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by reason of the attainder or conviction manor. Powers are likewise given to any of trustees or mortgagees who have no lord, and any one or more of the tenants
, beneficial interest therein.
to effect by agreement between themselves If the lord (having acquired a copyhold a commaiation, wholly voluntary, of the tenement by forfeiture, escheat, or sur- above-mentioned rights or any other rights render to his own use) afterwards grant of the lord, such as escheats, waifs, fairs
, it away by an assurance unauthorized by markets, &c. The lord's rights may be the custom, the customary tenure is for commated either for an annual rentever destroyed. And if he makes a legal charge and a small fixed fine not exconveyance in fee-simple of a copyhold ceeding 58. on death or alienation, or for tenement to the tenant, the tenement is the payment of a fine on death or aliena. said to be enfranchised, that is, converted tion or any other contingency, or at any into freehold.
fixed period or periods to be agreed upon Copyholders were till very lately in between the parties : such annual rent capable of serving on juries, or voting at charge or such fine, as the case may be county elections of members of parlia- if exeeeding the sum of 208., to be variment; but the former disability was re- able according to the price of corn, apon moved by 6 Geo. IV. c. 50, § 1, and the the principle of tithe reut-charges. After latter by the 2 & 3 Wm. IV. c. 45, $ 19. the completion of the commutation, the As to the qualification for killing game lands are to continue to be held by copy under 22 and 23 Chas. II. c. 25, § 3, there of Court Roll, and to pass by surrender and seems to be no distinction between free admittance or other customary mode of holders and copyholders.
conveyance. but the customs of BoroughThere are no lands of a copyhold tenure | English, or Gavelkind (except in Kent)
, in Ireland.
or any other customary mode of descent Still greater changes in the nature of or custom relating to dower, freebench, or estates of copyhold and customary tenure curtesy to which the lands may have been are gradually taking place under the pro- subject, are to cease, and they are to be visions of the stat. 4 & 5 Vict. c. 35, the thenceforth subject to the general law of principal objects of which are-1. The descent, dower, and curtesy relating to commutation of certain manorial rights lands of freehold tenure. in respect of lands of copyhold and cus 2. For the purpose of facilitating the tomary tenure; 2. The facilitating the enfranchisement of copyhold lands, the enfranchisement of such lands; and 3. act enables lords of manors, whatever The improvement of such tenure. may be the extent of their interests, with
1. The enactments with respect to the the sent of the commissioners under commutation of manorial rights are partly the act, to enfranchise all or any of the compulsory and partly permissive. All lands holden of their manors, in conrents, reliefs, and services (except service sideration of any sum or sums of money at the lord's court), fines, heriots, or money payable forth with or at a future time, payments in lieu thereof, the lord's rights according to agreement: and tenants, in timber, and in mines and minerals, may whatever be the extent of their interests, be made the subject of compulsory com are in like manner enabled, with the mutation upon an agreement being entered consent of the commissioners, to accept into between the lord and the tenants of of enfranchisement on the terms agreed any manor at a meeting called in the way upon. After the completion of any such prescribed by the act. As soon as this enfranchisement, the lands included in it agreement receives the signatures of the are to become of freehold tenure, subject lord or tenants whose interests are not to the consideration agreed upon for the less than three-fourths in value of such enfranchisement, but without prejudice manor and lands, and of three-fourths in to the tenant's right of common and number of the tenants, it becomes (on re- existing limitations affecting the land. ceiving the confirmation of the commis- | 3. The act contains a clause applicable sioners appointed under the act) compul- to cases where commutation or enfrassory on the lord and all the tenants of such chisement has been effected, and there has
been a reservatiou of the lord's right in, in the Tithe Commutation Act, 6 & 7 mines and minerals, enabling the tenants Wm. IV. c. 71. to grant to the lord such rights of entry The act applies partially to the Duchy and way, and such other easements, as of Lancaster, but not otherwise to Crown may be necessary to the enjoyment of the lands, and not at all to the Duchy of reserved rights. [EN FRANCHISEMENT.] Cornwall
. It also, after stating the doubts enter COPYRIGHT, or, as it was formerly fained as to the power of the courts of termed, Copy, has been defined by Lord aquity to decree a partition of lands of Mansfield, “to signify an incorporeal copy hold or customary tenure, confers right to the sole printing and publishing that power to be exercised according to of somewhat intellectual, communicated the praetice of the court in freebold cases. by letters." By this "somewhat intellecFormerly a customary court could not be tual” is to be understood something prolegally constituted unless two or more ceeding from the mind of the person by tenants were present to form the homage; whom, or through whom, such a right is all acts of court were by usage required claimable. Yet, although mere republito be matters of presentment by the cations of the compositions of others are homage; and in a great majority of no subject for copyright, it is not limited manors grants could not be made nor to such productions as contain new or admissions taken except at courts held original ideas. Translations both from within the manors. A remedy is pro- ancient and modern languages, and notes vided for these inconveniences by clauses and additions to existing works, are giving power to hold customary courts similarly protected. Further, a right of though there shonld be no tenant of the copy attaches to the authors of ideas manor holding by copy, or though no expressed by other symbols as well as such tenant, or not more than one such letters, to musical composers for example. tenant, should be present; enabling lords The origin of copyright must be sought and stewards to make grants and take in the general opinion of its justice and admissions out of court and out of the expediency. It has been supposed that manor: and requiring the lord forthwith, a common-law right of copy existed in upon payment of the usual fees, to enter England previously to any statute on the on the rolls all such surrenders, deeds, subject. As a legal proposition, however, wills, grants, and admissions as would this cannot be supported by any proper formerly have required the formality of and direct proof of a fair judicial dea court to authorize their entry or to give cision before the passing of the first stathem legal effect; and also declaring that tute relating to copyrigt, 8 Anne, c. 19; no presentment of a surrender, will, or inasmuch as it never appears to have other instrument shall be essential to the been directly controverted up to that validity of any such admission. But the time. But, in the absence of positive operation of these provisions is restrained authority, it may be fairly inferred, from by a clause providing that wastes and the old charters of the Stationers' ComCommons are not to be granted or in- pany, and much more from their regisclosed without the consent of the homage ters, whence it appears that some thouat a court duly constituted.
sands of books, even as early as the times The act also contains a provision ex- of Elizabeth, passed from one owner tending the powers of the lords and to another by descent, sale, and assigntenants of certain manors to dispose of ment; from acts and ordinances of parand divide ancient tenements held of the liament which imply a recognition of it manor, subject to a due apportionment of by the nature of their provisions respectthe ancient rent where a tenement is sold ing printing; and from decrees of the in parcels.
Star-chamber, which, though not binding There are likewise numerous provisions precedents, are evidence of the opinion of in the act for defining boundaries, settling many learned men as to the then state a disputes, providing for cases of disability, the law. The non-existence of expres payment of expenses, &c., similar to those decisions on the point is accounted fo
down to 1640 by the necessity of obtain- | mon-law copyright is founded on the us. ing a licence prior to the printing of any sumption that copyright is property indething, so that authors had no occasion to pendently written law; a proposition apply to civil tribuvals for protection, as which may be denied. none but themselves and those claiming From the above premises arose the under them were so licensed, and he who question, after the passing of the first printed a book without this was subject statute respecting literary property in to enormous penalties.
1710, whether by certain of its provisions It has hardly been controverted in the this perpetual copyright at common law various arguments upon this coinmon was extinguished for the future. After law right of copy that literary composi- some less important decisions in the ne tions in their original state, and the right gative on motion in the Court of Chancery of the publication of them, are the exclu- and elsewhere, the question was argned sive property of the author. The argu- before the Court of Kiug’s Bench, during ment has been that this property was put the term, when Lord Mansfield presided, an end to by publication : and yet without in 1769. The result was a decision in publication it is useless to the owner, favour of the common-law right as unibecause it is without profit, and property altered by the statute, with the disap without the power of use or disposal is proval, however, of Mr. Justice Yats. not property. In that state it is lost to Subsequently, in 1774, the same point society as a means of improvement, as was brought under the consideration of well as to the author as a means of gain. the House of Lords, and the decision of Publication is therefore the necessary act the court below was reversed by a maand the only means to render such a pro- jority of six judges in eleven, as Lord perty useful to the public and profitable to Mansfield, who adhered to the opinion the owner. If, says Lord Mansfield, the of the minority, declined to interfere; copy which belonged to the author before it being very unusual, from motives of publication does not belong to him after, delicacy, for a peer to support bis own where is the common law to be found judgment on appeal to the House of which says there is such a property be- Lords. It is somewhat remarkable, that fore? All the metaphysical subtleties although this could hardly be termed a from the nature of the thing may be decision, as the judges were in point of equally objected to the property before. fact divided equally, it has since beeni It is equally detached from the manu held so important as a precedent and stasscript or any physical existence whatso- tained in so many subsequent cases, that ever. There is in fact nothing in the act it must now be considered as settled lav of publication to vary the nature of the that perpetual copyright is put an end to right, so that what is necessary to make by the statutes. a work useful and profitable should be The universities of Cambridge and taken as destructive at once of an an Oxford protected themselves from the thor's confessed original property against consequences of this decree in the case of his expressed will. It has accordingly Donaldsons and Beckett, by obtaining been the almost unanimous opinion of the from parliament, in 1775. the following high authorities who were called on to year, an act for enabling the two univerdecide the point, that by the common sities in England, the four universities in law of England authors were entitled to Scotland, and the several colleges of Eto, copyright, and as there was nothing in Westminster, and Winchester, to bold in statute or custom to determine it, or dis- perpetuity their copyright in books given tinguish this from other species of pro- or bequeathed to the said universities and perty, that such right was once perpetual. colleges for the advancement of useful
The arguments for the contrary opinion learning and other purposes of education. are collected in the judgment of Mr. Jus- This protection, sanctioned by penalty tice Yates in the case of Millar v. Taylor, and forfeiture, so long as such books are 4 Burrow, p. 2303. It must be observed printed at the presses of the universities that this argument in favour of a com- J and colleges respectively, is still enjoyed,
unaffected by the general statutes on the ration of fourteen years from publication, ubject; and a similar protection is ex their representatives should have the ended to the university of Dublin by 41 benefit of the second fourteen years; and teo. III. c. 107.
if the authors should survive till twentyThe chief provisions of the 8 Anne, c. eight years from publication, they them9, entitled An act for the encourage- selves should have the benefit for the nent of learning, by vesting the copies of remainder of their lives; the rights of all rinted books in the authors or purchasers assigns being saved in both cases. The f such copies during the times therein penalties for the infringement of copyaentioned,' as regards the effecting of rights were the same as in the former hat purpose, were, that the authors of statutes, but with the limitation that all ooks already printed, and those claiming legal proceedings under the act must be under the authors, should have the sole commenced within one year. ight and liberty of printing them for a The act 5 & 6 Vict. c. 45 (Lord Maerm of twenty-one years and no longer; hon's Act), entitled · An act to amend and that the authors of books thereafter to the law of copyright, and having for its e printed, and their assigns, should have preamble, “Whereas it is expedient to he same right for fourteen years and no amend the law relating to copyright, and onger. The last clause of the statute to afford greater encouragement to the lirected that after the expiration of these production of literary works of lasting fourteen years the same right should re benefit to the world,” is the act now turn to the authors, if living, for another regulating literary property: It repeals fourteen years. The persons infringing the three before-mentioned acts, and these provisions were to be punished by enacts that
, in every book published forfeiture of the pirated book to the pro- in the life-time of the author, after the prietor, and a penalty of one penny for passing of the act (1st of July, 1842), the each sheet, one-half to go to the crown author and his assigns shall have copy: and the other half to the informer, pro- right for the term of the author's life, and vided always the title to the copy of the for seven years after his death, or if these book had been duly entered with the seven years expire before the end of fortyStationers' Company,
two years from the time of publication, The 41 Geo. III. č. 107, which extended then for such period of forty-two years ; the same law to Ireland, gave a further while for books previously published, in protection to authors and their assigns by which copyright still subsisted at the action for damages and double costs, and time of the passing of the act, the copyraised the penalty per sheet to three pence, right should be continued for the full to be divided in the same way.
term provided in the cases of books thereThe 54 Geo. III. c. 156, entitled “An after published, except in cases where act to amend the several acts for the en the copyright should belong wholly or in couragement of learuing by securing the part to a person other than the author, copies and copyright of printed books to * who shall have acquired it for other the authors of such books and their consideration than that of natural love assigns,' enacted, that the author of any and affection.” In these excepted cases, book which should be published after the however, the author, or his personal repassing of the act, and his assigns, should presentative, and the proprietor or prohave the sole liberty of printing and re- prietors of copyright may agree, before printing such book for the full term of the expiration of the subsisting term of twenty-eight years from the day of publi- copyright, to accept the benefits of the act: cation, and, if the author should be living and on a minute of such agreement being at the end of that period,
for the residue entered in a book of registry directed to of his natural life; while with regard be kept at Stationers' Hall. the copyright to books at that time already published, will be continued, as in other cases, for of which the authors were then living, the author's life and seven years after his and in which copyright had not expired, death, or for forty-two years from the if the authors should die before the expi. time of publication, and will be the pro
perty of the person or persons specified in ) before two justices of the peace; El. of the minute. The copyright of a book the penalty to go to the officer of customs published after the author's death is to or excise who shall procure the convicendure for forty-two years from the time tion, and the remainder to the proprietor of publication, and to belong to the pro- of the copyright. prietor of the manuscript from which it The act provides that a book of registry is first published, and bis assigns. With be kept at Stationers' Hall, where entries regard to encyclopædias, reviews, maga- may be made of proprietorships of copy zines, periodical works, or works pub- right, assignments thereof, licences of the lished in a series of books or parts, or judicial committee, and agreements as to any book in which the publisher or pro- copyrights subsisting at the time of the jector shall have employed persons to passing of the act, on payment in each write, on the terms that the copyright case of a fee of 58. The entry of proshall belong to himself, the copyright prietorship of copyright in this book does shall be in the publisher or projector, after not affect copyright; but no action can be he has paid for it, in the same manner and brought for infringement of copyright, for the same term as is given to authors nor any other legal proceedings taken, of books, except only in the case of essays, unless the proprietorship of copyright articles, or portions forming part of and has been entered. The entry of an as first published in reviews, magazines, or signment in the registry book is to all other periodical works of a like nature, intents and purposes an effectual assignthe right of publishing which separately ment. $ 13. Certified and stamped copies shall revert to the authors at the end of of entries in the registry book are to be twenty-eight years after publication, for evidence in all courts of justice, and are the remainder of the term given by this to be taken as primâ facie proof of copy act; and during these twenty-eight years right. The making of a false entry in the publisher or projector shall not have the registry book, or the production in the right to publish any such essay, ar- evidence of any paper falsely purporting ticle, or portion separately, without the to be the copy of an entry therein, is consent of the author or his assigns. made a inisdemeanor. Persons thinking
The act provides, at the same time, themselves aggrieved by any entry in the against the suppression of books of im- registry book, may apply to a court of portance to the public, by empowering the law in term time, or a judge in vacation, judicial committee of the Privy Council, for an order to vary or expunge such on complaint made to them that the pro- entry; and such court or judge may prietor of the copyright in any book, make an order for varying, expunging, after the death of its author, refuses to or confirming such entry, with or without republish or allow the republication of costs. the same, to license the complainant to It has been said that the exclusive propublish the book, in such manner and perty of authors in their manuscripts has subject to such conditions as the Privy always been recognised by the law. Bat Council may think fit.
as this principle only prevented the printThe remedies provided by this act foring or circulating copies of them without infringement of copyright are, an action the licence of the owner, it has been found for damages (in which the defendant is necessary to provide for the peculiar prorequired, on pleading, to give notice to tection of the authors of dramatic and the plaintiff of the objections to the plain- musical compositions. The 3 Will. IV. tiff's title on which he means to rely), and c. 15, entitled • An Act to amend the a power given to the officers of customs Laws relating to Dramatic Literary Proand excise to seize and destroy all fo- perty,' and known as Sir Bulwer Lyt reign reprints of books in which copyright ton's act, after reciting the 54 Geo. ll. exists, with a penalty on the importer (if c. 156, provided that the author of any he be not the proprietor of the copyright) dramatic piece, not hitherto printed or of 101., and double the value of every published by authority of him or his ascopy of any book imported, on conviction signs, should have as his property the so.e