diff options
Diffstat (limited to '43945-8.txt')
| -rw-r--r-- | 43945-8.txt | 23840 |
1 files changed, 0 insertions, 23840 deletions
diff --git a/43945-8.txt b/43945-8.txt deleted file mode 100644 index 0e04079..0000000 --- a/43945-8.txt +++ /dev/null @@ -1,23840 +0,0 @@ -The Project Gutenberg EBook of A Treatise Upon the Law of Copyright in the -United Kingdom and the Dominions of the Crown, and in the United States -of America, by E. J. MacGillivray - -This eBook is for the use of anyone anywhere at no cost and with -almost no restrictions whatsoever. You may copy it, give it away or -re-use it under the terms of the Project Gutenberg License included -with this eBook or online at www.gutenberg.org/license - - -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: E. J. MacGillivray - -Release Date: October 13, 2013 [EBook #43945] - -Language: English - -Character set encoding: ISO-8859-1 - -*** START OF THIS PROJECT GUTENBERG EBOOK A TREATISE UPON THE LAW *** - - - - -Produced by Wayne Hammond, Malcolm Farmer and the Online -Distributed Proofreading Team at http://www.pgdp.net - - - - - - -[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] _Roworth_ v. _Wilkes_ (1807), 1 Camp., 97. - -[552] _Per_ Shadwell, V. C., in _Campbell_ v. _Scott_ (1842), 11 Sim., -31; _Clement_ v. _Maddick_ (1859), 1 Giff., 98; _Reade_ v. _Lacy_ -(1861), 1 J. and H., 524; _Scott_ v. _Stanford_ (1867), L. R., 3 -Eq.,718. - -[553] (1867), L. R., 3 Eq., 718. - -[554] (1802), 4 Esp., 168. - -[555] See also _Bohn_ v. _Bogue_ (1846), 10 Jur., 420. - -[556] _Per_ Sir W. Page Wood, V. C., in _Scott_ v. _Stanford_ (1867), -L. R., 3 Eq., 718, at p. 723; and see _Kelly_ v. _Morris_ (1866), L. -R., 1 Eq., 697. - -[557] _Jarrold_ v. _Houlston_ (1857), 3 K. and J., 708; _Reade_ v. -_Lacey_ (1861), 1 J. and H., 524; _Spiers_ v. _Brown_ (1858), 31 L. T. -(O. S.), 18; 6 W. R., 352. - -[558] (1847), 9 D., 748. - -[559] _Hotten_ v. _Arthur_ (1863), 1 H. and M., 603. - -[560] _Novello_ v. _Sudlow_ (1852), 12 C. B., 177. - -[561] _Ager_ v. _The P. & O._ (1884), 26 Ch. D., 637; and see _Oxford -and Cambridge_ v. _Gill_ (1899), 43 S. J., 570. - -[562] _Murray_ v. _Bogue_ (1852), 1 Drew, 353. - -[563] _Reade_ v. _Lacey_ (1861), 1 J. and H., 524; _Reade_ v. -_Conquest_ (1862), 11 C. B. (N. S.), 479. - -[564] (1889), 40 Ch. D., 500; _Cooper_ v. _Whittingham_ (1880), 15 Ch. -D., 501. - -[565] See Lord Blackburn in _Chatterton_ v. _Cave_, 3 A. C., at p. -501; _Novello_ v. _Sudlow_ (1852), 12 C. B., 177; _Rock_ v. _Lazarus_ -(1872), L. R. 15 Eq., 104; _Lee_ v. _Simpson_ (1847), 3 C. B., 871. - -[566] _Maxwell_ v. _Somerton_ (1874), 22 W. R., 313. - -[567] _Wyatt_ v. _Barnard_ (1814), 3 V. and B., 77. - -[568] [1892], 3 Ch., 489. - -[569] [1892], 3 Ch., 489, _per_ North, J., at p. 499. - -[570] This summary of "fair use" is taken from Stephen's Digest -"Report of Copyright Commission," 1878, p. lxx. - -[571] _Sayre_ v. _Moore_ (1785), 1 East., 361, _n._; _Hogg_ v. _Kirby_ -(1803), 8 Ves., 215; _Matthewson_ v. _Stockdale_ (1806), 12 Ves., 270; -_Mawman_ v. _Tegg_ (1826), 2 Russ., 385; _Pike_ v. _Nicholas_ (1869), -L. R., 5 Ch., 251; _Alexander_ v. _Mackenzie_ (1847), 9 D., 748 at -p. 761; _Longman_ v. _Winchester_ (1809), 16 Ves., 269; _Wilkins_ v. -_Aikin_ (1810), 17 Ves., 422; _Weekes_ v. _Williamson_ (1886), 12 -Vict., L. R., 483. - -[572] Lindley, L. J., _Lamb_ v. _Evans_ [1893], 1 Ch., at p. 224. - -[573] _Hogg_ v. _Kirby_ (1803), 8 Ves., 215. - -[574] _Per_ Lord Chancellor Erskine in _Matthewson_ v. _Stockdale_ -(1806), 12 Ves., at p. 273. - -[575] _Wilson_ v. _Lake_ (1875), 1 Vict. L. R., Eq., 127. - -[576] Lindley., L. J., in _Hollinrake_ v. _Truswell_ [1894], 3 Ch., at -p. 427. - -[577] _Jarrold_ v. _Houlston_ (1857), 3 K. and J., 708. - -[578] _Morris_ v. _Ashbee_ (1868), L. R., 7 Eq., 34; _Lennie_ v. -_Pillans_ (1843), 5 D., 416; _Mawman_ v. _Tegg_ (1826), 2 Russ., 385; -Lindley, L. J., in _Lamb_ v. _Evans_ [1893], 1 Ch., at p. 224. - -[579] _Pike_ v. _Nicholas_ (1869), L. R., 5 Ch., 251, at p. 260. - -[580] (1866), L. R., 1 Eq., 697. - -[581] (1809), 16 Ves., 269; and see _Matthewson_ v. _Stockdale_ -(1806), 1 J. and H., 312; _Baily_ v. _Taylor_ (1829), 1 Russ. and -Mylne, 73; _Wilkins_ v. _Aikin_ (1810), 17 Ves., at p. 424. - -[582] (1839), 2 Beav., 6., at p. 8. - -[583] And see _Garland_ v. _Gemmill_ (1887), 14 S. C. R. (Canada), 321. - -[584] _Jarrold v. Houlston_ (1857), 3 K. and J., 708. - -[585] 3 K. and J., at p. 715. - -[586] 1 H. and M., 603. - -[587] (1866), L. R., 1 Eq., 697. - -[588] See _Hogg_ v. _Scott_ (1874), L. R., 18 Eq., 444. - -[589] (1867), L. R., 3 Eq., 718. - -[590] (1868), L. R., 7 Eq., 34. - -[591] (1866), L. R., 1 Eq., 697. - -[592] (1839), 2 Beav., 6. - -[593] See _Garland_ v. _Gemmill_ (1887), 14 S. C. R. (Canada), 321. - -[594] _Morris_ v. _Ashbee_ (1868), L. R., 7 Eq., 34, _per_ Giffard, -V. C., at pp. 40, 41. - -[595] (1870), L. R., 5 Ch., 279. - -[596] (1866), L. R., 1 Eq., 697. - -[597] (1868), L. R., 7 Eq., 34. - -[598] (1866), L. R., 1 Eq., 697. - -[599] _Per_ Giffard, L. J., L. R., 5 Ch., at p. 285. - -[600] (1869), L. R., 5 Ch., 251. - -[601] Hatherley, L. C., L. R., 5 Ch., at p. 263; and see _Longman_ v. -_Winchester_(1809), 16 Ves., at p. 271; _Moffat & Paige_ v. _Gill_ -(1902), C. A., April 25. - -[602] _Per_ Giffard, L. J., L. R., 5 Ch., at p. 268. - -[603] _Matthewson_ v. _Stockdale_ (1806), 1 J. and H., 312; _Walter_ -v. _Lane_ [1900], A. C., 539; _Kelly_ v. _Morris_ (1866), L. R., 1 -Eq., 697; _Morris_ v. _Wright_ (1870), L. R., 5 Ch., 279; _Batty_ v. -_Taylor_ (1829), 1 Russ. and Mylne, 73. - -[604] _Wilkins_ v. _Aikin_ (1810), 17 Ves., 422. - -[605] (1872), L. R., 8 Ex., 1. - -[606] _Per_ Kelly, C. B., L. R. 8 Ex., 1, at p. 5. - -[607] (1872), L. R., 8 Ex., 1. - -[608] (1884), 26 Ch. D., 374. - -[609] _Roworth_ v. _Wilkes_ (1807), 1 Camp., 94; _Murray_ v. -_MacFarquhar_ (1785), M., 8309. - -[610] _Sweet_ v. _Shaw_ (1839), 3 Jur., 217. - -[611] _Hodges_ v. _Welsh_ (1840), 2 Ir. Eq. Rep., 266. - -[612] _Sweet_ v. _Shaw_ (1839), 3 Jur., 217. - -[613] (1855), 16 C. B., 459. - -[614] (1838), 3 Myl. and Cr., 711. - -[615] (1840), 2 Ir. Eq. R., 266. - -[616] (1826), 2 Russ., 385, at p. 393; see Lord Kinloch in _Black_ v. -_Murray_ (1870), 9 M., at p. 356. - -[617] _Whittingham_ v. _Wooler_ (1817), 2 Swanst, 428; _Wilkins_ v. -_Aikin_ (1810), 17 Ves., 422. - -[618] _Bell_ v. _Whitehead_(1839), 8 L. J. Ch., 141. - -[619] _Per_ Lord Ellenborough in _Roworth_. v. _Wilkes_ (1807), 1 -Camp., 94, at p. 97. - -[620] (1842), 11 Sim., 31. - -[621] (1874), 31 L. T. (N. S.), 775. - -[622] (1785), 1 East., 361, _n._ - -[623] (1802), 4 Esp., 168; and see _Carnan_ v. _Bowles_ (1786), 1 Cox, -Eq. Cas., 283. - -[624] (1833), 6 Sim., 297. - -[625] (1835), 1 Y. and C. Ex., 288. - -[626] _Wood_ v. _Boosey_ (1868), L. R., 3 Q. B., 223, 9 B. and S., 175. - -[627] _Warne_ v. _Seebohm_ (1888), 39 Ch. D., 73; _Oxford and -Cambridge_ v. _Gill_ (1899), 43, S. J., 570; _Jarrold_ v. _Houlston_ -(1857), 3 K. and J., 708; _Kelly_ v. _Morris_ (1866), L. R., 1 Eq., -697; _Scott_ v. _Stanford_ (1867), L. R., 3 Eq., 718. - -[628] _Leslie_ v. _Young_ [1894], A. C., Lord Herschell, at p. 341. - -[629] See p. 97, _supra_. - -[630] _Tinsley_ v. _Lacy_ (1863), 1 H. and M., 747; _Murray_ v. -_Elliston_ (1822), 5 B. and Ald., 657; _Reade_ v. _Conquest_ (1861), 9 -C. B. (N. S.), 755; _Toole_ v. _Young_ (1874), L. R., 9 Q. B., 523. - -[631] _Tinsley_ v._Lacy_ (1863), 1 H. and M., 747. - -[632] (1888), 39 Ch. D., 73. - -[633] _Tinsley_ v. _Lacy_ (1863), 1 H. and M., 747. - -[634] See Stephen's "Digest," Art. 9 ("Report Copyright Commission," -1878, p. lxx.). - -[635] _Gyles_ v. _Wilcox_ (1740), 2 Atk., 142. - -[636] Ibid. - -[637] _Tonson_ v. _Walker_ (1752), 3 Swans., 672, at p. 681; _Millar_ -v. _Taylor_ (1769), 4 Burr., Willes, J., at p. 2311; _Bell_ v. -_Walker_ (1785), 1 Bro. Ch. C., 450; _Murray_ v. _Elliston_ (1822), 1 -Dow and Ry., 299; _Butterworth_ v. _Robinson_ (1801), 5 Ves., 709. - -[638] (1761), Amb., 402; and see _Anonymous Case_ (1774), Lofft., 775. - -[639] (1835), 1 Y. and C., Ex., 288. - -[640] _Per_ Lord Lyndhurst, L. C. B., at p. 301. - -[641] (1761), Amb., 402. - -[642] _Dickens_ v. _Lee_ (1844), 8 Jur., 183, at p. 184. - -[643] _Tinsley_ v. _Lacy_ (1863), 1 H. and M., 747, at p. 754; and see -the observations of the same judge in _Spiers_ v. _Brown_ (1858), 6 W. -R., 352. - -[644] _Munshi_ v. _Mirza_ (1890), Ind. L. R., 14 Bomb., 586; -_Macmillan_ v. _Shamsal_ (1894), Ind. L. R., 19 Bomb., 557. - -[645] (1720), 2 Meriv., at p. 441. - -[646] (1769), 4 Burr., Yates J., at p. 2348. - -[647] (1849), 2 De G. and M., at p. 693. - -[648] (1814), 3 V. and B., 77. - -[649] (1852), 1 Drew, 353. - -[650] _Nicols_ v. _Pitman_ (1884), 26 Ch. D., 374. - -[651] 5 & 6 Vict. c. 45, sec. 15. - -[652] _Morton_ v. _Copeland_ (1855), 16 C. B., 517. - -[653] _London Printing_ v. _Cox_ [1891], 3 Ch., 291. - -[654] _Morton_ v. _Copeland_ (1855), 16 C. B., 517. - -[655] Ibid. - -[656] _Cooper_ v. _Stephens_ [1895], 1 Ch., 567; _Allen_ v. -_Lyon_(1884), 5 Out. Rep., 615; but see _Eaton_ v. _Lake_ (1888), 20 -Q. B. D., 378; _Strahan_ v. _Graham_ (1867), 16 L. T. (N. S.), 87. - -[657] _Ager_ v. _P. & O._ (1884), 26 Ch. D., 637. - -[658] Coleridge, J., in _Jefferys_ v. _Boosey_ (1854), 4 H. L. C., at -p. 906. - -[659] But see Willes, J., at pp. 2311 and 2332, and Aston, J., at p. -2346, in _Millar_ v. _Taylor_ (1769), 4 Burr., 2303. - -[660] _Southey_ v. _Sherwood_ (1817), 2 Mer., 435; _Rundell_ v. -_Murray_ (1821), Jac., 311. - -[661] _Weldon_ v. _Dicks_ (1878), 10 Ch. D., 247. - -[662] _Hogg_ v. _Scott_ (1874), L. R., 18 Eq., at p. 455; _Morris_ -v. _Ashbee_ (1868), L. R., 7 Eq., 34; _Rundell_ v. _Murray_ (1821), -Jac., 311; _Saunders_ v. _Smith_ (1838), 3 My. and Cr., 711; _Platt_ -v. _Button_ (1815), 19 Ves., 447; _Latour_ v. _Bland_ (1818), 2 Stark, -382; _Pitman_ v. _Hine_ (1884), 1 T. L. R., 39; _Weldon_ v. _Dicks_ -(1878), 10 Ch. D., 247. - -[663] 5 & 6 Vict. c. 45, sec. 5. - -[664] _Reade_ v. _Conquest_ (1861), 9 C. B. (N. S.), 755; _Tinsley_ v. -_Lacy_ (1863), 1 H. and M., 747. - -[665] _Reade_ v. _Conquest_ (1863), 11 C. B. (N. S.), 479. -_Schlesinger_ v. _Turner_ (1890), 63 L. T., 764. - -[666] _Toole_ v. _Young_ (1874), L. R., 9 Q. B., 523. - -[667] _Schlesinger_ v. _Bedford_ (1890), 63 L. T., 762. - -[668] _Warne_ v. _Seebohm_ (1888), 39 Ch. D., 73. - -[669] See _Clark_ v. _Bishop_ (1872), 25 L. T., 908. - -[670] _Macklin_ v. _Richardson_ (1770), Amb., 694. - -[671] See p. 215. - -[672] (1882), 21 Ch. D., 232. - -[673] _Macklin_ v. _Richardson_ (1770), Amb., 694. - -[674] 3 & 4 Will. IV. c. 15, sec. 1; 5 & 6 Vict. c. 45, secs. 15, 2. - -[675] (1820), 1 Jac. and W., 481. - -[676] (1864), 17 C. B. (N. S.), 418, at p. 426. - -[677] (1822) 5 B. and Ald., 657. - -[678] (1774), 4 Burr., 2408. - -[679] (1793), 5 T. R., 245; and see _dictum_ of Cockburn, C. J., in -_Toole_ v. _Young_ (1874), L. R., 9 Q. B., at p. 527. - -[680] See _supra_, p. 13. - -[681] _Chatterton_ v. _Cave_ (1875), L. R., 10 C. P., 572; _Hatton_ v. -_Kean_ (1859), 7 C. B. (N. S.), 268. - -[682] _Reade_ v. _Conquest_ (1861), 9 C. B. (N. S.), 755; _Tinsley_ v. -_Lacy_ (1863), 1 H. and M., 747; _Toole_ v. _Young_ (1874), L. R., 9 -Q. B., 523; _Warne_ v. _Seebohm_ (1888), 39 Ch. D., 73. - -[683] (1847), 3 C. B., 871. - -[684] (1848), 12 Q. B., 217. - -[685] (1872), 25 L. T., 908. - -[686] (1883), 11 Q. B. D., 102. - -[687] (1887), 3 T. L. R., 552. - -[688] [1895], 2 Q. B., 429. - -[689] (1848), 12 Q. B., 217. - -[690] (1874). L. R., 9 Q. B., 523. - -[691] (1848), 12 Q. B., 217. - -[692] [1895], 2 Q. B., 429. - -[693] (1848), 12 Q. B., 217. - -[694] [1895], 2 Q. B., 429. - -[695] See cases under the Dramatic Licensing Acts; _Day_ v. _Simpson_ -(1865), 18 C. B. (N. S.), 680. - -[696] See Stephen's "Digest," Art. 13 ("Report Copyright Commission," -p. lxxii.). - -[697] See _supra_, p. 121. - -[698] The printing and publication of a dramatic piece as a book -before public representation does not destroy the performing right -as suggested in Stephen's "Digest," Art. 14 ("Report Copyright -Commission," p. lxxiii.); _Chappell_ v. _Boosey_(1882), 21 Ch. D., 232. - -[699] See _Boucicault_ v. _Chatterton_(1876), 5 Ch. D. 267. - -[700] [1893], 2 Q. B., 308; and see also _Boucicault_ v. -_Chatterton_(1876), 5 Ch. D., 267. - -[701] _i. e._ the statute of Victoria. - -[702] _i. e._ The International Copyright Acts. - -[703] (1863), 1 H. and M., 597. - -[704] (1876), 5 Ch. D., 267. - -[705] Ibid. - -[706] _Wood_ v. _Boosey_ (1867), L. R., 2 Q. B., 340. - -[707] _Leader_ v. _Purday_ (1849), 7 C. B., 4; _Lover_ v. _Davidson_ -(1856), 1 C. B. (N. S.), 182. - -[708] _Russell_ v. _Smith_ (1848), 12 Q. B., 217; in _Hatton_ v. -_Kean_(1859), 7 C. B. (N. S.), at p. 273, the plaintiff began to argue -the question whether a non-dramatic musical composition was within the -Act; but counsel for the defendant intimated that he would not rely on -that point. - -[709] _Wall_ v. _Taylor_ (1883), 11 Q. B. D., 102. - -[710] See A. L. Smith, L. J., in _Fuller_ v. _Blackpool Winter Gardens_ -[1895], 2 Q. B., 429. - -[711] Ibid. - -[712] Ibid. - -[713] Ibid. - -[714] Note that the form in the schedule provides for "name of -publisher and place of publication." - -[715] _i. e._ of the copyright and performing right if in the same -hands. If in different hands the respective proprietors should be -specified. - -[716] _Russell_ v. _Smith_ (1848), 12 Q. B., 217; _Lacy_ v. _Rhys_ -(1864), 33 L. J., Q. B., 157; _Clark_ v. _Bishop_ (1872), 25 L. T., -908. - -[717] 5 & 6 Vict. c. 45, sec. 11. - -[718] Ibid. - -[719] 5 & 6 Vict. c. 45, sec. 12. - -[720] 5 & 6 Vict. c. 45, sec. 13. - -[721] 5 & 6 Vict. c. 45, sec. 20. - -[722] (1848), 12 Q. B., 217. - -[723] (1872), 25 L. T., 908. - -[724] (1864), 33 L. J., Q. B., 157. - -[725] See _Fairlie_ v. _Boosey_ (1879), 4 A. C., 711. - -[726] _Wood_ v. _Boosey_ (1868), L. R., 3 Q. B., 223. - -[727] _Shepherd_ v. _Conquest_ (1856), 17 C. B., 427; see _Cumberland_ -v. _Copeland_ (1861), 7 H. and N., 118; (1862), 1 H. and C., 194. - -[728] 5 & 6 Vict. c. 45, secs. 22, 20, 13. - -[729] _Supra_, p. 77. - -[730] _Shepherd_ v. _Conquest_ (1856), 17 C. B., 427; _Eaton_ v. -_Lake_ (1888), 20 Q. B. D., 378. - -[731] _Marsh_ v. _Conquest_ (1864), 17 C. B. (N. S.), 418. - -[732] 5 & 6 Vict. c. 45, sec. 22. - -[733] 3 & 4 Will. IV. c. 15, sec. 2; _Power_ v. _Walker_ (1814), 3 M. -and S., 7; _Leyland_ v. _Stewart_ (1876), 4 Ch. D., 419. - -[734] _Marsh_ v. _Conquest_ (1864), 17 C. B. (N. S.), 418. - -[735] _Marsh_ v. _Conquest_ (1864), 17 C. B. (M. S.), 418; _Lacy_ v. -_Rhys_ (1864), 4 B. and S., 873. - -[736] Ibid. - -[737] _Ex parte Hutchins_ (1879), L. R., 4 Q. B. D., 483. - -[738] L. R., 4 Q. B. D., 483. - -[739] (1834), 1 Ad. and E., 580. - -[740] See p. 128. - -[741] See p. 74. - -[742] _Holt_ v. _Woods_ (1896), 17 New South Wales R., Eq., 36; and -see p. 81. - -[743] (1847), 3 C. B., 871. - -[744] (1848), 12 Q. B., 217. - -[745] See _Shelly_ v. _Bethell_ (1883), 12 Q. B. D., 11. - -[746] (1883), 11 Q. B. D., at p. 108. - -[747] (1884), 13 Q. B. D., 843. - -[748] And see _Novello_ v. _Sudlow_ (1852), 12 C. B., 177. - -[749] Denman, C. J., in _Russell_ v. _Smith_ (1848), 12 Q. B., 217, at -p. 236. - -[750] (1878), 3 A. C., 483. - -[751] (1837), 8 C. and P., 68. - -[752] (1837), 4 Bing., N. C, 17. - -[753] (1889), 5 T. L. R., 330. - -[754] _Reade_ v. _Conquest_ (1862), 11 C. B. (N. S.), 479; -_Schlesinger_ v. _Turner_ (1890), 63 L. T. (N. S.), 764. - -[755] _Reichardt_ v. _Sapte_ [1893], 2 Q. B., 308; and see _Walter_ v. -_Lane_ [1900], A. C., 539. - -[756] _Supra_, p. 104. - -[757] (1878), 3 A. C., at p. 501. - -[758] (1831), 5 C. and P., 33. - -[759] (1849), 8 C. B., 836. - -[760] (1848), 12 Q. B., 217. - -[761] (1863), 3 B. and S., 556; see this case and _Russell_ v. -_Briant_, _supra_, approved by Byrne, J., in _Kelly's Directories_ v. -_Gavin & Lloyds_ [1901], 1 Ch., 374: - -[762] (1864), 17 C. B. (N. S.), 418. - -[763] (1886), 2 T. L. R., 685; but see _Cole_ v. _Gear_(1888), 4 T. L. -R., 246. - -[764] (1831), 5 C. and P., 33. - -[765] (1893), 9 T. L. R., 548. - -[766] _Lee_ v. _Simpson_(1847), 3 C. B., 871, at p. 883. - -[767] _Duck_ v. _Mayen_(1892), 8 T. L. R., 339. - -[768] 3 & 4 Will. IV. c. 15, sec. 2. - -[769] _Supra_, p. 118. - -[770] _Roberts_ v. _Bignell_(1887), 3 T. L. R., 552; _Eaton_ v. -_Lake_(1888), 20 Q. B. D., 378. - -[771] _Morton_ v. _Copeland_(1855), 16 C. B., 517. - -[772] Ibid. - -[773] _Powell_ v. _Head_(1879), 12 Ch. D., 686. - -[774] (1835), 1 Y. and C. Ex., 288. - -[775] (1883), 11 Q. B. D., 102. - -[776] 51 & 52 Vict. c. 17, sec. 3. Wright, J., has held that a -knowledge that the music contained the statutory notice reserving -performing rights is not of itself sufficient evidence that the -proprietor knew the performance to be unauthorised. _Moul_ v. -_Coronet_, Nov. 30, 1901. - -[777] Not a true "penalty," but in the nature of liquidated damages, -_Adams_ v. _Batley_ (1887), 18 Q. B. D., 625; _Saunders_ v. _Will_ -[1892], 2 Q. B., 18; see _Fitzbull_ v. _Brooke_ (1844), 2 D. and L., -477. - -[778] See p. 86. - -[779] 3 & 4 Will. IV. c. 15, sec. 2, provided "double costs of -suit." This was amended by 5 & 6 Vict. c. 97, sec. 2, to a "full and -reasonable indemnity as to all costs, charges, and expenses." This -probably means nothing more than ordinary party and party costs, -_Reeve_ v. _Gibson_ [1891], 1 Q. B., 652; _Avery_ v. _Wood_ [1891], -3 Ch., 115; but it would seem that as the costs are given by statute -they are not in the discretion of the Court, and must be awarded to -a successful plaintiff, _Reeve_ v. _Gibson_ [1891], 1 Q. B., 652; -_Hasker_ v. _Wood_ [1885], 54 L. J. Q. B., 419; Judicature Act, -1890, sec. 5. Sec. 2 of 5 & 6 Vict. c. 97 is repealed by the Public -Authorities Protection Act in so far as that Act applies. - -[780] 3 & 4 Will. IV. c. 15, sec. 3. - -[781] 51 & 52 Vict. c. 17, sec. 1; and see p. 86 as to mode of -assessing. - -[782] See p. 86. - -[783] 51 & 52 Vict. c. 17, sec. 2; 3 & 4 Will. IV. c. 15, sec. 2; 5 & -6 Vict. c. 96, sec. 2. - -[784] 3 & 4 Will. IV. c. 15, sec. 3. - -[785] See _infra_. - -[786] See p. 150. This is doubtful. - -[787] See p. 150. - -[788] See p. 151. - -[789] See p. 152. - -[790] See p. 152. - -[791] See chapter on Colonial Copyright, p. 186. - -[792] 2 Atk., 93. - -[793] Amb., 264. - -[794] 15 & 16 Vict. c. 12, sec. 14. - -[795] _Per_ Best, C. J., in _Newton_ v. _Cowie_ (1827), 4 Bing., at p. -246. - -[796] 5 & 6 Vict. c. 45, sec. 1. - -[797] _Stannard_ v. _Lee_ (1871), L. R., 6 Ch., 346; 24 L. T. (N. S.), -459. - -[798] 24 L. T. (N. S.), at p. 460. - -[799] 19 W. R., at p. 617. - -[800] (1871), 24 L. T. (N. S.), 570. - -[801] (1871), L. R., 6 Ch., 346. - -[802] _Bogue_ v. _Houlston_ (1852), 5 De G. and Sm., 267; _Maple_ v. -_Junior Army and Navy Stores_ (1882), 21 Ch. D., 369; _Comyns_ v. -_Hyde_ (1895), 43 W. R., 266; _Hildesheimer_ v. _Dunn_ (1891), 64 L. -T. (N. S.), 452. - -[803] _Page_ v. _Townsend_ (1832), 5 Sim., 395. - -[804] Ibid. - -[805] 49 & 50 Vict. c. 33, sec. 8 (1); and see 7 & 8 Vict. c. 12, sec. -19. - -[806] 7 Geo. II. c. 38. - -[807] See p. 36. - -[808] See p. 169. - -[809] 6 & 7 Will. IV. c. 59, sec. 2; _Page_ v. _Townsend_ (1832), 5 -Sim., 395. - -[810] 7 Vict. c. 12, sec. 19; 49 & 50 Vict. c. 33, sec. 8 (1). - -[811] 8 Geo. II. c. 13. - -[812] _Newton_ v. _Cowie_ (1827), 4 Bing., 234; _Brooks_ v. _Cock_ -(1835), 3 Ad. and E., 138. - -[813] _Thompson_ v. _Symonds_ (1792), 5 T. R., 41; _Harrison_ v. -_Hogg_ (1794), 2 Ves., 322; _Newton_ v. _Cowie_ (1827), 4 Bing., 234; -_Brooks_ v. _Cock_ (1835), 3 Ad. and E., 138; _Mackmurdo_ v. _Smith_ -(1798), 7 T. R., 518. - -[814] _Blackwell_ v. _Harper_ (1740), 2 Atk., 93; and see _Roworth_ v. -_Wilkes_ (1807), 1 Camp., 94. - -[815] (1792), 5 T. R., 41. - -[816] _Blackwell_ v. _Harper_ (1740), 2 Atk., 93; _Graves_ v. -_Ashford_ (1867), L. R., 2 C. P., 410. - -[817] _Newton_ v. _Cowie_ (1827), 4 Bing., 234; _Thompson_ v. -_Symonds_ (1792), 5 T. R., 41. - -[818] Ibid. - -[819] _Rock_ v. _Lazarus_ (1872), L. R., 15 Eq., 104. - -[820] _Graves_ v. _Ashford_ (1867), L. R., 2 C. P., 410. - -[821] _Baschet_ v. _London Illustrated Standard_ [1900], 1 Ch., 73; -_Fores_ v. _Johnes_ (1802), 4 Esp., 97. - -[822] 7 Geo. III. c. 38, sec. 7. - -[823] _Donaldson_ v. _Beckett_ (1774), 2 Bro. P. C., 129. - -[824] _Prince Albert_ v. _Strange_ (1849), 1 M'N. and G., 25; _West_ -v. _Francis_ (1822), 5 B. and Ald., 737. - -[825] 8 Geo. II. c. 13; 7 Geo. III. c. 38. - -[826] _Stannard_ v. _Harrison_ (1871), 24 L. T. (N. S.), 570. - -[827] See as to books, p. 73. - -[828] _Thompson_ v. _Symonds_ (1792), 5 T. R., 41. - -[829] 8 Geo. II. c. 13; 17 Geo. III. c. 57. - -[830] _Thompson_ v. _Symonds_ (1792), 5 T. R., 41. - -[831] 8 Geo. II. c. 13; 17 Geo. III. c. 57. - -[832] See Assignment of Books, p. 77. - -[833] Cf. _Cooper_ v. _Stephens_ [1895], 1 Ch., 567, a decision under -the Copyright Act, 1842. - -[834] _Marshall_ v. _Petty_ (1900), 17 T. L. R., 501; 8 Geo. II. c. -13, sec. 2. - -[835] See as to books, p. 74. - -[836] 8 Geo. II. c. 13; 17 Geo. III. c. 57. The above summary is the -result of a careful comparison of these two Acts. As Sir James Stephen -says in his "Digest": "They are inexpressibly puzzling and very -cumbrous.... The sense escapes in a cloud of words." It is submitted, -however, that there are more important distinctions between the two -Acts than those noticed in the "Digest," and the above is an attempt -to make them as clear as possible. - -[837] 8 Geo. II. c. 13. - -[838] Ibid. - -[839] 17 Geo. III. c. 57. - -[840] 25 & 26 Vict. c. 68, secs. 8 and 9. - -[841] Ibid. - -[842] 17 Geo. III. c. 57. - -[843] 17 Geo. III. c. 57; but see _Martin_ v. _Wright_ (1833), 6 Sim., -297, contra. - -[844] 17 Geo. III. c. 57. - -[845] 25 & 26 Vict. c. 68, secs. 8 and 9. - -[846] Ibid. - -[847] 25 & 26 Vict. c. 68, sec. 8. - -[848] _Gambart_ v. _Sumner_ (1859), 8 W. R., 27; 5 H. and N., 5; -_West_ v. _Francis_ (1822), 5 B. and Ald., 737. - -[849] 8 Geo. II. c. 13. - -[850] 7 Geo. III. c. 38. - -[851] _Graves_ v. _Mercer_ (1868), 16 W. R., 790. - -[852] 8 Geo. II. c. 13; 7 Geo. III. c. 38. - -[853] _Avery_ v. _Wood_ [1891], 3 Ch., 115. - -[854] _Hasker_ v. _Wood_ (1885), 54 L. J., Q. B., 419; _Reeve_ v. -_Gibson_ [1891], 1 Q. B., 652. - -[855] But see _Martin_ v. _Wright_ (1833), 6 Sim., 297. - -[856] 8 Geo. II. c. 13. - -[857] 8 Geo. II. c. 13; 17 Geo. III. c. 57. - -[858] _West_ v. _Francis_ (1822), 5 B. and Ald., 737; _Moore_ v. -_Clarke_ (1842), 9 M. and W., 692. - -[859] _West_ v. _Francis_ (1822), 5 B. and Ald., 737. - -[860] _Graves_ v. _Ashford_ (1867), L. R., 2 C. P., 410; _Gambart_ v. -_Ball_ (1863), 14 C. B. (N. S.), 306. - -[861] _Dicks_ v. _Brooks_ (1880), 15 Ch. D., 22; _Gambart_ v. _Ball_ -(1863), 14 C. B. (N. S.), 306. - -[862] _Newton_ v. _Cowie_ (1827), 4 Bing. at p. 246; _De Berenger_ v. -_Wheble_ (1819), 2 Stark., 548. - -[863] _Dicks_ v. _Brooks_ (1880), 15 Ch. D., 22; _Gambart_ v. _Ball_ -(1863), 14 C. B. (N. S.), 306. - -[864] (1807), 1 Camp., at p. 98. - -[865] (1833), 6 Sim., 297. - -[866] No such statement could now be accepted as sound. See p. 112. - -[867] (1880), 15 Ch. D., 22. - -[868] 15 Ch. D., at p. 34. - -[869] 15 Ch. D., at p. 37. - -[870] See as to literary copyright, p. 112. - -[871] _Murray_ v. _Heath_ (1831), 1 B. and Ad., 804. - -[872] 8 Geo. II. c. 13; 17 Geo. III. c. 57. - -[873] 8 Geo. II. c. 13. - -[874] Cf. _Cooper_ v. _Stephens_ [1895], 1 Ch., 567, which is under 5 -& 6 Vict. c. 45, but on a claim for damages an injunction only would -seem to be analogous; _Marshall_ v. _Petty_ (1900), 17 T. L. R., 501. - -[875] See _infra_. - -[876] See p. 162. - -[877] See p. 162. This is doubtful. - -[878] See p. 162. - -[879] See p. 163. - -[880] See p. 163. - -[881] See chapter on Colonial Copyright, p. 186. - -[882] 54 Geo. III. c. 56, sec. 1. - -[883] _Caproni_ v. _Alberti_ (1892), 40 W. R., 235. - -[884] _Britain_ v. _Hanks_, Wright, J., April 15, 1902. - -[885] 54 Geo. III. c. 56, sec. 1. - -[886] 49 & 50 Vict. c. 33, sec. 8 (1). - -[887] 7 & 8 Vict. c. 12, sec. 19. - -[888] 10 Ir. R. Ch., at p. 516, per Brady, L. Ch. I. - -[889] _Turner_ v. _Robinson_ (1860), 10 Ir. R. Ch., 121, 510. - -[890] See _supra_, p. 42. - -[891] 54 Geo. III. c. 56. - -[892] 5 & 6 Vict. c. 45. - -[893] 54 Geo. III. c. 56, sec. 1. - -[894] As to work done by partner of a firm, see _Britain_ v. _Hanks_, -April 15, 1902. - -[895] See p. 151. - -[896] 38 Geo. III. c. 71. - -[897] Viz., 38 Geo. III. c. 71, and 54 Geo. III. c. 56. - -[898] _Britain_ v. _Hanks_, April 15, 1902. - -[899] See p. 46. - -[900] See p. 174. - -[901] See p. 152. - -[902] 54 Geo. III. c. 56, secs. 1 and 2. - -[903] Ibid. - -[904] 54 Geo. III. c. 56, sec. 6; cf. _Carnan_ v. _Bowles_ (1786), 2 -Bro. C. C., 8o; _Rundell_ v. _Murray_ (1821), Jac., 311. - -[905] 54 Geo. III. c. 56, sec. 4; cf. 8 Anne c. 19, sec. 1, and -_Davidson_ v. _Bohn_ (1848), 6 C. B., 456; _Power_ v. _Walker_ (1814), -3 M. and S., 7; _Jefferys_ v. _Boosey_ (1854), 4 H. L. Cas., 815. - -[906] 54 Geo. III. c. 56, sec. 4. - -[907] Ibid. - -[908] The Sculpture Act gives "double costs," but 5 & 6 Vict. c. 97, -sec. 2, substitutes "a full and reasonable indemnity." See p. 144, -_note_ 4. This probably means costs in the ordinary sense; but the -plaintiff is entitled to them as of right and not as a matter of -discretion under the Rules of the Supreme Court. - -[909] 54 Geo. III. c. 56, sec. 3. - -[910] See _infra_. - -[911] See p. 168. - -[912] See p. 170. - -[913] See p. 171. - -[914] See p. 174. - -[915] See p. 174. - -[916] See chapter on Colonial Copyright, p. 186. - -[917] 25 & 26 Vict. c. 68, sec. 1. - -[918] _Hanfstaengl_ v. _Empire Palace_ [1894], 2 Ch., 1. - -[919] _Graves'_ case (1869), L. R., 4 Q. B., 715. - -[920] See the cases as to new editions of books. - -[921] _Kenrick_ v. _Lawrence_ (1890), 25 Q. B. D., 99. - -[922] _Farina_ v. _Silverlock_ (1858), 4 K. and J., 650. This case is -hardly an authority, as it was decided when published paintings and -drawings were unprotected; but it is submitted that even under the Act -of 1862 a label of this kind would not be protected. - -[923] (1860), 10 Ir. Ch., 121, 510. - -[924] (1860), 10 Ir. Ch., 121. - -[925] 25 & 26 Vict. c. 68, sec. 1; see _Geissendorfer_ v. -_Mendelssohn_ (1896), 13 T. L. R., 91. - -[926] See _Nottage_ v. _Jackson_ (1883), 11 Q. B. D., 627. - -[927] _Petty_ v. _Taylor_ [1897], 1 Ch., 465. - -[928] Ibid. - -[929] 25 & 26 Vict. c. 68, sec. 4. - -[930] _Tuck & Sons_ v. _Priester_ (1887), 19 Q. B. D., 629; _Pollard_ -v. _Photo. Co._ (1888), 40 Ch. D., 345. - -[931] _Turner_ v. _Robinson_ (1860), 10 Ir. Ch., 121, 510; _Prince -Albert_ v. _Strange_ (1849), 1 M'N. and G., at p. 42; _West_ v. -_Francis_ (1822), 5 B. and Ald., 737. - -[932] _Tuck & Sons_ v. _Priester_ (1887), 19 Q. B. D., 629; _Tuck_ v. -_Continental_ (1887), 3 T. L. R., 826. - -[933] Ibid. - -[934] _London Printing_ v. _Cox_ [1891], 3 Ch., 291; _Dupuy_ v. -_Dilkes_ (1879), W. N., 145; 48 L. J. Ch., 682. - -[935] _London Printing_ v. _Cox_ [1891], 3 Ch., 291. - -[936] _Dupuy_ v. _Dilkes_ (1879), W. N., 145; 48 L. J. Ch., 682. - -[937] _Graves'_ case (1869), L. R., 4 Q. B., 715. - -[938] _Ex parte Walker_ (1869), 17 W. R., 1018; 10 B. and S., 680. - -[939] 25 & 26 Vict. c. 68, sec. 4. - -[940] _Ex parte Beal_ (1868), L. R., 3 Q. B., 387; 9 B. and G., 395. - -[941] Blackburn, J., 9 B. and S., at p. 398. The headnote in _ex parte -Walker_ (1869), 10 B. and S., 680, "That the description 'A Piper and -a Pair of Nut-crackers' was sufficient for the purpose of sec. 6," is -erroneous, the point being left undecided. - -[942] _Baschet_ v. _London Illustrated Standard_ [1900], 1 Ch., 73; -_Fores_ v. _Johnes_ (1802), 4 Esp., 97; see _Du Bost_ v. _Beresford_ -(1810), 2 Camp., 511. - -[943] 25 & 26 Vict. c. 68, sec. 1. - -[944] Ibid. - -[945] 7 Vict. c. 12, sec. 19. - -[946] 25 & 26 Vict. c. 68, sec. 1. - -[947] _Nottage_ v. _Jackson_ (1883), 11 Q. B. D., 627; _Wooderson_ v. -_Tuck_ (1887), 4. T. L. R., 57; _Melville_ v. _Mirror of Life_ [1895], -2 Ch., 531; _Kenrick_ v. _Lawrence_ [1890], 25 Q. B. D., 99. - -[948] _Nottage_ v. _Jackson_ (1883), 11 Q. B. D., 627; _Kenrick_ v. -_Lawrence_ [1890], 25 Q. B. D., 99. - -[949] 25 & 26 Vict. c. 68, sec. 1; _Kenrick_ v. _Lawrence_ (1890), 25 -Q. B. D., 99; _Levi_ v. _Champion_ (1887), 3 T. L. R., 286. - -[950] _Wooderson_ v. _Tuck_ (1887), 4 T. L. R., 57. - -[951] _Melville_ v. _Mirror of Life_ [1895], 2 Ch., 531; _Ellis_ v. -_Marshall_ (1895), 11 T. L. R., 522; _Ellis_ v. _Ogden_(1894), 11 T. -L. R., 50. - -[952] _Melville_ v. _Mirror of Life_ [1895] 2 Ch., 531; _Ellis_ v. -_Marshall_ (1895), 11 T. L. R., 522. - -[953] _Ellis_ v. _Ogden_ (1894), 11 T. L. R., 50. - -[954] _Melville_ v. _Mirror of Life_ [1895], 2 Ch., 531; _Ellis_ v. -_Ogden_ (1894), 11 T. L. R., 50. - -[955] _Petty_ v. _Taylor_ [1897], 1 Ch., 465. - -[956] 25 & 26 Vict. c. 68, sec. 3. - -[957] _Troitzsch_ v. _Rees_ (1887), 3 T. L. R., 773; and see _Graves'_ -case (1869), L. R., 4 Q. B., 715. - -[958] See p. 172 as to registration. - -[959] _London Printing and Publishing Alliance_ v. _Cox_ [1891], 3 -Ch., 291. - -[960] See assignment of literary copyright, p. 78. - -[961] See as to partial assignment of literary copyright, p. 80. - -[962] (1880), 13 Ch. D., 872. - -[963] _Tuck_ v. _Canton_ (1882), 51 L. J., Q. B., 363. - -[964] 25 & 26 Vict. c. 68, sec. 2. - -[965] 25 & 26 Vict. c. 68, sec. 6. - -[966] 25 & 26 Vict. c. 68, secs. 6, 8, 9, 11. - -[967] 25 & 26 Vict. c. 68, sec. 6. These penalties are not a civil -debt, but in the nature of a fine for a criminal offence; _ex parte -Graves_ (1868), L. R., 3 Ch., 642. - -[968] 25 & 26 Vict. c. 68, sec. 6. - -[969] 25 & 26 Vict. c. 68, sec. 9. - -[970] 25 & 26 Vict. c. 68, sec. 11. - -[971] 25 & 26 Vict. c. 68, sec. 9. - -[972] 25 & 26 Vict. c. 68, sec. 8. - -[973] 25 & 26 Vict. c. 68, sec. 11. - -[974] 25 & 26 Vict. c. 68, sec. 9. - -[975] Ibid. - -[976] 25 & 26 Vict. c. 68, sec. 10. - -[977] 25 & 26 Vict. c. 68, sec. 11. - -[978] (1898), 14 T. L. R. - -[979] [1900], 1 Ch., 73. - -[980] _Tuck_ v. _Priester_ (1887), 14 Q. B. D., 629. - -[981] Ibid. - -[982] Ibid. - -[983] _Ex parte Beal_ (1868), L. R., 3 Q. B., 387; _Hildesheimer_ v. -_Faulkner_ [1901], 2 Ch., 552. - -[984] (1868), 9 B. and S., 395. - -[985] 9 B. and S., at p. 402. - -[986] _Ellis_ v. _Marshall_ (1895),64 L. J., Q. B., 757; _Baschet_ v. -_London Illustrated_ [1900], 1 Ch., 73; _Nicholls_ v. _Parker_ (1901), -17 T. L. R., 482; _Green_ v. _Irish Independent_ [1899], 1 I. R., 386. - -[987] [1901], 2 Ch., 552. - -[988] 25 & 26 Vict. c. 68, sec. 6. - -[989] _Tuck_ v. _Priester_ (1887), 19 Q. B. D., 629; _Murray_ v. -_Heath_ (1831), 1 B. and Ad., 804; _Mayall_ v. _Higbey_ (1862), 1 H. -and C, 148. - -[990] _Pollard_ v. _Photo. Co._ (1888), 4 Ch. D., 345. - -[991] 25 & 26 Vict. c. 68, sec. 7. - -[992] This offence does not constitute forgery, because a forgery -must be a document, and a picture is not a document; _Reg_ v. _Closs_ -(1857), 6 W. R., 109. - -[993] 25 & 26 Vict. c. 68, sec. 7. - -[994] 16 Jac. 1., c. 16, sec. 3. - -[995] _Lucas_ v. _Williams_ [1892], 2 Q. B., 113. - -[996] 25 & 26 Vict. c. 68, sec. 2. - -[997] _Ex parte Beal_ (1868), 3 Q. B., 387. - -[998] _Bolton_ v. _Aldin_ (1895), 65 L. J., Q. B., 120. - -[999] But see _Hanfstaengl_ v. _Baines_ [1895], A. C., 20; -_Hanfstaengl_ v. _Empire Palace_ [1894], 2 Ch., 1; [1894], 3 Ch., 109. - -[1000] _Graves'_ case (1869), L. R., 4 Q. B., 715; cf. the case of -the photograph of an engraving, _Gambart_ v. _Ball_ (1863), 14 C. B. -(N. S.), 306; _Graves_ v. _Ashford_ (1867), L. R., 2 C. P., 410. - -[1001] [1894], 2 Ch. 1. - -[1002] [1895], A. C., 20. - -[1003] (1896), 12 T. L. R., 491. - -[1004] (1842), 9 M. & W., 692. - -[1005] (1897), 45 W. R., 476; see also _West_ v. _Francis_ (1822), 5 -B. and Ald., 737; _London Stereo_ v. _Kelly_ (1888), 5 T. L. R., 169; -_Bolton_ v. _London Exhibitions_ (1898), 14 T. L. R., 550. - -[1006] _Hanfstaengl_ v. _Baines_ [1895], A. C., 20; _ex parte Beal_ -(1868), L. R., 3 Q. B., 387; _Turner_ v. _Robinson_ (1860), 10 Ir. -Ch., 121, 510. - -[1007] _Ex parte Beal_ (1868), L. R., 3 Q. B., 387. - -[1008] _Brooks_ v. _Religious Tract Society_ (1897), 45 W. R., 476; -_West_ v. _Francis_ (1822), 5 B. and Ald., 737. - -[1009] _Hanfstaengl_ v. _Empire Palace_ [1894], 3 Ch., 109. - -[1010] 25 & 26 Vict., sec. 3. - -[1011] 25 & 26 Vict., sec. 6. - -[1012] _London Printing and Pub. All._ v. _Cox_ [1891], 3 Ch., 291. - -[1013] _Nicholls_ v. _Parker_ (1901), 17 T. L. R., 482; and see -_Guggenheim_ v. _Leng_ (1896), 12 T. L. R., 491. - -[1014] 49 & 50 Vict. c. 33, sec. 8 (4). - -[1015] The following colonies have local legislation: India, Ceylon, -Canada, the Australian Colonies, New Zealand, Cape of Good Hope, -Natal, Hong Kong, Tasmania, Newfoundland. - -[1016] Australian Colonies, Tasmania, Cape of Good Hope, Natal, New -Zealand, Hong Kong, Ceylon. The period of protection in foreign -telegrams varies from 24 to 120 hours in the respective colonies. - -[1017] 10 & 11 Vict. c. 95, usually known as the Foreign Reprints Act. - -[1018] The following are the colonies now under the provisions of -the Foreign Reprints Act, 1847. The dates are of the respective -Orders in Council. Bermuda, February 13, 1849; Bahamas, May 21, 1849; -Newfoundland, July 30, 1849; St. Christopher, November 6, 1849; -Antigua, June 19, 1850; St. Lucia, November 13, 1850; British Guiana, -October 23, 1851; Mauritius, April 1, 1853; Grenada, December 29, -1853; Nevis, March 10, 1855; Cape of Good Hope, March 10, 1855; Natal, -May 16, 1857; Jamaica, April 23, 1859; Trinidad, March 17, 1875; -Barbados, August 15, 1890; St. Vincent, August 26, 1881. - -[1019] 49 & 50 Vict. c. 33, sec. 8. - -[1020] The following colonies have provided a system of registration: -Canada, New South Wales, Victoria, Western Australia, Queensland, -South Australia, Natal, Cape of Good Hope. - -[1021] Printed as a schedule to 38 & 39 Vict. c. 53. - -[1022] 39 & 40 Vict. c. 36, sec. 152. - -[1023] 38 & 39 Vict. c. 53. - -[1024] 10 & 11 Vict. c. 95. - -[1025] 57 & 58 Vict. (Canada), c. 33. - -[1026] 5 & 6 Vict. c. 45, sec. 17. - -[1027] _Morang_ v. _Publishers_ (1900), 32 Ont. Rep., 393. - -[1028] 63 & 64 Vict. (Canada), c. 25, known as the Fisher Act. - -[1029] (1876), 1 Tupp. App. Rep., 436. - -[1030] 5 & 6 Vict. c. 45, sec. 17; 39 & 40 Vict. c. 36, sec. 152. - -[1031] 38 & 39 Vict. c. 53, sec. 4. - -[1032] The type need not be set in Canada; _Frowde_ v. _Parish_ -(1896), 27 Ont. Rep., 526. - -[1033] 38 & 39 Vict. c. 53, schedule, sec. 15. - -[1034] _Anglo-Canadian_ v. _Suckling_ (1889), 17 Ont. Rep., 239. - -[1035] 63 & 64 Vict. (Canada), c. 25. - -[1036] 5 & 6 Vict. c. 45, sec. 17. - -[1037] See p. 146, _supra_. - -[1038] See p. 167, _supra_. - -[1039] See p. 161, _supra_. - -[1040] _Graves_ v. _Gorrie_ (1900), 32 Ont. Rep., 266. - -[1041] See p. 194, _infra_. - -[1042] _Morocco Bound Syndicate_ v. _Harris_ [1895], 1 Ch., 534. - -[1043] 7 & 8 Vict. c. 12, sec. 19; _Boucicault_ v. _Delafield_ (1863), -1 H. and M., 597. - -[1044] 49 & 50 Vict. c. 33, sec. 11. - -[1045] See p. 129. - -[1046] Berne Convention, Arts. 2, 14; 49 & 50 Vict. c. 33, sec. 2 (3); -Order in Council, Nov. 28, 1887, sec. 3. - -[1047] _Hanfstaengl_ v. _Empire Palace_ [1894], 3 Ch., 109. - -[1048] Additional Act of Paris, Art. I. 1; Berne Convention, Art. 13. - -[1049] _Hanfstaengl_ v. _Empire Palace_, _ubi supra._ - -[1050] Additional Act of Paris, Art. I. 1. - -[1051] Berne Convention, Art. 13. - -[1052] Additional Act of Paris, I. 1. - -[1053] Berne Convention, Art. 6; 49 & 50 Vict. c. 33, sec. 5 (3). - -[1054] Additional Act of Paris, II. 1. - -[1055] _i. e._ works delineating the steps in a dance or ballet. Berne -Convention, Final Protocol (2). - -[1056] 49 & 50 Vict. c. 33, sec. 6. - -[1057] See also Berne Convention, Final Protocol (4); Order in -Council, Nov. 28, 1887, sec. 3; Additional Act of Paris, Art. II. 2. - -[1058] _Lauri_ v. _Renad_ [1892], 3 Ch., 402. - -[1059] _Hanfstaengl_ v. _Holloway_ [1893], 2 Q. B., 1. - -[1060] [1892], 3 Ch., 402. - -[1061] Berne Convention, Art. 2; 49 & 50 Vict. c. 33, sec. 2 (3). - -[1062] 7 & 8 Vict. c. 12, sec. 6; 49 & 50 Vict. c. 33, sec. 4; Order -in Council, Nov. 28, 1887; _Hanfstaengl_ v. _American Tobacco Co._ -[1895], 1 Q. B., 347. - -[1063] Berne Convention, Art. 9. - -[1064] 8 Geo. II. c. 13. - -[1065] 54 Geo. III. c. 56. - -[1066] 7 & 8 Vict. c. 12, sec. 6. - -[1067] 49 & 50 Vict. c. 33, sec. 4. - -[1068] November 28, 1887. - -[1069] [1891], 2 Ch., 371. - -[1070] 7 & 8 Vict. c. 12, sec. 6. - -[1071] Berne Convention, Art. 1. - -[1072] 7 & 8 Vict. c. 12, secs. 3, 4, 5. - -[1073] [1893], 2 Q. B., 1. - -[1074] [1895], 1 Q. B., 347. - -[1075] [1891], 2 Ch., 371. - -[1076] [1895], 1 Q. B., 347. - -[1077] [1891], 2 Ch., 371. - -[1078] (1854), 10 Ex., 203; and see _Cassell_ v. _Stiff_ (1856), 2 K. -and J., 279. - -[1079] Scrutton on "Copyright," 3rd ed., p. 213. - -[1080] Additional Act of Paris, 1896, Art. II. - -[1081] Berne Convention, Art. 11. - -[1082] Ibid. - -[1083] 49 & 50 Vict. sec. 7. - -[1084] Additional Act of Paris, Art. I. 1; Order in Council, November -28, 1887, sec. 3; 7 & 8 Vict. c. 12, secs, 2, 3, 4; 49 & 50 Vict. c. -33, sec. 9. - -[1085] Berne Convention, Art. 2; Order in Council, November 28, 1887, -sec. 3; 49 & 50 Vict. c. 33, sec. 2 (3). - -[1086] See also Revenue Act, 1887. - -[1087] _Pitt Pitts_ v. _George_ [1896], 2 Ch., 866. - -[1088] [1900], 1 Ch., 73. - -[1089] 49 & 50 Vict. c. 33, sec. 9. - -[1090] See _Cassell_ v. _Stiff_ (1856), 2 K. and J., 279. - -[1091] _Per_ A. L. Smith, J., in _Moul_ v. _Groenings_ [1891], 2 Q. -B., 443. - -[1092] _Per_ A. L. Smith, J., in _Moul_ v. _Groenings_ [1891], 2 Q. -B., 443. - -[1093] _Schauer_ v. _Field_ [1893], 1 Ch., 35; _Hanfstaengl_ v. -_Holloway_ [1893], 2 Q. B., 1. - -[1094] _Schauer_ v. _Field_ [1893], 1 Ch., 35. - -[1095] _Per_ A. L. Smith, J., in _Moul_ v. _Groenings_ [1891], 2 Q. -B., 443; but see _Hanfstaengl_ v. _Holloway_ [1893], 2 Q. B., 1. - -[1096] 49 & 50 Vict. c. 33, sec. 5 (1); Additional Act of Paris, Art. -I. 3. - -[1097] Berne Convention, Art. 5; _cf._ 49 & 50 Vict. c. 33, sec. 2. - -[1098] Berne Convention, Art. 5. - -[1099] _Wood_ v. _Chart_ (1870), 10 Eq., 193; _Lauri_ v. _Renad_ -[1892], 3 Ch., Kekewich, J., at p. 414. - -[1100] _Per_ Sir W. M. James, V. C., in _Wood_ v. _Chart_. - -[1101] 15 Vict. c. 12, sec. 7; 49 & 50 Vict. c. 33, sec. 5 (4); -Additional Act of Paris, Art. I. 4. - -[1102] Additional Act of Paris, II. 1. - -[1103] Berne Convention, Art. 9. - -[1104] 15 Vict. c. 12, sec. 6; 38 and 39 Vict. c. 12, sec. 1; Order in -Council, Nov. 28, 1887, sec. 6. - -[1105] _Donaldson_ v. _Becket_ (1774), 2 Bro. P. C., 129; and see -_Millar_ v. _Taylor_ (1769), 4 Burr., 2303; _Tonson_ v. _Collins_ -(1760), 1 W. Black., 301, 321. - -[1106] See _Cox_ v. _Land and Water_ (1869), L. R., 9 Eq., 324; -_Reade_ v. _Conquest_ (1861), 9 C. B. (N. S.), 755; _Jefferys_ v. -_Boosey_ (1854), 4 H. L. C., 815. - -[1107] _Beckford_ v. _Hood_ (1798), 7 T. R., 620. - -[1108] _Platt_ v. _Walter_ (1867), 17 L. T. (N. S.), 157. - -[1109] See cases cited in arguments in _Tonson_ v. _Collins_ (1760), 1 -W. Black., 301, 321; _Donaldson_ v. _Beckett_ (1774), 2 Bro. P. C., p. -138; _Millar_ v. _Taylor_ (1769), 4 Burr., 2303; Lord St. Leonards in -_Jefferys_ v. _Boosey_ (1854), 4 H. L. C., at p. 979. - -[1110] _Maxwell_ v. _Hogg_ (1867), L. R., 2 Ch., 307. - -[1111] _Kelly_ v. _Hutton_ (1868), L. R., 3 Ch., 703. - -[1112] _Dicks_ v. _Yates_ (1881), 18 Ch. D., 76. - -[1113] _Licensed Victuallers_ v. _Bingham_ (1888), 38 Ch. D., 139. - -[1114] _Kelly_ v. _Byles_ (1879), 40 L. T. (N. S.), 623. - -[1115] _Mack_ v. _Petter_ (1872), L. R., 14 Eq., 431. - -[1116] _Weldon_ v. _Dicks_ (1878), 10 Ch. D., 247. - -[1117] _Dicks_ v. _Yates_ (1881), 18 Ch. D., 76. - -[1118] 18 Ch. D., at p. 89. - -[1119] _Borthwick_ v. _The Evening Post_ (1888), 37 Ch. D., 449; -_Bradbury_ v. _Beeton_ (1869), 39 L. J. Ch., 57; _Clement_ v. -_Maddick_ (1859), 1 Giff., 98. - -[1120] _Kelly_ v. _Hutton_ (1868), L. R., 3 Ch., 703; _Ward_ v. -_Beeton_ (1874), L. R., 19 Eq., 207. - -[1121] _Bradbury_ v. _Dickens_ (1859), 27 Beav., 53. - -[1122] (1885), 54 L. J. Ch., 1059. - -[1123] _Maxwell_ v. _Hogg_ (1867), L. R., 2 Ch., 307; _Licensed -Victuallers_ v. _Bingham_ (1888), 38 Ch. D.; _Correspondent News_ v. -_Saunders_ (1865), 11 Jur. (N. S.), 540. - -[1124] _Maxwell_ v. _Hogg_ (1867), L. R., 2 Ch., 307. - -[1125] _Schove_ v. _Schmincké_ (1886), 33 Ch. D., 546. - -[1126] _Talbot_ v. _Judges_ (1887), 3 T. L. R., 398. - -[1127] _Maxwell_ v. _Hogg_ (1867), L. R., 2 Ch., 307. - -[1128] _Prowett_ v. _Mortimer_ (1856), 2 Jur. (N. S.), 414. - -[1129] _Borthwick_ v. _Evening Post_ (1888), 37 Ch. D., 449; _Clement_ -v. _Maddick_ (1859), 1 Giff., 98. - -[1130] _Bradbury_ v. _Beeton_ (1869), 39 L. J. Ch., 57. - -[1131] (1803), 8 Ves., 215. - -[1132] (1824), 3 Sh., 215. - -[1133] (1855), 2 K. and J., 117. - -[1134] (1855), 2 K. and J., 123. - -[1135] (1856), 2 Jur. (N. S.), 414. - -[1136] (1859), 1 Giff., 98. - -[1137] (1859), 5 Jur. (N. S.), 947. - -[1138] (1870), W. N., 268. - -[1139] (1873), W. N., 93. - -[1140] (1878), 8 Ch. D., 606. - -[1141] (1846), 2 Phillips, 154. - -[1142] (1857), 3 K. and J., 708. - -[1143] (1869), 39 L. J. Ch., 57. - -[1144] (1879), 40 L. T. (N. S.), 623. - -[1145] (1881), 18 Ch. D., 76. - -[1146] (1882), 46 L. T. (N. S.), 897. - -[1147] (1885), 54 L. J. Ch., 1059. - -[1148] (1888), 37 Ch. D., 449. - -[1149] _Hogg_ v. _Kirby_ (1803), 8 Ves., 215. - -[1150] _Seeley_ v. _Fisher_ (1841), 11 Sim., 581. - -[1151] _Carr_ v. _Hood_ (1808), 1 Camp., 354 _n._ - -[1152] _Martin_ v. _Wright_ (1833), 6 Sim., 297. - -[1153] _Dicks_ v. _Brooks_ (1880), 15 Ch. D., 22; _Ward_ v. _Beeton_ -(1874), L. R., 19 Eq., 207; _Seeley_ v. _Fisher_ (1841), 11 Sim., 581. - -[1154] _Archbold_ v. _Sweet_ (1832), 5 C. and P., 219. - -[1155] (1853), 1 W. R., 345, 11 Hare, 118. - -[1156] _Clark_ v. _Freeman_ (1848), 11 Beav., 112. - -[1157] (1832), 5 C. and P., 219. - -[1158] _The Law Times_, September 28, 1889. - -[1159] (1892), 8 T. L. R., 773. - -[1160] _Byron_ v. _Johnston_ (1816), 2 Meriv., 29. - -[1161] (1820), 1 Jac. and W., 394. - -[1162] (1849), 2 De G. and Sm., 652. - -[1163] (1874), 43 L. J. Ch., 661. - -[1164] _Lamb_ v. _Evans_ [1893], 1 Ch., 218. - -[1165] [1892], 2 Ch., 518. - -[1166] (1895), 11 T. L. R., 515. - -[1167] [1895], 2 Q. B., 315. - -[1168] (1894), 11 T. L. R., 4. - -[1169] See _Jefferys_ v. _Boosey_ (1854), 4 H. L. C., 815, _per_ Lord -Brougham. - -[1170] (1843), 2 Hare, 383, at p. 393. - -[1171] (1825), 3 L. J. (O. S.) Ch., 209. - -[1172] (1849), 2 De G. and Sm., 652. - -[1173] [1897], 2 Ch., 48. _Exchange Telegraph_ v. _Gregory_ [1896], 1 -Q. B., 147. - -[1174] _Abernethy_ v. _Hutchinson_ (1825), 3 L. J. (O. S.), Ch., 209; -_Prince Albert_ v. _Strange_ (1849), 1 M'N. and G., at p. 45. - -[1175] _Bridgman_ v. _Green_ (1755), 2 Ves. Sen., 627, Wilmot's cases, -58. - -[1176] _Morison_ v. _Moat_ (1851), 9 Hare, 241. - -[1177] _Barfield_ v. _Nicholson_ (1824), 2 Sim. and Stu., 1. - -[1178] _Tuck & Sons_ v. _Priester_ (1887), 19 Q. B. D., 629; _Pollard_ -v. _Photo. Co._ (1888), 40 Ch. D., 345. - -[1179] (1887), 12 A. C., at p. 337. - -[1180] (1774), 2 Bro. P. C., 129; 4 Burr., 2408; _Millar_ v. _Taylor_ -(1769), 4 Burr., 2303; _Forrester_ v. _Walker_ (1741), 4 Burr., 2331; -_Duke of Queensberry_ v. _Shebbeare_ (1758), 2 Ed., Cha. Cas., 329; -4 Burr., 2330; _Webb_ v. _Rose_ (1732), Amb. 694; _Pope_ v. _Curl_ -(1741), 2 Atk., 342. - -[1181] (1849), 1 M'N. and G., 25. - -[1182] _Millar_ v. _Taylor_, Yates, J., 4 Burr, at p. 2379; and see -_Tonson_ v. _Walker_ (1752), 3 Swanst., 672; _Prince Albert_ v. -_Strange_ (1849), 2 De G. and Sm., 652, at p. 691, 3. - -[1183] 2 De G. and Sm., p. 693. - -[1184] 2 De G. and Sm., at p. 697. - -[1185] (1769), 4 Burr., 2303, at p. 2379. - -[1186] _Jefferys_ v. _Boosey_ (1854), 4 H. L. C., 815; _Caird_ v. -_Sime_ (1887), 12 A. C., at p. 343. - -[1187] _Abernethy_ v. _Hutchinson_ (1825), 3 L. J. (O. S.), Ch., 209. -See p. 37, _supra_. - -[1188] (1770), Amb., 694. - -[1189] (1825), 3 L. J. (O. S.), Ch., 209. - -[1190] (1884), 26 Ch. D., 374. - -[1191] (1887), 12 A. C., 326. - -[1192] See _Pope_ v. _Curl_ (1741), 2 Atk., 342. - -[1193] 12 A. C., at p. 338. - -[1194] _Prince Albert_ v. _Strange_ (1849), 1 M'N. and G., 25; and see -_Mayall_ v. _Higbey_ (1862), 1 H. and C., 148. - -[1195] _Southey_ v. _Sherwood_ (1817), 2 Mer., 435. - -[1196] _Southey_ v. _Sherwood_ (1817), 2 Mer., 435; and see cases as -to publication of private letters, p. 225. - -[1197] _Prince Albert_ v. _Strange_ (1849), 2 De G. and Sm., at p. 697. - -[1198] _Southey_ v. _Sherwood_ (1817), 2 Mer., 435. - -[1199] _Prince Albert_ v. _Strange_ (1849), 2 De G. and Sm., at p. 688. - -[1200] (1825), 3 L. J. (O. S.). Ch., 209. - -[1201] (1884), 26 Ch. D., 374. - -[1202] (1825), 3 L. J. (O. S.), Ch., 209. - -[1203] See p. 57, _supra_. - -[1204] _Perceval_ v. _Phipps_ (1813), 2 V. and B., 19. - -[1205] _Pope_ v. _Curl_ (1741), 2 Atk., 342; _Thompson_ v. _Stanhope_ -(1774), Amb., 737; _Granard_ v. _Dunkin_ (1809), 1 Ball and B., 207; -_Gee_ v. _Pritchard_ (1818), 2 Swanst., 402; _Palin_ v. _Gathercole_ -(1844), 1 Coll., 565. - -[1206] _Gee_ v. _Pritchard_ (1818), 2 Swanst., 402. - -[1207] _Howard_ v. _Gunn_ (1863), 32 Beav., 462. - -[1208] _Oliver_ v. _Oliver_ (1861), 11 C. B. (N. S.), 139. - -[1209] _Gee_ v. _Pritchard_ (1818), 2 Swanst., 402. - -[1210] _Lytton_ v. _Devey_ (1884), 52 L. T. (N. S.), 121. - -[1211] _Gee_ v. _Pritchard_ (1818), 2 Swanst., 402. - -[1212] _Thompson_ v. _Stanhope_ (1774), Amb., 737; _Lytton_ v. _Devey_ -(1884), 52 L. T. (N. S.), 121. - -[1213] _Perceval_ v. _Phipps_ (1813), 2 V. and B., 19. - -[1214] _Perceval_ v. _Phipps_ (1813), 2 V. and B., 19; _Gee_ v. -_Pritchard_ (1818), 2 Swan., 402; _Palin_ v. _Gathercole_ (1844), 1 -Coll., 565; _Lytton_ v. _Devey_ (1884), 52 L. T. (N. S.), 121. - -[1215] _Hole_ v. _Bradbury_ (1879), 12 Ch. D., 886; _Stevens_ v. -_Beaming_ (1855), 1 K. and J., 168; _Reade_ v. _Bentley_ (1857), 3 K. -and J., 271. - -[1216] _Hole_ v. _Bradbury_ (1879), 12 Ch. D., 886. - -[1217] _Griffith_ v. _Tower Publishing_ [1897], 1 Ch., 21. - -[1218] _Gibson_ v. _Carruthers_ (1841), 8 M. and W., 321, at pp. 343, -4. - -[1219] _Gale_ v. _Leckie_ (1817), 2 Stark, N. P., 107. - -[1220] _Gibson_ v. _Carruthers_ (1841), 8 M. and W., 321, at pp. 343, -4. - -[1221] _Marshall_ v. _Broadhurst_ (1831), 1 Tyr., 348, at p. 349. - -[1222] _Clarke_ v. _Price_ (1819), 2 Wills, C. C., 157; and see -_Whitwood_ v. _Hardman_ [1891], 2 Ch., 416. - -[1223] _Gale_ v. _Leckie_ (1817), 2 Stark, 107. - -[1224] _Morris_ v. _Colman_ (1812), 18 Ves., 437; _Stiff_ v. _Cassell_ -(1856), 2 Jur. (N. S.), 348. - -[1225] _Thombleson_ v. _Black_ (1837), 1 Jur., 198. - -[1226] _Paton_ v. _Duncan_ (1828), 3 C. and P., 336. - -[1227] _Planché_ v. _Colburn_ (1831), 5 C. and P., 58. - -[1228] _Warne_ v. _Routledge_ (1874), L. R., 18 Eq., 497. - -[1229] Ibid. - -[1230] _Reade_ v. _Bentley_ (1857), 3 K. and J., 271. - -[1231] _Morris_ v. _Colman_ (1812), 18 Ves., 437; _Stiff_ v. _Cassell_ -(1856), 2 Jur. (N. S.), 348. - -[1232] _Anstruther_ v. _Bentley_ (1866), 14 W. R., 630. - -[1233] _Ward_ v. _Beeton_ (1874), L. R., 19 Eq., 207. - -[1234] _Rooney_ v. _Kelly_ (1861), 14 Ir. C. L. R., 158, at p. 178. - -[1235] _Barfield_ v. _Nicholson_ (1824), 2 Sim. and Stu., 2; see -_Brooke_ v. _Chitty_ (1831), 2 Coop. Cas., 216; _Blackie_ v. _Aikman_ -(1827), 5 S., 719. - -[1236] See _Hogg_ v. _Kirby_ (1803), 8 Ves., 215, at p. 222. - -[1237] _Reade_ v. _Bentley_ (1857), 3 K. and J., 271. - -[1238] Ibid. - -[1239] See _Constable_ v. _Brewster_ (1824), 3 S., 215; _Kelly_ v. -_Hutton_ (1868), L. R., 3 Ch., 703; _Platt_ v. _Walter_ (1867), 17 L. -T. (N. S.), 157. - -[1240] _Johnson_ v. _Egan_ (1880), 24 Sol. J., 572. - -[1241] _Shackell_ v. _Rosier_ (1836), 2 Bing., N. C., 634. - -[1242] _Sweet_ v. _Lee_ (1841), 3 Man. and Gr., 452; see _Mavor_ v. -_Pyne_ (1825), 3 Bing., 285; _Boydell_ v. _Drummond_ (1809), 11 East., -142. - -[1243] 54 & 55 Vict. c. 39. - -[1244] 5 & 6 Vict. c. 45, sec. 13. - -[1245] _Blake_ v. _Nicholson_ (1814), 3 M. and S., 167. - -[1246] _Bleaden_ v. _Hancock_ (1829), 4 C. and P., 152. - -[1247] 2 & 3 Vict. c. 12, sec. 2; and Newspapers, Printers, and -Reading Rooms Repeal Act, 1869; 32 & 33 Vict. c. 24. - -[1248] _Bensley_ v. _Bignold_ (1822), 5 B. and Ald., 335; _Marchant_ -v. _Evans_ (1818), 2 Moore, 14; see _Houston_ v. _Mills_ (1834), 1 M. -and Rob., 325. - -[1249] _Gillett_ v. _Mawman_ (1808), 1 Taunt., 140. - -[1250] _Gillett_ v. _Mawman_ (1808), 1 Taunt., 140; _Mawman_ v. -_Gillett_ (1809), 2 Taunt., 325. - -[1251] _Poplett_ v. _Stockdale_ (1825), Ry. and M., 337. - -[1252] _Clay_ v. _Yates_ (1856), 1 H. and N., 73. - -[1253] See p. 247. - -[1254] See pp. 250-264. - -[1255] See p. 266. - -[1256] _Bullinger_ v. _MacKay_ (1879), 15 Blatchf., 550; _Clayton_ v. -_Stone_ (1828), 2 Paine, 382; _Brightley_ v. _Littleton_ (1888), 37 -Fed. Rep., 103. - -[1257] _Clayton_ v. _Stone_ (1828), 2 Paine, 382; _Baker_ v. _Selden_ -(1879), 101 U. S. Rep., 99; _Wheaton_ v. _Peters_ (1834), 8 Pet., 591. - -[1258] (1828), 2 Paine, 382. - -[1259] (1888), 37 Fed. Rep., 103. - -[1260] (1896), 75 Fed. Rep., 703. - -[1261] [1893], 1 Ch., 218 (headings in trades directory). - -[1262] [1894], A. C., 335 (circular tours in time-tables). - -[1263] (1897), 53 U. S. App., 461. - -[1264] [1900], A. C., 539. - -[1265] (1897), 53 U. S. App., 461. - -[1266] (1882), 21 Ch. D., 369. - -[1267] (1879), 101 U. S. Rep., 99. - -[1268] (1872), L. R., 14 Eq., 407. - -[1269] (1883), 21 Ch. D., 369. - -[1270] (1828), 2 Paine, 382. - -[1271] (1897), 53 U. S. App., 461. - -[1272] (1828), 2 Paine, 382. - -[1273] (1879), 101 U. S. Rep., 99. - -[1274] _Bullinger_ v. _MacKay_ (1879), 15 Blatchf., 550. - -[1275] _Chils_ v. _Gronland_ (1890), 41 Fed. Rep., 145. - -[1276] (1896), 75 Fed. Rep., 703. - -[1277] (1828), 2 Paine, 382. - -[1278] _Mott_ v. _Clow_ (1897), 53 U. S. App., 461. - -[1279] _Egbert_ v. _Greenberg_ (1900), 100 Fed. Rep., 447. - -[1280] _American Trotting_ v. _Gocher_ (1895), 70 Fed. Rep., 237. - -[1281] (1888), 37 Fed. Rep., 103. - -[1282] (1893), 57 Fed. Rep., 979. - -[1283] _Mutual Advertising Co._ v. _Refo_ (1896), 76 Fed. Rep., 961. - -[1284] 76 Fed. Rep., at p. 963. - -[1285] _Aronson_ v. _Fleckenstein_ (1886), 28 Fed. Rep., 75; _Daly_ v. -_Webster_ (1892), 1 U. S. App., 573; _Henderson_ v. _Tompkins_ (1894), -60 Fed. Rep., 758. - -[1286] (1894), 60 Fed. Rep., 758. - -[1287] _Callaghan_ v. _Myers_ (1888), 128 U. S. Rep., 617; _Wheaton_ v. -_Peters_ (1834), 8 Pet., 591; _Little_ v. _Hall_ (1855), 18 How., 165; -_Gould_ v. _Banks_ (1832), 8 Wend., 562; _Heine_ v. _Appleton_ (1853), -4 Blatchf., 125; _Cowen_ v. _Banks_ (1862), 24 How. Pr., 72. - -[1288] _Callaghan_ v. _Myers_ (1888), 128 U. S. Rep., 617. - -[1289] _Connecticut_ v. _Gould_ (1888), 34 Fed. Rep., 319; _Gray_ v. -_Russell_ (1839), 1 Story, 11; _West_ v. _Lawyers_ (1896), 51 U. S. -App., 216, 64 Fed. Rep., 360. - -[1290] _Wheaton_ v. _Peters_ (1834), 8 Pet., 591; _Nash_ v. _Lathrop_ -(1886), 142 Mass., 29. - -[1291] _Banks_ v. _Manchester_ (1888), 128 U. S. Rep., 244; _Chase_ v. -_Sanborn_ (1874), 4 Cliff., 306. - -[1292] _Davidson_ v. _Wheelock_ (1886), 27 Fed. Rep., 61; _Banks_ v. -_M'Divitt_ (1875), 13 Blatchf., 163; _Howell_ v. _Miller_ (1898), 91 -Fed. Rep., 129. - -[1293] Ibid. - -[1294] Ibid. - -[1295] _Emerson_ v. _Davis_ (1845), 3 Story, 768; _Lawrence_ v. _Dana_ -(1869), 4 Cliff., 1; _Black_ v. _Allen_ (1893), 56 Fed. Rep. 764. - -[1296] _Brightley_ v. _Littleton_ (1888), 37 Fed. Rep., 103; _Gray_ v. -_Russell_ (1839), 1 Story, 11; _Lawrence_ v. _Dana_ (1869), 4 Cliff., -at p. 79; _Mead_ v. _West_ (1896), 80 Fed. Rep., 380. - -[1297] _Emerson_ v. _Davis_ (1845), 3 Story, 768. - -[1298] _Emerson_ v. _Davis_ (1845), 3 Story, at p. 780; _Shook_ v. -_Rankin_ (1875), 6 Biss., 477. - -[1299] _Aronson_ v. _Fleckenstein_ (1886), 28 Fed. Rep., 75. - -[1300] _Boucicault_ v. _Fox_ (1862), 5 Blatchf., 87, at p. 100. - -[1301] _Jollie_ v. _Jacques_ (1850), 1 Blatchf., 618. See _Reed_ v. -_Carusi_ (1845), 8 L. R., 411; 72 Fed. Cas., No. 11,642. - -[1302] (1883), 14 Fed. Rep., 849. - -[1303] (1886), 27 Fed. Rep., 861. - -[1304] _Lawrence_ v. _Dana_ (1869), 4 Cliff., 1; _Gray_ v. _Russell_ -(1839), 1 Story, 11. - -[1305] _Snow_ v. _Laird_ (1900), 98 Fed. Rep., 813. - -[1306] _Clayton_ v. _Stone_ (1828), 2 Paine, 382; _Brightley_ v. -_Littleton_ (1888), 37 Fed. Rep., 103; _Mott_ v. _Clow_ (1897), 53 -U. S. App., 461. - -[1307] _Clayton_ v. _Stone_ (1828), 2 Paine, 382; _Drury_ v. _Ewing_ -(1862), 1 Bond, 541. - -[1308] (1897), 53 U. S. App., 449. - -[1309] (1879), 101 U. S. Rep., 99. - -[1310] 101 U. S. Rep., at p. 105. - -[1311] (1862), 1 Bond, 541. - -[1312] _Coffeen_ v. _Brunton_ (1849), 4 M'Lean, 516; _Scoville_ v. -_Toland_ (1848), 6 West Law, J., 84. - -[1313] Rev. St., sec. 4952. - -[1314] _Greene_ v. _Bishop_ (1858), 1 Cliff., 186; _Gray_ v. _Russell_ -(1839), 1 Story, 11; _Emerson_ v. _Davis_ (1845), 3 Story, 768. - -[1315] _Gray_ v. _Russell_ (1839), 1 Story, 11; _Bullinger_ v. -_MacKay_ (1879), 15 Blatchf., 550; _Brightley_ v. _Littleton_ (1888), -37 Fed. Rep., 103; _Johnson_ v. _Donaldson_ (1880), 3 Fed. Rep., 22. - -[1316] (1841), 2 Story, 100. - -[1317] _Isaacs_ v. _Daly_ (1875), 39 N. Y., 511; _Osgood_ v. _Allen_ -(1872), 1 Holmes, 185; _Corbett_ v. _Purday_ (1897), 80 Fed. Rep., -901; _Jollie_ v. _Jacques_ (1850), 1 Blatchf., 618. - -[1318] _Osgood_ v. _Allen_ (1872), 1 Holmes, 185; see _Roberts_ v. -_Myers_ (1860), 13 L. R. (Mass.), 398; _Black_ v. _Allen_ (1893), 56 -Fed. Rep., 764. - -[1319] _Isaacs_ v. _Daly_ (1875), 39 N. Y., 511. - -[1320] Rev. St., secs. 4937-4947. - -[1321] _Wood_ v. _Abbott_ (1866), 5 Blatchf., 325. - -[1322] _Schreiber_ v. _Thornton_ (1883), 17 Fed. Rep., 603; -_Burrow-Giles_ v. _Sarony_ (1884), 111 U. S. Rep., 53; _Falk_ v. _Gast_ -(1891), 48 Fed. Rep., 262; _Falk_ v. _Brett_ (1891), 48 Fed. Rep., -678; _Bolles_ v. _Outing_ (1899), 175 U. S. Rep., 262; 77 Fed. Rep., -966. - -[1323] _Bolles_ v. _Outing_ (1899), 175 U. S. Rep., 262; 77 Fed. Rep., -966. - -[1324] _Falk_ v. _Gast_ (1891), 48 Fed. Rep., 262; _Falk_ v. _Brett_ -(1891), 48 Fed. Rep., 678; _Falk_ v. _Donaldson_ (1893), 57 Fed. Rep., -32. - -[1325] _Bolles_ v. _Outing_ (1899), 175 U. S. Rep., 262; 77 Fed. Rep., -966. - -[1326] _Snow_ v. _Laird_ (1900), 98 Fed. Rep., 813. - -[1327] _Binns_ v. _Woodruff_ (1821), 4 Wash. C. Ct., 48; _Ehret_ v. -_Pierce_ (1880), 18 Blatchf. 302. - -[1328] _Mott_ v. _Clow_ (1897), 53 U. S. App., 461. - -[1329] _Collender_ v. _Griffith_ (1878), 11 Blatchf., 212. - -[1330] _Ehret_ v. _Pierce_ (1880), 18 Blatchf., 302. - -[1331] _Courier_ v. _Donaldson_ (1900), 104 Fed. Rep., 993; -_Bleistein_ v. _Donaldson_ (1899), 98 Fed. Rep., 608. - -[1332] _Yuengling_ v. _Schile_ (1882), 12 Fed. Rep., 97. - -[1333] _Richardson_ v. _Miller_ (1877), 3 L. and Eq. Rep. (Am.), 614. - -[1334] (1888), 35 Fed. Rep., 210. - -[1335] _Coffeen_ v. _Brunton_ (1849), 4 M'L., 516; _Higgins_ v. -_Keuffel_ (1891), 140 U. S. Rep., 428. - -[1336] _Schumacher_ v. _Schwencke_ (1885), 23 Blatchf., 373; 25 Fed. -Rep., 466. - -[1337] _Rosenbach_ v. _Dreyfuss_ (1880), 2 Fed. Rep., 217. - -[1338] _Yuengling_ v. _Schile_ (1882), 12 Fed. Rep., 97, 102. - -[1339] See _Yuengling_ v. _Schile_ (1882), 12 Fed. Rep., at p. 102. - -[1340] _Boucicault_ v. _Wood_ (1867), 2 Biss., 34. - -[1341] Act of March 3, 1891, sec. 3, amending Revised Statutes, sec. -4956. - -[1342] Ibid. - -[1343] Act of March 3, 1891, amending Revised Statutes, sec. 4959. - -[1344] Act of March 3, 1891, sec. 11. - -[1345] _Jollie_ v. _Jacques_ (1850), 1 Blatchf., 618; _Struve_ v. -_Schwedler_ (1857), 4 Blatchf., 23; _Wheaton_ v. _Peters_ (1834), 8 -Pet., 591; _Chase_ v. _Sanborne_ (1874), 4 Cliff., 306; _Merrell_ -v. _Tice_ (1881), 104 U. S. Rep., 557; _Baker_ v. _Taylor_ (1848), -2 Blatchf., 82; _Carte_ v. _Evans_ (1886), 27 Fed. Rep., 861; -_Thompson_ v. _Hubbard_ (1888), 131 U. S. Rep., 123; _Callaghan_ v. -_Myers_ (1888), 128 U. S. Rep., 617; _Parkinson_ v. _Lascelle_ (1875), -3 Sawyer, 330; _Boucicault_ v. _Hart_ (1875), 13 Blatchf., 47; -_Lawrence_ v. _Dana_ (1869), 4 Cliff., 1; _Ewer_ v. _Coxe_ (1824), 4 -Wash. C. Ct., 487. - -[1346] _Wheaton_ v. _Peters_ (1834), 8 Pet., 591; _Merrell_ v. _Tice_ -(1881), 104 U. S. Rep., 557; _Banks_ v. _Manchester_ (1888), 128 U. S., -244; _West_ v. _Lawyers_ (1896), 64 Fed. Rep., 360. - -[1347] _Osgood_ v. _Aloe_ (1897), 83 Fed. Rep., 470. - -[1348] _Chicago_ v. _Butler_ (1884), 19 Fed. Rep., 758; _Parkinson_ -v. _Lascelle_ (1875), 3 Sawyer, 330; _Merrell_ v. _Tice_ (1881), 104 -U. S., Rep., 557. - -[1349] _Osgood_ v. _Aloe_ (1897), 83 Fed. Rep., 470. - -[1350] _Chase_ v. _Sanborne_ (1874), 4 Cliff., 306. - -[1351] _Chapman_ v. _Ferry_ (1883), 18 Fed. Rep., 539. - -[1352] _Jewellers'_ v. _Jewellers'_ (1898), 84 Hun., 12; 155 N. Y., -241; see _Scribner_ v. _Allen_ (1892), 49 Fed. Rep., 854; _Boucicault_ -v. _Hart_ (1875), 13 Blatchf., 47. - -[1353] _Falk_ v. _Gast_ (1891), 48 Fed. Rep., 262. - -[1354] (1882), 20 Blatchf., 381. - -[1355] _Carte_ v. _Evans_ (1886), 27 Fed. Rep., 681. - -[1356] (1893), 56 Fed. Rep., 764. - -[1357] (1889), 39 Fed. Rep., 265. - -[1358] (1892), 1 U. S. App., 573. - -[1359] _Black_ v. _Allen_ (1893), 56 Fed. Rep., 764. - -[1360] _Bennett_ v. _Carr_ (1899), 96 Fed. Rep., 213. - -[1361] _Belford_ v. _Scribner_ (1892), 144 U. S. Rep., 488; _Chapman_ -v. _Ferry_ (1883), 18 Fed. Rep., 539; _Falk_ v. _Donaldson_ (1893), 57 -Fed. Rep., 32. - -[1362] _Osgood_ v. _Aloe_ (1897), 72 Off. Gaz., 418. - -[1363] _Callaghan_ v. _Myers_ (1888), 128 U. S. Rep., at p. 655; -_Belford_ v. _Scribner_ (1892), 144 U. S. Rep., 488; _Merrell_ v. -_Tice_ (1881), 104 U. S. Rep., 557; _Blume_ v. _Spear_ (1887), 30 Fed. -Rep., 629. - -[1364] _Black_ v. _Allen_ (1893), 56 Fed. Rep., 764. - -[1365] Ibid. - -[1366] Act of March 3, 1891, sec. 3, amending Revised Statutes, sec. -4956. - -[1367] _Littleton_ v. _Oliver_ (1894), 62 Fed. Rep., 597. - -[1368] Ibid. - -[1369] Act of June 18, 1874, sec. 1. This section supersedes the -Revised Statutes, sec. 4962. - -[1370] Ibid. - -[1371] Act of August 1, 1882. - -[1372] Act of June 18, 1874, sec. 1. - -[1373] _Jackson_ v. _Walkie_ (1886), 29 Fed. Rep., 15. - -[1374] _Falk_ v. _Schumacher_ (1891), 48 Fed. Rep., 222. - -[1375] _Hefel_ v. _Whitely_ (1893), 54 Fed. Rep., 179; and see -_Garland_ v. _Gemmill_ (1887), 14 S. C. R., 321. - -[1376] _Osgood_ v. _Aloe_ (1897), 83 Fed. Rep., 470. - -[1377] _Scribner_ v. _Allen & Co._ (1892), 49 Fed. Rep., 854; -_Werckmeister_ v. _Springer_ (1894), 63 Fed. Rep., 808. - -[1378] _The Illustrated American_ v. _New York Press_ (1892), cited in -argument, 1 U. S. Rep., 594. - -[1379] _Burrow-Giles_ v. _Sarony_ (1884), 111 U. S. Rep., 53. - -[1380] _Bolles_ v. _Outing_ (1899), 77 Fed. Rep., 966; 175 U. S. Rep., -262. - -[1381] Ibid. - -[1382] _Werckmeister_ v. _Springer_ (1894), 63 Fed. Rep., 808. - -[1383] (1901), 107 Fed. Rep., 708. - -[1384] (1848), 2 Blatchf., 82. - -[1385] (1888), 128 U. S. Rep., 617. - -[1386] (1888), 35 Fed. Rep., 210. - -[1387] _Snow_ v. _Mast_ (1895), 65 Fed. Rep., 995; _Bolles_ v. -_Outing_ (1899), 175 U. S. Rep., 262. - -[1388] (1869), 4 Cliff. 1, at p. 61. - -[1389] Ibid. - -[1390] (1875), 13 Blatchf., 163. - -[1391] Act of June 18, 1874, sec. 1; _Thompson_ v. _Hubbard_ (1888), -131 U. S. Rep., 123. - -[1392] _Thompson_ v. _Hubbard_ (1888), 131 U. S. Rep., 123. - -[1393] _Falk_ v. _Gast_ (1891), 48 Fed. Rep., 262; _Falk_ v. _Gast_ -(1893), 54 Fed. Rep., 890. - -[1394] _Springer_ v. _Falk_ (1894), 20 U. S. App., 296. - -[1395] _Dewight_ v. _Appleton_ (1842), 1 N. Y. Leg. Obs., 195. - -[1396] Act of March 3, 1891, sec. 11. - -[1397] _Pierce_ v. _Werckmeister_ (1896), 72 Fed. Rep. 57. - -[1398] _Black_ v. _Allen_ (1890), 42 Fed. Rep., 168. - -[1399] _Pulte_ v. _Derby_ (1852), 5 M'L., 328; M'Lean, J., at p. 332. - -[1400] See _Boucicault_ v. _Wood_ (1867), 2 Biss., 34. - -[1401] (1875), 13 Blatchf., 47. - -[1402] (1896), 84 Hun., 12. - -[1403] (1896), 75 Fed. Rep., 703. - -[1404] (1896), 75 Fed. Rep., 703. - -[1405] (1898), 155 N. Y., 241. - -[1406] _Jewellers'_ v. _Jewellers'_ (1895), 84 Hun., 12. - -[1407] _Osgood_ v. _Aloe_ (1897), 83 Fed. Rep., 470; _Gottsberger_ -v. _Aldine_ (1887), 33 Fed. Rep., 381; _Baker_ v. _Taylor_ (1848), 2 -Blatchf., 82. - -[1408] _Per_ Parker, Ch. J., in _Jewellers'_ v. _Jewellers'_ (1898), -155 N. Y., at p. 251. - -[1409] _D'Ole_ v. _Kansas_ (1899), 94 Fed. Rep., 840. - -[1410] _Black_ v. _Allen_ (1893), 56 Fed. Rep., 764; see _Baker_ v. -_Taylor_ (1848), 2 Blatchf., 82; _Wall_ v. _Gordon_ (1872), 12 Abb. -Pr. N. S. (N. Y.), 349. - -[1411] _Press Publishing Co._ v. _Monroe_ (1896), 73 Fed. Rep., -196; and see _Blunt_ v. _Patten_ (1828), 2 Paine, 397; _Keene_ v. -_Wheatley_ (1860), 9 Am. L. Reg., 45. - -[1412] _Bartlett_ v. _Crittenden_ (1847), 4 M'L., 301. - -[1413] _Falk_ v. _Gast_ (1893), 54 Fed. Rep., 890. - -[1414] _French_ v. _Kreling_ (1894), 63 Fed. Rep., 621. - -[1415] _Kiernan_ v. _Manhattan_ (1876), 50 How. Prac., 194. - -[1416] _Rigney_ v. _Dalton_ (1896), 77 Fed. Rep., 176. - -[1417] _Jewellers'_ v. _Jewellers'_ (1898), 155 N. Y., 241. - -[1418] _Larrowe_ v. _O'Loughlin_ (1898), 88 Fed. Rep., 896. - -[1419] _Jewellers'_ v. _Jewellers'_ (1898), 155 N. Y., 241; _Ladd_ v. -_Oxnard_ (1896), 75 Fed. Rep., 703. - -[1420] _Holmes_ v. _Hurst_ (1898), 174 U. S. Rep. 82; _Holmes_ v. -_Donohue_ (1896), 77 Fed. Rep., 179; _Mifflin_ v. _Dutton_ (1901), 107 -Fed. Rep., 708. - -[1421] See _Bartlett_ v. _Crittenden_ (1847), 4 M. L., 301; _Rees_ v. -_Peltzer_ (1874), 75 Ill., 475; _Keene_ v. _Wheatley_ (1860), 9 Am. L. -Rep., 45; _Palmer_ v. _De Witt_ (1872), 47 N. Y., 532. - -[1422] _Palmer_ v. _De Witt_ (1872), 47 N. Y., 532; _Aronson_ v. -_Fleckenstein_ (1886), 28 Fed. Rep., 75; _Bartlett_ v. _Crittenden_ -(1847), 4 M'L., 301; _Boucicault_ v. _Hart_ (1875), 13 Blatchf., 47; -_Tompkins_ v. _Halleck_ (1882), 133 Mass., 32; _Keene_ v. _Wheatley_ -(1860), 4 Phil., 157; _Keene_ v. _Kimball_ (1860), 16 Gray, 549; -_Boucicault_ v. _Fox_ (1862), 5 Blatchf., 87; _Crowe_ v. _Aiken_ -(1870), 2 Biss., 208; _Thomas_ v. _Lennox_ (1883), 14 Fed. Rep., 849; -_Keene_ v. _Clarke_ (1867), 5 Rob. (N. Y.), 38; _Shook_ v. _Rankin_ -(1875), 6 Biss., 477; _French_ v. _Maguire_ (1867), 55 How. (N. Y.) -Prac., 471. - -[1423] _Pierce_ v. _Werckmeister_ (1896), 72 Fed. Rep., 57. - -[1424] _Werckmeister_ v. _Springer_ (1894), 63 Fed. Rep., 808. - -[1425] _Palmer_ v. _De Witt_ (1872), 47 N. Y., 532; _Boucicault_ v. -_Wood_ (1867), 2 Biss., 34; _Crowe_ v. _Aiken_ (1870), 2 Biss., 208. - -[1426] _Daly_ v. _Walrath_ (1899), 40 App. Div., N. Y., 220. - -[1427] Ibid. - -[1428] _Boucicault_ v. _Wood_ (1867), 2 Biss., at p. 39. - -[1429] Act of 1891, sec. 4, amending Revised Statutes, sec. 4958; and -see Act, June 18, 1874, sec. 2. - -[1430] Act of 1891, sec. 4. - -[1431] Ibid. - -[1432] Revised Statutes, sec. 4961. - -[1433] Revised Statutes, sec. 4960. - -[1434] _Martinetti_ v. _Maguire_ (1867), 1 Abb. U. S., 356; _Shook_ v. -_Daly_ (1875), 49 How. Prac., 366; _Keene_ v. _Kimball_ (1860), 16 -Gray, 549. - -[1435] _Broder_ v. _Zeno_ (1898), 88 Fed. Rep., 74. - -[1436] Ibid. - -[1437] _Richardson_ v. _Miller_ (1877), 3 L. and Eq. Rep. (Am.), 614. - -[1438] _Egbert_ v. _Greenberg_ (1900), 100 Fed. Rep., 447. - -[1439] _American Trotting Register_ v. _Gocker_ (1895), 70 Fed. Rep., -237. - -[1440] Revised Statutes, sec. 4953. - -[1441] Act of 1891, sec. 2. - -[1442] (1888), 128 U. S. Rep., 617. - -[1443] _Pierpont_ v. _Fowle_ (1846), 2 Wood, and Min., 23, 44; _Cowen_ -v. _Banks_ (1862), 24 How. Prac., 72; see _Rundell_ v. _Murray_ -(1821), Jac., 315. - -[1444] _Paige_ v. _Banks_ (1871), 13 Wall, 608; (1871), 7 Blatchf., -152. - -[1445] _Wheaton_ v. _Peters_ (1834), 8 Pet., 591, 654. - -[1446] _Lawrence_ v. _Dana_ (1869), 4 Cliff., 1. - -[1447] _Koppel_ v. _Downing_, 24 Wash. L. R., 342. - -[1448] _Little_ v. _Gould_ (1851), 2 Blatchf., 165; _Green_ v. -_Bishop_ (1858), 1 Cliff., 186, 198; _Yuengling_ v. _Schile_ (1882), -12 Fed. Rep., 97, 100. - -[1449] _Yuengling_ v. _Schile_ (1882), 12 Fed. Rep., at p. 106. - -[1450] _Heine_ v. _Appleton_ (1853), 4 Blatchf., 125. - -[1451] _Press_ v. _Munroe_ (1896), 73 Fed. Rep., 196; _Black_ v. -_Allen_ (1893), 56 Fed. Rep., 764. - -[1452] _Black_ v. _Allen_ (1893), 56 Fed. Rep., 764. - -[1453] _Burrow-Giles_ v. _Sarony_ (1884), 111 U. S., 53. - -[1454] _Bullinger_ v. _MacKay_ (1879), 15 Blatchf., 550. - -[1455] _Atwill_ v. _Ferrett_ (1846), 2 Blatchf., 39; _Roberts_ v. -_Myers_ (1860), 13 L. R. Mass., 396. - -[1456] _Gray_ v. _Russell_ (1839), 1 Story, 11; Betts, J., in _Atwill_ -v. _Ferrett_ (1846), 2 Blatchf., at p. 46. - -[1457] _Aronson_ v. _Fleckenstein_ (1886), 28 Fed. Rep., 75. - -[1458] _Carte_ v. _Bailey_ (1874), 64 Maine, 458. - -[1459] _Colliery_ v. _Schools_ (1899), 94 Fed. Rep., 152; _Schumacher_ -v. _Schwencke_ (1885), 25 Fed. Rep., 466; _Mutual Advertising_ v. -_Refo_ (1896), 76 Fed. Rep., 961; _Lawrence_ v. _Dana_ (1869), 4 -Cliff., 1; _Little_ v. _Gould_ (1851), 2 Blatchf., 165; _Heine_ v. -_Appleton_ (1853), 4 Blatchf., 125; but see _Pierpont_ v. _Fowle_ -(1846), 2 Woodb. and M., 23; _Atwill_ v. _Ferrett_ (1846), 2 Blatchf., -39. - -[1460] _Dielman_ v. _White_ (1900), 102 Fed. Rep., 892. - -[1461] _Boucicault_ v. _Fox_ (1862), 5 Blatchf., 87. - -[1462] _Press_ v. _Munroe_ (1896), 73 Fed. Rep., 196; _Black_ v. -_Allen_ (1893), 56 Fed. Rep., 764. - -[1463] _Lawrence_ v. _Dana_ (1869), 4 Cliff., 1, at pp. 59, 66. - -[1464] _Banks_ v. _Manchester_ (1888), 128 U. S. Rep., at p. 253. - -[1465] Ibid. - -[1466] _Schumacher_ v. _Schwencke_ (1885), 25 Fed. Rep., 466; _Mutual -Advertising_ v. _Refo_ (1896), 76 Fed. Rep., 961. - -[1467] (1853), 4 Blatchf., 125 - -[1468] _Little_ v. _Gould_ (1851), 2 Blatchf., 165. - -[1469] _Callaghan_ v. _Myers_ (1888), 128 U. S. Rep., 617; _Black_ -v. _Allen_ (1890), 42 Fed. Rep., 618; _Carte_ v. _Evans_ (1886), 27 -Fed. Rep., 861; _Lawrence_ v. _Dana_ (1869), 4 Cliff., 1, at p. 59; -_Little_ v. _Gould_ (1851), 2 Blatchf., 165. - -[1470] _Pulte_ v. _Derby_ (1852), 5 M'L., 328; _Little_ v. _Gould_ -(1851), 2 Blatchf., 165; _Lawrence_ v. _Dana_ (1869), 4 Cliff., 1. - -[1471] Act of February 3, 1831, sec. 9; _Parton_ v. _Prang_ (1872), 3 -Cliff., at p. 549; but see _contra_, _Lawrence_ v. _Dana_ (1869), 4 -Cliff., 1, at p. 59; _Pulte_ v. _Derby_ (1852), 5 M'L., 328. - -[1472] _Parton_ v. _Prang_ (1872), 3 Cliff., 537; _Yuengling_ v. -_Schile_ (1882), 12 Fed. Rep., 97; _Werckmeister_ v. _Springer_ -(1894), 63 Fed. Rep., 808; _Stevens_ v. _Gladding_ (1854), 17 How., -447; _Stephens_ v. _Cady_ (1852), 14 How., 528; _Carte_ v. _Bailey_ -(1874), 64 Maine, 458; see _MacKaye_ v. _Mallory_ (1882), 12 Fed. -Rep., 328. - -[1473] _Webb_ v. _Powers_ (1847), 2 Woodb. and Min., 497; see _Gould_ -v. _Banks_, _Stephens_ v. _Cady_, _Little_ v. _Hall_, _ubi supra_. - -[1474] _Gould_ v. _Banks_ (1832), 8 Wend., 562. - -[1475] _Black_ v. _Allen_ (1893), 56 Fed. Rep., 764; _Carte_ v. -_Evans_ (1886), 27 Fed. Rep., 861. - -[1476] _Gilmore_ v. _Anderson_ (1889), 38 Fed. Rep., 846. - -[1477] _Black_ v. _Allen_ (1893), 56 Fed. Rep., 764; _Carte_ v. -_Bailey_ (1874), 64 Maine, 458. - -[1478] _Werckmeister_ v. _Springer_ (1894), 63 Fed. Rep., 808. - -[1479] _Publishing Co._ v. _Munroe_ (1896), 73 Fed. Rep., 196. - -[1480] _Davies_ v. _Vories_, 42 S. W., 707. - -[1481] _Keene_ v. _Wheatley_ (1860), 9 Am. L. Reg., 45. - -[1482] But see _Little_ v. _Gould_ (1851), 2 Blatchf., 165. - -[1483] _Aronson_ v. _Fleckenstein_ (1886), 28 Fed. Rep., 75. - -[1484] Revised Statutes, sec. 4952. - -[1485] _Stephens_ v. _Cady_ (1852), 14 How., 528; _Stevens_ v. -_Gladding_ (1854), 17 How., 451. - -[1486] Act of March 3, 1891, sec. 1. - -[1487] _Harper_ v. _Shoppell_ (1886), 23 Blatchf., 431. - -[1488] _Morrison_ v. _Pettibone_ (1897), 87 Fed. Rep., 330. - -[1489] _Falk_ v. _Donaldson_ (1893), 57 Fed. Rep., 32; _Fishel_ v. -_Lueckel_ (1892), 53 Fed. Rep., 499; _Springer_ v. _Falk_ (1894), 20 -U. S. App., 296. - -[1490] _Falk_ v. _Howell_ (1888), 37 Fed. Rep., 202. - -[1491] _Kennedy_ v. _McTammany_ (1888), 33 Fed. Rep., 584. - -[1492] _Ladd_ v. _Oxnard_ (1896), 75 Fed. Rep., 703. - -[1493] _Schumacher_ v. _Schwencke_ (1887), 30 Fed. Rep., 690. - -[1494] _Maloney_ v. _Foote_ (1900), 101 Fed. Rep., 264. - -[1495] _Lawrence_ v. _Dana_ (1869), 4 Cliff., 1, 81; _Folsom_ v. -_Marsh_ (1841), 2 Story, 118; _Story_ v. _Holcombe_ (1847), 4 M'L., -310; _Reed_ v. _Holliday_ (1884), 19 Fed. Rep., 323; _Brady_ v. _Daly_ -(1897), 83 Fed. Rep., 1007; _M'Lean_ v. _Flemming_ (1877), 96 U. S. -Rep., 245; _Fishel_ v. _Lueckel_ (1892), 53 Fed. Rep., 499; _Morrison_ -v. _Pettibone_ (1897), 87 Fed. Rep., 330; _Millet_ v. _Snowden_ -(1843), 1 West L. J., 240; _Parker_ v. _Hulme_ (1849), 7 West L. J., -426. - -[1496] _Morrison_ v. _Pettibone_ (1897), 87 Fed. Rep., 330. - -[1497] _Lawrence_ v. _Dana_ (1869), 4 Cliff., 1, 81; _Webb_ v. -_Powers_ (1847), 2 Wood and Min., 497. - -[1498] _Lawrence_ v. _Dana_ (1869), 4 Cliff., 1, p. 73. - -[1499] _Mead_ v. _West_ (1896), 80 Fed. Rep., 380. - -[1500] _West_ v. _Lawyers_ (1896), 51 U. S. App., 216. - -[1501] _Bullinger_ v. _MacKay_ (1879), 15 Blatchf. C. C., 550. - -[1502] _Emerson_ v. _Davis_ (1845), 3 Story, 768. - -[1503] Ibid. - -[1504] _Gray_ v. _Russell_ (1839), 1 Story, 11. - -[1505] _Blunt_ v. _Patten_ (1828), 2 Paine, 397. - -[1506] _Gilmore_ v. _Anderson_ (1889), 38 Fed. Rep., 846. - -[1507] _Johnson_ v. _Donaldson_ (1880), 3 Fed. Rep., 22. - -[1508] _Banks_ v. _M'Divitt_ (1875), 13 Blatchf., p. 163; _Mead_ v. -_West_ (1896), 80 Fed. Rep., 380. - -[1509] _Banks_ v. _M'Divitt_ (1875), 13 Blatchf., at pp. 165, 6. - -[1510] _Gilmore_ v. _Anderson_ (1889), 38 Fed. Rep., 846. - -[1511] _Thomas_ v. _Lennox_ (1883), 14 Fed. Rep., 849. - -[1512] See _Carte_ v. _Duff_ (1885), 25 Fed. Rep., 183. - -[1513] Clifford, J., in _Lawrence_ v. _Dana_ (1869), 4 Cliff., at -p. 80; _Gray_ v. _Russell_ (1839), 1 Story, 11; _Folsom_ v. _Marsh_ -(1841), 2 Story, 100; _Farmer_ v. _Elstner_ (1888), 33 Fed. Rep., -494; _Story_ v. _Holcombe_ (1847), 4 M'L., 315; _Emerson_ v. _Davis_ -(1845), 3 Story, at p. 795; _Reed_ v. _Holliday_ (1884), 19 Fed. Rep., -325; _Greene_ v. _Bishop_ (1858), 1 Cliff., 186. - -[1514] Story, J., in _Folsom_ v. _Marsh_ (1841), 2 Story, at p. 115. - -[1515] _Lawrence_ v. _Dana_ (1869), 4 Cliff., 1, 81, 83; _Perris_ v. -_Hexamer_ (1878), 99 U. S. Rep., 674; _Morrison_ v. _Pettibone_ (1897), -87 Fed. Rep., 330. - -[1516] Although this is an element in the question of substantiality, -it is no answer to a charge of infringement to say that the infringing -composition would have been equally valuable without the borrowed -matter. _Brady_ v. _Daly_ (1897), 83 Fed. Rep., 1007. - -[1517] (1897), 87 Fed. Rep., 330. - -[1518] _Howell_ v. _Miller_ (1898), 91 Fed. Rep., 129. - -[1519] _Springer_ v. _Falk_ (1894), 20 U. S. App., 296; _Falk_ v. -_Donaldson_ (1893), 57 Fed. Rep., 32; _Fishel_ v. _Lueckel_ (1892), 53 -Fed. Rep., 499. - -[1520] _Farmer_ v. _Culvert_ (1872), 5 Am. L. T. R., 168; see _Sanborn_ -v. _Dakin_ (1889), 39 Fed. Rep., 266. - -[1521] _Daly_ v. _Palmer_ (1868), 6 Blatchf., 256; _Daly_ v. _Webster_ -(1892), 1 U. S. App., 611; _Brady_ v. _Daly_ (1897), 83 Fed. Rep., 1007. - -[1522] _Falk_ v. _Donaldson_ (1893), 57 Fed. Rep., 32; _Falk_ v. -_Howell_ (1888), 37 Fed. Rep., 202. - -[1523] _Mead_ v. _West_ (1896), 80 Fed. Rep., 380; _List_ v. _Keller_ -(1887), 30 Fed. Rep., 772. - -[1524] Ibid. - -[1525] _List_ v. _Keller_ (1887), 30 Fed. Rep., 772. - -[1526] (1875), 13 Blatchf., at p. 166. - -[1527] Story, J., in _Emerson_ v. _Davis_ (1845), 3 Story, at p. 793. - -[1528] _Daly_ v. _Palmer_ (1868), 6 Blatchf., 256; _Daly_ v. _Webster_ -(1892), 1 U. S. App., 573; _Goldmark_ v. _Kreling_ (1888), 35 Fed. -Rep., 661. - -[1529] _Broder_ v. _Zeno_ (1898), 88 Fed. Rep., 74; _Blume_ v. _Spear_ -(1887), 30 Fed. Rep., 629; _Jollie_ v. _Jacques_ (1850), 1 Blatchf., -618. - -[1530] _West_ v. _Lawyers_ (1894), 64 Fed. Rep., 361. - -[1531] _List Publishing Co._ v. _Keller_ (1887), 30 Fed. Rep., 772. - -[1532] _Sanborn_ v. _Dakin_ (1889), 39 Fed. Rep., 266; _Farmer_ v. -_Culvert_ (1872), 5 Am. L. T. R., 168. - -[1533] _Chils_ v. _Gronland_ (1890), 41 Fed. Rep., 145; _Webb_ v. -_Powers_ (1847), 2 Wood. and Min., 497. - -[1534] _Banks_ v. _M'Divitt_ (1875), 13 Blatchf., 163; _Mead_ v. -_West_ (1896), 80 Fed. Rep., 380; _Howell_ v. _Miller_ (1898), 91 Fed. -Rep., 129. - -[1535] _Banks_ v. _M'Divitt_ (1875), 13 Blatchf., 163. - -[1536] _Mead_ v. _West_ (1896), 80 Fed. Rep., 380. - -[1537] _Burnell_ v. _Chown_ (1895), 69 Fed. Rep., 993. - -[1538] _Munro_ v. _Smith_ (1890), 42 Fed. Rep., 266. - -[1539] _Ehret_ v. _Pierce_ (1880), 18 Blatchf., 302; _Mutual -Advertising Co._ v. _Refo_ (1896), 76 Fed. Rep., 961. - -[1540] _Mutual Advertising Co._ v. _Refo_ (1896), 76 Fed. Rep., 961. - -[1541] _Serrana_ v. _Jefferson_ (1888), 33 Fed. Rep., 347. - -[1542] (1879), 15 Blatchf., 550. - -[1543] _Ladd_ v. _Oxnard_ (1896), 75 Fed. Rep., 703; _Brightley_ v. -_Littleton_ (1888), 37 Fed. Rep., 103; _Mead_ v. _West_ (1896), 80 -Fed. Rep., 380; _Springer_ v. _Falk_ (1894), 20 U. S. App., 296. - -[1544] _Drury_ v. _Ewing_ (1862), 1 Bond., 549. - -[1545] _Story_ v. _Holcombe_ (1847), 4 M'L., 306; _Webb_ v. _Powers_ -(1847), 2 Wood. and Min., 497, 512. - -[1546] _Falk_ v. _Donaldson_ (1893), 57 Fed. Rep., 32. - -[1547] _Falk_ v. _Howell_ (1888), 37 Fed. Rep., 202. - -[1548] _Gilmore_ v. _Anderson_ (1889), 38 Fed. Rep., 846. - -[1549] (1839), 1 Story, 11; see _Story_ v. _Holcombe_ (1847), 4 M'L., -306; _Folsom_ v. _Marsh_ (1841), 2 Story, 100, 116. - -[1550] Gifford, J., in _Lawrence_ v. _Dana_ (1869), 4 Giff., 82; see -Story, J., in _Folsom_ v. _Marsh_ (1841), 2 Story, p. 106; _Story_ v. -_Holcombe_ (1847), 4 M'L., at p. 309. - -[1551] _Lawrence_ v. _Dana_ (1869), 4 Cliff., p. 78; _Story_ v. -_Holcombe_ (1847), 4 M'L., 309; _Folsom_ v. _Marsh_ (1841), 2 Story, -106; _Gray_ v. _Russell_ (1839), 1 Story, 11; _Stowe_ v. _Thomas_ -(1853), 2 Wall. Jr., p. 547; _Keene_ v. _Wheatley_ (1860), 9 Am. L. -R., 45. - -[1552] (1847), 4 M'L., 306. - -[1553] _Story_ v. _Holcombe_ (1847), 4 M'L., 308, 309. - -[1554] (1869), 4 Cliff., 78. - -[1555] _Lawrence_ v. _Dana_ (1869), 4 Cliff., pp. 78, 79. - -[1556] Act of March 3, 1891, sec. 1. - -[1557] Act of July 18, 1870; Revised Statutes, 1874, sec. 4952. - -[1558] _Stowe_ v. _Thomas_ (1853), 2 Wall. Jr., 547. - -[1559] Act of March 3, 1891, sec. 1. - -[1560] Act of Congress, Aug. 18, 1856. - -[1561] (1868), 6 Blatchf., 256, at p. 264. - -[1562] (1868), 6 Blatchf., at p. 264. - -[1563] _Brady_ v. _Daly_ (1899), 175 U. S. Rep., 148; _Daly_ v. -_Webster_ (1892), 1 U. S. App., 573. - -[1564] See _Carte_ v. _Duff_ (1885), 25 Fed. Rep., 183. - -[1565] Act of 1891, sec. 7, amending Revised Statutes, sec. 4964. - -[1566] Act of March 2, 1895, amending Revised Statutes, sec. 4965, and -Act of 1891, sec. 8. - -[1567] It has been suggested that this division of penalties applies -only to "paintings, statues, and statuary." _Thornton_ v. _Schreiber_ -(1887), 7 How., 8 Sup. Ct., 618. - -[1568] _Taylor_ v. _Gilman_ (1885), 24 Fed. Rep., 632. - -[1569] _Bennett_ v. _Boston_ (1900), 101 Fed., Rep., 445. - -[1570] Act of Jan. 6, 1897, amending Revised Statutes, sec. 4966. - -[1571] _Chapman_ v. _Ferry_ (1882), 12 Fed. Rep., 693. - -[1572] _Stevens_ v. _Gladding_ (1854), 17 How., 447; _Falk_ v. _Gast_ -(1893), 54 Fed. Rep., 890; _Belford_ v. _Scribner_ (1892), 144 U. S. -Rep., 488; _Chapman_ v. _Ferry_ (1882), 12 Fed. Rep., 693. - -[1573] _West_ v. _Lawyers_ (1894), 64 Fed. Rep., 360; _Belford_ v. -_Scribner_ (1892), 144 U. S. Rep., 488; _Farmer_ v. _Elstner_ (1888), -33 Fed. Rep., 494. - -[1574] _Callaghan_ v. _Myers_ (1888), 128 U. S. Rep., 617; _Lawrence_ -v. _Dana_ (1869), 4 Cliff., 85; _Elizabeth_ v. _Pavement Co._ (1877), -97 U. S. Rep., 126, 139. - -[1575] _Callaghan_ v. _Myers_ (1888), 128 U. S. Rep., 617. - -[1576] Ibid. - -[1577] _Gilmore_ v. _Anderson_ (1890), 42 Fed. Rep., 267. - -[1578] _Daly_ v. _Brady_ (1895), 69 Fed. Rep., 285; _Atwill_ v. -_Ferrett_ (1846), 2 Blatchf., 39; Revised Statutes, sec. 860. - -[1579] _Taylor_ v. _Gilman_ (1885), 24 Fed. Rep., 632; _Johnson_ v. -_Donaldson_ (1880), 3 Fed. Rep., 22; _Chapman_ v. _Ferry_ (1882), 12 -Fed. Rep., 693. - -[1580] _Thornton_ v. _Schreiber_ (1887), 7 How., at p. 614; _Springer_ -v. _Falk_ (1894), 20 U. S. App., 296. - -[1581] _Falk_ v. _Heffron_ (1893), 56 Fed. Rep., 299. - -[1582] Ibid. - -[1583] Revised Statutes, sec. 4965. - -[1584] _Bolles_ v. _Outing_ (1899), 77 Fed. Rep., 966; _Reed_ v. -_Carusi_ (1845), 72 Fed. Cas., No. 11, 642; _Backus_ v. _Gould_ -(1849), 7 How., 798; _Thornton_ v. _Schreiber_ (1887), 124 U. S. Rep., -612; _Falk_ v. _Curtis_ (1901), 107 Fed. Rep., 126; (1900), 98 Fed. -Rep., 989; _Child_ v. _New York Times_ (1901), 110 Fed. Rep., 527. - -[1585] _Falk_ v. _Curtis_ (1900), 100 Fed. Rep., 77. - -[1586] _Thornton_ v. _Schreiber_ (1887), 124 U. S. Rep., 612. - -[1587] _Chapman_ v. _Ferry_ (1882), 12 Fed. Rep., 693. - -[1588] Previous demand is not a condition precedent; _Hegemen_ v. -_Springer_ (1901), 110 Fed. Rep., 374. - -[1589] _Rogers_ v. _Jewett_ (1858), 12 L. R., 339. - -[1590] _Sarony_ v. _Ehrich_ (1886), 28 Fed. Rep., 79. - -[1591] See _Williams_ v. _Smythe_ (1901), 110 Fed. Rep., 961. - -[1592] _Harper_ v. _Holman_ (1897), 84 Fed. Rep., 224; _Colliery_ v. -_Schools_ (1899), 24 Fed. Rep., 152; _Little_ v. _Gould_ (1851), 2 -Blatchf., at p. 184. - -[1593] _Hubbard_ v. _Thompson_ (1882), 14 Fed. Rep., 689; _Trow_ v. -_Boyd_ (1899), 97 Fed. Rep., 586. - -[1594] _Reed_ v. _Holliday_ (1884), 19 Fed. Rep., 325; _Black_ v. -_Allen_ (1893), 56 Fed. Rep., 764. - -[1595] _Daly_ v. _Palmer_ (1868), 6 Blatchf., 256. - -[1596] _Stuart_ v. _Smith_ (1895), 68 Fed. Rep., 189. - -[1597] _Falk_ v. _Curtis_ (1900), 98 Fed. Rep., 989. - -[1598] _Belford_ v. _Scribner_ (1892), 144 U. S. Rep., 488. - -[1599] _Fishel_ v. _Lueckel_ (1892), 53 Fed. Rep., 499. - -[1600] _Trow_ v. _Boyd_ (1899), 97 Fed. Rep., 586. - -[1601] _Taylor_ v. _Gilman_ (1885), 24 Fed. Rep., 632. - -[1602] _McDonald_ v. _Hearst_ (1899), 95 Fed. Rep., 656. - -[1603] _Thornton_ v. _Schreiber_ (1887), 7 How., at p. 614; _Springer_ -v. _Falk_(1894), 20 U. S. App., 296. - -[1604] Revised Statutes, sec. 4968. - -[1605] _Wheeler_ v. _Cobbey_ (1895), 70 Fed. Rep., 487; _Daly_ v. -_Brady_ (1895), 69 Fed. Rep., 285; see _Brady_ v. _Daly_ (1899), 175 -U. S. Rep., at p. 158. - -[1606] _Black_ v. _Allen_ (1893), 56 Fed. Rep., 764. - -[1607] _Hill_ v. _Epley_ (1858), 31 Perm. St., 331; _Lawrence_ v. -_Dana_ (1869), 4 Cliff., 83; _Heine_ v. _Appleton_ (1853), 4 Blatchf., -125; _Menendez_ v. _Holt_ (1888), 128 U. S., 514; _Keene_ v. _Clarke_ -(1867), 5 Robertson, N. Y., 38, 66, 67. - -[1608] _Boucicault_ v. _Wood_ (1867), 2 Biss., 34. - -[1609] _Falk_ v. _Schumacher_ (1891), 48 Fed. Rep., 232. - -[1610] Ibid. - -[1611] _Scribner_ v. _Allen_ (1892), 49 Fed. Rep., 854. - -[1612] Revised Statutes, sec. 4969; sec. 914; see _Johnston_ v. -_Klopsch_ (1898), 88 Fed. Rep., 692. - -[1613] Revised Statutes, sec. 4963, amended Act, March 3, 1897. - -[1614] _Ross_ v. _Raphael Tuck_ (1898), 91 Fed. Rep., 128. - -[1615] _Rosenbach_ v. _Dreyfus_ (1880), 2 Fed. Rep., 217. - -[1616] _Taft_ v. _Stephens_ (1889), 39 Fed. Rep., 781. - -[1617] _Rigney_ v. _Raphael Tuck_ (1896), 77 Fed. Rep., 173. - -[1618] _Rigney_ v. _Dalton_ (1896), 77 Fed. Rep., 176. - -[1619] Ibid. - -[1620] _Hoertel_ v. _Raphael Tuck_ (1899), 94 Fed. Rep., 844. - -[1621] _Rigney_ v. _Dalton_ (1896), 77 Fed. Rep., 176. - -[1622] Revised Statutes, sec. 4956, amended March 3, 1891, 26 S. L., -1107. - -[1623] 26 S. L., 604. - -[1624] 26 S. L., 604. - -[1625] Ibid. - -[1626] Ibid. - -[1627] Ibid. - -[1628] Revised Statute, sec. 4956, amended March 3, 1891, 26 S. L., -694. - -[1629] Ibid. - -[1630] _Wheaton_ v. _Peters_ (1834), 8 Pet., 591; _Banks_ v. -_Manchester_ (1888), 128 U. S. Rep., 244; _Jewellers'_ v. _Jewellers'_ -(1898), 155 N. Y., 241; _Holmes_ v. _Hurst_ (1898), 174 U. S. Rep., -82; _Palmer_ v. _De Witt_ (1872), 47 N. Y., 532; _West_ v. _Lawyers_ -(1896), 64 Fed. Rep., 360; _Parton_ v. _Prang_ (1872), 3 Cliff., 537; -_Merrell_ v. _Tice_ (1881), 104 U. S. Rep., 557; _Boucicault_ v. _Hart_ -(1875), 13 Blatchf., 47; _Boucicault_ v. _Fox_ (1862), 5 Blatchf., 87; -_Boucicault_ v. _Wood_ (1867), 7 Am. L. R., 550; 2 Bis., 34; _Daly_ v. -_Walrath_ (1899), 40 App. Div. N. Y., 220; _Carte_ v. _Ford_ (1883), 15 -Fed. Rep., 439; _Carte_ v. _Duff_ (1885), 25 Fed. Rep., 183; _Rees_ v. -_Peltzer_ (1874), 75 Ill., 475; _Ewer_ v. _Coxe_ (1824), 4 Wash. C. -C., 487. - -[1631] _Boucicault_ v. _Hart_ (1875), 13 Blatchf., 47; _Daly_ v. -_Walrath_ (1899), 40 App. Div. N. Y., 220; _Carte_ v. _Ford_ (1883), 15 -Fed. Rep., 439; _Carte_ v. _Duff_ (1885), 25 Fed. Rep., 183. - -[1632] _M'Lean_ v. _Fleming_ (1877), 96 U. S. Rep., 245; _Estes_ v. -_Williams_ (1884), 21 Fed. Rep., 189; _Social Register_ v. _Howard_ -(1894), 60 Fed. Rep., 270. - -[1633] _Harper_ v. _Holman_ (1897), 84 Fed. Rep., 224. - -[1634] _Social Register_ v. _Howard_ (1894), 60 Fed. Rep., 270. - -[1635] _Estes_ v. _Williams_ (1884), 21 Fed. Rep., 189; _Estes_ v. -_Leslie_ (1886), 27 Fed. Rep., 22. - -[1636] _Aronson_ v. _Fleckenstein_ (1886), 28 Fed. Rep., 75. - -[1637] _Merriam_ v. _Holloway_ (1890), 43 Fed. Rep., 450; _Merriam_ v. -_Famous Shoe_ (1891), 47 Fed. Rep., 411. - -[1638] Ibid. - -[1639] _Clemens_ v. _Belford_ (1883), 14 Fed. Rep., 728. - -[1640] _Clemens_ v. _Belford_ (1883), 14 Fed. Rep., 728; _Drummond_ v. -_Altemus_ (1894), 60 Fed. Rep., 338. - -[1641] _Drummond_ v. _Altemus_ (1894), 60 Fed. Rep., 338. - -[1642] _Kipling_ v. _Fenno_ (1900), 106 Fed. Rep., 692. - -[1643] _Doan_ v. _American Book Co._ (1901), 105 Fed. Rep., 772. - -[1644] _Merriam_ v. _Famous Shoe_ (1891), 47 Fed. Rep., 411; _Merriam_ -v. _Texas Siftings_ (1892), 49 Fed. Rep., 944. - -[1645] _Dodd_ v. _Smith_ (1891), 144 Pa., 340. - -[1646] _Black_ v. _Ehrich_ (1891), 44 Fed. Rep., 793. - -[1647] _Wheaton_ v. _Peters_ (1834), 8 Pet., 591; _Little_ v. _Hall_ -(1855), 18 How., 165; _Bartlett_ v. _Crittenden_ (1847), 4 M'L., 301; -_Palmer_ v. _De Witt_ (1872), 47 N. Y., 532. - -[1648] _Wheaton_ v. _Peters_ (1834), 8 Pet., 591; _Jones_ v. _Thoms_ -(1843), 1 N. Y. Leg. Obs., 408; _French_ v. _Maguire_ (1878), 55 How. -(N. Y.) Pr., 471; _Oertel_ v. _Wood_ (1870), 40 How. Pr., 10; _Oertel_ -v. _Jacoby_ (1872), 44 How., 179; _Rees_ v. _Peltzer_ (1874), 75 Ill., -475; _Crowe_ v. _Aiken_ (1870), 2 Biss., 208; _Carte_ v. _Bailey_ -(1874), 64 Maine, 458. - -[1649] _Wheaton_ v. _Peters_ (1834), 8 Pet., 591; _Palmer_ v. _De -Witt_ (1872), 47 N. Y., 532; _Goldmark_ v. _Kreling_ (1885), 25 Fed. -Rep., 349; _Daly_ v. _Walrath_ (1899), 40 App. Div. N. Y., 220; 28 -Chic. Leg. News, 49. - -[1650] See p. 262, _supra_. - -[1651] _Parton_ v. _Prang_ (1872), 3 Cliff., 537. - -[1652] See p. 263, _supra_. - -[1653] _Oertel_ v. _Wood_ (1870), 40 How. Pr., 10; _Oertel_ v. -_Jacoby_ (1872), 44 How. Pr., 179. - -[1654] _Tompkins_ v. _Halleck_ (1882), 133 Mass., 32; overruling -_Keene_ v. _Kimball_ (1860), 16 Gray, 549; see _French_ v. _Maguire_ -(1878), 55 How. (N. Y.) Pr., 471; _Crowe_ v. _Aiken_ (1870), 2 Biss., -208. - -[1655] _Palmer_ v. _De Witt_ (1872), 47 N. Y., 532. - -[1656] Act of March 3, 1891, sec. 9, amending Revised Statutes, 4967. - -[1657] _Press_ v. _Munroe_ (1896), 73 Fed. Rep., 196. - -[1658] _Palmer_ v. _De Witt_ (1872), 47 N. Y., 532. - -[1659] Ibid. - -[1660] _Parton_ v. _Prang_ (1872), 3 Cliff., 537. - -[1661] See pp. 152-4. - -[1662] Repealed by the Public Authorities Protection Act, 1893 (56 & -57 Vict. c. 61). - -[1663] Repealed by Stat. Law Rev. Act, 1867. - -[1664] Repealed by Stat. Law Rev. Act, 1887. - -[1665] Ibid. - -[1666] Repealed by Stat. Law Rev. Act, 1867. - -[1667] Ibid. - -[1668] Repealed by The Public Authorities Protection Act, 1893. - -[1669] See p. 61. - -[1670] 41 Geo. III., c. 107, extends the privileges of this Act to -Dublin. - -[1671] See p. 61. - -[1672] See p. 61. - -[1673] This section is repealed by the Public Authorities Protection -Act, 1893, and the provisions of that Act substituted therefor in so -far as they may be held to apply. - -[1674] A "full and reasonable indemnity" is substituted by 5 & 6 Vict. -c. 97, sec. 2. These words in the above section printed in italics -were subsequently repealed by Stat. Law Rev. Act, 1861. - -[1675] See p. 161. - -[1676] See p. 162. - -[1677] A "full and reasonable indemnity" is substituted by 5 & 6 Vict. -c. 97, sec. 2. - -[1678] Repealed Stat. Law Rev. Act, 1873 (1). - -[1679] Repealed Stat. Law Rev. Act, 1890 (2). - -[1680] See p. 123. - -[1681] See p. 139. - -[1682] See p. 135. - -[1683] See p. 126. - -[1684] See p. 142. - -[1685] A "full and reasonable indemnity" substituted by 5 & 6 Vict. c. -97, sec. 2. See p. 144. - -[1686] See p. 57. - -[1687] Repealed Stat. Law Rev. Act, 1890. - -[1688] Repealed Stat. Law Rev. Act, 1888 (2). - -[1689] 5 & 6 Vict. c. 97, sec. 2, substitutes "a full and reasonable -indemnity." - -[1690] Repealed Stat. Law Rev. Act 1890 (2). See p. 13. - -[1691] Repealed Stat. Law Rev. Act, 1874 (2). - -[1692] See p. 10. - -[1693] See pp. 36, 148. - -[1694] See p. 12. - -[1695] See p. 123. - -[1696] See p. 74. - -[1697] See p. 38. - -[1698] See pp. 42, 62. - -[1699] Repealed Stat. Law Rev. Act, 1890 (2). - -[1700] See p. 119. - -[1701] Repealed Stat. Law Rev. Act, 1890 (2). - -[1702] See p. 55. - -[1703] See p. 56. - -[1704] See pp. 47, 49-53. - -[1705] See p. 53. - -[1706] See p. 46. - -[1707] See p. 78. - -[1708] See p. 54. - -[1709] Repealed Stat. Law Rev. Act, 1893 (1). - -[1710] Ibid. - -[1711] Ibid. - -[1712] Ibid. - -[1713] See p. 85. - -[1714] See pp. 75, 77, 118. - -[1715] See p. 92. - -[1716] See p. 91. - -[1717] Ibid. - -[1718] See p. 66. - -[1719] See p. 67. - -[1720] See p. 68. - -[1721] Ibid. - -[1722] There may be joint employers. See p. 71. - -[1723] See p. 71. - -[1724] See p. 72. - -[1725] See pp. 49-53. - -[1726] Repealed Stat. Law Rev. Act, 1890 (2). - -[1727] See p. 131. - -[1728] See p. 67. - -[1729] See p. 131. - -[1730] See p. 135. - -[1731] See p. 89. - -[1732] See p. 47. - -[1733] See p. 133. - -[1734] The whole of section 26 is repealed by the Public Authorities -Protection Act, 1893, in so far as that Act applies. The result is -probably that the first part of the section, printed in italics, is -entirely repealed. The second part of the section is probably not -repealed except in respect of actions against a person or body for -acts done in performance of a public duty. - -[1735] See p. 91. - -[1736] Repealed Stat. Law Rev. Act, 1874. - -[1737] Repealed Stat. Law Rev. Act, 1891. - -[1738] Repealed Stat. Law Rev. Act, 1874 (2). - -[1739] Repealed International Copyright Act, 1886, sec. 12. - -[1740] Ibid. - -[1741] Ibid. - -[1742] See pp. 41, 128, 151, 162, 168. - -[1743] Repealed Stat. Law Rev. Act, 1874 (2). - -[1744] Usually known as The Foreign Reprints Act. See p. 187. - -[1745] Repealed Stat. Law Rev. Act, 1891. - -[1746] Repealed Stat. Law Rev. Act, 1875. - -[1747] Repealed; Patents, Designs, and Trade Marks Act, 1883. - -[1748] Ibid. - -[1749] Works produced in the following countries received protection -under this Act. The dates appended are the dates of the respective -Orders in Council: France, Order in Council, dispensed with; Prussia, -Oct. 19, 1855; Belgium, Feb. 8, 1855; Italy, Sept. 9, 1865; Sardinia, -Feb. 4, 1861; Spain, Sept. 24, 1857; Nov. 20, 1880. - -[1750] Secs. I.-V. repealed; Int. Copyright Act, 1886, sec. 12. - -[1751] Sec. VIII. is repealed: Int. Cop. Act, 1886, sec. 12. - -[1752] See p. 170. - -[1753] See p. 167. - -[1754] See p. 181. - -[1755] See p. 174. - -[1756] See p. 175. - -[1757] See p. 171. - -[1758] See p. 179. - -[1759] Ibid. - -[1760] See p. 180. - -[1761] Repealed Stat. Law Rev. Act, 1893 (1). - -[1762] Ibid. - -[1763] See p. 178. - -[1764] Repealed Stat. Law Rev. Act, 1893 (2). - -[1765] See p. 188. - -[1766] Repealed Stat. Law Rev. Act, 1893 (2). - -[1767] See p. 91. - -[1768] Repealed Stat. Law Rev. Act, 1898. - -[1769] See p. 131. - -[1770] Repealed Copyright (Musical Compositions) Act, 1888. - -[1771] Repealed Stat. Law Rev. Act, 1898. - -[1772] See p. 197. - -[1773] See pp. 40, 187, 191; 7 & 8 Vict. c. 12, sec. 19. - -[1774] See p. 186. - -[1775] Repealed Stat. Law Rev. Act, 1898. - -[1776] See p. 144. - -[1777] See p. 201. - -[1778] Those portions of the Convention printed in italics have been -altered by the Additional Act of Paris, 1896. Norway, although a -signatory of the Convention, has not acceded to the Additional Act. - -[1779] See paragraph 2 of Final Protocol. - -[1780] See paragraph 4 of Final Protocol. - -[1781] See paragraph 5 of Final Protocol. - -[1782] The following countries subsequently acceded to the Berne -Convention and joined the Copyright Union. By various Orders in -Council of the respective dates given hereunder the provisions of the -International Copyright Acts and of the above Order in Council were -extended to the acceding countries, viz.: - -Luxembourg, August 10, 1888; Monaco, October 15, 1889; Montenegro, May -11, 1893; Norway, August 1, 1896; Japan, August 8, 1899. - -Montenegro subsequently seceded August 9, 1899. - -[1783] All the Orders in Council under the International Copyright -Acts, 1844 and 1852. - -[1784] The following countries subsequently acceded to the Additional -Act of Paris. By Orders in Council of the respective dates given -hereunder the provisions of the above Order in Council are extended to -the acceding countries, viz.: - -Haiti, May 19, 1898; Japan, August 8, 1899. Montenegro subsequently -seceded August 9, 1899. - -[1785] See p. 60. - -[1786] Not to include labels. Act of Congress, June 18, 1874, sec. 3. - -[1787] Amended section substituted by Act of Congress, March 3, 1891, -sec. 1. - -[1788] Amended section substituted by Act of Congress, March 3, 1891, -sec. 2. - -[1789] Omission to deposit copies, description, or photographs within -the prescribed time could have been rectified by deposit before March -1, 1893: Act of Congress, March 3, 1893. - -[1790] Amended section substituted by Act of Congress, March 3, 1891, -sec. 3. - -[1791] _Amended Act of Congress, June_ 18, 1874, _sec. 2._ - -[1792] Amended section substituted by Act of Congress, March 3, 1891, -sec. 4. - -[1793] Amended section substituted by Act of Congress, March 3, 1891, -sec. 5. - -[1794] Act of Congress, June 18, 1874, substitutes "upon some visible -portion thereof, or of the substance upon which the same shall be -mounted." Act of Congress, August 1, 1882, provides that in the case -of designs for decorative articles the notice may be put on the back -or bottom, &c. - -[1795] Act of Congress, June 18, 1874, provides an alternative form of -notice. - -[1796] _Amended section substituted by Act of Congress, March 3, 1891, -sec. 6._ Further amended section substituted by Act of Congress, March -3, 1897. - -[1797] Amended section substituted by Act of Congress, March 3, 1891, -sec. 7. - -[1798] _Amended section substituted by Act of Congress, March 3, 1891, -sec. 8._ Further amended section substituted by Act of Congress, March -2, 1895. - -[1799] Amended section substituted by Act of Congress, January 6, 1897. - -[1800] Amended section substituted by Act of Congress, March 3, 1891, -sec. 9. - -[1801] Repealed by Act of Congress, March 3, 1891, sec. 10. - -[1802] Superseded by Act of Congress, March 3, 1891, sec. 4. - -[1803] Omission to deposit copies, description, or photographs within -the prescribed time could have been rectified by deposit before March -1, 1893: Act of Congress, March 3, 1893. - -[1804] Amended section substituted by Act of Congress, March 3, 1897. - -[1805] Amended section substituted by Act of Congress, March 2, 1895. - - - - -[Transcriber's Note: - -Inconsistent spelling as in the original. - -Punctuation normalised throughout.] - - - - - -End of the Project Gutenberg EBook of A Treatise Upon the Law of Copyright -in the United Kingdom and the Dominions of the Crown, and in the United -States of America, by E. J. MacGillivray - -*** END OF THIS PROJECT GUTENBERG EBOOK A TREATISE UPON THE LAW *** - -***** This file should be named 43945-8.txt or 43945-8.zip ***** -This and all associated files of various formats will be found in: - http://www.gutenberg.org/4/3/9/4/43945/ - -Produced by Wayne Hammond, Malcolm Farmer and the Online -Distributed Proofreading Team at http://www.pgdp.net - - -Updated editions will replace the previous one--the old editions -will be renamed. - -Creating the works from public domain print editions means that no -one owns a United States copyright in these works, so the Foundation -(and you!) can copy and distribute it in the United States without -permission and without paying copyright royalties. Special rules, -set forth in the General Terms of Use part of this license, apply to -copying and distributing Project Gutenberg-tm electronic works to -protect the PROJECT GUTENBERG-tm concept and trademark. Project -Gutenberg is a registered trademark, and may not be used if you -charge for the eBooks, unless you receive specific permission. If you -do not charge anything for copies of this eBook, complying with the -rules is very easy. You may use this eBook for nearly any purpose -such as creation of derivative works, reports, performances and -research. They may be modified and printed and given away--you may do -practically ANYTHING with public domain eBooks. Redistribution is -subject to the trademark license, especially commercial -redistribution. - - - -*** START: FULL LICENSE *** - -THE FULL PROJECT GUTENBERG LICENSE -PLEASE READ THIS BEFORE YOU DISTRIBUTE OR USE THIS WORK - -To protect the Project Gutenberg-tm mission of promoting the free -distribution of electronic works, by using or distributing this work -(or any other work associated in any way with the phrase "Project -Gutenberg"), you agree to comply with all the terms of the Full Project -Gutenberg-tm License (available with this file or online at -http://gutenberg.org/license). - - -Section 1. General Terms of Use and Redistributing Project Gutenberg-tm -electronic works - -1.A. By reading or using any part of this Project Gutenberg-tm -electronic work, you indicate that you have read, understand, agree to -and accept all the terms of this license and intellectual property -(trademark/copyright) agreement. If you do not agree to abide by all -the terms of this agreement, you must cease using and return or destroy -all copies of Project Gutenberg-tm electronic works in your possession. -If you paid a fee for obtaining a copy of or access to a Project -Gutenberg-tm electronic work and you do not agree to be bound by the -terms of this agreement, you may obtain a refund from the person or -entity to whom you paid the fee as set forth in paragraph 1.E.8. - -1.B. "Project Gutenberg" is a registered trademark. It may only be -used on or associated in any way with an electronic work by people who -agree to be bound by the terms of this agreement. There are a few -things that you can do with most Project Gutenberg-tm electronic works -even without complying with the full terms of this agreement. See -paragraph 1.C below. There are a lot of things you can do with Project -Gutenberg-tm electronic works if you follow the terms of this agreement -and help preserve free future access to Project Gutenberg-tm electronic -works. See paragraph 1.E below. - -1.C. The Project Gutenberg Literary Archive Foundation ("the Foundation" -or PGLAF), owns a compilation copyright in the collection of Project -Gutenberg-tm electronic works. Nearly all the individual works in the -collection are in the public domain in the United States. If an -individual work is in the public domain in the United States and you are -located in the United States, we do not claim a right to prevent you from -copying, distributing, performing, displaying or creating derivative -works based on the work as long as all references to Project Gutenberg -are removed. Of course, we hope that you will support the Project -Gutenberg-tm mission of promoting free access to electronic works by -freely sharing Project Gutenberg-tm works in compliance with the terms of -this agreement for keeping the Project Gutenberg-tm name associated with -the work. You can easily comply with the terms of this agreement by -keeping this work in the same format with its attached full Project -Gutenberg-tm License when you share it without charge with others. - -1.D. The copyright laws of the place where you are located also govern -what you can do with this work. Copyright laws in most countries are in -a constant state of change. If you are outside the United States, check -the laws of your country in addition to the terms of this agreement -before downloading, copying, displaying, performing, distributing or -creating derivative works based on this work or any other Project -Gutenberg-tm work. The Foundation makes no representations concerning -the copyright status of any work in any country outside the United -States. - -1.E. Unless you have removed all references to Project Gutenberg: - -1.E.1. The following sentence, with active links to, or other immediate -access to, the full Project Gutenberg-tm License must appear prominently -whenever any copy of a Project Gutenberg-tm work (any work on which the -phrase "Project Gutenberg" appears, or with which the phrase "Project -Gutenberg" is associated) is accessed, displayed, performed, viewed, -copied or distributed: - -This eBook is for the use of anyone anywhere at no cost and with -almost no restrictions whatsoever. You may copy it, give it away or -re-use it under the terms of the Project Gutenberg License included -with this eBook or online at www.gutenberg.org/license - -1.E.2. If an individual Project Gutenberg-tm electronic work is derived -from the public domain (does not contain a notice indicating that it is -posted with permission of the copyright holder), the work can be copied -and distributed to anyone in the United States without paying any fees -or charges. If you are redistributing or providing access to a work -with the phrase "Project Gutenberg" associated with or appearing on the -work, you must comply either with the requirements of paragraphs 1.E.1 -through 1.E.7 or obtain permission for the use of the work and the -Project Gutenberg-tm trademark as set forth in paragraphs 1.E.8 or -1.E.9. - -1.E.3. If an individual Project Gutenberg-tm electronic work is posted -with the permission of the copyright holder, your use and distribution -must comply with both paragraphs 1.E.1 through 1.E.7 and any additional -terms imposed by the copyright holder. Additional terms will be linked -to the Project Gutenberg-tm License for all works posted with the -permission of the copyright holder found at the beginning of this work. - -1.E.4. Do not unlink or detach or remove the full Project Gutenberg-tm -License terms from this work, or any files containing a part of this -work or any other work associated with Project Gutenberg-tm. - -1.E.5. Do not copy, display, perform, distribute or redistribute this -electronic work, or any part of this electronic work, without -prominently displaying the sentence set forth in paragraph 1.E.1 with -active links or immediate access to the full terms of the Project -Gutenberg-tm License. - -1.E.6. You may convert to and distribute this work in any binary, -compressed, marked up, nonproprietary or proprietary form, including any -word processing or hypertext form. However, if you provide access to or -distribute copies of a Project Gutenberg-tm work in a format other than -"Plain Vanilla ASCII" or other format used in the official version -posted on the official Project Gutenberg-tm web site (www.gutenberg.org), -you must, at no additional cost, fee or expense to the user, provide a -copy, a means of exporting a copy, or a means of obtaining a copy upon -request, of the work in its original "Plain Vanilla ASCII" or other -form. Any alternate format must include the full Project Gutenberg-tm -License as specified in paragraph 1.E.1. - -1.E.7. Do not charge a fee for access to, viewing, displaying, -performing, copying or distributing any Project Gutenberg-tm works -unless you comply with paragraph 1.E.8 or 1.E.9. - -1.E.8. You may charge a reasonable fee for copies of or providing -access to or distributing Project Gutenberg-tm electronic works provided -that - -- You pay a royalty fee of 20% of the gross profits you derive from - the use of Project Gutenberg-tm works calculated using the method - you already use to calculate your applicable taxes. The fee is - owed to the owner of the Project Gutenberg-tm trademark, but he - has agreed to donate royalties under this paragraph to the - Project Gutenberg Literary Archive Foundation. Royalty payments - must be paid within 60 days following each date on which you - prepare (or are legally required to prepare) your periodic tax - returns. Royalty payments should be clearly marked as such and - sent to the Project Gutenberg Literary Archive Foundation at the - address specified in Section 4, "Information about donations to - the Project Gutenberg Literary Archive Foundation." - -- You provide a full refund of any money paid by a user who notifies - you in writing (or by e-mail) within 30 days of receipt that s/he - does not agree to the terms of the full Project Gutenberg-tm - License. You must require such a user to return or - destroy all copies of the works possessed in a physical medium - and discontinue all use of and all access to other copies of - Project Gutenberg-tm works. - -- You provide, in accordance with paragraph 1.F.3, a full refund of any - money paid for a work or a replacement copy, if a defect in the - electronic work is discovered and reported to you within 90 days - of receipt of the work. - -- You comply with all other terms of this agreement for free - distribution of Project Gutenberg-tm works. - -1.E.9. If you wish to charge a fee or distribute a Project Gutenberg-tm -electronic work or group of works on different terms than are set -forth in this agreement, you must obtain permission in writing from -both the Project Gutenberg Literary Archive Foundation and Michael -Hart, the owner of the Project Gutenberg-tm trademark. Contact the -Foundation as set forth in Section 3 below. - -1.F. - -1.F.1. Project Gutenberg volunteers and employees expend considerable -effort to identify, do copyright research on, transcribe and proofread -public domain works in creating the Project Gutenberg-tm -collection. Despite these efforts, Project Gutenberg-tm electronic -works, and the medium on which they may be stored, may contain -"Defects," such as, but not limited to, incomplete, inaccurate or -corrupt data, transcription errors, a copyright or other intellectual -property infringement, a defective or damaged disk or other medium, a -computer virus, or computer codes that damage or cannot be read by -your equipment. - -1.F.2. LIMITED WARRANTY, DISCLAIMER OF DAMAGES - Except for the "Right -of Replacement or Refund" described in paragraph 1.F.3, the Project -Gutenberg Literary Archive Foundation, the owner of the Project -Gutenberg-tm trademark, and any other party distributing a Project -Gutenberg-tm electronic work under this agreement, disclaim all -liability to you for damages, costs and expenses, including legal -fees. YOU AGREE THAT YOU HAVE NO REMEDIES FOR NEGLIGENCE, STRICT -LIABILITY, BREACH OF WARRANTY OR BREACH OF CONTRACT EXCEPT THOSE -PROVIDED IN PARAGRAPH 1.F.3. YOU AGREE THAT THE FOUNDATION, THE -TRADEMARK OWNER, AND ANY DISTRIBUTOR UNDER THIS AGREEMENT WILL NOT BE -LIABLE TO YOU FOR ACTUAL, DIRECT, INDIRECT, CONSEQUENTIAL, PUNITIVE OR -INCIDENTAL DAMAGES EVEN IF YOU GIVE NOTICE OF THE POSSIBILITY OF SUCH -DAMAGE. - -1.F.3. LIMITED RIGHT OF REPLACEMENT OR REFUND - If you discover a -defect in this electronic work within 90 days of receiving it, you can -receive a refund of the money (if any) you paid for it by sending a -written explanation to the person you received the work from. If you -received the work on a physical medium, you must return the medium with -your written explanation. The person or entity that provided you with -the defective work may elect to provide a replacement copy in lieu of a -refund. If you received the work electronically, the person or entity -providing it to you may choose to give you a second opportunity to -receive the work electronically in lieu of a refund. If the second copy -is also defective, you may demand a refund in writing without further -opportunities to fix the problem. - -1.F.4. Except for the limited right of replacement or refund set forth -in paragraph 1.F.3, this work is provided to you 'AS-IS' WITH NO OTHER -WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO -WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PURPOSE. - -1.F.5. Some states do not allow disclaimers of certain implied -warranties or the exclusion or limitation of certain types of damages. -If any disclaimer or limitation set forth in this agreement violates the -law of the state applicable to this agreement, the agreement shall be -interpreted to make the maximum disclaimer or limitation permitted by -the applicable state law. The invalidity or unenforceability of any -provision of this agreement shall not void the remaining provisions. - -1.F.6. INDEMNITY - You agree to indemnify and hold the Foundation, the -trademark owner, any agent or employee of the Foundation, anyone -providing copies of Project Gutenberg-tm electronic works in accordance -with this agreement, and any volunteers associated with the production, -promotion and distribution of Project Gutenberg-tm electronic works, -harmless from all liability, costs and expenses, including legal fees, -that arise directly or indirectly from any of the following which you do -or cause to occur: (a) distribution of this or any Project Gutenberg-tm -work, (b) alteration, modification, or additions or deletions to any -Project Gutenberg-tm work, and (c) any Defect you cause. - - -Section 2. Information about the Mission of Project Gutenberg-tm - -Project Gutenberg-tm is synonymous with the free distribution of -electronic works in formats readable by the widest variety of computers -including obsolete, old, middle-aged and new computers. It exists -because of the efforts of hundreds of volunteers and donations from -people in all walks of life. - -Volunteers and financial support to provide volunteers with the -assistance they need, are critical to reaching Project Gutenberg-tm's -goals and ensuring that the Project Gutenberg-tm collection will -remain freely available for generations to come. In 2001, the Project -Gutenberg Literary Archive Foundation was created to provide a secure -and permanent future for Project Gutenberg-tm and future generations. -To learn more about the Project Gutenberg Literary Archive Foundation -and how your efforts and donations can help, see Sections 3 and 4 -and the Foundation web page at http://www.pglaf.org. - - -Section 3. Information about the Project Gutenberg Literary Archive -Foundation - -The Project Gutenberg Literary Archive Foundation is a non profit -501(c)(3) educational corporation organized under the laws of the -state of Mississippi and granted tax exempt status by the Internal -Revenue Service. The Foundation's EIN or federal tax identification -number is 64-6221541. Its 501(c)(3) letter is posted at -http://pglaf.org/fundraising. Contributions to the Project Gutenberg -Literary Archive Foundation are tax deductible to the full extent -permitted by U.S. federal laws and your state's laws. - -The Foundation's principal office is located at 4557 Melan Dr. S. -Fairbanks, AK, 99712., but its volunteers and employees are scattered -throughout numerous locations. Its business office is located at -809 North 1500 West, Salt Lake City, UT 84116, (801) 596-1887, email -business@pglaf.org. Email contact links and up to date contact -information can be found at the Foundation's web site and official -page at http://pglaf.org - -For additional contact information: - Dr. Gregory B. Newby - Chief Executive and Director - gbnewby@pglaf.org - - -Section 4. Information about Donations to the Project Gutenberg -Literary Archive Foundation - -Project Gutenberg-tm depends upon and cannot survive without wide -spread public support and donations to carry out its mission of -increasing the number of public domain and licensed works that can be -freely distributed in machine readable form accessible by the widest -array of equipment including outdated equipment. Many small donations -($1 to $5,000) are particularly important to maintaining tax exempt -status with the IRS. - -The Foundation is committed to complying with the laws regulating -charities and charitable donations in all 50 states of the United -States. Compliance requirements are not uniform and it takes a -considerable effort, much paperwork and many fees to meet and keep up -with these requirements. We do not solicit donations in locations -where we have not received written confirmation of compliance. To -SEND DONATIONS or determine the status of compliance for any -particular state visit http://pglaf.org - -While we cannot and do not solicit contributions from states where we -have not met the solicitation requirements, we know of no prohibition -against accepting unsolicited donations from donors in such states who -approach us with offers to donate. - -International donations are gratefully accepted, but we cannot make -any statements concerning tax treatment of donations received from -outside the United States. U.S. laws alone swamp our small staff. - -Please check the Project Gutenberg Web pages for current donation -methods and addresses. Donations are accepted in a number of other -ways including checks, online payments and credit card donations. -To donate, please visit: http://pglaf.org/donate - - -Section 5. General Information About Project Gutenberg-tm electronic -works. - -Professor Michael S. Hart is the originator of the Project Gutenberg-tm -concept of a library of electronic works that could be freely shared -with anyone. For thirty years, he produced and distributed Project -Gutenberg-tm eBooks with only a loose network of volunteer support. - - -Project Gutenberg-tm eBooks are often created from several printed -editions, all of which are confirmed as Public Domain in the U.S. -unless a copyright notice is included. Thus, we do not necessarily -keep eBooks in compliance with any particular paper edition. - - -Most people start at our Web site which has the main PG search facility: - - http://www.gutenberg.org - -This Web site includes information about Project Gutenberg-tm, -including how to make donations to the Project Gutenberg Literary -Archive Foundation, how to help produce our new eBooks, and how to -subscribe to our email newsletter to hear about new eBooks. |