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Customs to the person whose name or trade mark appears to have been used or infringed. So that where, e.g., if hams were imported from America with the description "X's York Hams " which happened to be the name and mark of a well-known English curer of hams, the Customs officers could call on the importer to produce his documents to show who consigned the goods and to whom they were consigned in this country for distribution. Transmission.
A trade mark is personal property, and the rights therein are vested, on the death of the owner, in his personal representative.
Copyright is now governed by the Copyright Act, 1911, which consolidates all the previously existing common law and legislation on the subject, except the penal sections of a few statutes. But in addition to being a consolidation Act, the Act of 1911 has made many important changes in the law of copyright.
What constitutes Copyright.
Copyright is defined by the Act as "the sole right to produce or reproduce the work or any substantial part thereof in any material form whatsoever; to perform, or in the case of a lecture to deliver, the work or any substantial part thereof in public ; if the work is unpublished, to publish the work or any substantial part thereof; and it includes the sole right—
(1) To produce, reproduce, perform, or publish any translation of the work
(2) In the case of a dramatic work, to convert it into a novel or other non-dramatic work
(3) In the case of a novel or other non-dramatic work, or of an artistic work, to convert it into a dramatic work by way of performance in public or otherwise (4) In the case of a literary, dramatic, or musical work, to make any record, perforated roll, cinematograph film, or other contrivance by means of which the work may be mechanically performed or delivered";
and it includes the sole right to authorize any such acts as aforesaid. But it does not apply to copyright in designs capable of being registered under the Patents and Designs Act, 1907, (g) except where such designs are not used or intended to be used as models or patterns to be multiplied by any industrial process. Copyright does not exist in seditious, defamatory or immoral works, and it was held in Southey v. Sherwood (1817) that, where
(g) See ante, p. 241.
the work is of such a nature that an action could not be maintained on it for damages, the court will not interfere by injunction.
Rights under the Act of 1911.
Rights existing at the commencement of the Act, viz., 1st July, 1912, are terminated and, instead, the person entitled thereto acquired copyright under the Act of 1911.
It is provided that copyright shall subsist, throughout those parts of His Majesty's dominions to which the Act extends, in every original literary, dramatic, musical, and artistic work, if— (1) In the case of a published work, it was first published within such parts of the dominions aforesaid, and (2) In the case of an unpublished work, the author was at the date of the making of the work a British subject or resident within those parts of such dominions; but in no other works, except so far as extended by Orders in Council to self-governing dominions to which the Act does not extend, and to foreign countries.
Formerly it was necessary to register a work at Stationers' Hall in order technically to publish the work, so that an action for infringement might be maintained. But now no formality is required, and even the name and address of the owner of the copyright need not necessarily be included on any printed matter. Publication of a work means the issue of copies to the public; but does not include the performance in public of a dramatic or musical work, public delivery of a lecture, the exhibition in public of an artistic work, or the construction of an architectural work of art; and the issue of photographs and engravings of works of sculpture and architectural works of art is not deemed publication of such works. Except for purposes of infringement, a work is not deemed to be published or performed in public, or a lecture delivered in public, if this is done without the consent of the author or his representatives. A copy of every book published in the United Kingdom must be sent within one month of publication to the British Museum Library and, in some cases, within a year, to certain University Libraries. If a publisher fails to deliver the copy under the Act he is liable to a fine of five pounds and the value of the book.
Infringement of Copyright.
Copyright is deemed to be infringed by doing, without the consent of the owner, anything the sole right to do which is
It is also an infringement
conferred by the Act on such owner. for a person
(1) To sell or let for hire, or, by way of trade, to expose or offer for sale or hire, or
(2) To distribute for the purposes of trade or to such an extent as prejudicially affects the owner of the copyright, or
(3) By way of trade to exhibit in public, or
(4) To import for sale or hire into any place to which the Act extends—
any work which he knows to be an infringement of copyright. Acts which do not constitute infringement.-There are, however, many exceptions as to what is deemed an infringement, and the following acts do not constitute an infringement
(1) Any fair dealing with any work for the purposes of private study, research, criticism, review or newspaper sum
(2) Where the author of an artistic work is not the owner of the copyright therein, the use by the author of any mould, cast, sketch, plan, model or study made by him for the purpose of the work, provided that he does not thereby repeat or imitate the main design of that work:
(3) The making or publishing of paintings, drawings, engravings or photographs of a work of sculpture or artistic craftmanship, if permanently situate in a public place or building, or the making or publishing of paintings, drawings, engravings or photographs (which are not in the nature of architectural drawings or plans) of any architectural work of art:
(4) The publication in a collection, mainly composed of noncopyright matter, bonâ fide intended for the use of schools, and so described in the title and in any advertisements issued by the publisher, of short passages from published literary works which are not themselves published for the use of schools and in which copyright subsists: Provided that not more than two such passages from works by the same author are published by the same publisher within five years, and that the source from which such passages are taken is acknowledged : (5) The publication in a newspaper of a report of a lecture delivered in public, unless the report is prohibited by conspicuous written or printed notice affixed before and maintained during the lecture at or about the main entrance of the building in which the lecture is given,
and except whilst the building is being used for public worship, in a position near the lecturer, but nothing in this paragraph shall affect the provisions mentioned above as to newspaper summaries :
(6) The reading or recitation in public by one person of any reasonable extract from any published work.
Except, therefore, in very straightforward cases, it is often difficult to say definitely what is or is not an infringement of copyright. It was held in Scott v. Stamford (1867) that the absence of any dishonest intention does not excuse the appropriation where, even with full acknowledgment of the original, the result is to injure and supersede the sale of the original work. Thus, a work may be infringed where passages are taken from it and stated to be quotations, even where they are not so extensive as to be a substitute for the original work. In Warne v. Seebohm (1888) the defendant had dramatized and represented on the stage a popular novel called Little Lord Fauntleroy, and as an infringement it was alleged that he had caused four copies of the play to be made. It was found that very considerable passages in the play had been taken verbatim from the novel, and an injunction was granted to the plaintiff, the owner of the copyright in the novel. But it was held in Dodsley v. Kinnersley (1761) that if an abstract is published in an annual register or a magazine it is not piracy, and in particular where the author has himself published extracts in a periodical paper. And in Leslie v. Young (1894) it was held that a claim to copyright does not arise by the mere publication in a particular order of timetables found in various railway companies' publications.
There are several remedies for infringement open to the owner of the copyright infringed. The civil remedies are an action for an injunction, and for damages or an account of net profits. He may also claim the delivery up to him of all infringing copies and plates. Any action for infringement must be commenced within three years next after the infringement. In addition, the owner of the copyright may proceed summarily before justices of the peace, and the offender may be fined up to £50 or sent to prison for a term up to two months. It is not possible here to consider the matter of remedies in detail, but the Act deals at length with the whole question and, in particular, as to pirated copies of musical works and cognate matters.
Importation into the United Kingdom of copies of any work which if made in the United Kingdom would be an infringement of copyright, may be prevented by the owner of the copyright by giving notice to the Commissioners of Customs and Excise; and the Commissioners have power to prevent such importation.
Duration of Copyright.
Copyright usually exists for the life of the author and for fifty years after his death; but copyright in phonographic records, photographic plates and similar things is for fifty years from the making of the original plate. After the death of the author the copyright vests in his personal representative. At the end of twenty years (or thirty years in the case of copyright existing at the time of commencement of the Act) from the death of the author of a published work, such work may be reproduced for sale if the person who publishes it gives notice in writing to the then owner of the copyright and pays to him or for his benefit a royalty of 10 per cent. on the published price of all copies sold. And even before that period has expired, at any time after the death of the author of a published work, if the owner of the copyright refuses to republish or to allow the republication or the performance in public of the work, petition may be made to the Privy Council and an order obtained for a compulsory licence to reproduce or perform the work if it would otherwise be withheld from the public, on such terms and subject to such conditions as the Privy Council may think fit.
In the case of joint-authors, copyright lasts for the life of the one who dies first and either another fifty years or the life of the one who dies last, whichever period is the longer.
Ownership of Copyright.
As a rule the author of a work, or the owner of the original negative in the case of a photograph, is the first owner of the copyright therein. But where the plate or other original of an engraving, photograph, or portrait has been made to the order of some other person for valuable consideration, such other person is the first owner of the copyright; and when the author made the work in the course of his employment, the employer is, in the absence of contrary agreement, the owner of the copyright. But where a contributor writes a magazine article for which he is not paid by the publishers, the copyright is in him and not in the publishers.
The owner of the copyright may assign the right, either wholly or partially, and either generally or subject to territorial limitation, and either for the whole term of its duration or for any part thereof. He may also grant any interest in the copyright by licence. No such assignment or licence is valid unless it is in writing signed by the owner or his duly authorized agent (but it need not be by deed). But if the author of a work is the first owner of the copyright, no assignment or licence made by him (unless by will) after the passing of the Act will give any rights