Byron's Cain and Don Juan as incapable of their protection.1 And for a like reason a court will not grant an injunction to restrain the publication of a work which is immoral or indictable or actionable, the publication being left to be punished by another proceeding. It is true that Lord Macclesfield, L. C., thought it the duty of the Court of Chancery to restrain such works, so as to prevent further daily mischief extending. But the court has since thought, that it was no part of its business to interfere merely to prevent a crime being committed. One of the inevitable consequences of a work being libellous in the above senses is, that no action can be brought to recover the value of any kind of work done upon it, whether for printing or publishing. If such prints are sold the seller cannot recover the price; if they are about to be pirated the court will not restrain the pirate; if they are sold and paid for, the purchaser cannot recover back the price paid, at least if he knew the nature of the work he was buying. This head of law is not, however, peculiar to libels, but accompanies all kinds of immoral and illegal acts, which are said to be against the policy of the law.* And precisely the same reason applies, where the publisher of a work which is falsely represented to be the work of a popular author, and the sale of which is more or less in the nature of an attempt to obtain money by false pretences; in such a case the first publisher could not establish a copyright, and therefore the court will not interfere to protect him, and there can be no reason for any court to interfere to protect one pirate against another pirate. 5

Date of publication. The length of copyright depends on the date of publication, but this date is sometimes a point difficult of ascertainment. Thus the acting of a drama is no publication of the words; nor is the unauthorised publication of a piece recomposed from memory, or notes, or hearing the MS. read. Nor is the lithographing of copies to give to a few friends; though such gratuitous

1 Murray Benbow, 1 Jac. 474 n. 2 Meriv. 441.

8

2 Burnett v Chetwood,

3 Prudential Co. v Knott, L. R., 10 Ch. 144.

4 Stockdale v Onwhyn, 5 B. & C. 173; Poplett v Stockdale, Ry. & M. 337. 5 Wright v Tallis, 1 C. B. 893. 6 Coleman v Wathen, 5 T. R. 245. 7 Macklin v Richardson, Amb. 694. Albert Strange, 1 Mac. & G. 25.

8 Prince

circulation of printed copies among a private society may well amount to an infringement of the author's right by some other person.1 And as in the case of books, it is sometimes difficult to decide what is the date of publication of a picture. It was held, that the mere publication of an engraving of a picture in a magazine was no publication of the picture; nor was the exhibition of the picture at the Royal Academy any such publication.2

Registering book under Copyright Act.-The Act provides for a register being kept of the owners of copyrights at Stationers' Hall, which is to be open to the inspection of the public on payment of a small fee. A certified copy of such entry is prima facie evidence of the proprietorship or assignment of the copyright, or in case of dramatic or musical pieces of the right to represent or perform such pieces, the insertion of a false entry being punishable as a misdemeanour.4 If the author has arranged with publishers as to publication, all of them, both authors and publishers, may be jointly entered as owners. If there is an entry of joint owners both may sue. If the copyright was assigned before publication, then the person properly to register the book is the assignee in his own name. The particulars stated in the registered entry of copyright must be perfectly accurate as to dates and names, otherwise the protection of the Act does not attach to the book. And this is so, though the omission or error was the fault of the officials and not of the author. It is essential that this register should state the exact date of first publication, namely, the day of the month and year. The place of abode is also necessary, but if the author is abroad, the address of the publishers will suffice for the author's address. 10 Before the Act of 1842, though the registration of the book was necessary in order to recover penalties, yet it was not necessary in order to sue in an ordinary action for infringement. But under that Act it is a condition precedent to any remedy whatever in 1 Novello v Ludlow, 12 C. B. 177. 2 Turner Robinson, 10 Ir. Ch. R. 121, 516. 5 & 6 Vic. c. 45, § 11. 4 Ibid. §§ 12, 13. 5 Stevens v Wildy, 19 L. J., Ch. 190. 6 5 & 6 Vic. c. 45, § 3; Cocks v Purday, 5 C. B. 860. 7 Low v Routledge, 33 L. J. Ch. 717; Lover Davidson, 1 C. B., N. S. 182. 8 Cassell Stiff, 2 K. & J. 287. 9 Mathieson v Harrod, L. R., 7 Eq. 272. 10 Lover v Davidson, 1 C. B., N. S. 182.

respect of books published since 1842.1 The omission of this entry in the register does not cause any forfeiture of the author's right; it merely prevents any remedy being resorted to either by action or under the statute, until the entry shall have been made.2 And the entry may be expunged if its falsity is clearly proved, but not otherwise. And the person so applying must always have some real interest and be really aggrieved. There is nothing gained by registering a book before actual publication, or by registering the title of a proposed book or periodical. And to do so will not prevent others adopting the title. For the Act protects not the intentions but the actual performances of authors and publishers. A separate article intended to form part of a periodical publication does not require registration as a book, to protect the right therein."

5

Assignment of copyright in printed books.-The copyright in books, paintings, sculptures, is personalty in the eye of the law, and is dealt with in wills like other personalty.8 And as it has ceased to be in any sense personal to the author, there is no reason why the right of publication should not pass to the trustee in bankruptcy, as it has been settled to do with regard to a newspaper. Every owner or registered proprietor of a copyright may assign it in whole or part by any writing, either under seal or not under seal, or by an entry in the Book of Registry, according to the form of the statute, which is made equivalent to a deed, and is not subject to any stamp duty.10 The Copyright Act did not expressly state how an assignment of copyright was to be made. It states one way of doing so, namely, by entry in the register at Stationers' Hall; but this did not negative other ways, and hence the courts had to reason circuitously in order to discover another way. And this was done by inference from the enactment, that every person printing a book or MS. for sale without the written consent of the

1 5 & 6 Vic. c. 45, § 24. 25 & 6 Vic. c. 45, § 24; Stannard v Lee, L. R., 6 Ch. 350; Murray v Bogue, 1 Drewr. 364; Hogg v Scott, L. R., 18 Eq. 444. 3 Ex p. Davidson, 18 C. B. 310.

4 Exp. Walker, re Graves, 10 B. & S. 688. 5 Correspondent Newspaper Co. v Saunders, 12 L. T., N. S. 540. 6 Hogg Maxwell, L. R., 2 Ch. Ap. 316. 7 Mayhew v Maxwell, 1 J. & H. 312. 8 5 & 6 Vic. c. 45, § 25; 25 & 26 Vic. c. 68, § 3. Baldwin, 2 De G. & J. 230; 32 & 33 Vic. c. 71, § 15. Vic. c. 45, §§ 13, 14.

9 Re 10 5 & 6

6

3

author shall be liable for piracy. It was thus inferred by the courts, that the consent of the proprietor to the publication of the work must be in writing, and if the origin of the right was to be by writing, it was inferred that the assignment must have been also of the same species of evidence. And the assignment may be validly made by an agent of the author in writing, though that agent was not appointed by writing, as is required in the case of copyright in paintings and drawings. In cases where the assignor has copies of the work printed, but unsold, at the time of the assignment, and there is no special contract as to these, they do not pass to the assignee, and the assignor may after the assignment continue to sell them." An assignment may be made for a limited portion of the full term only, or for a limited number of copies, as for example the first edition, after which the author's right revives. But the assignment cannot be confined to one locality only, or parcelled out in that way, it being construed to mean one indivisible right in this respect. And any other doctrine would make it practically impossible to obtain redress for infringement. And when the agreement between author and publisher is for the latter to print a certain number of copies and account to the author for the price, this is an implied assignment to the publisher while those copies are unsold. And yet if there is no definite term, a like agreement will not be treated either as an assignment of copyright or an irrevocable licence by the author, but merely as a joint adventure which either of them can terminate at pleasure and then divide the profit and loss. And primâ facie whatever arrangement be made as to dividing profits, there must be an express assignment to deprive the author of the radical right which he has to the copyright of the original work he produces; or at least sufficient ground to justify a court in compelling him to complete such assignment either for the whole or a 1 5 & 6 Vic. c. 45, § 15. 2 Davidson v Bohn, 6 C. B. 456; Leyland Stewart, 4 Ch. D. 419. But a receipt for the purchasemoney would be no evidence of the assignment.-Lover v Davidson, 1 C. B., N. S. 182. 3 Moreton v Copeland, 16 C. B. 517. 4 Ibid.

8 Sweet

5 Taylor Pillow, L. R., 7 Eq. 418. 6 Reade v Bentley, 4 K. & J. 656. 7 Jeffreys v Boosey, 4 H. L. C. 938, 940, 993. v Cater, 11 Sim, 573. 9 Reade v Bentley, 3 K. & J. 271; 4 K. &

J. 664.

portion of the term.1 Though an author cannot sue till he has registered the work, an assignee of a copyright is not precluded from bringing an action for infringement by not inserting his name in the registry, for the statute merely specifies one mode of assigninent.2 There was no necessity, before 1843, that the assignment in writing should be attested, though it has been decided that since that statute the assignment must be in writing. This entry at Stationers' Hall must set forth the name and abode of the assignee.5

When author has not the radical copyright.-Though as a general rule the authorship of a composition is to be distinguished from the mere mechanical printing of copies thereof, and the inherent or radical copyright must remain in the author until he parts with it to another, still there may be cases where the composition is created by virtue. of contract, and in that event the copyright may be vested ab initio in a different person from the author. A person, it is true, who merely suggests the subject, and takes no part in the design or execution, cannot be the author. But where a theatrical manager ordered from a composer certain music to suit fixed decorations and accompaniments, the copyright of the music was held, by virtue of the contract, to be the accessory right and the theatrical representation the principal right, and so that the copyright belonged to the manager.? It makes no difference that an author publishes his work anonymously, for he nevertheless enjoys the same copyright as if he published his name and authorship. In some peculiar circumstances. there may also be joint authors if they all concur in doing distinct parts of the work, though one may do a larger share than the others.8

Crown copyright.-Though the Statute of Anne recognised authors as the persons whose copyright was primarily to be protected, yet the 9th section saved the rights of the universities and others in any books printed 2 5 & 6 Vic. c. 45,

1 Hazlitt v Templeman, 13 L. T., N. S. 593.

§ 24; Wood Boosey, 7 B. & S. 869; L. R., 2 Q. B. 340. 3 Cumberland v Copeland, 1 H. & C. 194. 4 Leyland v Stewart, Boosey, L. R., 2 Q. B. 340. 7 Hatton Kean, 7 C. B.,

4 Ch. D. 419; sed quære. 5 Wood

6 Shepherd & Conquest, 17 C. B. 427.

N. S. 268. 8 Marzials v Gibbons, L. R., 9 Ch. 518; Levi v Rutley, L. R., 6 C. P. 523.