is said that one competes with the original which the other does not, the answer is that it is no defence to say that an infringement is made for a wholly different market from that which the original commands.1 An author is entitled not only to the uses which he does make of his work, but also to the uses which he might make of it. Licence.-A licence in writing 2 granted by the plaintiffto the defendant is a good defence to an action for infringement. The licence need not be written or signed by the proprietor himself. It may be granted by an agent having authority.3 It would seem that a licence might be valid without being signed by any one. The onus of proving a written licence lies upon the defendant in an action. An assignee of the copyright is not bound by the licence granted by his assignor, unless at the date of assignment he has notice of the licence. A licence, unlike an assignment, may be given before the copyright has come into existence, or even before the work is composed. A licence from the Dramatic Authors' Society was held to include the dramas composed by the members of the society after the date of the licence. If an oral licensor were to sue in respect of acts done by the defendant under his oral licence, the plaintiff's conduct would probably be considered fraudulent, with the result that he would be refused an injunction, get nominal damages, and have to pay the defendant's costs." It need hardly be said that when the use for which a book is published and sold includes a copying of the whole or part of it, such copying is not an infringement, even although no express consent in writing is obtained from the author, for instance, in the case of copy-books, school maps, precedents of conveyancing. This, however, does not entitle any one who uses the book to make a larger use of it in the way of multiplying copies than that which must be presumed from the nature of the publication.8 & 6 Vict. c. 45, sec. 15. 2 374. 1 Nicols v. Pitman (1884), 26 Ch. D., 5 4 London Printing v. Cox [1891], 3 Ch., 291. 6 Ibid. 7 Cooper v. Stephens [1895], 1 Ch., 567; Allen v. Lyon (1884), 5 Ont. Rep., 615; but see Eaton v. Lake (1888), 20 Q. B. D., 378; Strahan v. Graham (1867), 16 L. T. (N.S.), 87. It has been suggested that a foreigner resident abroad, who had obtained a copyright in the United Kingdom, could grant an oral licence, if by the law of copyright in his own country an oral licence would be valid. I do not think this is sound. Abandonment.-Copyright may be abandoned by giving a general licence to print. Probably, however, this could only be done by some declaration in writing.2 The Common Law right in an unpublished manuscript might be abandoned by leaving it for a long time in the hands of others.3 Copyright would not be lost or abandoned by the fact of a book, during the life of the author, being allowed to remain out of print.1 Acquiescence and Delay.-This is no ground of defence, unless in the view of the Court it would make it a fraud afterwards to insist on the legal right. It would seem that the defendant must show some act on the part of the plaintiff inducing the defendant to infringe or continue an infringement of the copyright.5 At the best, the defence is only an equitable one, and will avail no more than to prevent the plaintiff from getting an injunction or substantial damages, and as the costs are always in the discretion of the Court, he might be ordered to pay the defendant's costs. Provision against the Suppression of Books. After the death of an author, if the proprietor of his published work refuses to republish it, and the book is thereby withheld from the public, the Judicial Committee of the Privy Council may, on complaint, grant a licence to the complainant to publish such book on such conditions as they may think fit. There is no record of any attempt to put in force the provisions of this section. 1 Coleridge, J., in Jefferys v. Boosey (1854), 4 H. L. C., at p. 906. 2 But see Willes, J., at pp. 2311 and 2332, and Aston, J., at p. 2346, in Millar v. Taylor (1769), 4 Burr., 2303. 3 Southey v. Sherwood (1817), 2 Mer., 435; Rundell v. Murray (1821), Jac., 311. 4 Weldon v. Dicks (1878), 10 Ch. D., 247. 5 Hogg v. Scott (1874), L. R., 18 Eq., at p. 455; Morris v. Ashbee (1868), L. R., 7 Eq., 34; Rundell v. Murray (1821), Jac., 311; Saunders v. Smith (1838), 3 My. and Cr., 711; Platt v. Button (1815), 19 Ves., 447; Latour v. Bland (1818), 2 Stark, 382; Pitman v. Hine (1884), 1 T. L. R., 39; Weldon v. Dicks (1878), 10 Ch. D., 247. 65 & 6 Vict. c. 45, sec. 5. CHAPTER V PERFORMING RIGHTS SECTION I.-NATURE OF PERFORMING RIGHT. As copyright is the exclusive right of making copies of a book, so performing right is the exclusive right of representing or performing in public dramatic or musical works. In a dramatic or musical work, the two rights-the copyright and the performing right-exist side by side; but they are quite distinct from one another, and may pass into different hands. The copyright can only be infringed by copying, the performing right by representation or performance. It is no infringement to dramatize and represent on the stage a copyright novel, since the only exclusive right as to non-dramatic work is the multiplication of copies;1 but a drama on which a novel has been founded may be infringed by another drama taken from the novel.2 A writes and publishes a novel. He then dramatizes it, but does not publish the drama. B represents a drama founded on the novel. Such a representation is no infringement either of A's drama3 or of his novel. It makes no difference even if A has published his drama. In dramatizing a copyright novel, however, the making of a single copy of the drama may be an infringement of the copyright in the novel. It is no infringement of performing right to print and publish as a book a play which has been publicly performed, but it may be an infringement of the common law right in the MS., or the statutory copyright in the book if already printed and published, or it may be a breach of implied contract. If a 1 Reade v. Conquest (1861), 9 C. B. (N.S.), 755; Tinsley v. Lacy (1863), 1 H. and M., 747. 2 Reade v. Conquest (1863), 11 C. B. (N.S.), 479. Schlesinger v. Turner (1890), 63 L. T., 764. 3 Toole v. Young (1874), L. R., 9 Q. B., 523. Schlesinger v. Bedford (1890), 63 L. T., 762. 73. 5 Warne v. Seebohm (1888), 39 Ch. D., 8 See p. 215. dramatic piece or musical composition is first published as a book, this does not take away the performing right. This was decided in Chappell v. Boosey1 in respect of music, and is equally applicable to dramatic work. Conversely the representation or performance of a dramatic piece or musical composition in public does not deprive the author of his common law right to publish as a book, or of his copyright when he so publishes.2 Performing right extends throughout the British dominions.3 SECTION II. PERFORMING RIGHT AT COMMON LAW. It is doubtful whether there ever was any performing right at common law. The only case from which it could be gathered that there was is Morris v. Kelly, where an injunction was granted by Lord Eldon restraining the performance of a comedy. The play was apparently in manuscript, but it does not appear whether it had been performed or not. The ground of the decision is very uncertain. From the fact that the Lord Chancellor asked for proof that the assignment was in writing, it might almost appear that protection was given under the statute of Anne, which would certainly have been unsound. The decision may also have been on the ground of common law right in unpublished manuscript, ¿.e. the right to prevent any one but the owner from interfering with it in any way, or it may have been on the ground of breach of implied contract. Altogether the decision is unsatisfactory; the application seems to have been ex parte, and the law hardly to have been considered, so that it is impossible to base any definite proposition of law on the case. On the other hand Erle, C.J., stated in the course of the argument in Marsh v. Conquest,5 that there was no performing right at common law. For his authority, however, he cites Murray v. Elliston, which is hardly sufficient to support the proposition. In Murray v. Elliston a tragedy by Lord Byron was printed and published for sale. The defendants abridged it and represented it on the stage in the abridged form. It was argued for the defendant that the tragedy having been printed and published as a book, must depend for protection entirely on the statute of Anne in accordance with the decision in Donaldson v. Beckett.1 The statute of Anne gave no performing right, and therefore there was no protection. The Court gave judgment for the defendant, but the ground of their judgment is not quite clear. Some stress seems to be laid on the fact that the tragedy was abridged, and it is therefore left doubtful whether the judges would have considered the representation of an unabridged version to be an infringement of the plaintiff's rights. In either view it is not a decision that there was no performing right at common law. Another case which may be relied on for the contention against performing right at common law is Coleman v. Wathen, but on examination it will be seen that all that case decides is that the statute of Anne gave no performing right, and that representation on the stage was not an infringement of copyright. It is submitted that the history of the law of performing right is this: At common law there was no performing right in the proper sense of the term, but an unpublished manuscript was protected from performance as from any other invasion of the author's exclusive right to it. If it was performed on the stage without being published as a book, there would be a remedy on breach of implied contract, the public only being admitted for the purpose of hearing the performance. Once, however, it was published as a book, all exclusive right of performance was gone. The statute of Anne gave no performing right, and performing right proper was first created by 3 & 4 Will. IV. c. 15. This statute and 5 & 6 Vict. c. 45 govern the performing right in dramatic pieces. The performing right in musical compositions is governed by these two Acts, as modified by the Copyright (Musical Compositions) Acts of 1882 and 1888. 1 (1774), 4 Burr., 2408. 2 (1793), 5 T. R., 245; and see dictum of Cockburn, C.J., in Toole v. Young (1874), L.R., 9 Q. B., at p. 527. |