publicly represented in any foreign country, it shall be
lawful for Her Majesty by Order in Council to direct that the 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 Act were
hereby repealed.


THE CANADA COPYRIGHT ACT, 1875.[1765]

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 of
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:_

_And whereas by the said reserved Bill provision is made, subject to
such 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:_[1766]

Be it enacted as follows:

[Sidenote: Short title of Act.]

I. This Act may be cited for all purposes as The Canada Copyright Act,
1875.

[Sidenote: Definition of terms.]

II. In the construction of this Act the words "book" and "copyright"
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."

[Sidenote: Her Majesty may assent to the Bill in schedule.]

III. 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.

[Sidenote: Colonial reprints not to be imported into United Kingdom.]

IV. 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 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.

[Sidenote: Order in Council of 7th July 1868 to continue in force
subject to this Act.]

V. 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.


THE CUSTOMS LAWS CONSOLIDATION ACT, 1876.

39 & 40 VICT. C. 36.

XLII. The goods enumerated and described in the following table of
prohibitions and restrictions inwards are hereby prohibited to 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 composed or written or printed in the
United Kingdom, and printed or reprinted in any other Country as to
which the proprietor of such Copyright or his agent shall have given
to the Commissioners of Customs a notice in writing, duly declared,
that such Copyright subsists, such notice also stating when such
Copyright will expire.[1767]

XLIV. The Commissioners of Customs shall cause to be made and to be
publicly exposed at the Custom Houses in the several ports in 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 said Commissioners
that such Copyright exists, stating in such notice when such Copyright
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.

XLV. If any person shall have cause to complain of the insertion of
any book in such lists, it shall be lawful for any judge at chambers,
on the application of the person so complaining, to issue a summons
calling upon the person upon whose notice such book shall have been
so inserted to appear before any such judge at a time to be appointed
in such summons, to show cause why such book shall 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 retain the same therein according to the
tenor of such order; and in case such book shall be expunged from such
list, the importation 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 contained 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.

CLII. Any 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, shall be and are hereby 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 Commissioners 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 to suspend
in certain cases such prohibition.


THE COPYRIGHT (MUSICAL COMPOSITIONS) ACT, 1882.

45 & 46 VICT. C. 40.

    An Act to amend the law of Copyright relating to Musical
    Compositions.

  [10th August 1882.]

_Whereas it is expedient to amend the law relating to copyright
in musical compositions, and to protect the public from vexatious
proceedings for the recovery of penalties for the unauthorised
performance of the same._[1768]

Be it therefore enacted as follows:

[Sidenote: Printed notice restraining public performance.]

I.[1769] The proprietor of the copyright in any musical composition
first published after the passing of this Act, or his assignee, who
shall be entitled to and be desirous of retaining in his own hands
exclusively the right of public representation or performance of the
same, shall print or cause to be printed upon the title-page of every
published copy of such musical composition a notice to the effect that
the right of public representation or performance is reserved.

[Sidenote: Provision when right of performance and copyright are
vested in different owners.]

II. In case the right of public representation or performance of, and
the copyright in, any musical composition shall be or become vested
before publication of any copy thereof in different owners, then, if
the owner of the right of public representation or performance shall
desire to retain the same, he shall, before any such publication
of any copy of such musical composition, give to the owner of the
copyright therein notice in writing requiring him to print upon
every copy of such musical composition a notice to the effect that
the right of public representation or performance is reserved; but
in case the right of public representation or performance of, and
the copyright in, any musical composition shall, after publication
of any copy thereof subsequently to the passing of this Act, first
become vested in different owners, and such notice as aforesaid shall
have been duly printed on all copies published after the passing
of this Act previously to such vesting, then, if the owner of the
right of performance and representation shall desire to retain the
same, he shall, before the publication of any further copies of such
musical composition, give notice in writing to the person in whom the
copyright shall be then vested, requiring him to print such notice as
aforesaid on every copy of such musical composition to be thereafter
published.

[Sidenote: Penalty on owner of copyright for non-compliance with
notice from owner of right of performance.]

III. If the owner for the time being of the copyright in any musical
composition shall, after due notice being given to him or his
predecessor in title at the time, and generally in accordance with
the last preceding section, neglect or fail to print legibly and
conspicuously upon every copy of such composition published by him or
by his authority, or by any person lawfully entitled to publish the
same, and claiming through or under him, a note or memorandum stating
that the right of public representation or performance is reserved,
then and in such case the owner of the copyright at the time of the
happening of such neglect or default, shall forfeit and pay to the
owner of the right of public representation or performance of such
composition the sum of twenty pounds, to be recovered in any court of
competent jurisdiction.

[Sidenote: Costs.]

[Sidenote: 3 & 4 Will. 4 c. 15.]

IV. _Notwithstanding the provisions of the Act passed in the third
and fourth years of His Majesty King William the Fourth, to amend
the laws relating to dramatic literary property, or any other Act in
which those provisions are incorporated, the costs of any action or
proceedings for penalties or damages in respect of the unauthorised
representation or performance of any musical composition published
before the passing of this Act shall, in cases in which the plaintiff
shall not recover more than forty shillings as penalty or damages,
be in the discretion of the court or judge before whom such action or
proceedings shall be tried._[1770]

[Sidenote: Short title.]

V. This Act may be cited as the Copyright (Musical Compositions) Act,
1882.


THE INTERNATIONAL COPYRIGHT ACT, 1886.

49 & 50 VICT. C. 33.

    An Act to amend the Law respecting International and Colonial
    Copyright.

  [25th June 1886.]

_Whereas by the International Copyright Acts Her Majesty is authorised
by Order in Council to direct that as regards literary and artistic
works first published in a foreign country the author shall have
copyright therein during the period specified in the order, not
exceeding the period during which authors of the like works first
published in the United Kingdom have copyright_:

_And whereas at an international conference held at Berne in the
month of September one thousand eight hundred and eighty-five a draft
of a convention was agreed to for giving to authors of literary and
artistic works first published in one of the countries parties to the
convention copyright in such works throughout the other countries
parties to the convention_:

_And whereas, without the authority of Parliament, such convention
cannot be carried into effect in Her Majesty's dominions and
consequently Her Majesty cannot become a party thereto, and it is
expedient to enable Her Majesty to accede to the convention_:[1771]

Be it therefore enacted as follows:

[Sidenote: Short titles and construction.]

I.--(1.) This Act may be cited as the International Copyright Act,
1886.

(2.) The Acts specified in the first part of the First Schedule to
this Act, together with the enactment specified in the second part of
the said schedule, are in this Act collectively referred to as the
International Copyright Acts.

The Acts specified in the Second Schedule to this Act may be cited by
the short titles in that schedule mentioned, and those Acts are in
this Act referred to, and may be cited collectively as the Copyright
Acts.

(3.) This Act and the International Copyright Acts shall be construed
together, and may be cited together as the International Copyright
Acts, 1844 to 1886.

[Sidenote: Amendment as to extent and effect of order under
International Copyright Acts.]

II. The following provisions shall apply to an Order in Council under
the International Copyright Acts:

  (1.) The order may extend to all the several foreign countries
    named or described therein:
  (2.) The order may exclude or limit the rights conferred by the
    International Copyright Acts in the case of authors who are not
    subjects or citizens of the foreign countries named or described
    in that or any other order, and if the order contains such
    limitation and the author of a literary or artistic work first
    produced in one of those foreign countries is not a British
    subject, nor a subject or citizen of any of the foreign countries
    so named or described, the publisher of such work, unless the
    order otherwise provides, shall for the purpose of any legal
    proceedings in the United Kingdom for protecting any copyright in
    such work be deemed to be entitled to such copyright as if he were
    the author, but this enactment shall not prejudice the rights of
    such author and publisher as between themselves:
  (3.) The International Copyright Acts and an order made thereunder
    shall not confer on any person any greater right or longer term of
    copyright in any work than that enjoyed in the foreign country in
    which such work was first produced.

[Sidenote: Simultaneous publication.]

III.--(1.) An Order in Council under the International Copyright
Acts may provide for determining the country in which a literary or
artistic work first produced simultaneously in two or more countries,
is to be deemed, for the purpose of copyright, to have been first
produced, and for the purposes of this section "country" means the
United Kingdom and a country to which an order under the said Acts
applies.

(2.) Where a work produced simultaneously in the United Kingdom,
and in some foreign country or countries is by virtue of an Order
in Council under the International Copyright Acts deemed for the
purpose of copyright to be first produced in one of the said foreign
countries, and not in the United Kingdom, the copyright in the United
Kingdom shall be such only as exists by virtue of production in
the said foreign country, and shall not be such as would have been
acquired if the work had been first produced in the United Kingdom.

[Sidenote: Modification of certain provisions of International
Copyright Acts.]

IV.--(1.) Where an order respecting any foreign country is made under
the International Copyright Acts the provisions of those Acts with
respect to the registry and delivery of copies of works shall not
apply to works produced in such country except so far as provided by
the order.

(2.) Before making an Order in Council under the International
Copyright Acts in respect of any foreign country, Her Majesty in
Council shall be satisfied that that foreign country has made such
provisions (if any) as it appears to Her Majesty expedient to require
for the protection of authors of works first produced in the United
Kingdom.

[Sidenote: Restriction on translation.]

V.--(1.) Where a work being a book or dramatic piece is first
produced in a foreign country to which an Order in Council under the
International Copyright Acts applies, the author or publisher, as the
case may be, shall, unless otherwise directed by the order, have the
same right of preventing the production in and importation into the
United Kingdom of any translation not authorised by him of the said
work as he has of preventing the production and importation of the
original work.

(2.) Provided that if after the expiration of ten years, or any other
term prescribed by the order, next after the end of the year in which
the work, or in the case of a book published in numbers each number of
the book, was first produced, an authorised translation in the English
language of such work or number has not been produced, the said right
to prevent the production in and importation into the United Kingdom
of an unauthorised translation of such work shall cease.

(3.) The law relating to copyright, including this Act, shall apply to
a lawfully produced translation of a work in like manner as if it were
an original work.

(4.) Such of the provisions of the International Copyright Act, 1852,
relating to translations as are unrepealed by this Act, shall apply in
like manner as if they were re-enacted in this section.

[Sidenote: Application of Act to existing works.]

VI.[1772] Where an Order in Council is made under the International
Copyright Acts with respect to any foreign country, the author and
publisher of any literary or artistic work first produced before the
date at which such order comes into operation shall be entitled to the
same rights and remedies as if the said Acts and this Act and the said
order had applied to the said foreign country at the date of the said
production: Provided that where any person has before the date of the
publication of an Order in Council lawfully produced any work in the
United Kingdom, nothing in this section shall diminish or prejudice
any rights or interests arising from or in connection with such
production which are subsisting and valuable at the said date.

[Sidenote: Evidence of foreign copyright.]

VII. Where it is necessary to prove the existence or proprietorship of
the copyright of any work first produced in a foreign country to which
an Order in Council under the International Copyright Acts applies, an
extract from a register, or a certificate, or other document stating
the existence of the copyright, or the person who is the proprietor
of such copyright, or is for the purpose of any legal proceedings
in the United Kingdom deemed to be entitled to such copyright, if
authenticated by the official seal of a Minister of State of the
said foreign country, or by the official seal or the signature of a
British diplomatic or consular officer acting in such country, shall
be admissible as evidence of the facts named therein, and all courts
shall take judicial notice of every such official seal and signature
as is in this section mentioned, and shall admit in evidence, without
proof, the documents authenticated by it.

[Sidenote: Application of Copyright Acts to colonies.]

VIII.--(1.) The Copyright Acts shall, subject to the provisions of
this Act, apply to a literary or artistic work first produced in
a British possession in like manner as they apply to a work first
produced in the United Kingdom:[1773]

Provided that--

  (_a_) the enactments respecting the registry of the copyright in such
        work shall not apply if the law of such possession provides
        for the registration of such copyright; and
  (_b_) where such work is a book the delivery to any persons or body
        of persons of a copy of any such work shall not be required.

(2.) Where a register of copyright in books is kept under the
authority of the government of a British possession, an extract from
that register purporting to be certified as a true copy by the officer
keeping it, and authenticated by the public seal of the British
possession, or by the official seal or the signature of the governor
of a British possession, or of a colonial secretary, or of some
secretary or minister administering a department of the government of
a British possession, shall be admissible in evidence of the contents
of that register, and all courts shall take judicial notice of every
such seal and signature, and shall admit in evidence, without further
proof, all documents authenticated by it.

(3.) Where before the passing of this Act an Act or ordinance has been
passed in any British possession respecting copyright in any literary
or artistic works, Her Majesty in Council may make an Order modifying
the Copyright Acts and this Act, so far as they apply to such British
possession, and to literary and artistic works first produced therein,
in such manner as to Her Majesty in Council seems expedient.

(4.) Nothing in the Copyright Acts or this Act shall prevent the
passing in a British possession of any Act or ordinance respecting the
copyright within the limits of such possession of works first produced
in that possession.[1774]

[Sidenote: Application of International Copyright Acts to colonies.]

IX. Where it appears to Her Majesty expedient that an Order in
Council under the International Copyright Acts made after the passing
of this Act as respects any foreign country, should not apply to
any British possession, it shall be lawful for Her Majesty by the
same or any other Order in Council to declare that such Order and
the International Copyright Acts and this Act shall not, and the
same shall not, apply to such British possession, except so far as
is necessary for preventing any prejudice to any rights acquired
previously to the date of such Order; and the expressions in the
said Acts relating to Her Majesty's dominions shall be construed
accordingly; but save as provided by such declaration the said Acts
and this Act shall apply to every British possession as if it were
part of the United Kingdom.

[Sidenote: Making of Orders in Council.]

X.--(1.) It shall be lawful for Her Majesty from time to time to make
Orders in Council for the purposes of the International Copyright Acts
and this Act, for revoking or altering any Order in Council previously
made in pursuance of the said Acts, or any of them.

(2.) Any such Order in Council shall not affect prejudicially any
rights acquired or accrued at the date of such Order coming into
operation, and shall provide for the protection of such rights.

[Sidenote: Definitions.]

XI. In this Act, unless the context otherwise requires--

The expression "literary and artistic work" means every book, print,
lithograph, article of sculpture, dramatic piece, musical composition,
painting, drawing, photograph, and other work of literature and art to
which the Copyright Acts or the International Copyright Acts, as the
case requires, extend.

The expression "author" means the author, inventor, designer,
engraver, or maker of any literary or artistic work, and includes any
person claiming through the author; and in the case of a posthumous
work means the proprietor of the manuscript of such work and any
person claiming through him; and in the case of an encyclopædia,
review, magazine, periodical work, or work published in a series of
books or parts, includes the proprietor, projector, publisher, or
conductor.

The expressions "performed" and "performance" and similar words
include representation and similar words.

The expression "produced" means, as the case requires, published or
made, or, performed or represented, and the expression "production" is
to be construed accordingly.

The expression "book published in numbers" includes any review,
magazine, periodical work, work published in a series of books or
parts, transactions of a society or body, and other books of which
different volumes or parts are published at different times.

The expression "treaty" includes any convention or arrangement.

The expression "British possession" includes any part of Her Majesty's
dominions exclusive of the United Kingdom; and where parts of such
dominions are under both a central and a local legislature, all parts
under one central legislature are for the purposes of this definition
deemed to be one British possession.

[Sidenote: Repeal of Acts.]

XII. _The Acts specified in the Third Schedule to this Act are hereby
repealed as from the passing of this Act to the extent in the third
column of that schedule mentioned_:

_Provided as follows_:[1775]

 (_a._) Where an Order in Council has been made before the passing
       of this Act under the said Acts as respects any foreign
       country the enactments hereby repealed shall continue in
       full force as respects that country until the said Order is
       revoked.
 (_b._) _The said repeal and revocation shall not prejudice any rights
       acquired previously to such repeal or revocation, and such
       rights shall continue and may be enforced in like manner as if
       the said repeal or revocation had not been enacted or made._


SCHEDULES.

FIRST SCHEDULE.--INTERNATIONAL COPYRIGHT ACTS.

PART I.

  --------------------+--------------------------------+----------------
  Session and Chapter.|            Title.              |  Short Title.
  --------------------+--------------------------------+----------------
                      |                                |
  7 & 8 Vict. c. 12.  |An Act to amend the law relating|The International
                      | to International Copyright.    |  Copyright Act,
                      |                                |  1844.
                      |                                |
  15 & 16 Vict. c. 12.|An Act to enable Her Majesty to |The International
                      | carry into effect a convention |  Copyright Act,
                      | with France on the subject of  |  1852.
                      | copyright, to extend and       |
                      | explain the International      |
                      | Copyright Acts, and to explain |
                      | the Acts relating to copyright |
                      | in engravings.                 |
                      |                                |
  38 & 39 Vict. c. 12.|An Act to amend the law relating|The International
                      | to International Copyright.    |  Copyright Act,
                      |                                |  1875.
  --------------------+--------------------------------+----------------

PART II.

  --------------------+--------------------------------+----------------
  Session and Chapter.|          Title.                |   Enactment
                      |                                |  referred to.
  --------------------+--------------------------------+----------------
                      |                                |
  25 & 26 Vict. c. 68.|An Act for amending the law     |Section twelve.
                      | relating  to copyright in works|
                      | of the fine arts, and for      |
                      | repressing the commission of   |
                      | fraud in the production and    |
                      | sale of such works.            |
  --------------------+--------------------------------+----------------

SECOND SCHEDULE.--COPYRIGHT ACTS.

  --------------------+--------------------------------+----------------
  Session and Chapter.|          Title.                |  Short Title.
  --------------------+--------------------------------+----------------
                      |                                |
  8 Geo. 2, c. 13.    |An Act for the encouragement of |The Engraving
                      | the arts of designing,         | Copyright Act,
                      | engraving, and etching,        | 1734.
                      | historical, and other prints by|
                      | vesting the properties thereof |
                      | in the inventors and engravers |
                      | during the time therein        |
                      | mentioned.                     |
                      |                                |
  7 Geo. 3, c. 38.    |An Act to amend and render more |The Engraving
                      | effectual an Act made in the   | Copyright Act,
                      | eighth year of the reign of    | 1766.
                      | 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.                        |
                      |                                |
  15 Geo. 3, c. 53.   |An Act for enabling the two     |The Copyright
                      | Universities in England, the   | Act, 1775.
                      | 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   |
                      | 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 year of the reign of|
                      | Queen Anne, as relates to the  |
                      | delivery of books to the       |
                      | warehouse keeper of the        |
                      | Stationers' Company for the use|
                      | of the several libraries       |
                      | therein mentioned.             |
  --------------------+--------------------------------+----------------

SECOND SCHEDULE.--COPYRIGHT ACTS.--(_Continued_).

  --------------------+--------------------------------+----------------
  Session and Chapter.|           Title.               |  Short Title.
  --------------------+--------------------------------+----------------
                      |                                |
  17 Geo. 3, c. 57.   |An Act for more effectually     |The Prints
                      | securing   the property of     | Copyright Act,
                      | prints to  inventors and       | 1777.
                      | engravers by enabling them to  |
                      | sue for and recover penalties  |
                      | in certain cases.              |
                      |                                |
  54 Geo. 3, c. 56.   |An Act to amend and render more |The Sculpture
                      | effectual an Act of His present| Copyright Act,
                      | Majesty for encouraging the art| 1814.
                      | of making new models and casts |
                      | of busts and other things      |
                      | therein mentioned, and for     |
                      | giving further encouragement to|
                      | such arts.                     |
                      |                                |
  3 Will. 4, c. 15.   |An Act to amend the laws        |The Dramatic
                      | relating to Dramatic Literary  | Copyright Act,
                      | Property.                      | 1833.
                      |                                |
  5 & 6 Will. 4,      |An Act for preventing the       |The Lectures
        c. 65.        | publication of Lectures without| Copyright Act,
                      | consent.                       | 1835.
                      |                                |
  6 & 7 Will. 4,      |An Act to extend the protection |The Prints and
        c. 69.        | of copyright in prints and     | Engravings
                      | engravings to Ireland.         | Copyright Act,
                      |                                | 1836.
                      |                                |
  6 & 7 Will. 4,      |An Act to repeal so much of an  |The Copyright
        c. 110.       | Act of the fifty-fourth year of| Act, 1836.
                      | King George the Third,         |
                      | respecting copyrights, as      |
                      | requires the delivery of a copy|
                      | of every published book to the |
                      | libraries of Sion College, the |
                      | four Universities of Scotland, |
                      | and of the King's Inns in      |
                      | Dublin.                        |
                      |                                |
  5 & 6 Vict. c. 45.  |An Act to amend the law of      |The Copyright
                      | copyright.                     | Act, 1842.
                      |                                |
  10 & 11 Vict. c. 95.|An Act to amend the law relating|The Colonial
                      | to the protection in the       | Copyright Act,
                      | Colonies of works entitled to  | 1847.
                      | copyright in the United        |
                      | Kingdom.                       |
                      |                                |
  25 & 26 Vict. c. 68.|An Act for amending the law     |The Fine Arts
                      | relating  to copyright in works| Copyright Act,
                      | of the fine arts, and for      | 1862.
                      | repressing the commission of   |
                      | fraud in the production and    |
                      | sale of such works.            |
  --------------------+--------------------------------+----------------

THIRD SCHEDULE.--ACTS REPEALED.

  --------------------+--------------------------------+----------------
  Session and Chapter.|           Title.               |Extent of Repeal.
  --------------------+--------------------------------+----------------
                      |                                |
  7 & 8 Vict. c. 12.  |An Act to amend the law relating|Sections
                      | to international copyright.    | fourteen,
                      |                                | seventeen, and
                      |                                | eighteen.
                      |                                |
  15 & 16 Vict. c. 12.|An Act to enable Her Majesty to |Sections one to
                      | carry into effect a convention | five both
                      | with France on the subject of  | inclusive, and
                      | copyright, to extend and       | sections eight
                      | explain the International      | and eleven.
                      | Copyright Acts, and to explain |
                      | the Acts relating to copyright |
                      | engravings.                    |
                      |                                |
  25 & 26 Vict. c. 68.|An Act for amending the law     |So much of
                      | relating to copyright in works | section twelve
                      | of the fine arts, and for      | as incorporates
                      | repressing  the commission of  | any enactment
                      | fraud in the  production and   | repealed by
                      | sale of such works.            | this Act.
  --------------------+--------------------------------+----------------


THE COPYRIGHT (MUSICAL COMPOSITIONS) ACT, 1888.

51 & 52 VICT. C. 17.

    An Act to amend the Law relating to the Recovery of Penalties for
    the unauthorised Performance of Copyright Musical Compositions.

  [5th July 1888.]

Whereas it is expedient to further amend the law relating to
copyright in musical compositions, and to further protect the public
from vexatious proceedings for the recovery of penalties for the
unauthorised performance of the same:

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:

[Sidenote: Provision as to damages.]

I. Notwithstanding the provisions of the Act of the session held
in the third and fourth years of His Majesty King William the
Fourth, chapter fifteen, to amend the laws relating to dramatic
literary property, or any other Act in which those provisions are
incorporated, the penalty or damages to be awarded upon any action or
proceedings in respect of each and every unauthorised representation
or performance of any musical composition, whether published before or
after the passing of this Act, shall be such a sum or sums as shall,
in the discretion of the Court or judge before whom such action or
proceedings shall be tried, be reasonable, and the Court or judge
before whom such action or proceedings shall be tried may award a
less sum than forty shillings in respect of each and every such
unauthorised representation or performance as aforesaid, or a nominal
penalty or nominal damages as the justice of the case may require.

[Sidenote: Costs to be in discretion of judge. 45 & 46 Vict. c. 40.]

II. The costs of all such actions or proceedings as aforesaid shall be
in the absolute discretion of the judge before whom such actions and
proceedings shall be tried, and section four of the Copyright (Musical
Compositions) Act, 1882, is hereby repealed.

[Sidenote: Proprietor not wilfully permitting such performance to be
exempt.]

III. The proprietor, tenant, or occupier of any place of dramatic
entertainment, or other place at which any unauthorised representation
or performance of any musical composition, whether published before or
after the passing of this Act, shall take place, shall not by reason
of such representation or performance be liable to any penalty or
damages in respect thereof, unless he shall wilfully cause or permit
such unauthorised representation or performance, knowing it to be
unauthorised.[1776]

[Sidenote: Saving for operas and plays].

IV. The provisions of this Act shall not apply to any action or
proceedings in respect of a representation or performance of any opera
or stage play in any theatre or other place of public entertainment
duly licensed in that respect.

[Sidenote: Short title.]

V. This Act may be cited as the Copyright (Musical Compositions) Act,
1888.


THE REVENUE ACT, 1889.

52 & 53 VICT. C. 42.

I. The following goods shall from and after the passing of this Act be
included amongst the goods enumerated and described on the table of
prohibitions and restrictions contained in Section 42 of the Customs
Consolidation Act, 1876, namely:

Books, first published in any country or state other than the United
Kingdom, wherein under the International Copyright Act, 1886, or any
other Act or any Order in Council made under the authority of any
Act, there is a subsisting Copyright in the United Kingdom, printed
or reprinted in any country or state other than the country or state
in which they were first published,[1777] and as to which the owner
of the copyright or his agent in the United Kingdom has given to the
Commissioners of Customs in the manner prescribed by Section 44 of
the Customs Consolidation Act, 1876, a notice in such form and giving
such particulars as those Commissioners require, and accompanied by a
declaration as provided in that Section.


INTERNATIONAL CONVENTIONS

THE BERNE CONVENTION, 1886.


ARTICLE I.

The Contracting States are constituted into an Union for the
protection of the rights of authors over their literary and artistic
works.


ARTICLE II.

_Authors of any of the countries of the Union, or their lawful
representatives, shall enjoy in the other countries for their works,
whether published in one of those countries or unpublished, the
rights which the respective laws do now or may hereafter grant to
natives._[1778]

The enjoyment of these rights is subject to the accomplishment of the
conditions and formalities described by law in the country of origin
of the work, and cannot exceed in the other countries the term of
protection granted in the said country of origin.

The country of origin of the work is that in which the work is first
published, or if such publication takes place simultaneously in
several countries of the Union, that one of them in which the shortest
term of protection is granted by law.

For unpublished works the country to which the author belongs is
considered the country of origin of the work.


ARTICLE III.

_The stipulations of the present Convention apply equally to the
publishers of literary and artistic works published in one of the
countries of the Union, but of which the authors belong to a country
which is not a party to the Union._


ARTICLE IV.

The expression "literary and artistic works" comprehends books,
pamphlets, and all other writings; dramatic or dramatico-musical
works, musical compositions with or without words; works of design,
painting, sculpture, and engraving; lithographs, illustrations,
geographical charts; plans, sketches, and plastic works relative
to geography, topography, architecture, or science in general; in
fact, every production whatsoever in the literary, scientific, or
artistic domain which can be published by any mode of impression or
reproduction.


ARTICLE V.

_Authors of any of the countries of the Union, or their lawful
representatives, shall enjoy in the other countries the exclusive
right of making or authorising the translation of their works until
the expiration of ten years from the publication of the original work
in one of the countries of the Union._

For works published in incomplete parts ("livraisons") the period of
ten years commences from the date of publication of the last part of
the original work.

For works composed of several volumes published at intervals, as well
as for bulletins or collections ("cahiers") published by literary or
scientific Societies, or by private persons, each volume, bulletin, or
collection is, with regard to the period of ten years, considered as a
separate work.

In the cases provided for by the present Article, and for the
calculation of the period of protection, the 31st December of the
year in which the work was published is admitted as the date of
publication.


ARTICLE VI.

Authorised translations are protected as original works. They
consequently enjoy the protection stipulated in Articles II. and III.
as regards their unauthorised reproduction in the countries of the
Union.

It is understood that, in the case of a work for which the translating
right has fallen into the public domain, the translator cannot oppose
the translation of the same work by other writers.


ARTICLE VII.

_Articles from newspapers or periodicals published in any of the
countries of the Union may be reproduced in original or in translation
in the other countries of the Union, unless the authors or publishers
have expressly forbidden it. For periodicals it is sufficient if the
prohibition is made in a general manner at the beginning of each
number of the periodical._

_This prohibition cannot in any case apply to articles of political
discussion, or to the reproduction of news of the day or current
topics._


ARTICLE VIII.

As regards the liberty of extracting portions from literary or
artistic works for use in publications destined for educational or
scientific purposes, or for chrestomathies, the matter is to be
decided by the legislation of the different countries of the Union, or
by special arrangements existing or to be concluded between them.


ARTICLE IX.[1779]

The stipulations of Article II. apply to the public representation of
dramatic or dramatico-musical works, whether such works be published
or not.

Authors of dramatic or dramatico-musical works, or their lawful
representatives, are, during the existence of their exclusive right
of translation, equally protected against the unauthorised public
representation of translations of their works.

The stipulations of Article II. apply equally to the public
performance of unpublished musical works, or of published works
in which the author has expressly declared on the title-page or
commencement of the work that he forbids the public performance.


ARTICLE X.

Unauthorised indirect appropriations of a literary or artistic work,
of various kinds, such as adaptations, arrangements of music, &c.,
are specially included amongst the illicit reproductions to which
the present Convention applies, when they are only the reproduction
of a particular work, in the same form, or in another form, with
non-essential alterations, additions, or abridgments, so made as not
to confer the character of a new original work.

It is agreed that, in the application of the present Article, the
Tribunals of the various countries of the Union will, if there is
occasion, conform themselves to the provisions of their respective
laws.


ARTICLE XI.

In order that the authors of works protected by the present Convention
shall, in the absence of proof to the contrary, be considered as such,
and be consequently admitted to institute proceedings against pirates
before the Courts of the various countries of the Union, it will be
sufficient that their name be indicated on the work in the accustomed
manner.

For anonymous or pseudonymous works, the publisher whose name is
indicated on the work is entitled to protect the rights belonging
to the author. He is, without other proof, reputed the lawful
representative of the anonymous or pseudonymous author.

It is, nevertheless, agreed that the Tribunals may, if necessary,
require the production of a certificate from the competent authority
to the effect that the formalities prescribed by law in the country of
origin have been accomplished, as contemplated in Article II.


ARTICLE XII.

_Pirated works may be seized on importation into those countries of
the Union where the original work enjoys legal protection._

_The seizure shall take place conformably to the domestic law of each
State._


ARTICLE XIII.

It is understood that the provisions of the present Convention cannot
in any way derogate from the right belonging to the Government of
each country of the Union to permit, to control, or to prohibit,
by measures of domestic legislation or police, the circulation,
representation, or exhibition of any works or productions in regard to
which the competent authority may find it necessary to exercise that
right.


ARTICLE XIV.

Under the reserves and conditions to be determined by common
agreement,[1780] the present Convention applies to all works which
at the moment of its coming into force have not yet fallen into the
public domain in the country of origin.


ARTICLE XV.

It is understood that the Governments of the countries of the Union
reserve to themselves respectively the right to enter into separate
and particular arrangements between each other, provided always that
such arrangements confer upon authors or their lawful representatives
more extended rights than those granted by the Union, or embody other
stipulations not contrary to the present Convention.


ARTICLE XVI.[1781]

An international office is established, under the name of "Office of
the International Union for the Protection of Literary and Artistic
Works."

This Office, of which the expenses will be borne by the
Administrations of all the countries of the Union, is placed under
the high authority of the Superior Administration of the Swiss
Confederation, and works under its direction. The functions of this
Office are determined by common accord between the countries of the
Union.


ARTICLE XVII.

The present Convention may be submitted to revisions in order to
introduce therein amendments calculated to perfect the system of the
Union.

Questions of this kind, as well as those which are of interest to the
Union in other respects, will be considered in Conferences to be held
successively in the countries of the Union by Delegates of the said
countries.

It is understood that no alteration in the present Convention shall be
binding on the Union except by the unanimous consent of the countries
composing it.


ARTICLE XVIII.

Countries which have not become parties to the present Convention, and
which grant by their domestic law the protection of rights secured by
this Convention, shall be admitted to accede thereto on request to
that effect.

Such accession shall be notified in writing to the Government of
the Swiss Confederation, who will communicate it to all the other
countries of the Union.

Such accession shall imply full adhesion to all the clauses and
admission to all the advantages provided by the present Convention.


ARTICLE XIX.

Countries acceding to the present Convention shall also have the
right to accede thereto at any time for their Colonies or foreign
possessions.

They may do this either by a general declaration comprehending all
their Colonies or possessions within the accession, or by specially
naming those comprised therein, or by simply indicating those which
are excluded.


ARTICLE XX.

The present Convention shall be put in force three months after the
exchange of the ratifications, and shall remain in effect for an
indefinite period until the termination of a year from the day on
which it may have been denounced.

_Such denunciation shall be made to the Government authorised to
receive accessions, and shall only be effective as regards the country
making it, the Convention remaining in full force and effect for the
other countries of the Union._


ARTICLE XXI.

The present Convention shall be ratified, and the ratifications
exchanged at Berne, within the space of one year at the latest.

In witness whereof, the respective Plenipotentiaries have signed the
same, and have affixed thereto the seal of their arms.

Done at Berne, the 9th day of September 1886.


_Additional Article._

The Plenipotentiaries assembled to sign the Convention concerning the
creation of an International Union for the protection of literary and
artistic works have agreed upon the following Additional Article,
which shall be ratified together with the Convention to which it
relates:

The Convention concluded this day in nowise affects the maintenance
of existing Conventions between the Contracting States, provided
always that such Conventions confer on authors, or their lawful
representatives, rights more extended than those secured by the Union,
or contain other stipulations which are not contrary to the said
Convention.

In witness whereof, the respective Plenipotentiaries have signed the
present Additional Article.

Done at Berne, the 9th day of September 1886.


_Final Protocol._

In proceeding to the signature of the Convention concluded this day,
the undersigned Plenipotentiaries have declared and stipulated as
follows:

1. _As regards Article IV. it is agreed that those countries of
the Union where the character of artistic works is not refused to
photographs, engage to admit them to the benefits of the Convention
concluded to-day, from the date of its coming into effect. They are,
however, not bound to protect the authors of such works further
than is permitted by their own legislation, except in the case of
international engagements already existing, or which may hereafter be
entered into by them._

_It is understood that an authorised photograph of a protected work of
art shall enjoy legal protection in all the countries of the Union,
as contemplated by the said Convention, for the same period as the
principal right of reproduction of the work itself subsists, and
within the limits of private arrangements between those who have legal
rights._

2. As regards Article IX. it is agreed that those countries of the
Union whose legislation implicitly includes choregraphic works amongst
dramatico-musical works, expressly admit the former works to the
benefits of the Convention concluded this day.

It is, however, understood that questions which may arise on the
application of this clause shall rest within the competence of the
respective Tribunals to decide.

3. It is understood that the manufacture and sale of instruments for
the mechanical reproduction of musical airs which are copyright, shall
not be considered as constituting an infringement of musical copyright.

4. _The common agreement alluded to in Article XIV. of the Convention
is established as follows:_--

_The application of the Convention to works which have not fallen into
the public domain at the time when it comes into force, shall operate
according to the stipulations on this head which may be contained
in special Conventions either existing or to be concluded._

_In the absence of such stipulations between any countries of the
Union, the respective countries shall regulate, each for itself, by
its domestic legislation, the manner in which the principle contained
in Article XIV. is to be applied._

5. The organisation of the International Office established in virtue
of Article XVI. of the Convention shall be fixed by a Regulation which
shall be drawn up by the Government of the Swiss Confederation.

The official language of the International Office will be French.

The International Office will collect all kinds of information
relative to the protection of the rights of authors over their
literary and artistic works. It will arrange and publish such
information. It will study questions of general utility likely to be
of interest to the Union, and, by the aid of documents placed at its
disposal by the different Administrations, will edit a periodical
publication in the French language treating questions which concern
the Union. The Governments of the countries of the Union reserve
to themselves the faculty of authorising, by common accord, the
publication by the Office of an edition in one or more other languages
if experience should show this to be requisite.

The International Office will always hold itself at the disposal of
members of the Union, with the view to furnish them with any special
information they may require relative to the protection of literary
and artistic works.

The Administration of the country where a Conference is about to be
held, will prepare the programme of the Conference with the assistance
of the International Office.

The Director of the International Office will attend the sittings
of the Conferences, and will take part in the discussions without
a deliberative voice. He will make an annual Report on his
administration, which shall be communicated to all the members of the
Union.

The expenses of the Office of the International Union shall be shared
by the Contracting States. Unless a fresh arrangement be made, they
cannot exceed a sum of 60,000 fr. a year. This sum may be increased by
the decision of one of the Conferences provided for in Article XVII.

The share of the total expense to be paid by each country shall be
determined by the division of the Contracting and acceding States into
six classes, each of which shall contribute in the proportion of a
certain number of units, viz.:

  First Class     25 units.
  Second  "       20   "
  Third   "       15   "
  Fourth  "       10   "
  Fifth   "        5   "
  Sixth   "        3   "

These co-efficients will be multiplied by the number of States of each
class, and the total product thus obtained will give the number of
units by which the total expense is to be divided. The quotient will
give the amount of the unity of expense.

Each State will declare, at the time of its accession, in which of the
said classes it desires to be placed.

The Swiss Administration will prepare the Budget of the Office,
superintend its expenditure, make the necessary advances, and draw
up the annual account, which shall be communicated to all the other
Administrations.

6. The next Conference shall be held at Paris between four and six
years from the date of the coming into force of the Convention.

The French Government will fix the date within these limits after
having consulted the International Office.

7. It is agreed that, as regards the exchange of ratifications
contemplated in Article XXI., each Contracting Party shall give a
single instrument, which shall be deposited, with those of the other
States, in the Government archives of the Swiss Confederation. Each
party shall receive in exchange a copy of the _procès-verbal_ of the
exchange of ratifications, signed by the Plenipotentiaries present.

The present Final Protocol, which shall be ratified with the
Convention concluded this day, shall be considered as forming an
integral part of the said Convention, and shall have the same force,
effect, and duration.

In witness whereof the respective Plenipotentiaries have signed the
same.

Done at Berne, the 9th day of September 1886.


_Procès-verbal of Signature._

The undersigned Plenipotentiaries, assembled this day to proceed with
the signature of the Convention with reference to the creation of an
International Union for the protection of literary and artistic works,
have exchanged the following declarations:

1. With reference to the accession of the Colonies or foreign
possessions provided for by Article XIX. of the Convention:

The Plenipotentiaries of His Catholic Majesty the King of Spain
reserve to the Government the power of making known His Majesty's
decision at the time of the exchange of ratifications.

The Plenipotentiary of the French Republic states that the accession
of his country carries with it that of all the French Colonies.

The Plenipotentiaries of Her Britannic Majesty state that the
accession of Great Britain to the Convention for the protection of
literary and artistic works comprises the United Kingdom of Great
Britain and Ireland, and all the Colonies and foreign possessions of
Her Britannic Majesty.

At the same time they reserve to the Government of Her Britannic
Majesty the power of announcing at any time the separate denunciation
of the Convention by one or several of the following Colonies or
possessions, in the manner provided for by Article XX. of the
Convention, namely:

India, the Dominion of Canada, Newfoundland, the Cape, Natal, New
South Wales, Victoria, Queensland, Tasmania, South Australia, Western
Australia, and New Zealand.

2. With respect to the classification of the countries of the Union
having regard to their contributory part to the expenses of the
International Bureau (No. 5 of the Final Protocol):

The Plenipotentiaries declare that their respective countries should
be ranked in the following classes, namely:

  Germany in the first class.
  Belgium in the third class.
  Spain in the second class.
  France in the first class.
  Great Britain in the first class.
  Haiti in the fifth class.
  Italy in the first class.
  Switzerland in the third class.
  Tunis in the sixth class.

The Plenipotentiary of the Republic of Liberia states that the powers
which he has received from his Government authorise him to sign the
Convention, but that he has not received instructions as to the
class in which his country proposes to place itself with respect to
the contribution to the expenses of the International Bureau. He,
therefore, reserves that question to be determined by his Government,
who will make known their intention on the exchange of ratifications.

In witness whereof, the respective Plenipotentiaries have signed the
present _procès-verbal_.

Done at Berne, the 9th day of September 1886.


_Procès-verbal recording Deposit of Ratifications._

In accordance with the stipulations of Article XXI., paragraph 1, of
the Convention for the creation of an International Union for the
protection of literary and artistic works, concluded at Berne on the
9th September 1886, and in consequence of the invitation addressed to
that effect by the Swiss Federal Council to the Governments of the
High Contracting Parties, the Undersigned assembled this day in the
Federal Palace at Berne for the purpose of examining and depositing
the ratifications of:

  Her Majesty the Queen of Great Britain and Ireland, Empress of India,
  His Majesty the Emperor of Germany, King of Prussia,
  His Majesty the King of the Belgians,
  Her Majesty the Queen Regent of Spain, in the name of His Catholic
      Majesty the King of Spain,
  The President of the French Republic,
  The President of the Republic of Haiti,
  His Majesty the King of Italy,
  The Council of the Swiss Confederation,
  His Highness the Bey of Tunis,

to the said International Convention, followed by an Additional
Article and Final Protocol.

The instruments of these acts of ratification having been produced and
found in good and due form, they have been delivered into the hands
of the President of the Swiss Confederation, to be deposited in the
archives of the Government of that country, in accordance with clause
No. 7 of the Final Protocol of the International Convention.

In witness whereof the undersigned have drawn up the present
_procès-verbal_, to which they have affixed their signatures and the
seals of their arms.

Done at Berne, the 5th September 1887, in nine copies, one of which
shall be deposited in the archives of the Swiss Confederation with the
instruments of ratification.

  For Great Britain  (L. S.) F. O. ADAMS.
  For Germany        (L. S.) ALFRED VON BÜLOW.
  For Belgium        (L. S.) HENRY LOUMYER.
  For Spain          (L. S.) COMTE DE LA ALMINA.
  For France         (L. S.) EMMANUEL ARAGO.
  For Haiti          (L. S.) LOUIS-JOSEPH JANVIER.
  For Italy          (L. S.) FÈ.
  For Switzerland    (L. S.) DROZ.
  For Tunis          (L. S.) H. MARCHAND.


_Protocol._

On proceeding to the signature of the _procès-verbal_ recording
the deposit of the acts of ratification given by the High Parties
Signatory to the Convention of the 9th September 1886, for the
creation of an International Union for the protection of literary and
artistic works, the Minister of Spain renewed, in the name of his
Government, the declaration recorded in the _procès-verbal_ of the
Conference of the 9th September 1886, according to which the accession
of Spain to the Convention includes that of all the territories
dependent upon the Spanish Crown.

The Undersigned have taken note of this declaration.

In witness whereof they have signed the present Protocol, done at
Berne, in nine copies, the 5th September 1887.


ORDER IN COUNCIL, NOVEMBER 28, 1887.

    BRITISH ORDER IN COUNCIL giving effect to the International
    Copyright Convention with Belgium, France, Germany, Haiti, Italy,
    Spain, Switzerland, and Tunis, of September 9, 1886.

  [Windsor, November 28, 1887.]

Whereas the Convention, of which an English translation is set out
in the First Schedule to this Order, has been concluded between Her
Majesty the Queen of the United Kingdom of Great Britain and Ireland
and the foreign countries named in this Order, with respect to the
protection to be given by way of copyright to the authors of literary
and artistic works:

And whereas the ratifications of the said Convention were exchanged
on the 5th September 1887, between Her Majesty the Queen and the
Governments of the foreign countries following, that is to say:

Belgium, France, Germany, Haiti, Italy, Spain, Switzerland, Tunis.

And whereas Her Majesty in Council is satisfied that the foreign
countries named in this Order have made such provisions as it appears
to Her Majesty expedient to require for the protection of authors of
works first produced in Her Majesty's dominions.

Now therefore Her Majesty, by and with the advice of Her Privy
Council, and by virtue of the authority committed to her by the
International Copyright Acts, 1844 to 1886, doth order, and it is
hereby ordered as follows:

1. The Convention as set forth in the First Schedule to this Order
shall as from the commencement of this Order have full effect
throughout Her Majesty's dominions, and all persons are enjoined to
observe the same.

2. This Order shall extend to the foreign countries following, that is
to say[1782]:

Belgium, France, Germany, Haiti, Italy, Spain, Switzerland, Tunis.

And the above countries are in this Order referred to as the foreign
countries of the Copyright Union, and those foreign countries,
together with Her Majesty's dominions, are in this Order referred to
as the countries of the Copyright Union.

3. The author of a literary or artistic work which, on or after the
commencement of this Order, is first produced in one of the foreign
countries of the Copyright Union shall, subject as in this Order and
in the International Copyright Acts, 1844 to 1886, mentioned, have as
respects that work throughout Her Majesty's dominions the same right
of copyright, including any right capable of being conferred by an
Order in Council under section 2 or section 5 of the International
Copyright Act, 1844, or under any other enactment as if the work had
been first produced in the United Kingdom, and shall have such right
during the same period.

Provided that the author of a literary or artistic work shall not have
any greater right or longer term of copyright therein than that which
he enjoys in the country in which the work is first produced.

The author of any literary or artistic work first produced before the
commencement of this Order shall have the rights and remedies to which
he is entitled under section 6 of the International Copyright Act,
1886.

4. _The rights conferred by the International Copyright Acts, 1844
to 1886, shall in the case of a literary or artistic work first
produced in one of the foreign countries of the Copyright Union by
an author who is not a subject or citizen of any of the said foreign
countries, be limited as follows: that is to say, the author shall
not be entitled to take legal proceedings in Her Majesty's dominions
for protecting any copyright in such work, but the publisher of such
work shall, for the purpose of any legal proceedings in Her Majesty's
dominions for protecting any copyright in such work, be deemed to
be entitled to such copyright as if he were the author, but without
prejudice to the rights of such author and publisher as between
themselves._

5. A literary or artistic work first produced simultaneously in two
or more countries of the Copyright Union shall be deemed for the
purpose of copyright to have been first produced in that one of those
countries in which the term of copyright in the work is shortest.

6. Section 6 of the International Copyright Act, 1852, shall not apply
to any dramatic piece to which protection is extended by virtue of
this Order.

7. The Orders mentioned in the Second Schedule to this Order are
hereby revoked[1783]: Provided that neither such revocation, nor
anything else in this Order, shall prejudicially affect any right
acquired or accrued before the commencement of this Order by virtue of
any Order hereby revoked, and any person entitled to such right shall
continue entitled thereto and to the remedies for the same, in like
manner as if this Order had not been made.

8. This Order shall be construed as if it formed part of the
International Copyright Act, 1886.

9. This Order shall come into operation on December 6, 1887, which day
is in this Order referred to as the commencement of this Order.

And the Lords Commissioners of Her Majesty's Treasury are to give
necessary orders herein accordingly.


FIRST SCHEDULE.

[BERNE CONVENTION, 1886, WITH ADDITIONAL ARTICLE AND FINAL PROTOCOL.]


SECOND SCHEDULE.

ORDERS IN COUNCIL REVOKED.

Orders in Council, of the dates named below, for securing the
privileges of copyright in Her Majesty's dominions to authors of works
of literature, and the fine arts, and dramatic pieces, and musical
compositions first produced in the following foreign countries,
namely:

  -----------------------------------+----------------------------
           Foreign Country.          |   Date of Entry.
  -----------------------------------+----------------------------
  Prussia                            | 27th August 1846
  Saxony                             | 26th September 1846
  Brunswick                          | 24th April 1847
  The States of the Thuringian Union | 10th August 1847
  Hanover                            | 30th October 1847
  Oldenburg                          | 11th February 1848
  France                             | 10th January 1852
  Anhalt Dessau and Anhalt Bernbourg | 11th March 1853
  Hamburg                            | 25th November 1853, and 8th July
                                     |   1855
  Belgium                            | 8th February 1855
  Prussia, Saxony, Saxe-Weimar       | 19th October 1855
  Spain                              | 24th September 1857, and 20th
                                     |   November 1880
  The States of Sardinia             | 4th February 1861
  Hesse-Darmstadt                    | 5th February 1862
  Italy                              | 9th September 1865
  German Empire                      | 24th September 1886
  -----------------------------------+----------------------------

The Order in Council of 5th August 1875, revoking the application of
Section 6 of 15 & 16 Vict. c. 12 to dramatic pieces referred to in
the Order in Council of 10th January 1852 with respect to works first
published in France.


THE ADDITIONAL ACT OF PARIS, 1896.

ARTICLE I.

The International Convention of the 9th September 1886, is modified as
follows:

1. Article II.--The first paragraph of Article II. shall run as
follows:

    "Authors belonging to any one of the countries of the Union, or
    their lawful representatives, shall enjoy in the other countries
    for their works, whether unpublished, or published for the first
    time in one of those countries, the rights which the respective
    laws do now or shall hereafter grant to nationals."

A fifth paragraph is added in these terms:

    "Posthumous works are included among those to be protected."

2. Article III.--Article III. shall run as follows:

    "Authors not belonging to one of the countries of the Union, who
    shall have published or caused to be published for the first time
    their literary or artistic works in a country which is a party to
    the Union, shall enjoy, in respect of such works, the protection
    accorded by the Berne Convention, and by the present Additional
    Act."

3. Article V.--The first paragraph of Article V. shall run as
follows:

    "Authors belonging to any one of the countries of the Union, or
    their lawful representatives, shall enjoy in the other countries
    the exclusive right of making or authorising the translation of
    their works during the entire period of their right over the
    original work. Nevertheless, the exclusive right of translation
    shall cease to exist if the author shall not have availed himself
    of it, during a period of ten years from the date of the first
    publication of the original work, by publishing or causing to be
    published in one of the countries of the Union, a translation in
    the language for which protection is to be claimed."

4. Article VII.--Article VII. shall run as follows:

    "Serial stories, including tales, published in the newspapers
    or periodicals of one of the countries of the Union, may
    not be reproduced, in original or translation, in the other
    countries, without the sanction of the authors or of their lawful
    representatives.

    "This stipulation shall apply equally to other articles in
    newspapers or periodicals, when the authors or editors shall have
    expressly declared in the newspaper or periodical itself in which
    they shall have been published that the right of reproduction is
    prohibited. In the case of periodicals it shall suffice if such
    prohibition be indicated in general terms at the beginning of each
    number.

    "In the absence of prohibition, such articles may be reproduced on
    condition that the source is acknowledged.

    "In any case, the prohibition shall not apply to articles on
    political questions, to the news of the day, or to miscellaneous
    information."

5. Article XII.--Article XII. shall run as follows:

    "Pirated works may be seized by the competent authorities of the
    countries of the Union where the original work is entitled to
    legal protection.

    "The seizure shall take place conformably to the domestic law of
    each State."

6. Article XX. The second paragraph of Article XX. shall run as
follows:

    "Such denunciation shall be made to the Government of the Swiss
    Confederation. It shall only be effective as regards the country
    making it, the Convention remaining in full force and effect for
    the other countries of the Union."


ARTICLE II.

The final Protocol annexed to the Convention of the 9th September
1886, is modified as follows:

    1. No. 1.--This clause shall run as follows:

    "As regards Article IV., it is agreed as follows:

    "(A.) In countries of the Union where protection is accorded not
    only to architectural plans, but also to the architectural works
    themselves, these works shall be admitted to the benefits of the
    Berne Convention and of the present Additional Act.

    "(B.) Photographic works and works produced by an analogous
    process shall be admitted to the benefits of these engagements in
    so far as the laws of each State may permit, and to the extent of
    the protection accorded by such laws to similar national works.

    "It is understood that an authorised photograph of a work of art
    shall enjoy legal protection in all the countries of the Union, as
    contemplated by the Berne Convention and by the present Additional
    Act, for the same period as the principal right of reproduction
    of the work itself subsists, and within the limits of private
    arrangements between those who have legal rights."

    2. No. 4.--This clause shall run as follows:

    "The common agreement contemplated in Article XIV. of the
    Convention is established as follows:

    "The application of the Berne Convention and of the present
    Additional Act to works which have not fallen into the public
    domain within the country of origin at the time when these
    engagements come into force, shall operate according to such
    stipulations on this head as may be contained in special
    Conventions either actually existing or to be concluded hereafter.

    "In the absence of such stipulations between any of the countries
    of the Union, the respective countries shall regulate, each for
    itself, by its domestic legislation, the manner in which the
    principle contained in Article XIV. is to be applied.

    "The stipulations of Article XIV. of the Berne Convention and of
    the present clause of the Final Protocol shall apply equally to
    the exclusive right of translation, in so far as such right is
    established by the present Additional Act.

    "The temporary stipulations noted above shall be applicable to
    countries which may hereafter accede to the Union."


ARTICLE III.

The countries of the Union which are not parties to the present
Additional Act, shall at any time be allowed to accede thereto on
their request to that effect. This stipulation shall apply equally
to countries which may hereafter accede to the Convention of the 9th
September 1886. It will suffice for this purpose that such accession
should be notified in writing to the Swiss Federal Council, who shall
in turn communicate it to the other Governments.


ARTICLE IV.

The present Additional Act shall have the same force and duration as
the Convention of the 9th September 1886.

It shall be ratified, and the ratifications shall be exchanged at
Paris, in the manner adopted in the case of that Convention, as soon
as possible, and within the space of one year at the latest.

It shall come into force as regards those countries which shall have
ratified it three months after such exchange of ratifications.

In witness whereof the respective Plenipotentiaries have signed the
same, and have affixed thereto the seal of their arms.

Done at Paris in a single transcript, the 4th May 1896.


_Procès-Verbal recording Deposit of Ratification._

Circumstances having prevented action being taken within the period of
delay originally fixed for the exchange of the ratifications of the
Additional Act of the 4th May 1896, modifying Articles II., III., V.,
VII., XII., and XX. of the Convention of the 9th September 1886, and
clauses 1 and 4 of the Final Protocol annexed thereto, as well as of
the Declaration interpreting certain stipulations of the Convention of
Berne of the 9th September 1886, and of the Additional Act signed at
Paris on the 4th May 1896, it has been unanimously agreed that that
period should be prolonged until this day.

In consequence whereof the Undersigned have met together in order to
deposit the instruments in question.

Germany, Belgium, Spain, France, Italy, Luxembourg, Monaco, Montenegro,
Switzerland, and Tunis have ratified both engagements.

Great Britain has ratified the Additional Act alone, on behalf of the
United Kingdom, as well as of all the British Colonies and Possessions.

Norway has only ratified the interpretative Declaration.

The respective ratifications having been produced and found to be
in good and due form, have been handed to the French Minister for
Foreign Affairs, in order that they may be deposited in the archives
of the Ministry, such deposit to be held equivalent to an exchange of
ratifications.

In faith of which the Undersigned have prepared the present Record of
deposit, to which they have affixed their seals.

Done at Paris, the 9th September 1897.

                        For Germany:
      (L. S.) (Signed)        VON MÜLLER.
                        For Belgium:
      (L. S.) (Signed)        Baron ALB. FALLON.
                        For Spain:
      (L. S.) (Signed)        Le Marquis DE NOVALLAS.
                        For France:
      (L. S.) (Signed)        G. HANOTAUX.
                        For Great Britain:
      (L. S.) (Signed)        EDMUND MONSON.
                        For Italy:
      (L. S.) (Signed)        G. TORNIELLI.
                        For Luxembourg:
      (L. S.) (Signed)        EUGÈNE LOUIS BASTIN.
                        For Monaco:
      (L. S.) (Signed)        J. DEPELLEY.
                        For Montenegro:
      (L. S.) (Signed)        H. MARCEL.
                        For Norway:
      (L. S.) (Signed)        Comte WRANGEL.
                        For Switzerland:
      (L. S.) (Signed)        DUPLAN.
                        For Tunis:
      (L. S.) (Signed)        RENAULT.
  Certified to be a correct copy.
      (L. S.) (Signed)        PH. CROSIER,
                            _Minister Plenipotentiary_,
                            _Chef du Service du Protocole._


ORDER IN COUNCIL, MARCH 7, 1898.

Whereas, &c. (Preamble recites the Berne Convention, 1886, Order in
Council November 28, 1887, other Orders in Council affecting countries
subsequently acceding, and the Additional Act of Paris.)

And whereas Her Majesty in Council is satisfied that the foreign
countries named in the body of this Order and parties to the said
Additional Act have made such provisions as it appears to Her Majesty
expedient to require for the protection of authors of works first
produced in Her Majesty's dominions:

Now therefore Her Majesty, by and with the advice of Her Privy Council
and by virtue of the authority committed to Her by the International
Copyright Acts, 1844 to 1886, doth order, and it is hereby ordered as
follows:

(1.) The Additional Act of the Berne Convention set forth in the
Schedule to this Order shall as from the commencement of this Order
have full effect throughout Her Majesty's dominions, and all persons
are enjoined to observe the same.

(2.) This Order shall extend to the foreign countries following, that
is to say:[1784]

  Germany,
  Belgium,
  Spain,
  France,
  Italy,
  Luxembourg,
  Monaco,
  Montenegro,
  Switzerland, and
  Tunis.

(3.) The fourth article of the Order in Council of November 28, 1887,
shall as from the commencement of this Order cease to apply to the
foreign countries to which this Order extends:

(4.) The Order in Council of November 28, 1887, shall continue to be
of full force and effect save in so far as the same is varied by this
Order.

(5.) Nothing contained in this Order shall prejudicially affect any
right acquired or accrued before the commencement of this Order
by virtue of the said Order in Council of November 28, 1887, or
otherwise, and any person entitled to such right shall continue
entitled thereto and to the remedies for the same in like manner as if
this Order had not been made.

(6.) The author of any literary or artistic work first produced before
the commencement of this Order shall have the rights and remedies to
which he is entitled under section 6 of The International Copyright
Act, 1886.

(7.) This Order shall be construed as if it formed part of The
International Copyright Act, 1886.

(8.) This Order shall come into operation on the date hereof, which
day is in this Order referred to as the commencement of this Order.

And the Lords Commissioners of Her Majesty's Treasury are to give the
necessary orders herein accordingly.


TREASURY MINUTE

TREASURY MINUTE[1785] DEALING WITH THE COPYRIGHT IN GOVERNMENT
PUBLICATIONS, AUGUST 31, 1887.

My Lords take into consideration the correspondence which has passed
between the Treasury and the Stationery Office on the subject of
Copyright in Government publications.

The law gives to the Crown, or the assignee of the Crown, the same
right of copyright as to a private individual. Consequently, if a
servant of the Crown, in the course of his duty for which he is paid,
composes any document, or if a person is specially employed and paid
by the Crown for the purpose of composing any document, the copyright
in the document belongs to the Crown as it would in the case of a
private employer.

The majority of publications issued under the authority of the
Government have no resemblance to the works published by private
publishers, and are published for the information of the public and
for public use, in such manner as any one of the public may wish,
and it is desirable that the knowledge of their contents should be
diffused as widely as possible.

In other cases the Government publishes at considerable cost works in
which few persons only are interested, but which are published for the
purpose of promoting literature and science.

These works are of precisely the same character as those published by
private enterprise.

In order to prevent an undue burden being thrown on the taxpayer by
these works, and to enable the Government to continue the publication
of works of this character to the same extent as heretofore, it is
necessary to place them, as regards copyright, in the same position
as publications by private publishers. If the reproduction of them,
or of the most popular portions of them, by private publishers, is
permitted, the private publisher will be able to put into his own
pocket the profits of the work, which ought to go in relief of the
general public, the taxpayers.

The question, then, is, what are the classes of works the reproduction
of which is to be restricted, or to be left unrestricted?

Government publications may be classified as follows:

    (1.) Reports of Select Committees of the two Houses of Parliament,
    or of Royal Commissions.

    (2.) Papers required by Statute to be laid before Parliament,
    _e. g._, Orders in Council, Rules made by Government Departments,
    Accounts, Reports of Government Inspectors.

    (3.) Papers laid before Parliament by Command, _e. g._, Treaties,
    Diplomatic Correspondence, Reports from Consuls and Secretaries of
    Legation, Reports of Inquiries into Explosions or Accidents, and
    other Special Reports made to Government Departments.

    (4.) Acts of Parliament.

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

    (6.) Literary or quasi-literary works, _e. g._, the Reports of the
    _Challenger_ Expedition, the Rolls Publication, the forthcoming
    State Trials, the "Board of Trade Journal."

    (7.) Charts and Ordnance Maps.

As respects the first five classes of publications, the reproduction
of them, with certain exceptions, should not be restricted in any form
whatever. Indeed, in most cases it is desirable that they should be
made known to the public as widely as possible.

The first exception is, that Acts of Parliament and official books
should not, except when published under the authority of the
Government, purport on the face of them to be published by authority.

The second exception is, where a work of a literary or quasi-literary
character comes accidentally within these classes. For example, the
Reports of the Historical Manuscripts Commission would, but for the
fact that they were produced under the direction of a Commission
instead of under the Master of the Rolls, be published in the ordinary
manner like the Rolls publications, and come within Class 6.

So, again, a Report to a Government Department may be laid before
Parliament made by a person of eminent scientific knowledge who is
willing to give the Government and the public the advantage of his
knowledge, but not to allow it to be reproduced for the private
benefit of an individual publisher. Mr. Whitehead's Reports on
Injurious Insects are an instance of this case.

Other exceptions will, no doubt, from time to time occur, which can
only be dealt with as they arise.

As regards the sixth and seventh classes above mentioned, it seems
desirable that the copyright in them should be enforced in the
interests of the taxpayer, and of literature and science. For, as
pointed out above, unless copyright is enforced, cheap copies of the
works, or of the popular portion of them, can be produced by private
publishers, who reap the profit at the expense of the taxpayer. And
as such works are in any case a burden on the taxpayer, the greater
the burden the fewer works can the Government, with justice to the
taxpayer, undertake.

Notice of the intention to enforce the copyright in any work should
be given to the public. In the case of future works this notice can
be given by prefixing to the work a notice to the effect that the
rights of copyright are reserved. In the case of past works it will be
desirable to inform the publishing trade of the works the reproduction
of which, without permission, is forbidden.

As respects Acts of Parliament, the Government, in obedience to the
wishes of Parliament expressed by Select Committees, are bound to
publish an edition of them by authority as cheaply as practicable, and
a nearly similar remark applies to official publications. For this
purpose the Comptroller of the Stationery Office shall be appointed
Her Majesty's Printer, but care will be taken not to infringe on any
existing privileges granted by the Crown.

Let instructions be given to the Comptroller of the Stationery Office
and to the Solicitor in pursuance of this Minute.


AMERICAN STATUTES

REVISED STATUTES, 1874.

TITLE lx. c. 3. [Approved June 22, 1874.]

[Sidenote: Copyrights to be under charge of Librarian of Congress.]

SEC. 4948. All records and other things relating to copyrights and
required 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.

[Sidenote: Seal of Office.]

SEC. 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.

[Sidenote: Bond of Librarian.]

SEC. 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 monies received by virtue of his
office.

[Sidenote: Annual Report.]

SEC. 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.

[Sidenote: What publications may be entered for Copyright.]

SEC. 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,[1786] or photograph or negative thereof, or of a painting,
drawing, chromo, statue, statuary, or 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 provisions 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 represented by others. And authors may reserve the
right to dramatize or to translate their own works._[1787]

[Sidenote: Term of Copyrights.]

SEC. 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.

[Sidenote: Continuance of Term.]

SEC. 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 he be dead, shall have the same exclusive right
continued 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._[1788]

[Sidenote: Assignment of Copyrights and recording.]

SEC. 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 purchaser,
or mortgagee for a valuable consideration, without notice.

[Sidenote: Deposit of title and published copies.]

SEC. 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 within ten days from the publication thereof[1789] 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, or in
case of a painting, drawing, statue, statuary, model, or design for a
work of the fine arts, a photograph of the same._[1790]

[Sidenote: Record of entry and attested copy].

SEC. 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 a 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
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.

[Sidenote: Fees.]

SEC. 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 assignment
    of a copyright, fifteen cents for every one hundred words._[1791]

    _All fees so received shall be paid into the Treasury of the
    United States._[1792]

[Sidenote: Copies of Copyright works to be furnished to Librarian of
Congress.]

SEC. 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,
and a copy of every subsequent edition wherein any substantial changes
shall be made._[1793]

[Sidenote: Penalty for omission]

SEC. 4960. For every failure on the part of the proprietor of any
copyright to deliver or deposit in the mail either of the published
copies or description or photograph, required by sections 4956 and
4959, 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.

[Sidenote: Postmasters to give receipts.]

SEC. 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.

[Sidenote: Publication of notice of entry for Copyright prescribed.]

SEC. 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_,[1794] the following
words, "Entered according to Act of Congress, in the year ----, by A.
B., in the office of the Librarian of Congress at Washington."[1795]

[Sidenote: Penalty for false publication of notice of entry.]

SEC. 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 by the person
who shall sue for such penalty, and one-half to the use of the United
States._[1796]

[Sidenote: Damages for violation of Copyright of books.]

SEC. 4964. _Every person who after the recording of the title of any
book as provided by this chapter shall, within the term limited and
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._[1797]

[Sidenote: For violating Copyright of maps, charts, prints, &c.]

SEC. 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 without the 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 maps 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._[1798]

[Sidenote: For violating Copyright of dramatic compositions.]

SEC. 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._[1799]

[Sidenote: Damages for printing or publishing any manuscript without
consent of author, &c.]

SEC. 4967. _Every person who shall print or publish any manuscript
whatever without the consent of the author or proprietor first
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._[1800]

[Sidenote: Limitation of action in Copyright cases.]

SEC. 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.

[Sidenote: Defences to action in Copyright cases.]

SEC. 4969. In all actions arising under the laws respecting
copyrights, the defendant may plead the general issue, and give the
special matter in evidence.

[Sidenote: Injunctions in Copyright cases.]

SEC. 4970. The circuit courts, and district courts having the
jurisdiction 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 courts may deem reasonable.

[Sidenote: Aliens and non-residents not privileged.]

SEC. 4971. _Nothing in this chapter shall be construed to prohibit the
printing, publishing, importation, or sale of any book, map, chart,
dramatic or musical composition, print, cut, engraving or photograph,
written, composed, or made by any person not a citizen of the United
States nor resident therein._[1801]

[Sidenote: Writs of error and appeals without reference to amount.]

SEC. 699. A writ of error may be allowed to review any final judgment
at law, and an appeal shall be allowed from any final decree in equity
hereinafter mentioned without regard to the sum or value in dispute.

First. By final judgment at law or final decree in equity of any
circuit court, or of any district court acting as a circuit court, or
of the Supreme Court of the District of Columbia, or of any Territory,
in any case touching patent rights or copyrights.

[Sidenote: Exclusive jurisdiction of Courts of United States.]

SEC. 711. The jurisdiction vested in the courts of the United States
in the cases and proceedings hereinafter mentioned, shall be exclusive
of the courts of the several States.

Fifth. Of all cases arising under the patent-right or copyright laws
of the United States.

[Sidenote: Full costs allowed.]

SEC. 972. In all recoveries under the copyright laws either for
damages, forfeitures, or penalties, full costs shall be allowed
thereon.

[Sidenote: Copyrights vest in Assignee in bankruptcy.]

SEC. 5046. All ... patent rights, and copyrights ... shall in virtue
of the adjudication of bankruptcy and the appointment of an assignee
... be at once vested in such assignee.

[Sidenote: Repeal of Acts.]

SEC. 5596. All Acts of Congress passed prior to December 1, 1873, any
portion of which is embraced in any section of the Revised Statutes,
are hereby repealed, and the section applicable thereto shall be in
force in lieu thereof....

[Sidenote: Acts passed since 1st December 1873, not affected.]

SEC. 5601. The enactment of the said Revision is not to affect or
repeal any Act of Congress passed since December 1, 1873, and all Acts
passed since that date are to have full effect as if passed after the
enactment of this revision, and so far as such Acts vary from and
conflict with any provision contained in said revision, they are to
have effect as subsequent statutes, and as repealing any portion of
the revision inconsistent therewith.


ACT OF CONGRESS, JUNE 18, 1874.

[Sidenote: No right of action for infringement unless notice of entry.]

[Sidenote: Optional modes of entry.]

Be it enacted by the Senate and House of Representatives 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 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--, by A. B."

[Sidenote: Fees.]

SEC. 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._[1802]

[Sidenote: "Engraving," "Cut" and "Print" not to extend to labels.]

[Sidenote: Commissioner of Patents charged with supervision of labels.]

SEC. 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 arts, 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
Commissioners of Patents, to the party entering the same.

SEC. 4. That all laws and parts of laws inconsistent with the
foregoing provisions be, and the same are hereby repealed.

SEC. 5. That this Act shall take effect on August 1, 1874.


ACT OF CONGRESS, AUGUST 1, 1882.

[Sidenote: R. S. 4962, amended notice of Copyright on decorative
articles.]

Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled, That manufacturers of
designs for moulded decorative articles, tiles, plaques, or articles
of pottery or metal subject to copyright may put the copyright
mark prescribed by Section 4962 of the Revised Statutes, and Acts
additional thereto, upon the back or bottom of such articles,
or in such other place upon them as it has heretofore been usual
for manufacturers of such articles to employ for the placing of
manufacturers, merchants, and trade marks thereon.


ACT OF CONGRESS, OCTOBER 1, 1890.

An Act to reduce the revenue and equalise duties on imports, and for
other purposes.

SEC. 2. On and after October 6, 1890, unless otherwise specially
provided for in this Act, the following articles when imported shall
be exempt from duty:

       *       *       *       *       *

512. Books, engravings, photographs, bound or unbound, etchings, maps
and charts, which shall have been printed and bound or manufactured
more than twenty years at the date of importation.

513. Books and pamphlets printed exclusively in languages other than
English; also books and music in raised print used exclusively by the
blind.

514. Books, engravings, photographs, etchings, bound or unbound, maps
and charts imported by authority, or for the use of the United States,
or for the use of the Library of Congress.

515. Books, maps, lithographic prints, and charts, specially
imported, not more than two copies in any one invoice, in good
faith for the use of any society incorporated or established for
educational, philosophical, literary or religious purposes, or for
the encouragement of the fine arts, or for the use or by order of any
college, academy, school or seminary of learning in the United States,
subject to such regulations as the secretary of the Treasury shall
prescribe.

516. Books, or libraries, or parts of libraries, and other household
effects of persons or families from foreign countries, if actually
used abroad by them not less than one year, and not intended for any
other person or persons, nor for sale.


ACT OF CONGRESS, MARCH 3, 1891.

Be it enacted by the Senate and House of Representatives of the United
States of America in Congress assembled, That section forty-nine
hundred and fifty-two of the Revised Statutes be, and the same is
hereby amended so as to read as follows:

[Sidenote: Persons and publications entitled to Copyright.]

    "SEC. 4952. The author, inventor, designer, or proprietor of any
    book, map, chart, dramatic or musical composition, engraving,
    cut, print, 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 provisions of this chapter, have the sole
    liberty of printing, reprinting, publishing, completing, copying,
    executing, finishing, and vending the same; and, in the case of
    dramatic composition, of publicly performing or representing it or
    causing it to be performed or represented by others; and authors
    or their assigns shall have exclusive right to dramatize and
    translate any of their works for which copyright shall have been
    obtained under the laws of the United States."

SEC. 2. That section forty-nine hundred and fifty-four of the Revised
Statutes be, and the same is hereby amended so as to read as follows:

[Sidenote: Further term of exclusive right.]

    "Sec. 4954. The author, inventor, or designer, if he be still
    living, or his widow or children, if he be dead, shall have the
    same exclusive right continued 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 persons 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."

SEC. 3. That section forty-nine hundred and fifty-six of the Revised
Statutes of the United States be, and the same is hereby amended so
that it shall read as follows:

[Sidenote: Deposit of title or description before publication.]

[Sidenote: Two copies of work or photograph on day of publication.]

[Sidenote: To be made in the United States.]

[Sidenote: Importation of Foreign editions prohibited.]

    "SEC. 4956. No person shall be entitled to a copyright unless he
    shall, on or before the day of publication in this or any foreign
    country, deliver at the office of the Librarian of Congress, or
    deposit in the mail within the United States, addressed to the
    Librarian of Congress at Washington, District of Columbia, a
    printed copy of the title of the book, map, chart, dramatic or
    musical composition, engraving, cut, print, photograph, or chromo,
    or a description of the painting, drawing, 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, not later than the day of the
    publication thereof[1803] in this or any foreign country, deliver
    at the office of the Librarian of Congress at Washington, District
    of Columbia, or deposit in the mail within the United States,
    addressed to the Librarian of Congress at Washington, District
    of Columbia, two copies of such copyright book, map, chart,
    dramatic or musical composition, engraving, chromo, cut, print, or
    photograph, or in case of a painting, drawing, statue, statuary,
    model, or design for a work of the fine arts, a photograph of
    same: Provided, That in the case of a book, photograph, chromo, or
    lithograph, the two copies of the same required to be delivered
    or deposited as above shall be printed from type set within the
    limits of the United States, or from plates made therefrom, or
    from negatives, or drawings on stone made within the limits of
    the United States, or from transfers made therefrom. During the
    existence of such copyright the importation into the United States
    of any book, chromo, lithograph, or photograph so copyrighted, or
    any edition or editions thereof, or any plates of the same not
    made from type set, negatives, or drawings on stone made within
    the limits of the United States, shall be, and it is hereby,
    prohibited, except in the cases specified in paragraphs 512 to
    516, inclusive in section 2 of the Act of Congress, October 1,
    1890, and except in the case of persons purchasing for use and not
    for sale, who import, subject to the duty thereon, not more than
    two copies of such book at any one time, and except in the case
    of newspapers and magazines not containing in whole or in part
    matter copyrighted under the provisions of this Act, unauthorised
    by the author, which are hereby exempted from prohibition of
    importation: Provided, nevertheless, That in the case of books
    in foreign languages, of which only translations in English are
    copyrighted; the prohibition of importation shall apply only to
    the translations of the same, and the importation of the books in
    the original language shall be permitted."

[Sidenote: Fees.]

SEC. 4. That section forty-nine hundred and fifty-eight of the Revised
Statutes be, and the same is hereby amended so that it will read as
follows:

    "SEC. 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 and certifying any instrument of writing for
    the assignment of a copyright, one dollar.

    "Fourth. For every copy of an assignment, one dollar.

    "All fees so received shall be paid into the Treasury of the
    United States: Provided, That the charge for recording the
    title or description of any article entered for copyright, the
    production of a person not a citizen or resident of the United
    States, shall be one dollar, to be paid as above into the
    Treasury of the United States, to defray the expenses of lists of
    copyrighted articles as hereinafter provided for.

    [Sidenote: List of copyrighted articles to be furnished Treasury.]

    [Sidenote: Weekly Catalogues.]

    "And it is hereby made the duty of the Librarian of Congress to
    furnish to the Secretary of the Treasury copies of the entries
    of titles of all books and other articles wherein the copyright
    has been completed by the deposit of two copies of such book
    printed from type set within the limits of the United States, in
    accordance with the provisions of this Act and by the deposit
    of two copies of such other article made or produced in the
    United States; and the Secretary of the Treasury is hereby
    directed to prepare and print, at intervals of not more than a
    week, catalogues of such title-entries for distribution to the
    collectors of customs of the United States and to the postmasters
    of all post offices receiving foreign mails, and such weekly
    lists, as they are issued, shall be furnished to all parties
    desiring them, at a sum not exceeding five dollars per annum; and
    the Secretary and the Postmaster-General are hereby empowered and
    required to make and enforce such rules and regulations as shall
    prevent the importation into the United States, except upon the
    conditions above specified, of all articles prohibited by this
    Act."

SEC. 5. That section forty-nine hundred and fifty-nine of the Revised
Statutes be, and the same is hereby amended so as to read as follows:

[Sidenote: Copy of subsequent editions.]

    "SEC. 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, a copy of every subsequent
    edition wherein any substantial changes shall be made: Provided,
    however, That the alterations, revisions, and additions made to
    books by foreign authors, heretofore published, of which new
    editions shall appear subsequently to the taking effect of this
    Act, shall be held and deemed capable of being copyrighted as
    above provided for in this Act, unless they form a part of the
    series in course of publication at the time this Act shall take
    effect."

SEC. 6. That section forty-nine hundred and sixty-three of the Revised
Statutes be, and the same is hereby amended so as to read as follows:

[Sidenote: Penalty for false notice of entry.]

    "SEC. 4963. _Every person who shall insert or impress such
    notice, or words of the same purport, in or upon any book, map,
    chart, dramatic or 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._"[1804]

SEC. 7. That section forty-nine hundred and sixty-four of the Revised
Statutes be, and the same is hereby amended so as to read as follows:

[Sidenote: Violations of Copyright of books.]

    "SEC. 4964. Every person who, after the recording of the title
    of any book and the depositing of two copies of such book, as
    provided by this Act, shall, contrary to the provisions of this
    Act, within the term limited, and without the consent of the
    proprietor of the copyright first obtained in writing, signed in
    presence of two or more witnesses, print, publish, dramatize,
    translate, or import, or knowing the same to be so printed,
    published, dramatized, translated, 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."

SEC. 8. That section forty-nine hundred and sixty-five of the Revised
Statutes be, and the same is hereby so amended as to read as follows:

[Sidenote: Violations of Copyright of maps, prints, &c.]

    "SEC. 4965. _If any person, after the recording of the title of
    any map, chart, dramatic or 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 Act, shall within the term limited,
    contrary to the provisions of this Act, and without the 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, dramatize, translate, 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,
    dramatized, translated, 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._"[1805]

SEC. 9. That section forty-nine hundred and sixty-seven of the Revised
Statutes be, and the same is hereby amended so as to read as follows:

[Sidenote: Damages for printing manuscript.]

    "SEC. 4967. Every person who shall print or publish any manuscript
    whatever without the consent of the author or proprietor first
    obtained, shall be liable to the author or proprietor for all
    damages occasioned by such injury."

[Sidenote: Alien products.]

SEC. 10. That section forty-nine hundred and seventy-one of the
Revised Statutes be, and the same is hereby repealed.

[Sidenote: Volumes separately copyrightable.]

SEC. 11. That for the purpose of this Act each volume of a book in
two or more volumes, when such volumes are published separately
and the first one shall not have been issued before this Act shall
take effect, and each number of a periodical shall be considered an
independent publication, subject to the form of copyrighting as above.

SEC. 12. That this Act shall go into effect on the first day of July,
anno domini eighteen hundred and ninety-one.

[Sidenote: Applicable to citizens of foreign countries permitting
similar rights.]

SEC. 13. That this Act shall only apply to a citizen or subject of
a foreign state or nation when such foreign state or nation permits
to citizens of the United States of America the benefit of copyright
on substantially the same basis as its own citizens; or when such
foreign state or nation is a party to an international agreement
which provides for reciprocity in the granting of copyright, by the
terms of which agreement the United States of America may at its
pleasure become a party to such agreement. The existence of either of
the conditions aforesaid shall be determined by the President of the
United States by proclamation made from time to time as the purposes
of this Act may require.


ACT OF CONGRESS, MARCH 3, 1893.

[Sidenote: Extension of time for delivery of copies where such has
been neglected.]

[Sidenote: if delivered before 1st March 1893.]

Be it enacted by the Senate and House of Representatives of the United
States of America in Congress assembled, That any author, inventor,
designer, or proprietor of any book, or other article entitled to
copyright, who has heretofore failed to deliver in the office of the
Librarian of Congress, or in the mail addressed to the Librarian
of Congress, two complete copies of such book, or description or
photograph of such article within the time limited by Title 60,
chapter 3, of the Revised Statutes relating to copyrights and the Acts
in amendment thereof, and has complied with all other provisions
thereof, who has before March 1, 1893, delivered at the office of
the Librarian of Congress or deposited in the mail addressed to the
Librarian of Congress two complete printed copies of such book, or
description or photograph of such article, shall be entitled to all
the rights and privileges of said Title 60, chapter 3, of the Revised
Statutes and Acts in amendment thereof.


ACT OF CONGRESS, MARCH 2, 1895.

Be it enacted by the Senate and House of Representatives of the United
States of America in Congress assembled, That section 4965 of the
Revised Statutes be, and the same is hereby amended so as to read as
follows:

[Sidenote: Penalty for violations of Copyright of compositions, maps,
prints, paintings, &c.]

SEC. 4965. If any person after the recording of the title of any map,
chart, dramatic or 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 Act, shall,
within the term limited, contrary to the provisions of this Act and
without the consent of the proprietor first obtained in writing,
signed in presence of two or more witnesses, engrave, etch, work,
copy, print, publish, dramatize, translate, 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, dramatized,
translated, 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: Provided, however, That in case of any such infringement
of the copyright of a photograph made from any object not a work of
fine arts, the sum to be recovered in any action brought under the
provisions of this section shall be not less than 100 dollars, nor
more than 5000 dollars, and: Provided further, That in case of any
such infringement of the copyright of a painting, drawing, statue,
engraving, etching, print, or model or design for a work of the fine
arts or of a photograph of a work of the fine arts, the sum to be
recovered in any action brought through the provisions of this section
shall not be less than 250 dollars, and not more than 10,000 dollars.
One-half of all the foregoing penalties shall go to the proprietors of
the copyright and the other half to the use of the United States.


ACT OF CONGRESS, JANUARY 6, 1897.

Be it enacted by the Senate and House of Representatives of the United
States of America in Congress assembled, That section 4966 of the
Revised Statutes be, and the same is hereby amended so as to read as
follows:

SEC. 4966. Any person publicly performing or representing any dramatic
or musical composition for which a copyright has been obtained,
without the consent of the proprietor of said dramatic or musical
composition 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 100 dollars for the first and 50 dollars for every
subsequent performance, as to the court shall appear to be just. If
the unlawful performance and representation be wilful and for profit,
such person or persons shall be guilty of a misdemeanour, and, upon
conviction, be imprisoned for a period not exceeding one year. Any
injunction that may be granted upon hearing, after notice to the
defendant by any circuit court of the United States, or by a judge
thereof restraining and enjoining the performance or representation of
any such dramatic or musical composition, may be served on the parties
against whom such injunction may be granted anywhere in the United
States, and shall be operative and may be enforced by proceedings to
punish for contempt or otherwise by any other circuit court or judge
in the United States; but the defendants in said action or any or
either of them may make a motion in any other circuit in which he or
they may be engaged in performing or representing said dramatic or
musical composition, to dissolve or set aside the said injunction
upon such reasonable notice to the plaintiff as the circuit court or
the judge before whom said motion shall be made shall deem proper;
service of said motion to be made on the plaintiff in person or on
his attorneys in the action. The circuit courts or judges thereof
shall have jurisdiction to enforce said injunction, and to hear and
determine a motion to dissolve the same, as herein provided, as fully
as if the action were pending or brought in the circuit in which said
motion is made.

The clerk of the court or judge granting the injunction shall, when
required so to do by the court hearing the application to dissolve
or enforce said injunction, transmit without delay to said court a
certified copy of all the papers on which the said injunction was
granted that are on file in his office.


ACT OF CONGRESS, MARCH 3, 1897.

Be it enacted by the Senate and House of Representatives of the United
States of America in Congress assembled, That section 4963 of the
Revised Statutes be, and the same is hereby amended so as to read as
follows:

SEC. 4963. Every person who shall insert or impress such notice or
words of the same purport, in or upon any book, map, chart, dramatic
or musical composition, print, cut, engraving or photograph, or other
article, whether such article be subject to copyright or otherwise,
for which he has not obtained a copyright in this country; or shall
import any book, photograph, chromo, or lithograph or other article
bearing such notice of copyright, or words of the same purport, which
is not copyrighted in this country, shall be liable to a penalty of
100 dollars, recoverable one-half for the person who shall sue for
such penalty, and one-half to the use of the United States; and the
importation into the United States of any book, chromo, lithograph,
or photograph, or other article bearing such notice of copyright,
when there is no existing copyright thereon in the United States, is
prohibited: and the circuit courts of the United States sitting in
equity are hereby authorised to enjoin the issuing, publishing, or
selling of any article marked or imported in violation of the United
States copyright laws, at the suit of any person complaining of such
violation: Provided that this Act shall not apply to any importation
of or sale of such goods or articles brought into the United States
prior to the passage hereof.

SEC. 2. That all laws and parts of laws inconsistent with the
foregoing provisions be and are hereby repealed.



ADDENDUM

MUSICAL (SUMMARY PROCEEDINGS) COPYRIGHT ACT, 1902.


2 EDW. VII. c. 15.

Since this work went to press the Musical Copyright Bill mentioned
on page 231 has received the Royal Assent and become law. The Act
will come into operation on October 1, 1902, and its application is
limited to the United Kingdom. The Act gives the owner of copyright
music power to seize pirated copies of his works from any person who
may hawk, carry about, sell, or offer for sale the same. To exercise
this power he may proceed in one of two ways. He may apply to a court
of summary jurisdiction, and on _primâ facie_ evidence the court will
by order authorise a constable to seize the alleged pirated copies,
or he may without applying to the court himself authorise a constable
in writing to seize such copies. On the copies being seized by the
constable they must be brought before the court, and on proof that
they are pirated copies the court will order them to be destroyed or
delivered to the owner of the copyright. If the owner authorises the
seizure without an order from the court and fails to prove his case
he might be liable in damages. If, therefore, the owner is not quite
sure of his case he should first obtain the order of the court, which
will relieve him from all responsibility, except costs, in the event
of his failing. The Bill as originally brought into the House of Lords
contained a clause empowering a court of summary jurisdiction to
inflict a summary penalty on persons dealing with pirated music. It
also proposed to give the court power to order a constable to search
for pirated music on suspected premises. These remedies, however, were
considered by the House of Commons to be too drastic and were omitted
from the Act.



INDEX



INDEX

The figures in black type indicate that the reference is to Part II.,
which deals with the Law of the United States.

  Abandonment--
    of copyright, 119
    of right in unpublished work, 223

  Abridgment--
    of non-copyright literary matter constitutes a new book, 21, 25
    whether an infringement of copyright, 114, =284=

  Account of profits: _see_ Remedies, 80, =289=

  Account-books of original pattern not protected as book, 242

  Acquiescence, 87, =292=--
    affects costs, 95
    as ground of defence, 119

  Acting: _see_ Performing Rights

  Acts of Parliament, copyright in, 59, =241=

  Adaptations of non-copyright work constitutes a new book, 25, =241=

  Administrators, copyright passes to, 83, =275=

  Advertisements, 18, 19, =240=

  Aeolian, perforated scroll for, 33, 97, =276=

  Agreements--
    publishers', 227
    printers', 230

  Alien: _see_ International Copyright--
    can acquire British copyright, =45=
    whether book of alien author entitled to British copyright, 42
    sculpture of alien artist, 162
    painting, drawing, or photograph of alien artist, 170
    what works of aliens can acquire copyright in the United States,
        =247=
    may sue in United States in respect of unpublished work, =299=

  America: _see_ United States

  _Animus furandi_, 100, =277=

  Anne, Statute of, 4

  Annotation, copyright in notes, 26, =241=

  Anonymous Works--
    entitled to copyright, 36
    foreign publisher entitled to sue, 200

  Application form, 24, =239=

  Arrangement of old literary matter constitutes a new book, 21, 24,
       =241=

  Art: _see_ Paintings, Engravings, Sculpture, Photographs

  Articles: _see_ Periodical Works

  Artist: _see_ Author

  Assignment--
    of copyright in books--
      before publication no writing required, 75
      after publication must be in writing, 77
      registration of assignment, 78
      assignees right to sue, 79
      partial assignment, 80
      distinguished from licence, 81
    of performing rights, 134--
      writing required, 77, 134
      do not pass with copyright, 134
      entry on register, 135
      provincial rights, 135
    of copyright in engravings, 154
    of copyright in sculpture, 164
    of copyright in paintings, drawings, and photographs, 176
    of copyright in the United States, =272=

  Austria-Hungary: _see_ International Copyright

  Author--
    who is, of books, 62, =269=
      joint authorship, 64, =270=
      of paintings and drawings, 174
      of photographs, 174, =270=
    right of separate publication in contribution to periodical, 72
    whether nationality or residence of author of a book material, 42
    reputation of author who has parted with his copyright protected,
        213, =297=
    rights of foreign authors in the United States, =247=


  Bankruptcy--
    copyright passes to trustee, 83, =275=

  Barometer, no copyright in face of, 14, 32

  Belgium: _see_ International Copyright--
    signatory of Berne Convention, 194
    proclaimed under Chace Act, =249=

  Bequest, copyright passes by, 83, =275=

  Berne Convention: _see_ International Copyright

  Bible, =59=

  Bills of sale, lists of, 21

  Binding, passing off by similar, =298=

  Blackstone's Commentaries, new edition of, 26

  Blasphemous Works: _see_ Profane Works

  Blind--
    books for, entitled to copyright, 11
    may be imported into United States, =295=

  Book--
    what is protected in a book, 10, =236=--
      what physical form required, 11, =242=
      what literary matter required, 13, =237-239=
      what originality required, 15, =237=, =243=
    examples of what are books, 16--
      abridgments, 25
      adaptations, 25, =241=
      advertisements, 18, 19, =240=
      application form, 24, =237=, =239=
      catalogues, 18, =238=
      Christmas card, 35
      collection of cookery recipes, 24
      conveyancing precedents, 23
      cricket-scoring card, 31
      dictionaries, 25, =239=
      directories, 16, 17, =239=
      face of barometer, 32
      forms, 23, 24, =237=
      "Guide to Science," 24
      illustrations, 34
      index, 27
      lists from public documents, 21
      list of foxhounds, 21
      maps, 36
      mechanical devices, 31
      music, 36
      new editions, 26, =242=
      notes to non-copyright works, 26, =241=
      railway ticket, 32
      reports, 28, =240=
      road-books, 16
      scroll for mechanical instrument, 33
      selections of non-copyright matter, 24, 25, =241=
      sleeve chart, 32
      sporting tips, 33
      statistics, 20, =237=, =239=
      tables of calculation, 23
      telegraph codes, 20
      time-tables, 22
      topographical dictionary, 24
      translations, 25

  Booksellers, claim of perpetual copyright, 5

  Border Minstrelsy--Lockhart's Notes, 26

  British Museum--
    delivery of copies to, 55
    whether deposit of copy is publication, 39


  Calculations, tables of, 23

  Campbell's Poems, 112

  Canada, copyright in, 188

  Catalogues, 18, 19, =238=

  Causing to be printed, 85

  Causing to be represented, 139

  Causing or procuring infringement of copyright in fine arts, 178

  Certificate of registration, 53

  Chart: _see_ Map

  Chatterbox, =297=

  Chili proclaimed under Chace Act, =249=

  Codes, telegraph, 20

  Colonial copyright, 186--
    books, 186--
      foreign reprints Act, 186
    Canada, 188--
      importation of foreign reprints into,
      prohibited, 188
      licence in Canada protected, 188
      Imperial Copyright Acts have full force in Canada, 189
    artistic works, 191--
      not protected in colonies by imperial legislation, 192

  Common Law Rights--
    question of perpetual copyright, 5
    copyright limited to statutory rights, 206
    common law rights in published work, 206, =296=--
      passing off by similar title, 206
      title must be known to public, 208
      non-user of title, 208
      no fraud need be proved, 209
      must be calculated to deceive, 209
      cases where injunctions granted, 209
      cases where injunctions refused, 211
      malicious criticism, 213
      slander of title, 213
    reputation of author who has parted with copyright protected, 213
    right of employees to use materials acquired in their master's
        service, 215
    third party restrained who obtains material by procuring a breach of
        faith or contract, 218
    unpublished works, 220, =298=--
      right of property in, 220
      limited communication, 221
      whether protected if immoral, 223
    speeches and sermons, 223
    letters, 225

  Company of Stationers, origin of, 3

  Composition--
    what is, 15, 24
    essential element of a book, 14

  Cookery recipes, 24

  Co-owners: _see_ Joint Owners

  Corporation may be _ab initio_ proprietor of copyright, =272=

  Costs of action--
    books, 46, 95
    performing rights, 144
    engravings, 156
    sculpture, 164

  Crown--
    ancient royal prerogative, 3
    present claims of, 59

  Criticism, extracts for purpose of, 111

  Customs, seizure by, 91


  "Daisy Bell," 125

  Damages: _see_ Remedies, 80, =290=

  Death--
    devolution of copyright on, 83
    publishing agreement terminated by, 227

  Delay, 87, =292=--
    affects costs, 95
    ground of defence, 119

  Delivery up of copies, 89--
    books, 89--
      demand in writing, 89
      piratical copies made before plaintiff's registration, 89
      when piratical copy not merely reprint, 90
      delivery up for cancellation, 90
    engravings, 155
    paintings, drawings, and photographs, 178
    in the United States, =290=

  Denmark, proclaimed under Chace Act, =249=

  Dictionary, 25, =239=

  Digest infringing headnotes in reports, 111

  Directories--
    copyright in, 16, 17, =239=
    infringement of, 106, 108

  Discovery, 94

  Dramatic piece: _see_ Performing Rights

  Dramatization--
    whether infringement of novel, 114
    of non-copyright work constitutes a new book, 25

  Drawings: _see_ Paintings, Drawings, and Photographs

  Drummond's "Evolution of Man," =297=

  Drunken scrawl, no copyright in, 14

  Duration of Copyright--
    books, 56
    new editions, 26, 57

  Duration of Copyright _(continued_)--
    performing rights, 126
    engravings, 152
    sculpture, 163
    paintings, drawings, and photographs, 174
    Crown, 59
    universities, 61
    foreign works, 200
    United States, =267=


  Editions: _see_ New Editions

  Employer, rights of--
    books--
      joint employers, 71
      under section 18, 66
      apart from section 18, 73
    right to prevent employees using material acquired in master's
        service, 215
    engravings, 153
    sculpture, 164
    paintings, drawings, and photographs, 175
    United States, =271=

  Encyclopædias, 57, 110

  "Encyclopædia Britannica," =298=

  Engravings--
    copyright in, 146, =236=, =245=
    what is an original engraving, 146
    map, chart, or plan, whether protected under Engravings Acts, 148
    engravings in a book, 149
    must engraving be made within British dominions, 150
    engraving must be first published within British dominions, 150
    date of first publication and proprietor's name must be engraved
        on, 151
    immoral works, 152
    duration of protection, 152
    owner of copyright in engraving, 152--
      the engraver, 152
      the employer, 153
      the assignee, 154
    infringement of copyright, 155
    prohibited acts and remedies, 155
    summary proceedings, 156
    guilty knowledge, 156
    limitation of action, 156
    costs, 156
    copying for private use, 156
    what is a piratical copy, 156--
      taking part, 157
      photograph of, 157
      how far design protected, 157
      striking from lawful plate no infringement, 159
    licence a defence, 159

  Executors, copyright passes to, 83, 275

  Extracts--
    taking of, 108
    for purpose of criticism, 111
    selection of may be a copyright work, 24, 25, =241=

  Evidence, 92


  FAIR use of copyright works, 103, 281

  False entries on register, 54

  False name on picture, 180

  Fine arts: _see_ Paintings, &c.

  Foreign reprints--
    prohibition against importation, 84, 91
    Colonial Act, 186

  Foreign works: _see_ International Copyright

  Forfeiture of copies: _see_ Delivery up of copies

  Forms, 23, 24, =237=

  Foxhounds, list of packs and hunting days, 21

  _Fram_ Expedition, =296=

  France: _see_ International Copyright--
    signatory of Berne Convention, 194
    proclaimed under Chace Act, =249=

  Fraud: _see_ Passing off--
    whether fraudulent book entitled to copyright, 46


  GARFIELD, biography of, =278=

  Germany: _see_ International Copyright--
    signatory of Berne Convention, 194
    proclaimed under Chace Act, =249=

  "Golden Treasury," 25

  "Guide to Science," 24


  HAITI: _see_ International Copyright--
    signatory of Berne Convention, 194

  Hale, pleas of the Crown, 115


  IGNORANCE no excuse for infringement of--
    common law rights, 223
    books, 85, 102
    performing rights, 142, 143
    engravings, 156
    sculpture, 165
    paintings, drawings, and photographs, 179

  Illustrations--
    copyright in when published with book,14
    no literary copyright when published separately, 14
    may be protected under Engravings Acts, 149

  Immoral works, 46, 152, 163, 174, 223, 231, =266=

  Importation, 84, _287, 294_--
    seizure by Customs, 84, 91

  Importation (_continued_)--
    penalty on importing or selling foreign copies, 84, 91
    prohibition of books printed outside U. S. A., =294=

  Indecent works, 46, 152, 163, 174

  Infringement of copyright: _see_ Remedies Books--
    what is a piratical copy, 96, 97, =276=--
    substantial part, 97, =279=
    _animus furandi_, 100, =277=
    not necessarily for profit, 101
    copy for private use, 102, =277= may be indirect and unintentional,
        102, =277=
    custom of trade, 102
    fair use, 103, =281=
    no monopoly, 103, =178=
    facts may be taken, 104
    schemes and ideas may be taken, 104, =282=
    author must do his own work, 105
    no excuse that he could easily have obtained same result, 109, =282=
    work with different object, 109, =283=
    extract for purpose of criticism, 111, =284=
    improvement and addition no excuse, 112, _283_
    dramatization of novel, 114
    abridgments, 114, _284_
    translations, 116, _286_
    dramatic and musical performing rights: _see_ Performing Rights
    engravings, 155, =276=
    sculpture, 164
    paintings, drawings, and photographs, 177, 181, =276=

  Injunction: _see_ Remedies--
    interlocutory, 87, =291=
    final, 87, =291=
    terms of, 88
    probability of damage must be shown, 88
    future number of periodical, 88
    when difficult to enforce, 89

  International Copyright, 193--
    copyright in foreign states, 193
    copyright in works first produced in foreign states, 193
    signatories of the Berne Convention, 194
    what foreign works are entitled to protection, 195
    when a work is deemed to be first produced, 195
    work must be entitled to protection both in this country and in the
        country of origin, 196
    unpublished works, 196
    posthumous works, 197
    authorised translations, 197
    choregraphic works, 197
    works produced in foreign countries before December 6, 1889, 197
    formalities required in case of foreign works, 198
    who are entitled to sue in respect of foreign works, 200
    evidence of title to copyright in foreign work, 200
    protection afforded to foreign works, 200
    importation of copies printed in country of origin, 201
    courts will not inquire into foreign remedies, 201
    works published before December 6, 1887, 202
    translating right, 203
    articles in newspapers and periodicals, 204
    photographic works, 204
    performing rights, 204
    extract and quotation, 205
    adaptation and arrangement, 205

  Interrogatories, 94

  Intestacy, copyright passes on, 83, =275=

  Italy: _see_ International Copyright--
    signatory of Berne Convention, 194
    proclaimed under Chace Act, =249=


  JAPAN: _see_ International Copyright--
    signatory of Berne Convention, 194

  Johnson's "Prince of Abyssinia," 115

  Joint owners, =270=--
    authors, 57, 64
    assignees, 79

  Jurist Reports, 28

  Jury, trial before, 94


  LABELS, not protected, 168, =242, 246=

  Law Reports--
    copyright in, 28, =240=
    copyright formerly claimed by Crown, 59

  Lectures, copyright in, 57--
    common law rights in, 222

  Letters, copyright in, 14, =243=--
    common law rights in, 225
    literary property in writer, 225
    rights of receiver, 225
    may be published to vindicate character, 226

  Letter-file not protected as a book, =242=

  Libel--
    libellous works not protected, 46, 152, 163, 174
    agreement to indemnify against action for, 229

  Libraries: _see_ British Museum--
    delivery of copies to, 55

  Library of Congress--
    provisions as to copyright records, =264=
    works may be imported for use of, =295=

  Licence--
    whether licensee can sue, 82, 177, =274=
    distinguished from assignment, 81
    not to be presumed a sole licence, 82
    whether licensor can sue without licence, 82
    licence must be in writing, 83, 118, 159, 166
    as a defence to infringement, 118, 159, 166, 184

  Licensing statute, 4

  Licensing Canadian Fisher Act, 188

  Limitation of Action--
    books, 91
    engravings, 156
    sculpture, 165
    paintings, drawings, and photographs, 181
    in the United States, =292=

  Literary Property: _see_ Book, Author, Assignment, Infringement,
      Duration of Copyright, International Copyright, Lectures, Letters,
      Owner of Copyright, Performing Rights, Periodical Works,
      Registration, Remedies, Common Law Rights, United States

  Literary matter required in book, 13

  Literary merit: _see_ Merit

  Living pictures, 182

  Long Parliament, 4

  Luxembourg: _see_ International Copyright--
    signatory of Berne Convention, 194


  MALICIOUS criticism, 213

  Manuscript: _see_ Unpublished Work--
    ownership of and right to publish, 74
    book in manuscript would probably be protected, 12, 38

  Map, copyright in, 14, 236--
    whether protected under Engraving Acts, 148

  Mark Twain, 297

  Master and servant--
    master entitled to prevent servant using material acquired in his
       employment, 215
    master's right to work of servant, 73

  Mathematical calculations, 23

  Mechanical instruments, no copyright in, 14, =242=--
    not infringements of copyright, 97, =276=

  Meeson and Welsby's Reports, 28

  Merit, no literary merit required for book to obtain protection, 13,
      16--
    secus in the United States, =237=

  Mexico proclaimed under Chace Act, =249=

  Millais--
    "The Huguenot," 157
    "Ordered on Foreign Service," 173
    "My First Sermon," 173

  Monaco: _see_ International Copyright--
    signatory of Berne Convention, 194

  Music: _see_ Performing Rights--
    copyright in, 36, 231
    opera score infringed by dance music, 113
    adaptations of music entitled to copyright, 130, =241=

  Mutilation, author may prevent, 213, =297=


  NAME--
    assignee of copyright may publish under author's name, =297=

  Napoleon III. Cartoons in _Punch_, 110

  New editions--
    new material in, is protected, 26, =242=
    slight corrections and verbal alterations, 27
    registration of, 51
    duration of copyright in, 57
    passing off non-copyright edition for copyright one, =298=

  Newspaper: _see_ Periodical--
    protected as a book, 11
    must be registered, 48

  Norway: _see_ International Copyright--
    signatory of Berne Convention, 194

  Notes to non-copyright work protected, 26, =241=

  Notice of objections, 92

  Notice reserving performing rights in music, 131

  Notice of copyright in United States, =255=

  Novelty, not necessary in book, 15, 16


  ORIGINALITY, what is an essential element of book, 15

  Owner of copyright, who is--
    certificate of registration _primâ facie_ proof of ownership, 53
    Books--
      the Crown, 59
      the universities, 61
      the author, 62, 269
      the employer, 66, =271=
      the assignee, 74, =272=
      the licensee, 82
    engravings, 152
    sculpture, 164
    paintings, drawings, and photographs, 174
    in the United States, =269=


  PAINTINGS, drawings, and photographs--
    copyright in, 167, =236=, =246=
    what is an original work of art, 167
    what artistic element required, 168
    first publication if outside British dominion, destroys copyright,
        168
    what is publication of work of art, 169
    artist must be British or resident within British dominions, 170
    registration, 171--
      what must be registered, 171
      must be before infringement, 171
      assignee must be registered, 172
      short description of nature and subject of work required, 173
      immoral works, 174
      duration of protection, 174
      sale without reserving copyright, 174
    owner of the copyright, 174--
      the author, 174
      the employer, 175
      the assignee, 176
      partial assignment, 176
      whether licensee can sue, 176
    infringement, 177--
      prohibited acts and remedies, 177
      causing or procuring infringement, 187
      innocent agent, 179
      unlawful copy, 179
      separate offence, 179
      no minimum penalty, 180
      copying for private use, 180
      on breach of contract, 180
      affixing false name or initials, 180
      fraudulently representing false authorship, 180
      limitation of action, 181
      photograph of picture sufficient evidence of, 181
    what is piratical copy, 181--
      no monopoly of subject-matter, 181
      general idea may be taken, 182
      material part, 183
      indirect taking, 184
      guilty knowledge, 184
      replicas, 184
      licence a defence, 184

  "Paradise Lost," with notes, 26

  Parliamentary papers, 60

  Part of a book entitled to copyright, 12

  Particulars, 94

  Partners--
    firm name of publishers may be entered in register, 52

  Passing off: _see_ Common Law Rights--
    by similar title, 204, =296=
    by similar binding, =298=
    of non-copyright edition for a copyright one, =298=

  Patents, specification of, 21

  Pattern sleeve, no copyright in, 14, 32, =242=

  Payment--
    of author essential under section 18, 71

  Penalties: _see_ Remedies

  Performance, no infringement of copyright, 120

  Performing rights--
    nature of, 120
    performing right at common law, 121
    history of protection of performing rights, 122
    what is a dramatic work, 123
    what dramatic works are protected, 126
    duration of performing rights, 126
    if first published or performed outside the British dominions, 128
    what is a musical composition, 130
    what musical works are protected, 130
    notice reserving musical performing rights, 131
    registration of performing rights, 131
    assignment of performing rights: _see_ Assignment
    Infringement of dramatic performing rights, 135, =286=
    Infringement of musical performing rights, 142, =287=
    remedies for infringement of performing rights, 144

  Periodical works--
    proprietor's copyright in, 66
    author's separate rights to contributions, 72
    duration of protection, 57
    first number only need be registered, 51
    articles may be copied from foreign periodicals, 204

  Perpetual copyright--
    question of, 5
    in the universities, 61

  Persons liable for infringement of copyright--
    books, 85
    performing rights, 139, 142, 143
    engravings, 156
    sculpture, 165
    paintings, drawings, and photographs, 178
    United States copyright, =291=

  Photographs: _see_ Paintings, Drawings, and Photographs--
    who is author of, 174
    who is owner of copyright in portrait, 175
    foreign photographs, 204
    protection in the United States, =236=, =245=

  Pianola, perforated scroll for: _see_ Mechanical Instruments

  Piracy: _see_ Infringement--
    whether piratical book entitled to copyright, 46

  Playwright: _see_ Performing Rights

  Pleading, 92, =293=

  Portugal proclaimed under Chace Act, =249=

  Posthumous works, 57, 197

  Prayer Book, 59

  Preamble of Literary Copyright Act, 14

  Precedents, 23

  Printers' agreements, 230
    lien for printing charges, 230
    omission to print name and address on book, 230
    no payment before completion of order, 230
    printer does not insure manuscript, 230
    universal works, 231

  Prints: _see_ Engravings

  Profane works not protected, 46, 152, 163, 174

  Proprietor of collective work: _see_ Periodical Works

  Public Authorities Protection Act, 92, 144

  Public documents--
    selection from, constitutes a copyright work, 21
    no copyright in mere transcript of, 21

  Publication--
    Books--
    divests the common law right, 36
    divestitive publication, 37
      performance of music or drama, 37
      delivery of lectures, 37
      book privately distributed, 37
      book issued to subscribers, 37
      music hall programme, 38
      public exhibition of book, 38
    invests the statutory copyright, 38
    investitive publication, 38
      whether book must be printed, 38
      whether distribution of copies necessary, 39
      deposit of copy in British Museum, 39
      proof of publication, 39
      book must be first published within British dominions, 40
      may be written anywhere, 41
      whether it must be printed within British dominions, 40
      previous performance abroad of dramatic or musical work, 41
      notice of objection as to, 92
    engravings, 150
    sculpture, 162
    paintings, drawings, and photographs, 169
    time of first publication must be registered to the day, 51
    United States, =260=
    name must be entered on register, 49
    liable for non-delivery to libraries, 55

  Publishers' agreements, 227--
    not assignable unless so expressed, 227
    terminated by death, 227
    specific performance, 227
    agreement not to publish elsewhere, 228
    agreements not to write or publish similar works, 228
    price and embellishments, 229
    copyright, owner of, should be stated, 229
    libel, agreement to indemnify against action for, 229
    writing, when required, 230
    stamp, when required, 230

  Purpose for which literary matter composed immaterial, 12


  QUOTATIONS: _see_ Extracts


  RECTIFICATION of register, 54

  Registration: _see_ Paintings, Drawings, and Photographs--
    of books--
      must be entered before action, 46
      not necessary in action on performing right, 47
      need not be before infringement, 47
      cannot be effected before publication, 47
      newspaper must be registered, 48
      failure to register under Newspaper Libel Act does not affect
          copyright, 48
      requisite entry, 49
      fee for registration, 49
      inspection of register, 49
      actual title must be registered, 49
      whether copyright must be distinguished from non-copyright matter,
          50
      immaterial that some copies are published under different title
          from title registered, 50
      time of first publication must be entered to the day, 51
      periodical, date of first number only, 51
      action against proprietor for publishing separately requires no
          registration, 52
      first publisher must be entered, 52
      place of abode, 52, 53
      proprietor at time of registration must be entered, 52
      plaintiff must appear on the register, 53
      registration of mesne assignments, 53
      neglect of officials at Stationers' Hall, 53
      superfluous matter on register immaterial, 53
      certificate of registration, 53
      registration _primâ facie_ proof, 53
      false entries, 54
      rectification of register, 54
      notice of objection as to, 92

  Remedies--
    for infringement of books, 84, =287=--
      damages, 86, =290=
      account of profits, 86, =289=
      injunction, 86, =291=
      delivery up of copies, =89=, =290=
      seizure under Customs Act, 91
      importing or selling foreign copies, 81, 91
      limitation of action, 91, =292=
      pleading, 92, =293=
    for infringement of performing rights, 144, =289=--
      of engravings, 155, =288=
      of sculpture, 164, =288=
      of paintings, drawings, and photographs, 177, =288=

  Reports: copyright in--
    law reports, 28, =240=
    head notes, 28, 111
    verbatim reports of speeches, 29
    verbatim reports of judgments, 31
    reports laid before Parliament, 60

  Reputation, author may protect his, 213, =297=

  Road-books, 16

  Rosebery, Lord; reports of speeches in _Times_, 29


  SCULPTURE--
    copyright in, 161, =236=
    what is an original sculpture, 161
    must be first published within British dominions, 162
    what is publication of, 162
    whether author must be British, 162
    proprietor's name and date on each copy, 162
    immoral works, 163
    duration of protection, 163
    owner of copyright, 164--
      artist, 164
      employer, 164
      assignee, 164
    infringement of copyright, 164
    prohibited acts and remedies, 164
    guilty knowledge, 165
    limitation of action, 165
    copying for private use, 165
    what is a piratical copy, 165
    copying design in other form of art, 165
    licence a defence, 166

  Seditious works not entitled to protection, 46, 152, 163, 174

  Selections: _see_ Extracts

  Separately published, meaning of, 12

  Sermons: _see_ Speeches

  Sheet of letterpress protected as a book, 11, =242=

  Ship on fire, 123

  Shorthand--
    copyright in reports, 29
    shorthand copy is infringement of book, 110
    book in shorthand would be protected, 11

  Slander of title, 213

  Sleeve pattern, not a book, 14

  Smith's "Leading Cases," 28, 111

  Spain: _see_ International Copyright--
    signatory of Berne Convention, 194
    proclaimed under Chase Act, =249=

  Speeches--
    speakers' rights in, 223
    copyright in shorthand report of, 30

  Stamp--
    what stamp required on copyright agreements, 230

  Star chamber, 4

  Stationers' Hall: _see_ Registration--
    origin of company, 3
    neglect of officials at Stationers' Hall, 53

  Statistics, 20, =237=

  Statue: _see_ Sculpture

  Statutes: _see_ Acts of Parliament

  Suppression of books, provision against, 119

  Switzerland: _see_ International Copyright--
    signatory of Berne Convention, 194
    proclaimed under Chace Act, =249=


  Term Reports, 28

  Thackeray, extracts from, 112

  Time-tables, copyright in, 22

  _Times_, reports of Lord Rosebery's speeches, 29

  Title: _see_ Common Law Rights; Passing off--
    passing off by similar title, 206, =296=
    no copyright in title, 208, =244=
    slander of title, 213
    actual title must be registered, 49

  Topographical Dictionary, 24

  Translations--
    give no exclusive right to translate a non-copyright work, 25
    whether an infringement of copyright, 116
    translating rights in foreign works, 203

  Trial, mode of, 94

  Tunis: _see_ International Copyright--
    signatory of Berne Convention, =194=


  UNITED STATES--
    copyright in, =233=
    what works protected in, =236=
    rights of foreign authors, =247=
    formalities which must be observed in, =250=--
      delivery of title or description, =250, 251, 253=
      delivery of copies or photograph, =250, 253=
      books, chromos, lithographs, and photographs must be printed in
          United States, =254=
      notice of copyright must be printed on each copy, =255=
    publication, =260=
    Library of Congress, =264=
    immoral works, =266=
    duration of copyright in, =267=
    owner of copyright in--
      author, =269=
      employer, =271=
      state, =272=
      assignee, =272=
    infringement of copyright--
      what is a piratical copy, =276=
      prohibited acts and remedies, =287=

  Universities, copyright of, 61

  Unpublished work: _see_ Common Law Rights


  WEBSTER'S Dictionary, =297=

  Will, copyright passes by, 83, =275=

  Word, no copyright in single, 14, 34



  Printed by BALLANTYNE, HANSON & CO.
  Edinburgh & London



FOOTNOTES:

[1] "The Law and History of Copyright in Books," by Augustine Birrell,
1899.

[2] 13 and 14 Car. 2, c. 33.

[3] _Eyre_ v. _Walker_ (1735), 4 Burr., 2325; _Motte_ v. _Falkner_
(1735), 4 Burr., 2326; _Walthoe_ v. _Walker_ (1736), 4 Burr., 2326;
_Tonson_ v. _Walker_ (1752), 4 Burr., 2326.

[4] (1760), 1 W. Black, 301.

[5] _Osborne_ v. _Donaldson_ (1765), 2 Eden, Ch. Cas., 327.

[6] (1769), 4 Burr., 2303.

[7] (1774), 2 Bro. P. C., 129.

[8] (1769). 4 Burr., 2303.

[9] 5 & 6 Vict. c. 45, secs. 15, 2.

[10] _Infra_, Section I.

[11] _Infra_, Section II., p. 36. Foreign works first published in
certain foreign countries are protected subject to the conditions of
the International Copyright Acts, and are dealt with in a separate
chapter. Chapter X., p. 193.

[12] This requisite for protection is extremely doubtful. Probably
there is no restriction as to nationality of the author. See _infra_,
Section III., p. 42.

[13] _Infra_, Section IV., p. 46.

[14] _Infra_, Section V., p. 46.

[15] _Infra_, Section VII., p. 56.

[16] _Clementi_ v. _Golding_ (1809), 2 Camp., 25; _Storace_ v.
_Longman_ (1788), 2 Camp., 26 _n._; _Hime_ v. _Dale_ (1803), 2 Camp.,
27 _n._; _White_ v. _Geroch_ (1819), 2 B. and Ald., 298.

[17] _Southern_ v. _Bailes_ (1894), 38 Sol. J., 681.

[18] _Cox_ v. _Land and Water_ (1869), L. R. 9 Eq. 324.

[19] _Walter_ v. _Howe_ (1881), 17 Ch. D., 708; and see _Platt_ v.
_Walter_ (1867), 17 L. T., 157.

[20] _Trade Auxiliary_ v. _Middlesborough_ (1889), 40 Ch. D., 425;
_Cate_ v. _Devon_ (1889), 40 Ch. D., 500.

[21] _Boosey_ v. _Whight_ [1900], 1 Ch., 122.

[22] _Nicols_ v. _Pitman_ (1884), 26 Ch. D., 374. Both this case and
_Boosey_ v. _Whight_ are cases of infringement, but they would seem
equally to apply to a question whether a certain scroll or document
would be a "book" entitled to copyright under the Acts.

[23] See Stirling, J., in _Boosey_ v. _Whight_ [1899], 1 Ch., at p.
842.

[24] See Stirling, J., in _Boosey_ v. _Whight_ [1899], 1 Ch., at p.
842.

[25] _White_ v. _Geroch_ (1819), 2 B. and Ald., 298. See p. 38.

[26] (1801), 1 East., 358; and see _White_ v. _Geroch_ (1819), 2 B.
and Ald., 298; _Tonson_ v. _Walker_ (1752), 3 Swanst., 672.

[27] _Black_ v. _Murray_ (1870), 9 M., 341; _Sweet_ v. _Benning_
(1855), 16 C. B., 459.

[28] _Bogue_ v. _Houlston_ (1852), 5 De Gex and Smale, 267.

[29] _Low_ v. _Ward_ (1868), L. R., 6 Eq., 415.

[30] _Leslie_ v. _Young_ [1894], A. C., 335.

[31] Lindley, L. J., in _Lamb_ v. _Evans_ [1893], 1 Ch., at p. 223.

[32] [1894], 3 Ch., 663.

[33] [1900], A. C., 539.

[34] [1900], A. C., p. 548.

[35] (1882), 21 Ch. D., 369.

[36] 21 Ch. D., at p. 378.

[37] _Infra_, p. 16.

[38] _Infra_, p. 16.

[39] _Infra_, p. 18.

[40] _Infra_, p. 20.

[41] _Infra_, p. 20.

[42] _Infra_, p. 22.

[43] _Infra_, p. 29.

[44] _Infra_, p. 225.

[45] _Infra_, p. 19.

[46] _Kenrick_ v. _Danube Collieries_ (1891), 39 W. R., 473.

[47] _Hollinrake_ v. _Truswell_ [1894], 3 Ch., 420.

[48] _Chilton_ v. _Progress_ [1895], 2 Ch., 29; _Maxwell_ v. _Hogg_
(1867), L. R., 2 Ch., at p. 318.

[49] _Hollinrake_ v. _Truswell_ [1894], 3 Ch., 420.

[50] _Davis_ v. _Comitti_ (1885), 52 L. T. (N. S.), 539.

[51] _Fourmat_ v. _Pearson_ (1897), 14 T. L. R., 82.

[52] _Infra_, p. 34.

[53] _Maple_ v. _Junior Army and Navy Stores_ (1882), 21 Ch. D., 369.

[54] _Stannard_ v. _Lee_ (1871), L. R., 6 Ch., 346; see _infra_, p.
148.

[55] _Walter_ v. _Lane_ [1900], A. C., 539.

[56] Ibid.

[57] Ibid.

[58] _Wyatt_ v. _Barnard_ (1814), 3 V. and B., 77.

[59] _Baily_ v. _Taylor_ (1829), 1 Tamlyn, at p. 299 _n._

[60] _Matthewson_ v. _Stockdale_ (1806), 12 Ves., 270.

[61] _Walter_ v. _Lane_ [1900], A. C., 539.

[62] _Walter_ v. _Lane_ [1900], A. C., 539. See Brougham, L., in
_Jefferys_ v. _Boosey_ (1854), 4 H. L. C., at p. 965.

[63] _Infra_, p. 26.

[64] _Infra_, p. 25.

[65] _Infra_, p. 25.

[66] _Infra_, p. 24.

[67] _Infra_, p. 23.

[68] _Taylor_ v. _Bayne_ (1776), Mor. Dic., 8308; _Carnan_ v. _Bowles_
(1786), 2 Bro. C. C., 80; _Cary_ v. _Faden_ (1799), 5 Ves., 24; _Cary_
v. _Longman_ (1801), 1 East., 358; _Cary_ v. _Kearsley_ (1802), 4
Esp., 168.

[69] _Carnan_ v. _Bowles_ (1786), 2 Bro. C. C., 80; 1 Cox. Ch. Cas.,
283.

[70] _Taylor_ v. _Bayne_ (1776), Mor. Dic., 8308.

[71] _Kelly_ v. _Morris_ (1866), L. R., 1 Eq., 697; Page Wood, V. C.,
at p. 701.

[72] _Matthewson_ v. _Stockdale_ (1806), 12 Ves., 270; _Longman_ v.
_Winchester_ (1809), 16 Ves., 269; _Kelly_ v. _Morris_ (1866), L. R.,
1 Eq., 697; _Morris_ v. _Ashbee_ (1868), L. R., 7 Eq., 34; _Morris_ v.
_Wright_ (1870), L. R., 5 Ch., 279; _Kelly's Directories_ v. _Gavin &
Lloyds_ [1901], 1 Ch., 374; _Garland_ v. _Gemmill_ (1887), 14 S. C. R.
(Canada), 321.

[73] _Matthewson_ v. _Stockdale_ (1806), 12 Ves. 270.

[74] _Longman_ v. _Winchester_ (1809), 16 Ves., 269.

[75] _Cornish_ v. _Upton_ (1861), 4 L. T. (N. S.), 862.

[76] _Kelly_ v. _Morris_ (1866), L. R., 1 Eq., 697.

[77] _Morris_ v. _Ashbee_ (1868), L. R., 7 Eq., 34.

[78] [1893], 1 Ch., 218.

[79] Bowen, L. J. [1893], 1 Ch., at p. 227.

[80] Lindley, L. J. [1893], 1 Ch., at p. 222; and see _Morris_ v.
_Ashbee_ (1868), L. R., 7 Eq., 34.

[81] (1863), H. and M., 603.

[82] (1872), L. R., 14 Eq., 407.

[83] L. R., 14 Eq., at p. 414.

[84] (1875), L. R., 19 Eq., 623.

[85] (1872), L. R., 14 Eq., 407.

[86] (1863), 1 H. and M., 603.

[87] (1872), L. R., 14 Eq., 407.

[88] (1882), 21 Ch. D., 369.

[89] (1872), L. R., 14 Eq., 407.

[90] Ibid.

[91] 21 Ch. D., at p. 379; and see _Church_ v. _Linton_ (1894), 25
Ont. Rep., 131.

[92] (1898), 78 L. T. (N. S.), 613.

[93] (1863), 1 H. and M., 603.

[94] (1884), 26 Ch. D., 637.

[95] (1886), 2 T. L. R., 291.

[96] _Walford_ v. _Johnston_, 20 D., 1160.

[97] _Maclean_ v. _Moody_, 20 D., 1154; and see _Kelly's Directories_
v. _Gavin & Lloyds_ [1901], 1 Ch., 374.

[98] _Scott_ v. _Stanford_ (1867), L. R., 3 Eq., 718.

[99] L. R., 3 Eq., at p. 723.

[100] _Wyatt_ v. _Barnard_ (1814), 3 V. and B., 77; _Trade Auxiliary
Co._ v. _Middlesborough_ (1889), 40 Ch. D., 425.

[101] (1889), 40 Ch. D., 425; and see _Hall_ v. _Whittington_ (1892),
15 Vic. L. R., 525.

[102] (1889), 40 Ch. D., 500.

[103] (1814), 3 V. and B., 77.

[104] (1869), L. R., 9 Eq., 324.

[105] [1894], A. C., 335.

[106] (1829) 1 R. and M., 73; see also _King_ v. _Reed_ (1804), 8
Ves., 223.

[107] (1847), 11 Jur., 344.

[108] (1732), cited 2 Bro. P. C. 138; and Ambl., 694.

[109] (1847), 9 D., 748.

[110] _Southern_ v. _Bailes_ (1894), 38 Sol. J., 681; see _Church_ v.
_Linton_ (1894), 25 Ont. Rep., 131.

[111] See _Longman_ v. _Winchester_ (1809), 16 Ves., at p. 271.

[112] (1821), Jac., 311; and see _Marzials_ v. _Gibbons_ (1874), L.
R., 9 Ch., 518.

[113] (1839), 2 Beav., 6.

[114] (1843), 5 D., 416.

[115] (1857), 3 K. and J., 708.

[116] (1858), 31 L. T. (O. S.), 18; 6 W. R., 352.

[117] _Macmillan_ v. _Suresh Chunder Deb_ (1890), Ind. L. R., 17
Calc., 951; see _Moffat and Paige_ v. _Gill_ [1902], C. A., April 25.

[118] _Gyles_ v. _Wilcox_ (1740), 2 Alk., 142.

[119] _Wyatt_ v. _Barnard_ (1814), 3 V. and B., 77; _Chatterton_ v.
_Cave_ (1875), 10 C. P., 572; (1878), 3 A. C., 483.

[120] _Tree_ v. _Bowkett_ (1896), 74 L. T., 77; _Hatton_ v. _Kean_
(1859), 7 C. B. (N. S.), 268; _Chatterton_ v. _Cave_ (1875), L. R., 10
C. P., 572; (1878), 3 A. C., 483.

[121] _Wood_ v. _Boosey_ (1867), 7 B. and S., 869; _Boosey_ v.
_Fairlie_ (1877), 7 Ch. D., 301; (1868), 9 B. and S., 175.

[122] _Lover_ v. _Davidson_ (1856), 1 C. B. (N. S.), 182; _Leader_ v.
_Purday_ (1849), 7 C. B., 4.

[123] _Tonson_ v. _Walker_ (1753), 3 Swanst., 672.

[124] (1801), 1 East., 358; and see _Mason_ v. _Murray_ cited, 1 East,
360 (Gray's Poems).

[125] (1852), 1 Drew, 353.

[126] 1 Drew, at p. 365.

[127] (1787), Mor. Dic., 8310.

[128] (1870), 9 M., 341; and see _Maple_ v. _Junior Army and Navy
Stores_ (1882), 21 Ch. D., 369, at p. 373; _Hayward_ v. _Lely_ (1887),
56 L. T. (N. S.), 418; _Moffat & Paige_ v. _Gill_ [1902], C. A., April
25.

[129] _Thomas_ v. _Turner_ (1886), 33 Ch. D., 292.

[130] (1841), 3 D., 383.

[131] 3 D., at p. 387.

[132] _Carnan_ v. _Bowles_ (1786), 2 Bro. C. C., 80, per L. C., at p.
83.

[133] (1870), 9 M., at p. 352.

[134] (1801), 5 Ves., 709.

[135] (1839), 3 Jur., 217.

[136] (1840), 11 Sim., 51.

[137] (1838), 3 My. and Cr., 711.

[138] (1855), 16 C. B., 459; see _Hodges_ v. _Welsh_ (1840), 2 Ir. Eq.
R., 266.

[139] 16 C. B., Crowder, J., at p. 491.

[140] See _infra_, p. 240.

[141] [1900], A. C., 539.

[142] Ibid.

[143] [1900], A. C., at p. 545.

[144] [1900], A. C., 539.

[145] See p. 15.

[146] See pp. 37, 223.

[147] 5 & 6 Will. IV. c. 65.

[148] [1900], A. C., 539.

[149] Ibid.

[150] See _infra_, p. 240.

[151] (1869), 20 L. T. (N. S.), 435.

[152] Such an article as this, a mere scheme or plan for arranging
material, would not be protected under the law of patents; _in re
Cooper_ (1902), 19 Pat. Des. and Trade Mark Cases, 53; _in re Johnson_
(1902), 19 Pat. Des. and Trade Mark Cases, 56.

[153] (1882), 47 L. T. (N. S.), 432.

[154] (1885), 52 L. T. (N. S.), 539.

[155] [1894], 3 Ch., 420; see American Law, p. 242, _infra_, where a
similar article was protected. It has also been protected in Victoria,
_Hanbury_ v. _Dumsday_ (1884), 10 Vic. L. R., Eq., 272.

[156] Lord Herschell, L. C. [1894], 3 Ch., 420, at p. 424.

[157] _Griffin_ v. _Kingston_ (1889), 17 Ont. Rep., 660; see _Church_
v. _Linton_ (1894), 25 Ont. Rep., 131, where some of the dicta in the
above case were disapproved.

[158] [1900], 1 Ch., 122.

[159] _Chilton_ v. _Progress Printing and Publishing Co._ [1895], 2
Ch., 29.

[160] Lindley, L. J. [1895], 2 Ch., at p. 34.

[161] (1852), 5 De Gex and Smale, 267; see _Roworth_ v. _Wilkes_
(1807), 1 Camp., 94; _Newton_ v. _Cowie_ (1827), 4 Bing., 234.

[162] See 21 Ch. D., 380.

[163] Parker, V. C., 5 De Gex and Smale, at p. 274.

[164] (1882), 21 Ch. D., 369; and see _Cooper_ v. _Stephens_ [1895], 1
Ch., 567; _Marshall_ v. _Petty_ (1900), 17 T. L. R., 501.

[165] At p. 377

[166] (1981), 64 L. T. (N. S.), 452.

[167] (1895), 43 W. R., 266; and see _Guggenheim_ v. _Leng_ (1896), 12
T. L. R., 491.

[168] _Strong_ v. _Worskett_ (1896), 12 T. L. R., 532; _Fisher_ v.
_Folds_ (1834), 1 Jones, Ir. Ex., 12.

[169] (1896), 12 T. L. R., 532.

[170] _Beckford_ v. _Hood_ (1798), 7 T. R., 620.

[171] _Hollinrake_ v. _Truswell_ [1894], 3 Ch., at p. 427.

[172] _Bach_ v. _Longman_ (1777), 2 Camp., 623; _Clementi_ v.
_Golding_ (1809), 2 Camp., 25; _White_ v. _Geroch_ (1819), 2 B. and
Ald., 298; _D'Almaine_ v. _Boosey_ (1835), 1 Y. and C. Ex., 288;
_Jeffreys_ v. _Boosey_ (1854). 4 H. L. C., 815.

[173] _Coleman_ v. _Wathen_ (1793), 5 T. R., 245; _Macklin_ v.
_Richardson_ (1770), Amb., 694; _D'Almaine_ v. _Boosey_ (1835), 1 Y.
and C. Ex., 288.

[174] _Caird_ v. _Sime_ (1887), 12 A. C., 326; _Abernethy_ v.
_Hutchinson_ (1825), 3 L. J. (O. S.), Ch., 309. See p. 222, _infra_.

[175] _Nicols_ v. _Pitman_ (1884), 26 Ch. D., 374.

[176] See _Walter_ v. _Lane_ [1900], H. C., 539.

[177] _Kenrick_ v. _Danube Collieries_ (1891), 39 W. R., 473; _Prince
Albert_ v. _Strange_ (1849), 2 De G. and Sm., 652; _Jefferys_ v.
_Boosey_ (1854), 4 H. L. C., 815; _Exchange Telegraph_ v. _Gregory_
[1896], 1 Q. B., 147; _Exchange Telegraph_ v. _Central News_ [1897], 2
Ch., 48; _Millar_ v. _Taylor_ (1769), 4 Burr., at p. 2417; _Turner_ v.
_Robinson_ (1860), 10 Ir. Ch. R., 121, 510.

[178] _Blanchett_ v. _Ingram_ (1887), 3 T. L. R., 687.

[179] (1819), 2 B. and Ald., 298.

[180] (1876), 5 Ch. D., 267.

[181] _Turner_ v. _Robinson_ (1860), 10 Ir. Ch. R., 121, 510.

[182] _Clementi_ v. _Walker_ (1824), 2 Bar and Cres., 861.

[183] _Routledge_ v. _Low_ (1868), L. R., 3 H. L., 100; _Jeffreys_
v. _Boosey_ (1854), 4 H. L. C., 815; _Boosey_ v. _Purday_ (1849), 4
Ex., 145; _Chappell_ v. _Purday_ (1845), 14 M. and W., 303; _Cocks_ v.
_Purday_ (1848), 5 C. B., 860.

[184] 49 & 50 Vict. c. 33, sec. 8 (1).

[185] _Cocks_ v. _Purday_ (1848), 5 C. B., 860; _Buxton_ v. _James_
(1851), 5 De G. and S., 80.

[186] _Reid_ v. _Maxwell_ (1886), 2 T. L. R., 790.

[187] _Lover_ v. _Davidson_ (1856), 1 C. B. (N. S.), 182.

[188] _Buxton_ v. _James_ (1851), 5 De. G. and S., 80; as to author's
nationality or residence, see p. 42.

[189] (1854), 4 H. L. C., at p. 983.

[190] (1824), 2 B. and C., 861, at p. 867.

[191] 7 & 8 Vict. c. 12, sec. 19.

[192] See p. 193.

[193] _Boucicault_ v. _Delafield_ (1863), 1 H. and M., 597;
_Boucicault_ v. _Chatterton_ (1876), 5 Ch. D., 267.

[194] _Boucicault_ v. _Delafield_ (1863), 1 H. and M., 597;
_Boucicault_ v. _Chatterton_ (1876), 5 Ch. D., 267; _Ex p. Dobson_
(1892), 12 N. Z. L. R., 171.

[195] _Boucicault_ v. _Chatterton_ (1876), 5 Ch. D., 267.

[196] (1849), 13 Q. B., 257.

[197] _D'Almaine_ v. _Boosey_ (1835), 1 Y. and C. Ex., 288; see
Willes, J., in _Millar_ v. _Taylor_ (1769), 4 Burr., at p. 2310;
_Delondre_ v. _Shaw_ (1828), 2 Sim., 240.

[198] (1839), 10 Sim., 329.

[199] _Chappell_ v. _Purday_ (1845), 14 M. and W., 303; _Cocks_ v.
_Purday_ (1848), 5 C. B., 860; _Boosey_ v. _Davidson_ (1849), 13 Q.
B., 257; _Boosey_ v. _Purday_ (1849), 4 Ex., 145; _Ollendorff_ v.
_Black_ (1850), 20 L. T., 165; _Boosey_ v. _Jefferys_ (1851), 6 Ex.,
580; _Buxton_ v. _James_ (1851), 5 De G. and Sm., 80.

[200] (1854), 4 H. L. C., 815.

[201] (1854), 4 H. L. C., 815.

[202] (1868), L. R., 3 H. L., 100.

[203] (1854), 4 H. L. C., 815.

[204] Ibid.

[205] The Fine Arts Act, 1862, is expressly confined to the works of
authors who are British subjects or resident within the Dominions of
the Crown; 25 & 26 Vict. c. 68.

[206] (1854), 4 H. L. C., 815.

[207] Ibid.

[208] (1868), L. R., 3 H. L., 100.

[209] (1868), L. R., 6 Eq., 415.

[210] (1868), L. R., 3 H. L., 100.

[211] (1854), 4 H. L. C., 815.

[212] Art. 6, "Report Copyright Commission," 1878, p. lxix.

[213] Scrutton on "Copyright," 3rd ed., p. 121.

[214] Chamier on "Literary Copyright," p. 13.

[215] _Lawrence_ v. _Smith_ (1822), Jac., 471; _Murray_ v. _Benbow_
(1822), Jac., 474 _n._; _Cowan_ v. _Milbourn_ (1867), L. R., 2 Exch.,
230; _Burnett_ v. _Chetwood_ (1720), 2 Mer., 441; see 9 Will. III. c.
35 (1698).

[216] _Stockdale_ v. _Onwhyn_ (1826), 5 B. and Cr., 173; _Dodson_ v.
_Martin_ (1880), 24 Sol. J., 572.

[217] _Hime_ v. _Dale_ (1803), 2 Camp., 27 _n._; _Dr. Priestley's
case_, cited 2 Mer., 437.

[218] _Hime_ v. _Dale_ (1803), 2 Camp., 27 _n._; _Walcot_ v. _Walker_
(1802), 7 Ves., 1.

[219] _Wright_ v. _Tallis_ (1845), 1 C. B., 893; _Hogg_ v. _Kirby_
(1803), 8 Ves., 215; _MacFarlane_ v. _Oak Foundry_ (1883), 10 R., 801;
_Hayward_ v. _Lely_ (1887), 56 L. T. (N. S.), 418; _Ward_ v. _Beeton_
(1874), L. R., 19 Eq., 207; _Metzler_ v. _Wood_ (1878), 8 Ch. D., 606;
_Chappell_ v. _Davidson_ (1856), 2 K. and J., 123.

[220] _Wright_ v. _Tallis_ (1845), 1 C. B., 893.

[221] _Cary_ v. _Faden_ (1799), 5 Ves., 24; _Reade_ v. _Conquest_
(1862), 11 C. B. (N. S.), at p. 492.

[222] _Baschet_ v. _London Illustrated_ [1900], 1 Ch., 73; _Hayward_
v. _Lely_ (1887), 56 L. T. (N. S.), 418.

[223] See point suggested, 1 C. B., 902.

[224] _Baschet_ v. _London Illustrated_ [1900], 1 Ch., 73; _Newman_ v.
_Pinto_ (1887), L. T. (N. S.), 31.

[225] _Dodson_ v. _Martin_ (1880), 24 Sol. J., 572.

[226] 5 & 6 Vict. c. 45, secs. 11, 13, 24.

[227] 5 & 6 Vict. c. 45, sec. 24.

[228] _Beckford_ v. _Hood_ (1798), 7 T. R., 620; _Roworth_ v. _Wilkes_
(1807), 1 Camp., 94.

[229] _Low_ v. _Routledge_ (1864), L. R., 1 Ch., 42; _Stannard_ v.
_Lee_ (1871), L. R., 6 Ch., 346; _Hogg_ v. _Scott_ (1874), L. R., 18
Eq., 444.

[230] _Russell_ v. _Smith_ (1848), 12 Q. B., 217; _Lacy_ v. _Rhys_
(1864), 4 B. and S., 873; _Marsh_ v. _Conquest_ (1864), 17 C. B.
(N. S.), 418; _Clark_ v. _Bishop_ (1872), 25 L. T., 908.

[231] _Goubaud_ v. _Wallace_ (1877), 36 L. T. (N. S.), 704; _Macmillan_
v. _Suresh Chunder Deb_ (1890), Ind. L. R., 17 Calc., 951.

[232] _Warne_ v. _Lawrence_ (1886), 34 W. R., 452.

[233] (1879), 12 Ch. D., 886.

[234] (1880), 49 L. J. Ch., 412.

[235] _Henderson_ v. _Maxwell_ (1877). 5 Ch. D., 892; _Dicks_ v.
_Yates_ (1881), 18 Ch. D., 76.

[236] _Hogg_ v. _Maxwell_ (1866), L. R., 2 Ch., 307; _Correspondent_
v. _Saunders_ (1865), 11 Jur. (N. S.), 540; _Primrose Press_ v.
_Knowles_ (1886), 2 T. L. R., 404.

[237] _Talbot_ v. _Judges_ (1887), 3 T. L. R., 398; _Schove_ v.
_Schmincké_ (1886), 33 Ch. D., 546.

[238] (1889), 40 Ch. D., 425.

[239] _Walter_ v. _Howe_ (1881), 18 Ch. D., 708; _Trade Auxiliary_ v.
_Middlesborough_ (1889), 40 Ch. D., 425; _Cate_ v. _Devon_ (1889), 40
Ch. D., 500.

[240] _Cox_ v. _Land and Water_ (1869), L. R., 9 Eq., 324.

[241] _Trade Auxiliary_ v. _Middlesborough_ (1889), 40 Ch. D., 425.

[242] (1889), 40 Ch. D., 500; see also _Prowett_ v. _Mortimer_ (1856),
2 Jur. (N. S.), 414.

[243] _Chappell_ v. _Davidson_ (1856), 18 C. B., 194. See 32 & 33
Vict. c. 24.

[244] 5 & 6 Vict. c. 45, sec. 11.

[245] 5 & 6 Vict. c. 45, sec. 13.

[246] 5 & 6 Vict. c. 45, sec. 19.

[247] (1889), 5 T. L. R., 594.

[248] _Per_ Coleridge, L. C. J., in _Harris_ v. _Smart_ (1889), 5 T. L.
R., 594.

[249] (1887), 57 L. T. (N. S.), 864.

[250] _Lover_ v. _Davidson_ (1856), 1 C. B., (N. S.), 182; _Leader_ v.
_Purday_ (1848), 7 C. B., 4; _Chappell_ v. _Sheard_ (1855), 2 K. and
J., 117.

[251] (1889), 40 Ch. D., 500

[252] 40 Ch. D., at p. 506.

[253] (1864), 10 L. T. (N. S.), 838.

[254] As to what is publication, see p. 38.

[255] _Wood_ v. _Boosey_ (1867), L. R., 3 Q. B., 223.

[256] _Mathieson_ v. _Harrod_ (1868), L. R., 7 Eq., 270;
_Collingridge_ v. _Emmott_ (1887), 57 L. T. (N. S.), 864; and see
_Page_ v. _Wisden_ (1869), 20 L. T. (N. S.), 435; _Maxwell_ v. _Hogg_
(1867), L. R., 2 Ch., 307.

[257] _Thomas_ v. _Turner_ (1886), 33 Ch. D., 292.

[258] _Murray_ v. _Bogue_ (1852), 1 Drew, 353; _Hayward_ v. _Lely_
(1887), 56 L. T. (N. S.), 418.

[259] _Maple_ v. _Junior Army and Navy Stores_ (1882), 21 Ch. D., 369.

[260] _Macmillan_ v. _Suresh Chunder Deb_ (1890), Ind. L. R., 17
Calc., 951.

[261] _Henderson_ v. _Maxwell_ (1876), 4 Ch. D., 163.

[262] _Johnson_ v. _Newnes_ [1894], 3 Ch., 663.

[263] _Mayhew_ v. _Maxwell_ (1860), 1 J. and H., 312.

[264] _Dicks_ v. _Yates_ (1881), 18 Ch. D., 76; _Trade Auxiliary_ v.
_Middlesborough_ (1889), 40 Ch. D., at p. 434.

[265] Bacon, V. C., in _Coote_ v. _Judd_ (1883), 23 Ch. D., 727.

[266] _Weldon_ v. _Dicks_ (1878), 10 Ch. D., 247.

[267] _Weldon_ v. _Dicks_ (1878), 10 Ch. D., 247; _Rock_ v. _Lazarus_
(1872), L. R., 15 Eq. 104; _Macmillan_ v. _Suresh Chunder Deb_ (1890),
Ind. L. R., 17 Calc., 951.

[268] _Nottage_ v. _Jackson_ (1883), 11 Q. B. D., 627; 49 L. T.
(N. S.), 339.

[269] _Weldon_ v. _Dicks_ (1878), 10 Ch. D., 247.

[270] _London Printing_ v. _Cox_ [1891], 3 Ch., 291.

[271] _Petty_ v. _Taylor_ [1897], 1 Ch., 465.

[272] _London Printing_ v. _Cox_ [1891], 3 Ch., _per_ Lindley, L. J.,
at pp. 301 and 302.

[273] _Liverpool General Brokers_ v. _Commercial Press_ [1897], 2 Q.
B., 1; _Morang_ v. _Publishers_ (1900), 32 Ont. Rep., 393.

[274] _Weldon_ v. _Dicks_ (1878), 10 Ch. D., 247.

[275] _Low_ v. _Routledge_ (1864), 33 L. J. Ch., 717; 10 L. T. (N. S.),
838.

[276] _Lover_ v. _Davidson_ (1856), 1 C. B. (N. S.), 182.

[277] _Cassell_ v. _Stiff_ (1856), 2 K. and J., 279.

[278] _Fairlie_ v. _Boosey_ (1879), 4 A. C., 711.

[279] 5 & 6 Vict. c. 45, sec. 11; _Hildesheimer & Faulkner_ v. _Dunn_
(1891), 64 L. T. (N.S.), 452.

[280] _Lucas_ v. _Cooke_ (1880), 13 Ch. D., 872.

[281] 5 & 6 Vict. c. 45, sec. 12.

[282] 5 & 6 Vict. c. 45, sec. 14.

[283] _Hole_ v. _Bradbury_ (1879), 12 Ch. D., 886; 48 L. J. Ch., 673.

[284] _In re The Young Duchess_ (1891), 8 T. L. R., 41.

[285] _Ex parte Poulton_ (1884), 53 L. J., Q. B., 320; _in re Hall_
(1899), 24 Vict. L. R., 702.

[286] _Ex parte Davidson_ (1856), 18 C. B., 296; see _in re Martin_
(1884), 10 Vict. L. R., Law., 196.

[287] Blackburn, J., _Graves'_ case, 10 B. and S., at p. 688.

[288] _Ex parte Bastow_ (1854), 14 C. B., 631.

[289] _Ex parte Davidson_ (1856), 18 C. B., 296; _Chappell_ v.
_Purday_ (1843), 12 M. and W., 303.

[290] _Graves'_ case (1869), 4 Q. B., 715.

[291] _Graves'_ case (1869), 4 Q. B., 715.

[292] _Chappell_ v. _Purday_ (1843), 12 M. and W., 303; _ex parte
Davidson_ (1856), 18 C. B., at p. 309.

[293] 5 & 6 Vict. c. 45, sec. 10.

[294] Ibid.

[295] 5 & 6 Vict. c. 45, sec. 6.

[296] 5 & 6 Vict. c. 45, sec. 7.

[297] Ibid.

[298] 5 & 6 Vict. c. 45, sec. 8.

[299] (1828), 4 Bing.. 540.

[300] Cf. _Cambridge University_ v. _Bryce_ (1812), 16 East., 317;
_Routledge_ v. _Low_ (1868), L. R., 3 H. L., 100.

[301] 5 & 6 Vict. c. 45, sec. 3.

[302] Ibid.

[303] 5 & 6 Vict. c. 45, secs. 3, 18.

[304] 5 & 6 Vict. c. 45, secs. 3, 18.

[305] See _supra_, p. 26.

[306] See _Nottage_ v. _Jackson_ (1883), 11 Q. B. D., 627.

[307] _Caird_ v. _Sime_ (1887), 12 A. C., 326; _Nicols_ v. _Pitman_
(1884), 26 Ch. D., 374; _Abernethy_ v. _Hutchinson_ (1825), 3 L. J.
Ch., 209.

[308] 5 & 6 Will. IV. c. 65, sec. 5.

[309] _Caird_ v. _Sime_ (1887), 12 A. C., 326.

[310] See _Millar_ v. _Taylor_ (1769), 4 Burr., 2303, and cases there
cited.

[311] _Baskett_ v. _University of Cambridge_ (1758), 2 Burr. 661;
_Baskett_ v. _Cunningham_ (1762), Black. Rep., 370.

[312] See _Grierson_ v. _Jackson_ (1794), Ridg. Ir., T. R., 304;
_Nicol_ v. _Stockdale_ (1785), 3 Swanst., 687.

[313] _Universities_ v. _Richardson_ (1802), 6 Ves., 689; _Manners_ v.
_Blair_ (1828), 3 Bligh (N. S.), 391; _Grierson_ v. _Jackson_ (1794),
Ridg. Ir., T. R., 304.

[314] _Universities_ v. _Richardson_ (1802), 6 Ves., 689; _Eyre_ v.
_Carnan_ (1781), 6 Bac. Abr., 509; _Manners_ v. _Blair_ (1828), 3
Bligh (N. S.), 391.

[315] _Baskett_ v. _Cunningham_ (1762), Black. Rep., 370.

[316] See Appendix.

[317] 15 Geo. III. c. 53; 41 Geo. III. c. 107, extending the privilege
to Dublin; 5 & 6 Vict. c. 45, sec. 27.

[318] (1774), 2 Bro. P. C., 129.

[319] 5 & 6 Vict. c. 45, sec. 3.

[320] This reservation is made necessary by the decision in _Walter_
v. _Lane_ [1900], A. C., 539, that the author is not necessarily the
composer of the literary matter; see _infra_, p. 65.

[321] (1867), L. R., 3 Eq., 718; see also _Nottage_ v. _Jackson_
(1883), 11 Q. B. D., 627; _Stannard_ v. _Harrison_ (1871), 24 L. T.
(N. S.), 570.

[322] (1824), 2 L. J. Ch., 90, at p. 102; and see _Maclean_ v. _Moody_
(1858), 20 D., 1154.

[323] (1859), 7 C. B. (N. S.), 268.

[324] 7 C. B. (N. S.), at p. 280.

[325] (1867), 16 L. T. (N. S.), 453.

[326] (1859), 7 C. B. (N. S.), 268.

[327] (1859) 7 C. B. (N. S.), 268. The decision in this case was no
doubt right, but it should have been on the ground that the plaintiff
was the employer or assignee of the defendant and not that he was the
author.

[328] See _Petty_ v. _Taylor_ [1897], 1 Ch., 465; Kekewich, J., at p.
475.

[329] _Shepherd_ v. _Conquest_ (1856), 17 C. B., 427; _Nottage_ v.
_Jackson_ (1883), 11 Q. B. D., 627.

[330] (1856), 17 C. B., 427.

[331] On the facts of this case the work of the servant ought to have
become vested in the employer.

[332] (1871), L. R., 6 C. P., 523; and see _Tree_ v. _Bowkett_ (1896),
74 L. T. (N. S.), 77.

[333] (1874), L. R., 9 Ch., 518; and see Bowen, L. J., in _Nottage_ v.
_Jackson_ (1883), 11 Q. B. D., 627.

[334] _Powell_ v. _Head_ (1879), 12 Ch. D., 686; _Lauri_ v. _Renad_
(1892), 3 Ch., 402.

[335] Ibid.

[336] [1900], A. C., 539.

[337] Ibid.

[338] 5 & 6 Vict. c. 45, sec. 18.

[339] Chitty, J., in _Trade Auxiliary_ v. _Middlesborough_ (1889), 40
Ch. D., at p. 430.

[340] And in one case it was even doubted whether it applied to
newspapers, _Platt_ v. _Walter_ (1867), 17 L. T. (N. S.), 157.

[341] _Lamb_ v. _Evans_ [1893], 1 Ch., 218; _Trade Auxiliary_ v.
_Middlesborough_ (1889), 40 Ch. D., 425.

[342] (1856), 17 C. B., 427

[343] _Brown_ v. _Cooke_ (1846), 16 L. J. Ch., 140.

[344] As to whether a written assignment of the copyright from the
author would be necessary in such a case, see _infra_, at p. 74.

[345] (1895), 11 T. L. R., 507.

[346] _Brown_ v. _Cooke_ (1846), 16 L. J. Ch., 140.

[347] (1855), 16 C. B.,459.

[348] (1889), 40 Ch. D., 425; and see _Trade Auxiliary_ v. _Jackson_
(1887), 4 T. L. R., 130.

[349] [1893], 1 Ch., 218; and see _Maple_ v. _Junior Army and Navy
Stores_ (1882), 21 Ch. D., 369.

[350] (1855), 16 C. B., at p. 484.

[351] (1881), 17 Ch. D., 708; and see _Bishop of Hereford_ v.
_Griffin_ (1848), 16 Sim., 190.

[352] [1894], 3 Ch., 663.

[353] And see _Coote_ v. _Judd_ (1883), 23 Ch. D., 727.

[354] [1902], 1 Ch., 264.

[355] (1889), 40 Ch. D., 425.

[356] Chitty, J., 40 Ch. D., at p. 431.

[357] _Brown_ v. _Cooke_ (1846), 16 L. J. Ch., 140; _Richardson_ v.
_Gilbert_ (1851), 1 Sim. (N. S.), 336; _Collingridge_ v. _Emmott_
(1888), 57 L. T. (N. S.), 864; _Trade Auxiliary_ v. _Middlesborough_
(1889), 40 Ch. D., 425; _Trade Auxiliary_ v. _Jackson_ (1887), 4 T. L.
R., 130.

[358] _Trade Auxiliary_ v. _Middlesborough_ (1889), 40 Ch. D., at p.
430.

[359] See cases cited, p. 79, footnote 4.

[360] See Chitty, J., _Trade Auxiliary_ v. _Middlesborough_ (1889), 40
Ch. D., at p. 430.

[361] See _Johnson_ v. _Newnes_ [1894], 3 Ch., 663.

[362] _Mayhew_ v. _Maxwell_ (1860), 1 J. and H., 312.

[363] _Smith_ v. _Johnson_ (1863), 4 Giff., 632.

[364] _Mayhew_ v. _Maxwell_ (1860), 1 J. and H., 312.

[365] Ibid.

[366] _Hereford_ v. _Griffin_ (1848), 16 Sim., 190.

[367] (1855), 16 C. B., 459.

[368] (1891), 64 L. T., 452.

[369] 5 & 6 Vict. c. 45.

[370] 5 & 6 Vict. c. 45, sec. 15.

[371] See p. 77, _infra_.

[372] (1824), 2 B. and Cr., 861; see _Cary_ v. _Kearsley_ (1802), 4
Esp., 168; _Storace_ v. _Longman_ (1788), 2 Camp., 26 _n._

[373] (1814), 3 M. and S., 7.

[374] (1838), 9 Sim., 151.

[375] (1839), 8 L. J. Ch., 216; see _Hodges_ v. _Welsh_ (1840), 2 Ir.
Eq. R., 266.

[376] (1854), 4 H. L. C., 815; see _M'Lean_ v. _Moody_ (1858), 20 D.,
1154; _Jefferys_ v. _Kyle_ (1856), 18 D., 906; _Cocks_ v. _Purday_
(1848), 5 C. B., 860.

[377] 4 H. L. C., at p. 880.

[378] 4 H. L. C., at p. 907.

[379] _Hazlitt_ v. _Templeman_ (1866), 13 L. T. (N. S.), 593; _Grace_
v. _Newman_ (1875), L. R., 19 Eq., 623; _Cox_ v. _Cox_ (1853), 11
Hare, 118.

[380] See _Frowde_ v. _Parish_ (1896), 27 Ont Rep., 526; _Macmillan_
v. _Suresh Chunder Deb_ (1890), Ind. L. R., 17 Calc., 951.

[381] See p. 128.

[382] See _Shepherd_ v. _Conquest_ (1856), 17 C. B., 427; _Eaton_ v.
_Lake_ (1888), 20 Q. B. D., 378.

[383] 5 & 6 Vict. c. 45, sec. 15; _Leyland_ v. _Stewart_ (1876), 4 Ch.
D., 419; _Power_ v. _Walker_ (1814), 3 M. and S., 7; _Davidson_ v.
_Bohn_ (1848), 6 C. B., 456; _Clementi_ v. _Walker_ (1824), 2 Bar. and
Cres., 861; _Jefferys_ v. _Boosey_ (1854), 4 H. L. C., 815; [See the
judgment of Lord St. Leonards at p. 944; but note also that Coleridge,
J., at p. 906, expressed his disapproval of the reasoning in _Power_
v. _Walker_ and _Davidson_ v. _Bohn_]; _Kyle_ v. _Jefferys_ (1859),
3 Macq., 611, 617, 18 D., 906; _Cumberland_ v. _Copeland_ (1862), 1
H. and C., 194; _Cocks_ v. _Purday_ (1848), 5 C. B., 860; see Drone
on "Copyright," pp. 304-316, where the soundness of the case law that
assignment must be in writing is doubted.

[384] _Kyle_ v. _Jefferys_ (1859), 3 Macq., 611; _Jefferys_ v.
_Boosey_ (1854), 4 H. L. C., 815.

[385] _Morton_ v. _Copeland_ (1855), 16 C. B., 517.

[386] _Liverpool General Brokers_ v. _Commercial Press_ [1897], 2 Q.
B., 1; see _contra_ opinion of Lord Cockburn in _Wood_ v. _Boosey_
(1867), 7 B. and S., at p. 897; _Morang_ v. _Publishers_ (1900), 32
Ont. Rep., 393.

[387] 5 & 6 Vict. c. 45, sec. 13.

[388] _Stevens_ v. _Wildy_ (1850), 19 L. J. Ch., 190.

[389] Ibid.

[390] _Liverpool General Brokers_ v. _Commercial Press_ [1897], 2 Q.
B., 1.

[391] _Levy_ v. _Rutley_ (1871), L. R., 6 C. P., 523; _Leader_ v.
_Purday_ (1849), 7 C. B., 4; _Colburn_ v. _Duncombe_ (1838), 9 Sim.,
151; _London Printing and Publishing Co_. v. _Cox_ [1891], 3 Ch., 291.

[392] _Leader_ v. _Purday_ (1849), 7 C. B., 4.

[393] _Lacy_ v. _Toole_ (1867), 15 L. T. (N. S.), 512.

[394] _Tree_ v. _Bowkett_ (1895), 74 L. T. (N. S.), 77; _Lover_ v.
_Davidson_ (1856), 1 C. B. (N. S.), 182; _Latour_ v. _Bland_ (1818), 2
Stark, 382; _Levy_ v. _Rutley_ (1871), L. R., 6 C. P., 523; _Colburn_
v. _Duncombe_ (1838), 9 Sim., 151; but see _Kyle_ v. _Jefferys_
(1859), 3 Macq., 611, 18 D., 911.

[395] _Cooper_ v. _Stephens_ [1895], 1 Ch., 567; _Marshall_ v. _Petty_
(1900), 17 T. L. R., 501.

[396] _Morris_ v. _Kelly_ (1820), 1 Jac. and W., 481.

[397] _Dennison_ v. _Ashdown_ (1897), 13 T. L. R., 226.

[398] _Sweet_ v. _Cater_ (1841), 11 Sim., 572; _Sweet_ v. _Shaw_
(1839), 8 L. J. Ch., 216; _Sims_ v. _Marryat_ (1851), 17 Q. B., 281;
_Strahan_ v. _Graham_ (1867), 16 L. T. (N. S.), 87; _Thombleson_ v.
_Black_ (1837), 1 Jur., 198.

[399] _Dupuy_ v. _Dilkes_ (1879), 48 L. J. Ch., 682; _Chappell_ v.
_Purday_ (1843), 12 M. and W., 303.

[400] _Taylor_ v. _Pillow_ (1869), L. R., 7 Eq., 418; _Howitt_ v.
_Hall_ (1862), 6 L. T. (N. S.), 348.

[401] _Sims_ v. _Marryat_ (1851), 17 Q. B., 281; _Queensberry_ v.
_Shebbeare_ (1758), 2 Eden Cha. Cas., 330; Williams' "Law of Personal
Property," 15th edition, p. 523.

[402] _Powell_ v. _Head_ (1879), 12 Ch. D., 686.

[403] _Lauri_ v. _Renad_ [1892], 3 Ch., 402.

[404] _Powell_ v. _Head_ (1879), 12 Ch. D., 686.

[405] (1854), 4 H. L. C., at p. 940; and see _Cocks_ v. _Purday_
(1848), 5 C. B., 860.

[406] (1854), 4 H. L. C., 815.

[407] _Taylor_ v. _Neville_ (1878), 26 W. R., 299; _Tree_ v. _Bowkett_
(1895), 74 L. T. (N. S.), 77; see doubt expressed in _Shepherd_ v.
_Conquest_ (1856), 17 C. B., at p. 436.

[408] _Lucas_ v. _Cooke_ (1880), 13 Ch. D., 872.

[409] 5 & 6 Vict. c. 45, sec. 13.

[410] (1889), 40 Ch. D., 434, 435.

[411] _Holt_ v. _Woods_ (1896), 17 N. S. W. R., Eq., 36.

[412] See _ex parte Dobson_ (1892), 12 N. Z. L. R., 171.

[413] See _contra Howitt_ v. _Hall_ (1862), 6 L. T. (N. S.), 348;
_Sweet_ v. _Cater_ (1840), 11 Sim., 572; _Davidson_ v. _Bohn_ (1848),
6 C. B., 458.

[414] _Rippon_ v. _Norton_(1839), 2 Beav., 63.

[415] _Hole_ v. _Bradbury_ [1879], 12 Ch. D., 886; _Stevens_ v.
_Bradbury_ [1854], 1 K. and J., 168; _Reade_ v. _Bentley_(1857), 3
K. and J., 271; _Cooper_ v. _Stephens_ [1895], 1 Ch., 567; _ex parte
Bastow_ [1854], 14 C. B., 631.

[416] _Trade Auxiliary_ v. _Middlesborough_ (1889), 40 Ch. D., 425,
_per_ Cotton, L. J.; _Tuck and Sons_ v. _Canton_ (1882), 51 L. J., Q.
B., 363; _Sweet_ v. _Cater_ (1841), 11 Sim., 572.

[417] _Taylor_ v. _Neville_ (1878), 26 W. R., 299; _Tree_ v. _Bowkett_
(1895), 74 L. T., 77.

[418] (1878), 26 W. R., 297.

[419] _Warne_ v. _Routledge_ (1874), L. R., 18 Eq., 497; see _Sweet_
v. _Cater_ (1841), 11 Sim., 572; _Stevens_ v. _Benning_ (1855), 1 K.
and J., 168.

[420] _Latour_ v. _Bland_ (1818), 2 Stark, 382.

[421] _Willis_ v. _Curtois_ (1838), 1 Beav., 189.

[422] See _Mawman_ v. _Tegg_ (1826), 2 Russ., at p. 392.

[423] 5 & 6 Vict. c. 45, secs. 15 and 2.

[424] See _Butterworth_ v. _Kelly_ (1888), 4 T. L. R., 430; _Leader_
v. _Strange_ (1849), 2 Car. and K., 1010.

[425] 5 & 6 Vict. c. 45, secs. 15 and 23. The remedies given by these
two sections are cumulative, and may be recovered by one action;
_Muddock_ v. _Blackwood_ [1898], 1 Ch., 58.

[426] 5 & 6 Vict. c. 45, sec. 17; 39 and 40 Vict. c. 36, sec. 42.

[427] Ignorance will not excuse in the case of importing, but contra
in the case of selling or hiring, _Cooper_ v. _Whittingham_ (1880), 15
Ch. D., 501.

[428] _Cooper_ v. _Whittingham_ (1880). 15 Ch. D., 501.

[429] 5 & 6 Vict. c. 45, sec. 17; and see 39 & 40 Vict. c. 36, sec. 42.

[430] £5 to the use of the officer of customs, remainder to the use of
the proprietor of copyright.

[431] Ibid.

[432] _Cooper v. Whittingham_ (1880), 15 Ch. D., 501.

[433] [1901], 1 Ch., 374.

[434] Cf. _Colburn_ v. _Simms_ (1843), 2 Hare, 543.

[435] [1901], 1 Ch., 374.

[436] _Novella_ v. _Sudlow_ (1852), 12 C. B., 177; and see _Beckford_
v. _Hood_ (1798), 7 T. R., 620; _Cambridge University_ v. _Bryer_
(1812), 16 East, at p. 322.

[437] _Muddock_ v. _Blackwood_ [1898], 1 Ch., 58; _Pike_ v. _Nicholas_
(1869), L. R., 5 Ch., 251, at pp. 255 and 260.

[438] _Hogg_ v. _Kirby_ (1803), 8 Ves., 215, at p. 223; _Grimson_ v.
_Eyre_ (1804), 9 Ves., 341, at p. 346; _Kelly_ v. _Hooper_ (1841), 1
Y. and C., 197, at p. 199; _Colburn_ v. _Simms_ (1843), 2 Hare, 543.

[439] _Delfe_ v. _Delamotte_ (1857), 3 K. and J., 581; but see _Pike_
v. _Nicholas_ (1869), L. R., 5 Ch., 251.

[440] _Baily_ v. _Taylor_ (1829), 1 R. and M., 73; _Price's Patent
Candles_ v. _Bauwen_ (1858), 4 K. and J., 727; _Delondre_ v. _Shaw_
(1828), 2 Sim., 240; _Sweet_ v. _Maughan_ (1840), 11 Sim., 51.

[441] Eldon, L. C., in _Mawman_ v. _Tegg_ (1826), 2 Russ., at p. 400.

[442] _Cooper_ v. _Whittingham_ (1880), 15 Ch. D., 501.

[443] _M'Neill_ v. _Williams_ (1847), 11 Jur., 344; _Hogg_ v. _Kirby_
(1803), 8 Ves., 215.

[444] Hall, V. C., in _Maple_ v. _Junior Army and Navy Stores_ (1882),
21 Ch. D., at p. 372.

[445] _Chappell_ v. _Davidson_ (1856), 8 De G. M. and G., 1.

[446] _Novella_ v. _James_ (1854), 24 L. J. Ch., 111.

[447] _Southey_ v. _Sherwood_ (1817), 2 Mer., 435; _Platt_ v. _Button_
(1815), 19 Ves., 447; _Saunders_ v. _Smith_ (1838), 3 My. and C., 711;
_Lewis_ v. _Chapman_ (1840), 3 Beav., 133; _Assignees of Robinson_ v.
_Wilkins_ (1805), 8 Ves., 224, n; _Baily_ v. _Taylor_ (1829), 1 Russ.
and My., 73; _Rundell_ v. _Murray_ (1821), Jac., 311; and see _Buxton_
v. _James_ (1851), 5 De G. and Sm., 80.

[448] _Morris_ v. _Ashbee_ (1868), L. R., 7 Eq., 34.

[449] _Per_ Gifford, V. C., L. R., 7 Eq., at p. 39.

[450] _Hogg_ v. _Scott_ (1874), L. R., 18 Eq., 444.

[451] _Per_ Turner, L. J., in _Johnson_ v. _Wyatt_ (1863), 2 De G., J.
and S., at p. 25.

[452] _Lewis_ v. _Fullarton_ (1839), 2 Beav., 6; _Kelly_ v. _Morris_
(1866), L. R., 1 Eq., 697; _Mawman_ v. _Tegg_ (1826), 2 Russ., 385.

[453] _Jarrold_ v. _Houlston_ (1857), 3 K. and J., 708; _Lamb_ v.
_Evans_ [1892], 3 Ch., 462.

[454] [1892], 3 Ch., 462.

[455] _Campbell_ v. _Scott_ (1842), 11 Sim., 31; _Tinsley_ v. _Lacy_
(1863), 1 H. and M., 747.

[456] _Borthwick_ v. _Evening Post_ (1888), 37 Ch. D., 449.

[457] 37 Ch. D., at p. 462.

[458] (1889), 40 Ch. D., 500.

[459] 40 Ch. D., at p. 507; and see _Trade Auxiliary_ v.
_Middlesborough_ (1889), 40 Ch. D., 425.

[460] _Bradbury_ v. _Sharp_ (1891), W. N., 143.

[461] _Cox_ v. _Land and Water_ (1869), L. R., 9 Eq., 324; _Southern_
v. _Bailes_ (1829), 38 S. J., 681.

[462] _Cox_ v. _Land and Water_ (1869), L. R., 9 Eq., 324; _Baily_ v.
_Taylor_ (1829), 1 R. and M., 73.

[463] _Lewis_ v. _Fullarton_ (1839), 2 Beav., 6, Langdale, M. R., at p.
11.

[464] 5 & 6 Vict. c. 45, sec. 23. To be safe the demand in writing
should be made before the writ is issued.

[465] 8 Anne c. 19, sec. 1; 54 Geo. III. c. 156, sec. 4.

[466] _Colburn_ v. _Simms_ (1843), 2 Hare, 543.

[467] _Prince Albert_ v. _Strange_ (1849), 2 De G. and Sm., 652;
_Kelly_ v. _Hodge_(1873), 29 L. T. (N. S.), 387; _Emperor of Austria_
v. _Day_ (1861), 3 D. F. and J., 217.

[468] _Hole_ v. _Bradbury_ (1879), 12 Ch. D., 886; but see _Delfe_ v.
_Delamotte_ (1857), 3 K. and J., 581; _Stannard_ v. _Harrison_ (1871),
19 W. R., 811.

[469] _Hole_ v. _Bradbury_ (1879), 12 Ch. D., 886; cf. _Colburn_ v.
_Simms_ (1843), 2 Hare, 543.

[470] _Isaacs_ v. _Fiddemann_ (1880), 49 L. J. Ch., 412.

[471] _Rooney_ v. _Kelly_ (1861), 14 Ir. C. L. R., _per_ O'Brien, J.,
at p. 171.

[472] _Warne_ v. _Seebohm_ (1888), 39 Ch. D., 73.

[473] Ibid.

[474] _Warne_ v. _Seebohm_ (1888), 39 Ch. D., at p. 83.

[475] _Colburn_ v. _Simms_ (1843), 2 Hare, 543; _Hole_ v. _Bradbury_(
1879), 12 Ch. D., 886.

[476] 39 & 40 Vict. c. 36, sec. 42.

[477] 39 & 40 Vict. c. 36, sec. 44.

[478] _Brooke_ v. _Milliken_ (1789), 3 T. R., 509.

[479] _Ex parte Beal_ (1868), L. R., 3 Q. B., 387.

[480] _Hogg_ v. _Scott_ (1874), L. R., 18 Eq., 444; see _Macmillan_ v.
_Suresh Chunder Deb_ (1850), Ind. L. R., 17 Calc., 951.

[481] (1846), 9 D., 1026; and see _Clark_ v. _Bell_ (1804), Mor. Dic.,
Literary Property, App., 9.

[482] (1878), 10 Ch. D., 247, at p. 262.

[483] 56 & 57 Vict. c. 61; _Muddock_ v. _Blackwood_ [1898], 1 Ch., at
p. 64.

[484] 5 & 6 Vict. c. 45, sec. 16; _Hole_ v. _Bradbury_ (1879), 12 Ch.
D., 886.

[485] _Boosey_ v. _Davidson_ (1846), 4 Dow. and Low, at p. 155.

[486] _Collette_ v. _Goode_ (1878), 7 Ch. D., 842; _Boosey_ v.
_Purday_ (1846), 10 Jur., 1038; _Boosey_ v. _Davidson_ (1846), 4 D.
and L., 147; _Leader_ v. _Purday_ (1849), 7 C. B., 4; _Barnett_ v.
_Glossop_ (1835), 1 Bing. N. C., 633; 1 Scott's Rep., 621.

[487] _Chappell_ v. _Davidson_ (1856), 18 C. B., 194.

[488] _Collette_ v. _Goode_ (1878), 7 Ch. D., 842.

[489] _Boosey_ v. _Davidson_ (1846), 4 D. and L., 147; _Hole_ v.
_Bradbury_ (1879), 12 Ch. D., 886.

[490] Ibid.

[491] _Collette_ v. _Goode_ (1878), 7 Ch. D., 842.

[492] _Sweet_ v. _Benning_ (1855), 16 C. B., 459; _Cocks_ v. _Purday_
(1848), 5 C. B., 860.

[493] _Hayward_ v. _Lely_ (1887), 56 L. T. (N. S.), 418.

[494] _Coote_ v. _Judd_ (1883), 23 Ch. D., 736; _Hole_ v. _Bradbury_
(1879), 12 Ch. D., 886; _Collette_ v. _Goode_ (1878), 7 Ch. D., 842;
but see _Leader_ v. _Purday_ (1848), 6 Dow. and Low, 408.

[495] _Collette_ v. _Goode_ (1878), 7 Ch. D., 842.

[496] Ibid.

[497] _Hayward_ v. _Lely_ (1887), 56 L. T. (N. S.), 418.

[498] _Harris_ v. _Smart_ (1889), W. N., 92, 5 T. L. R. 594.

[499] But see _Sweet_ v. _Maughan_ (1840), 11 Sim., 51.

[500] Eldon, L. C., in _Mawman_ v. _Tegg_ (1826), 2 Russ., at p. 394.

[501] _Hotten_ v. _Arthur_ (1863), 1 H. and M., 603; _Jarrold_ v.
_Houlston_ (1857), 3 K. and J., 708.

[502] Ibid.

[503] _Boosey_ v. _Davidson_ (1849), 13 Q. B., 257.

[504] _Wright_ v. _Goodlake_ (1865), 3 H. and C., 540.

[505] _Kelly_ v. _Wyman_ (1869), 17 W. R. 399; _Stevens_ v. _Brett_
(1864), 10 L. T. (N. S.), 231.

[506] _Coote_ v. _Ingram_ (1887), 35 Ch. D., 117.

[507] _Maxwell_ v. _Somerton_ (1874), 22 W. R., 313.

[508] _Walter_ v. _Steinkopff_ [1892], 3 Ch., 189.

[509] _Wall_ v. _Taylor_ (1883), 11 Q. B. D., 102.

[510] _Dicks_ v. _Brooks_ (1880), 15 Ch. D., 22.

[511] _Metzler_ v. _Wood_ (1878), 8 Ch. D., 606.

[512] Lord Romilly, M. R., in _Cobbett_ v. _Woodward_ (1872), L. R.,
14 Eq., at p. 414; Hall, V. C., in _Maple_ v. _Junior Army and Navy
Stores_, 21 Ch. D., at p. 373.

[513] _Piddington_ v. _Philip_ (1893), 14 N. S. W. R., Eq., 159.

[514] _Kelly's Directories_ v. _Gavin & Lloyds_ [1901], 1 Ch., 374;
affirmed in the Court of Appeal.

[515] _Pike_ v. _Nicholas_ (1869), L. R., 5 Ch., 251; _Cobbett_ v.
_Woodward_ (1872), L. R., 14 Eq., 407.

[516] _Liverpool General Brokers_ v. _Commercial Press_ [1897], 2 Q.
B., 1.

[517] _Page_ v. _Wisden_ (1869), 20 L. T., 435.

[518] James, L. J., in _Dicks_ v. _Yates_ (1881), 18 Ch. D., 76.

[519] Jessel, M. R., in _Maple_ v. _Junior Army and Navy Stores_, 21
Ch. D., at p. 378.

[520] Lord Ellenborough in _Roworth_ v. _Wilkes_ (1807), 1 Camp., at
p. 97.

[521] _Novello_ v. _Sudlow_ (1852), 12 C. B., 177.

[522] _White_ v. _Geroch_ (1819), 2 B. and Ald., 298; Lindley, M. R.,
in _Boosey_ v. _Whight_ [1900], 1 Ch., at p. 123.

[523] _Novello_ v. _Sudlow_ (1852), 12 C. B., 177.

[524] _Warne_ v. _Seebohm_ (1888), 39 Ch. D., 73.

[525] See Lindley, M. R., in _Boosey_ v. _Whight_ [1900], 1 Ch., at p.
123.

[526] _Bach_ v. _Longman_(1777), 2 Cowp., 623; _D'Almaine_ v.
_Boosey_(1835), 1 Y. and C., Ex., 288.

[527] _Nicols_ v. _Pitman_ [1884], 26 Ch. D., 374.

[528] _Boosey_ v. _Whight_ [1900], 1 Ch., 122.

[529] Lord O'Hagan in _Chatterton_ v. _Cave_ (1878), 3 A. C., at p.
498.

[530] (1855), 16 C. B., at p. 481.

[531] (1875), L. R., 10 C. P., at p. 575.

[532] See also _Bohn_ v. _Bogue_ (1846), 10 Jur., 420; _Jarrold_ v.
_Heywood_ (1870), 18 W. R., 279; _Baily_ v. _Taylor_ (1829), 1 R. and
M., 73.

[533] (1878). 3 A. C., 483.

[534] (1869), L. R., 5 Ch., 251.

[535] _Leslie_ v. _Young_ [1894], A. C., at p. 342.

[536] _Cary_ v. _Kearsley_ (1802), 4 Esp., 168; _Lennie_ v. _Pillans_
(1843), 5 D., 416; _Cooper_ v. _Stephens_ [1895], 1 Ch., 567.

[537] _Per_ Page Wood, V. C., in _Tinsley_ v. _Lacey_ (1863), 1 H. and
M., at p. 752.

[538] _Per_ L. C. Herschell in _Leslie_ v. _Young_ [1894], A. C., at p.
341.

[539] See _Murray_ v. _Bogue_(1852), 1 Drew, at p. 369.

[540] _Per_ Cottenham, L. C., in _Bramwell_ v. _Halcomb_ (1836), 3 My.
and Cr., at p. 738; see _Scott_ v. _Stanford_ (1867), L. R., 3 Eq., 718.

[541] _Bradbury_ v. _Hotten_ (1872), L. R., 8 Ex., 1; see also _Cooper_
v. _Stephens_ [1895], 1 Ch., 567.

[542] (1826), 2 Russ., at p. 394.

[543] (1897), 13 T. L. R., 209; and see _Kelly_ v. _Hooper_ (1841), 1
Y. and C. Ch. C., 197; _Cooper_ v. _Stephens_ [1895], 1 Ch., 567.

[544] _Trade Auxiliary_ v. _Middlesborough_ (1889), 40 Ch. D., 425;
_Cate_ v. _Devon_ (1889), 40 Ch. D., 500.

[545] _Trade Auxiliary_ v. _Middlesborough_ (1889), 40 Ch. D., 425;
_Cate_ v. _Devon_ (1889), 40 Ch. D., 500.

[546] 40 Ch. D., at p. 507.

[547] _Jarrold_ v. _Houlston_ (1857), 3 K. and J., 708.

[548] (1802), 4 Esp., 168.

[549] _Jarrold_ v. _Houlston_ (1857), 3 K. and J., 708.

[550] _Per_ Lord Ellenborough in _Cary_ v. _Kearsley_ (1802), 4 Esp.,
at p. 170.

[551] _