be no infringement. But this cannot be maintained, for no proportion of accompanying notes will prevent such a reprint of an author's book being an infringement, and the bona fides of the annotator is wholly immaterial. Indeed, the better the notes, the worse the infringement. And, for the same reason, to publish a book with the addition of plates or illustrations of any kind is in the same position, for this is equally an infringement.

Infringement by way of abridgment.-Another mode of infringement is by way of abridgment, and on this subject judges have sometimes affected sympathy with such a mode of infringement on account of its so called public utility. But if utility were any guide in such a question, few works were ever published, that could not, in skilful hands, be slightly varied and made much shorter, cheaper, and better in all respects than the original form in which the authors happened to place them before the public. Though something turns on the degree and relative quantity of the abridgment, yet prima facie it is a mode of infringement, if it materially supersedes the desire of readers to purchase the original.3 Lord Hardwicke first laid down. this rule, but the utmost he said was, that in some cases an abridgment might show invention, learning, and judg ment, and could not be deemed an infringement of copyright. And he added, that such cases could not be properly disposed of by a jury, but ought to be referred to persons of learning and ability to report upon. Hence in such a question the trouble and skill of the abridger have nothing whatever to do with the matter; they rather make the infringement more substantial and fatal to the author of the original work. And it requires to be remembered, that pirates often display great ability, and their chief misfortune is, that such is entirely misplaced. If their ability had been directed to an honest attempt to write an original

1 Martin v Wright, 6 Sim. 298. Cr. 711; Campbell v Scott, 11 Sim. 31. & M. 747.

* Saunders v Smith, 3 M. & 3 Tinsley v Lacy, 1 H.

4 Gyles Wilcock, 2 Atk. 142. In another case, LORD APSLET, L.C., said he and Justice Blackstone had considered the subject and spent several hours discussing it, and thought there were cases where abridgments were really new books, and could not be treated as invasions of copyright.-Lofft, 775.

5 3 Swanst. 681.

work, they might have succeeded quite as well as by carrying off large handfuls from their neighbour's heap. The distinction sometimes drawn between a bona fide and a colourable abridgment is altogether misleading; the sole question being, whether the reader or possessor of the abridgment will be so materially induced to dispense with the original as to cause a substantial injury to the author's copyright. That kind of abridgment consisting in headnotes to legal reports if original, and deduced from the reports themselves, is a material part of the whole report, and to copy such head-note is therefore an infringement. And for a like reason the copying of prints accompanying an original work is an infringement, because the copyright covers the work and every part of it.3

Infringement by importation of pirated copies.-One obvious mode of infringing copyright is to import and sell copies which have been printed abroad, and which could not be prevented from being so printed. And this is so glaring and destructive a proceeding, that it is made an offence punishable by summary conviction before justices. Whoever imports into the British dominions for sale a copy of a copyright book, which copy has been printed out of the British dominions, and whoever knowingly sells or possesses or exposes for sale such copy, not only forfeits the book, but is liable to be convicted in respect of each book in a sum of ten pounds and double the value of the book. Half of the penalty goes to the proprietor of the copyright, and the other half to the Customs officer who seizes the copies, which he has power also to destroy. But to obtain this protection, and to assist Custom House officers, notice of copyright books must be sent to the Customs officers, who expose such list to public view. And to prevent false entries a judge at chambers may on complaint expunge an entry from the list at the expense of the party wrongfully causing the entry. All copies unlawfully imported are deemed the property of the registered

4

1 LORD CAMPBELL said the law had gone too far in tolerating abridgments. (5 Camp. L. Ch. 55.) And V. C. WOOD said the same. Tinsley v Lacy, 1 H. & M. 747; Scott v Stanford, L. R., 3 Eq. 723.

2 Sweet v Benning, 16 C. B. 484; Butterworth v Robinson, 5 Ves. 709. Bogue v Houlston, 5 De G. & Sm. 267. 4 5 & 6 Vic.

c. 45, § 17.

5 39 & 40 Vic. c. 36, §§ 42, 44, 45.

proprietor of the copyright, who may sue for the same or their value. And he may demand an account of the gains and profits made by the infringement. And he may obtain an injunction against selling more of the pirated copies.3

Interferences with copyright by reciting or dramatising. As the law treats as beyond its limit the literary effect or use made by readers of a copyright work, there are a few instances in which copyright is not deemed at all substantially interfered with. If a reader choose, for profit or otherwise, to read in public or even to recite from memory another's book, he violates no right, for this is little more than reading aloud, and is rather an example of an independent kind of labour or an exhibition of a special faculty in exercise. And the court once went the length of holding, that the copyright of a drama which one would think essentially included the right of acting it, did not include this, and could not be prevented by the author, and hence a statute was passed to cure this striking injustice. In 1834 the legislature gave to the authors of dramas what they were deemed not to have before, namely, the stage right or exclusive right of acting the play as distinguished from the mere republication of the order of words involved in it as a book. And the term of the stage right in the performance was made identical with book copyright. And the remedies are the same. The case, however, has arisen where a copyright of a novel is interfered with by turning its main incidents into the form of a play and acting it. An author who publishes his novel might well be deemed not to contemplate that conversion, for the effect may be to prevent those who witness the play to cease to care for reading the novel. It was deemed difficult to decide, whether the copyright in a novel impliedly included the right of preventing any dramatic use of the main incidents. And the court held it did not. And yet the court held, that if a copy of the dramatic

1 5 & 6 Vic. c. 45, § 23. 2 Delfe v Delamotte, 3 K. & J. 581. 3 Mayall v Higbey, 1 H. & C 148. Tinsley Lacy, 1 H. & M. 747. 5 Murray Elliston, 5 B. & Ald. 657. 63 & 4 Will. IV. c. 15. 7 5 & 6 Vic. c. 45, § 20. 8 Ibid. § 21. 9 Reader Conquest, 9 C. B., N. S. 755; 11 C. B., N. S. 479; Toole v Young, L. R., 9 Q. B. 59.

version was printed and sold as a book, it did amount to an infringement.1 The ground on which the court refused to treat the dramatisation and mere acting on the stage of a novel as an infringement of the copyright in the order of words seems to be, that it requires a distinct order of talent to put the story into a practical drama, and hence this result was not the natural and probable consequence of publication. But in modern times, when novels and dramas have become so numerous, and so frequently act and react on each other, the legislature may well revise. the statute, so as to recognise dramatisation as one of the probable consequences, and therefore include this in copyright of novels and like compositions which involve narratives of character and place. Copyright in music as in plays includes the words of the accompaniment and also the right of performing the music. This is infringed by publishing some of the airs of an opera. The copyright in dramas and music thus includes the right of performance as well as the mere words or verse. Another difficulty has arisen as to music, where an opera has been turned into a pianoforte accompaniment and this last again has been turned into an opera; and it has been held that the performance of the second opera was an infringement of the stage right in the original opera.*

3

Remedy by action for infringement of copyright.— When copyright has been infringed, the statute of 1843 expressly gives to the owner a right of action against the party who has infringed, and the defendant must give to the plaintiff before trial notice in writing of the objections on which he means to rely; and if he rely on some other person being the owner of the copyright, he must give particulars of name, and title of book, and time and place of publication. It has been sometimes said, that in the action for infringement the plaintiff must prove a guilty intent, or something like an animus furandi, in the defendant. But this seems a misconception. It is not what the piratical author intended but what he has done, if the thing done in effect interferes with the exclusive right of

1 Novello v Sudlow, 12 C. B. 177; Tinsley v Lacy, 1 H. & M. 747. 2 3 & 4 Vic. c. 45, § 20. 3 D'Almaine v Boosey, 1 Y. & Fairly v Boosey, L. R., 4 App. 711.

C. Ex. 288.

4

Vic. c. 45, § 15; Ibid. § 16.

55&6

a prior author, that is the cause of action, just as any collision in the street resulting from negligence or carelessness, and causing damage to another person, will be a cause of action though no actual intent to injure existed. The one author in the pursuit of his own interest so acts as to damage the property of a preceding author: and hence the cause of action resembles the cause which arises in cases of damage by negligence or carelessness. There is, it is true, the possibility of two minds having independently thought out the same subjects in much the same language and on the same plan, and yet so as to wear the appearance of one book being an imitation or infringement of the other's copyright, in which case no action would lie. And in order to test the truth of this coincidence, courts often examine the materials in order to be satisfied that it is not such a case of accidental and unavoidable coincidence. But the moment it is resolved not to be an accidental coincidence, then the motive or intent of the second author is wholly immaterial, if his book is a substantial infringement of the prior copyright.1

Where a right such as copyright is established and another interferes with it in the only way in which it can be interfered with, namely, by printing and selling without authority duplicates or copies or imitations which are deemed to be in effect and substance the same as copies and injuring the sale of the original work, an action of damages is the common law remedy of the author or owner of the copyright. It was so held under the statute of Anne, and is expressly so declared by the statute of 1843.2 The question whether lithographing copies amounted to piracy has arisen, and the court held, that he who lithographed copies for distribution was liable to an action as well as he who printed them.3 The above rule as to notice by the defendant is strictly enforced, so that if the notice has not indicated the specific objection, no evidence will be permitted to be given at the trial in support of the defence. It is not enough to say, that the copyright belongs not to the plaintiff but to some other person

1 Scott Stanford, L. R., 3 Eq. 718; Reade v Lacy, 1 J. & H. 527; Lee v Simpson, 3 C. B. 871; Pike v Nicholas, L. R., 5 Ch. 251. 25 & 6 Vic. c. 43, § 15. 3 Novello v Sudlow, 12 C. B. 177. 45 & 6 Vic. c. 45, § 16.