brace. A right of this description is protected by the French law: see Le Blanc's work on Piracy. [ERLE, C. J.-Perhaps the only way in which the author of a novel can protect himself from this sort of infringement, is, by dramatizing it himself.] May he not do so at any time? The statute is merely declaratory of the common law on the subject. In Turner v. Robinson, 10 Irish Chan. Rep. 121, 510,-where the question was, whether at common law the owner of a picture had a right before publication to prevent any copy being made of it,-the Master of the Rolls says (p. 131): "There is no statute for the protection of the copyright in a painting. The only remedies, therefore, which a painter has in case of piracy, are,-first, an action at the common law, -secondly, a suit in *equity for an injunction, founded on the *760] common law right,-thirdly, a suit in equity, where the piracy has been accompanied by circumstances of fraud, or breach of trust, confidence, or contract, express or implied. With respect to the common law right, it is laid down by Lord Cottenham, in Prince Albert v. Strange, 1 M'N. & G. 25, 42, 1 Hall & Twells 1,- The property of an author or composer of any work, whether of literature, art, or science, in such work unpublished, and kept for his private use or pleasure, cannot be disputed, after the many decisions in which that proposition has been affirmed or assumed.' Most of the authorities on the subject are collected and referred to in that case. That a picture is analogous to a manuscript appears also from the opinion of Lord Cranworth in Jefferys v. Boosey, 4 House of Lords Cases 833. Lord St. Leonards, in giving judgment in that case, said,- The common law does give a man who has composed a work a right to that composition, just as he has a right to any other part of his personal property; but the question of the right of excluding all the world from copying, and of himself claiming the exclusive right of for ever copying his own composition after he has published it to the world, is a totally different thing.' The opinion of Lord Brougham was to the same effect. It is not necessary to go through the authorities collected in the cases to which I have referred, as I apprehend it is clear, that, by the common law, copyright or protection exists in favour of works of literature, art, or science, to this limited extent only, that, while they remain unpublished, no person can pirate them, but that, after publication, they are by the common law unprotected. There has been much difference of opinion on this subject amongst the judges in England; but the law is now considered to be as I have stated it." Lord Chancellor Brady, on that case coming before *761] him on appeal (10 *Irish Chan. Rep. 510), said: "The copyright in books is protected by the 8 Anne, c. 19; copyright in engravings is also guarded by statute; and that in a species of works of art very analogous to that now under the consideration of the court, viz. sculpture, is protected by the 38 G. 3, c. 71, and the 54 G. 3, c. 56: but copyright of this statutory kind, which may be said to arise from publication, and which was intended to induce persons to publish their works without danger to their property, has never been created in the same way as regards paintings; therefore, the owner of such works of art cannot rest upon statutory copyright, and he is thrown back upon what was discussed at length in the latter part of the argument addressed to us, viz. his copyright at common law." The contention of Mr. Justice Yates in Millar v. Taylor, 4 Burr. 2303, 2355, 2368, can hardly apply

to things which are constantly undergoing modification. Nihil quod est contra rationem est licitum: Co. Litt. 97 b: and see the eommentary of Lord Coke on the words of Littleton, § 213, "Of common right," Co. Litt. 142 a. Lord Mansfield, in his very learned judgment in Millar v. Taylor, says, pp. 2398, 2399,-"From what source is the common law drawn, which is admitted to be so clear in respect of the copy before publication? From this argument, because it is just that an author should reap the pecuniary profits of his own ingenuity and labour. It is just that another should not use his name without his consent. It is fit that he should judge when to publish, or whether he ever will publish. It is fit he should not only choose the time, but the manner of publication; how many; what volume; what print. It is fit he should choose to whose care he will trust the accuracy and correctness of the impression; in whose honesty he will confide not to foist in additions: with other reasonings of the same effect. *I allow them sufficient to [*762 show it is agreeable to the principles of right and wrong, the fitness of things, convenience and policy, and therefore to the common law, to protect the copy before publication. But the same reasons hold after the author has published. He can reap no pecuniary profit, if, the next moment after his work comes out, it may be pirated upon worse paper and in worse print, and in a cheaper volume. The 8th of Queen Anne is no answer. We are considering the common law, upon principles before and independent of that act. The author may not only be deprived of any profit, but lose the expense he has been at. He is no more master of the use of his own name. He has no control over the correctness of his own work. He cannot prevent additions. He cannot retract errors. He cannot amend, or cancel a faulty edition. Any one may print, pirate, and perpetuate the imperfections, to the disgrace and against the will of the author; may propagate sentiments under his name which he disapproves, repents, and is ashamed of. He can exercise no discretion as to the manner in which or the persons by whom his work shall be published. For these and many more reasons, it seems to me just and fit to protect the copy after publication. All objections which hold as much to the kind of property before as to the kind of property after publication go for nothing: they prove too much. There is no peculiar objection to the property after, except that the copy is necessarily made common after the book is once published. Does a transfer of paper upon which it is printed necessarily transfer the copy, more than the transfer of paper upon which the book is written? The argument turns in a circle. The copy is made common, because the law does not protect it; and the law cannot protect it because it is made common.' The author does not mean to make it common: and, if the law says he ought to have the copy after publication, it is a several property, easily protected, ascertained, [*763 and secured. The whole, then, must finally resolve in this question, whether it is agreeable to natural principles, moral justice, and fitness, to allow him the copy after publication as well as before. The general consent of this kingdom for ages is on the affirmative side. The legislative authority has taken it for granted, and interposed penalties to protect it for a time." The judges there were by a majority of three (Lord Mansfield, and Mr. Justice Willes, and Mr. Justice Aston) against the opinion of one (Mr. Justice Yates) in favour of the common law C. B. N. S., VOL. IX.-28

right. The term of copyright as provided by the 5 & 6 Vict. c. 45, is by s. 20 extended and applied to the liberty of representing dramatic pieces under the 3 & 4 W. 4, c. 15.

Lush, Q. C., in reply. It is too late now to say that copyright existed at common law. [WILLIAMS, J.-Lord Campbell intimated a pretty strong opinion in Boosey v. Jefferys, in the Exchequer Chamber, 6 Exch. 580, that there was no copyright at common law. ERLE, C. J.—In Donaldson v. Beckett, 4 Burr. 2408, 2 Bro. P. C. 129, eight of the judges (against four) thought there was.] In giving his opinion in the House of Lords in Jefferys v. Boosey, Lord Brougham says (4 House of Lords Cases 961): "The difference of opinion among the learned judges on the various points of the present case are not greater than existed when Donaldson v. Beckett was decided here in 1774, and when, in 1769, in the case of Millar v. Taylor, the judges of the Court of King's Bench had been divided in opinion for the first time since Lord Mansfield presided in that court. In this House they were, if we reckon Lord Mansfield, equally divided upon the main question, whether or not the action at common law is taken away by the *statute, sup*764] posing it to have been competent before; and they were divided as nine (or with Lord Mansfield ten) to three, and as eight to four, upon the two questions touching the previously existing common law right. This House, however, reversed the decree, under appeal, in accordance with the opinion given on the main point by the majority of the judges; and, upon the general question of literary property at common law, no judgment whatever was pronounced." That question, however, does not arise here. It is not suggested that the defendant multiplied copies of the plaintiff's book. The complaint is, that the defendant has dramatized the story and caused it to be represented at his theatre. There is no authority for saying that this was any offence at common law, or any invasion of the plaintiff's common law right: and it is clear that the representing on the stage is no infringement of the plaintiff's right under the statute: Coleman v. Wathen, 5 T. R. 245. [WILLIAMS, J.-Did it appear there that "The Agreeable Surprise" had been printed and published?] The report is silent as to that: but it must have been published, for the action was brought for penalties under the 8 Anne, c. 19. All that was decided in Turner v. Robinson, 10 Irish Chan. Rep. 121, 510, was, that merely showing a manuscript or a picture was no publication. No case has ever decided that the author of a dramatic piece had a right at common law to prevent its representation on the stage. Then, as to the statutes, the right is plain and well defined. The 3 & 4 W. 4, c. 15, which professes to be an extension of the 54 G. 3, c. 156, gives the author of a dramatic piece the sole liberty of representing or causing it to be represented at any place of dramatic entertainment: and the 20th section of the 5 & 6 Vict. c. 45 extends the provisions of that act to musical compositions, and applies *765] the provisions as to *copyright in books to dramatic pieces. (a) The question is whether that which is here charged in the second count is an infringement of the plaintiff's copyright in the novel. It is submitted that it is not. Cur, adv. vult.

(a) See Russell v. Smith, 12 Q. B. 217 (E. C. L. R. vol. 64).

WILLIAMS, J., now delivered the judgment of the court:(a)— The second count of the declaration in this case alleged that the plaintiff was the duly registered proprietor of the copyright in a certain registered book, viz. a tale or novel or story intituled "It is never too late to mend," and complained that the defendant, without the plaintiff's consent, dramatized the said novel, and caused it to be publicly represented and performed as a drama at the Grecian Theatre, for profit, and thereby the sale of the book was injured, &c.

To this count there was a demurrer: and it was insisted on the part of the defendant that representing the incidents of a published novel in a dramatic form upon the stage, although done publicly and for profit, is not an infringement of the plaintiff's copyright therein: and we are of opinion that the defendant's contention is correct.

The right claimed by the plaintiff was twofold. First, he contended that his statutable right was infringed by the act of the defendant. was held, however, in the case of Coleman v. Wathen, 5 T. R. 245, that representing a public dramatic piece of the plaintiff's upon the stage was not a publication within the meaning of the 8 Anne, c. 19, so as to subject the defendant to the penalty imposed by the statute. And the 2d section of the 5 & 6 Vict. c. 45, defining "copyright" [*766 to mean "the sole and exclusive liberty of printing or otherwise multiplying copies of any subject to which the said word is herein applied," seems to furnish a complete answer to the plaintiff's claim under the statute. Nor, indeed, did he much rely on it; his main reliance was placed upon the general ground, that, even if his statutable right had not been infringed, yet that, as an author, he had a copyright at common law, concurrently with, but more extensive than, his right under the statute; and that such common law right had been invaded by the act of the defendant.

Now, it is not necessary, in order to decide the present case, to consider the question upon which so much learning has been exhausted, viz. whether anterior to the statute of Anne there existed a copyright at common law in published books more extensive in its nature and duration than the right conferred or expressed by that statute. There can, we think, be no doubt that the weight of authority in the time of Lord Mansfield was in favour of the existence of such a right; although the doctrine has found less favour in more modern times: but the continued existence of any such right after the passing of the statute of Anne was distinctly denied by the majority of the judges in the celebrated case of Donaldson v. Beckett, 4 Burr. 2408, 2 Bro. P. C. 129: and the case itself expressly decides that no such right exists after the expiration of the period prescribed by that act.

The question, therefore, seems narrowed to this, namely, whether, the statute of Anne having confessedly put an end to such a right (if it ever existed) after the period it prescribes, has yet preserved it during the currency of such period. That it has done *so is a proposition which we think it difficult for the plaintiff to maintain. That a [*767

common law right of action attaches upon an invasion of the copyright created by statute, was decided in the case of Beckford v. Hood, 7 T. R. 620, and followed in several other cases. But we are not aware of any

(a) The judges present at the argument were Erle, C. J., Williams, J., and Keating, J.; Willes, J., being engaged in the Divorce Court.

case, since Millar v. Taylor, 4 Burr. 2303, was overruled by the House of Lords, which decides or recognises that an author of a published work has any other than the statutable copyright therein.

In the case of Murray v. Elliston, 5 B. & Ald. 657 (E. C. L. R. vol. 7), (before the 3 & 4 W. 4, c. 15), Lord Byron's tragedy of Marino Faliero, the copyright in which belonged to the plaintiff, had been abridged by curtailing the dialogue and soliloquies, and publicly acted and represented in that form by the defendant at Drury Lane Theatre for profit, the advertisements describing it as Lord Byron's tragedy: a bill for an injunction having been filed, a case was sent for the opinion of the Court of Queen's Bench, whether the plaintiff could maintain an action against the defendant under the circumstances. The argument for the plaintiff there was put upon the same ground as in the present case but the court certified that no action would lie,—a decision which appears in point against the plaintiff upon this record.

That much might be urged in favour of the common law right, if the question were res integra, cannot be doubted by any one who has read the learned judgments of the majority of the court in Millar v. Taylor, and (on the part of my Brother Keating and myself, I must be allowed to add) of Mr. Justice Erle in the case of Jefferys v. Boosey, 4 House of Lords Cases 876. But it was the opinion of a large majority of the judges and law lords in that case, that the time had passed when the question was open to discussion, and that it *must now be considered to be settled that copyright in a published work only exists by statute.

*768]

The learned counsel for the plaintiff in his argument cited a case of Turner v. Robinson, 10 Irish Chan. Rep. 121 (on appeal, p. 510), in which it was supposed the Master of the Rolls in Ireland had taken a view favourable to the plaintiff's claim in the present case. Upon looking to the report, however, it will be found that the opinion of that learned judge is directly opposed to such a claim. In that case, the plaintiff had applied for an injunction to prevent the defendant from pirating an original picture of the death of Chatterton, of which the plaintiff was proprietor, by means of stereoscopic apparatus. The Master of the Rolls, being of opinion, upon the facts, that there had been no publication of the picture, and that the imitation was a piracy, granted the injunction: but his opinion upon the point involved in the claim of the plaintiff upon this record was thus expressed. "It is not necessary," said that learned judge, "to go through the authorities collected in the cases to which I have referred, (a) as I apprehend it is clear that by the common law copyright or protection exists in favour of works of literature, art, or science, to this limited extent only, that, while they remain unpublished, no person can pirate them, but that, after publication, they are by common law unprotected. There has been much difference of opinion on this subject among the judges in England: but the law is now considered to be as I have stated it.'

The opinion of the Master of the Rolls in Ireland may therefore be added to the weight of authority in this country in favour of the posi*769] tion that copyright or *protection to works of literature after they have been published, exists only by statute.

(a) Prince Albert v. Strange, 1 M'N & G. 25, 1 Hall & Twells 1; Jeffreys v. Boosey, 4 House of Lords Cases 815.