suthor's common law right to the copy. doubted, and has often been determined." This never was Where the son of the great Earl of Clarendon gave permission to a Mr. Gwynne to take a copy of the manuscript of his deceased father's "History of the Reign of Charles II.," and Mr. Gwynne's son and administrator sold it to a Dr. Shebbeare, the Court of Chancery, at the suit of the Duke of Queensberry (the personal representative of the Earl of Clarendon and his son), restrained Dr. Shebbeare from printing and publishing the copy of the manuscript. (a) The Lord Keeper Henley said it was not to be presumed that Lord Clarendon (the younger), when he gave a copy of his work to Mr. Gwynne, intended that he should have the profit of multiplying it in print; that Mr. Gwynne might make every use of it, except that.(b) Where, however, the author of a poem had sent it to a bookseller, and had allowed it to remain in his hands unpublished for twenty-three years, Lord Eldon was of opinion that the writer had abandoned his right as an author, and refused to grant an injunction to prevent the publication of the poem by the bookseller. (c) Notwithstanding this decision, the decided cases seem to warrant the rule laid down by Willes, J., in Millar v. Taylor, (d) that "when express consent is not proved, the negative is implied as a tacit condition." A teacher of the art of book-keeping, who had reduced to writing the system he taught, on separate cards for the convenience of imparting instruction to his pupils, and permitted his students to copy these cards, with a view to their own instruction, and to enable them to instruct others, was held in an American case (e) not to have thereby abandoned these manuscripts to the public, or authorised their publication. "The students," said the court, "who made these copies, have a right to them, and to their use as originally intended. But they have no right to a use which was not in the contemplation of the complainant and of themselves when the consent was first given. Nor can they, by suffering others to copy the manuscripts, give a greater licence than was vested in themselves." PART L CHAPTER V. Where a person contracted for reward to write a certain Alteration of (a) 2 Eden. 329. (b) We learn from a note to this case that Dr. Shebbeare afterwards recovered before Lord Mansfield, a large sum against Mr. Gwynne for having represented that he had a right to print the manuscript. (c) Southey v. Sherwood (2 Meriv. 435). (e) Bartlett v. Crittenden (4 M⭑Clean, 300). (d) 4 Burr. 2330. sold manuscript before publication. PART I. CHAPTER V. Summary of the law. Manuscripts Letters. Lectures. Dramatic compositions. Musical compositions. portion of a book to be published by another, equity will not aid him by injunction to prevent his portion of the work being printed and published in an altered or mutilated form. (a) Wood, V.C., intimated an opinion, though the point did not arise in the case before him, that, unless there be a special contract, either express or implied, reserving to the author a qualified copyright, the purchaser of a manuscript is at liberty to alter and deal with it as he thinks proper. The court is not moved in such a case by the possible effects of the alterations as affecting the writer's reputation. "The possible effect on reputation," said Wood, V.C., "unless connected with property, is not a ground for coming to this court, though it may be an ingredient for the court to consider, when the question of a right of property also arises.” To sum up, then, the law relating to the property in unpublished works: The author or owner of unpublished manuscripts has a right independent of statute to the exclusive use of them, and to prevent their publication by any one else. The writer of letters has a special property in them, and has a right to prevent their publication by the receiver, unless by his own misconduct (for the decided cases go no further than this) he has rendered their publication necessary to the vindication of the receiver's character from some unfounded imputation. And, with respect to this right, there would seem to be no distinction between private letters, or letters of friendship, and letters intended as literary compositions. The author, or his assignee, of lectures, has now by statute(b) the sole right to publish them, provided notice of the delivering of the lectures shall be given two days at least before the delivery, to two justices living within five miles of the place where they are to be delivered. But the right does not extend to lectures delivered in a university, public school, or college, or on any public foundation, or by any one in virtue of any gift, endowment, or foundation. The author, or his assignee, of a dramatic composition has a right similar to the foregoing to prevent the printing and publishing of his composition. And he does not lose his exclusive right of printing and publishing it, by allowing it to be represented on the stage. He has now, also, by Stat. 3 & 4 Will. 4, c. 15, s. 1, the sole right of having it represented in any part of the British dominions. Musical compositions, when in manuscript, stand on the same footing with other unpublished compositions, and by sect. 20 of 5 & 6 Vict. c. 45, the provisions of 3 & 4 Will. 4, (a) Cox v. Cox (11 Hare, 118). (b) Vide ante, pp. 20-22. c. 15, as to the sole right of representing dramatic are extended also to musical compositions. PART L CHAPTER V. Engravings, maps, and charts, also, whilst unpublished, Engravings, stand on the same footing as the foregoing. maps, and charts. CHAPTER VI. COPYRIGHT AFTER PUBLICATION. On the subject of copyright after publication, widely dif ferent views have been entertained by some of our ablest lawyers living at different times. There have been those who considered the title of the author to the property in the creations of his intellect as of so absolute a nature that it was not only exclusive but also perpetual, and gave him the sole right to determine, not only during his life, but for all time after his death, who should enjoy the benefits of his literary works. On the other hand, there have been those who, though not doubting the author's title to the property in the products of his mind before he has published them, were of opinion that by the act of publication his compositions became publici juris, and the author's right to a property in them ceased thenceforth for ever. Neither of these two opposite opinions represents the law on the subject as it is now finally determined. The firstmentioned opinion was the prevailing one down to the year 1744. "The general consent of the kingdom for ages," Lord Mansfield considered to be in favour of that view of the question, and the decisions in several cases proceeded on the ground of its correctness. The question assumed the form, whether copyright in the productions of an author existed at common law previous to and independently of statutory enactment, and if it had an existence previous to statutes, whether the statutes dealing with the subject and conferring on authors a copyright for a certain number of years took away from them all copyright in their works after the time so specified had expired. In other words, had an author copyright in his published works indefinite and unlimited in point of time, or was his right strictly confined to the period marked out in the legislative enactments relating to copyright ? The first Act of Parliament which deals with the question of copyright after publication is the 8 Anne, c. 19, and it Anne, c 19. PART I. conferred on authors (or their assigns) of works published CHAPTER VL before the year 1710 a copyright of twenty-one years' duration, "and no longer," and on the authors or assignees of works published after that date a copyright of fourteen years "and no longer," to commence from the day of first publication. Did this Act deprive authors of copyright in their productions after the expiration of the period of twenty-one or fourteen years? Millar v. Taylor (overruled). For a long time it was held that it did not; that the author had a general right of property in his works which he did not lose by publication, and of which the statute of Anne did not deprive him. In 1735 (more than twentyone years after the passing of 8 Anne, c. 19), Sir Joseph Jekyll, M.R., granted an injunction to restrain the printing of The Whole Duty of Man," which had first appeared in 1657.(a) As the statutory term of copyright had passed, the plaintiff's title to an injunction could only rest on the ground of his general common law right of property independent of and outlasting the statutory period limited by the Act of Anne. In the same year (1735) Lord Talbot granted an injunction to restrain the printing of Pope's and Swift's "Miscellanies," though many of the pieces were published before the statute of Anne, (b) and the injunction was acquiesced under. In 1736 Sir Joseph Jekyll restrained the publication of Nelson's "Festivals and Fasts," though the book was first published in 1703. (c) In 1739 Lord Hard1703.(c) wicke granted an injunction against the publication of Milton's "Paradise Lost," though the title of the plaintiff's was derived from an assignment from the author made in 1667.(d) In 1752 Lord Hardwicke granted a similar injunction with respect to the publication of an annotated edition of the same poem. (e) And all the foregoing injunctions were acquiesced under. In 1761 an opportunity occurred for the first time of determining the question by a Court of Error, in the case of Tonson v. Collins, (f) an action relating to the copyright in the Spectator, which had been purchased from Addison and Steele. But the action, before its final determination, was discovered to be a collusive one, and it fell to the ground in consequence. An important case, (g) however, soon after occurred (in 1769) in which the subject was very (c) Walthoe v. Walker (Ib.). (a) Eyre v. Walker (cited 4 Burr. 2325). (g) Millar v. Taylor (4 Burr. 2303.) PART L Elly discussed by the Court of King's Bench, and in which he first of the two opinions referred to at the beginning of CHAPTER VI his chapter was maintained by the majority of the court. The action was brought to recover damages for the publiation of an edition of Thompson's "Seasons," a work hich the plaintiff had purchased from its author in 1729, nd had continued to publish from that time down to the ear 1763, when the defendant Millar published the edition mplained of without the plaintiff's license or consent. The rm of years during which the statute of Anne secured e copyright to the author had long since expired, and the aintiff's claim could only rest upon the ground of a peretual property at common law, independent of statutes, in e author or his assignees. The jury found the facts of the se in a special verdict, and also that before the reign of neen Anne it was usual to purchase from authors the pertual copyright of their books, and to assign the same from and to hand for valuable consideration, and to make the ne the subject of family settlements. Lord Mansfield, C.J., d Willes and Aston, JJ., gave judgment in favour of the aintiff and his right at common law, independently of and affected by the statute of Anne, Yates, J., being of a conary opinion. The judgment of the majority of the court was sed not only on the decided cases already referred to, but the broad ground of natural justice and equity. They nsidered that as every man has an exclusive property in = works before publication, he continues to possess it after blication, publication being no abandonment of his right. d as for the statute of Anne, they were of opinion that was merely intended to give for a term of years a more cient protection, where the entry and the other provisions the Act had been complied with, and not to abridge the ration of the author's exclusive property in his work. But this did not long continue to be law. The subject Donaldson v. ne at last, on appeal, before the House of Lords in 1774, the case of Donaldson v. Beckett, (a) and the decision in Har v. Taylor was distinctly overruled. The case came appeal from the Court of Chancery, in which Lord sley had followed, as of course, the ruling of the King's nch in Millar v. Taylor. After the question had been ly argued, the judges were called on to deliver their nions in answer to certain questions put to them. Ten Opinions of the them, against one, were of opinion that at common law author of any book or literary composition had the sole t of first printing and publishing it for sale. Eight were (a) 4 Burr. 2408. Beckett. judges |