for infringement of copyright shall be brought unless the book is registered, provides "that nothing herein contained shall prejudice the remedies which the proprietor of the sole liberty of representing any dramatic piece shall have by virtue of the Act 3 & 4 Will. IV. c. 15, or of this Act, although no entry shall be made in the book of registry aforesaid."

The provisions as to registration of dramatic pieces are therefore merely permissive and are in no way a condition precedent either to the performing right itself or to the right of action upon infringement;1 but registration is prima facie proof of the right of representation subject to rebuttal by other evidence.2

All the provisions as to the keeping of the registry book,3 making false entries therein, and motion to expunge, apply equally to registration of a dramatic piece for the purpose of protecting performing right as to registration of a book for the purpose of protecting copyright."

Musical Compositions.-The requisite registration is the same as for performing rights in dramatic works; but quære whether in the case of performing right in a musical composition it is not a condition precedent to action. This doubt is raised by section 24, which provides that the registration of a book is a condition precedent to an action for infringement of copyright, and it specially excepts "the remedies which the proprietor of the sole liberty of representing any dramatic piece shall have" from the operation of the section. It is curious that "musical compositions" are omitted from this saving clause, whereas in nearly every other part of the Act "dramatic piece and musical compositions" are dealt with together. The arguments against registration being a condition precedent are, (1) the first part of section 24 relates only to copyright which does not include performing right; (2) section 20 does not extend the provisions of section 24 to performing right, since it only applies the provisions "before enacted." There is also a suggestion that "dramatic piece" in the saving clause of section 24 includes

1 Russell v. Smith (1848), 12 Q. B., 217; Lacy v. Rhys (1864), 33 L. J., Q. B., 157; Clark v. Bishop (1872), 25 L. T., 908.

"musical composition," since the definition of "dramatic piece in section 2 includes "musical or dramatic entertainment." There is no authority directly in point. In Russell v. Smith1 the song called "The Ship on Fire" was protected without registration, but then it was held to be a "dramatic piece" and something more than a musical composition. In Clark v. Bishop2 the song protected was also held to be a "dramatic piece." In Lacy v. Rhys, where it was held that in the case of a dramatic piece there was clearly no obligation to register, Crompton, J., said that if it had not been for the proviso in section 24, there would have been a doubt whether registration were not necessary.*

In registering an unpublished arrangement of dance music. taken from an opera, the arranger, not the composer of the original opera, must be entered as composer.5

SECTION VIII.-ASSIGNMENT OF PERFORMING RIGHTS.

8

The performing right in dramatic pieces and musical compositions can only be transferred by a written assignment or by entry on the register.7 See decisions as to assignment of copyright; but note that as regards performing right the assignment, even if before publication or performance, must be in writing. The performing right will not pass by a mere conveyance of the copyright in a dramatic or musical work 10 unless an entry shall be made of such assignment in the register expressing the intention of the parties that such right should pass. As in the case of copyright, there is no express enactment that assignment must be in writing; but it is inferred from the fact that a licence which is a smaller right cannot be given except by writing.12 The assignment does not require to

1 (1848), 12 Q. B., 217.

3 (1864), 33 L. J., Q. B., 157.

4 See Fairlie v. Boosey (1879), 4 A. C., 711.

5 Wood v. Boosey (1868), L. R., 3 Q. B., 223.

2 (1872), 25 L. T., 908.

6 Shepherd v. Conquest (1856), 17 C. B., 427; see Cumberland v. Copeland (1861), 7 H. and N., 118; (1862), 1 H. and C., 194.

7 5 & 6 Vict. c. 45, secs. 22, 20, 13.

8 Supra, p. 77.

9 Shepherd v. Conquest (1856), 17 C. B., 427; Eaton v. Lake (1888), 20 Q. B. D., 378.

10 Marsh v. Conquest (1864), 17 C. B. (N.S.), 418.

11

5 & 6 Vict. c. 45, sec. 22.

12

3 & 4 Will. IV. c. 15, sec. 2; Power v. Walker (1814), 3 M. and S., 7; Leyland v. Stewart (1876), 4 Ch. D., 419.

be by deed,1 and if by written document it is valid without registration.2 Section 22 of 5 & 6 Vict. c. 45 appears at first sight to make registration necessary in every assignment of performing right, at least if the copyright is assigned with it; but this is not so. If in the written assignment there is a specific conveyance of the performing right, or if general words are used such as "all other the estate, right, title, and interest," showing that something else than the copyright was intended to be conveyed, the performing right will pass without registration. Cotton, L.J., in considering this section, says :—

"I incline to think that this enactment was not meant to control the operation of deeds of assignment, but only to regulate the effect of entries in the registry book." 5

In fact it was passed on account of Cumberland v. Planché, which decided that the assignee of the copyright took the performing right as well.

If the view is right that the statutory performing right vests immediately on production,' there can be no question of assignment of common law rights.8

Performing rights can probably be partially assigned so as to make a grantee of provincial rights not only a licensee but an assignee, with full power to sue alone and re-assign.o

SECTION IX.-INFRINGEMENT OF DRAMATIC PERFORMING RIGHTS.

By 3 & 4 Will. IV. c. 15, section 1, the author or his assignee has "the sole liberty of representing, or causing to be represented, at any place or places of dramatic entertainment whatsoever" in the British dominions.

Public Performance. It is no infringement of performing right in a dramatic work to represent it otherwise than in a place of dramatic entertainment; but it has been held that

1 Marsh v. Conquest (1864), 17 C. B. (N.S.), 418.

2 Marsh v. Conquest (1864), 17 C. B. (N.S.), 418; Lacy v. Rhys (1864), 4 B. and S., 873. 3 Ibid.

Ex parte Hutchins (1879), L. R., 4 Q. B. D., 483.

5 L. R., 4 Q. B. D., 483.

7 See p. 128.

6 (1834), I Ad. and E., 580.

8 See p. 74.

9 Holt v. Woods (1896), 17 New South Wales R., Eq., 36; and see p. 81.

any place where a dramatic work is publicly performed is for the time being a place of dramatic entertainment. In Lee v. Simpson,1 Wilde, C.J., says:—

"The legislature clearly meant places where dramatic entertainments are represented to which the public are admitted."

In Russell v. Smith 2 the Court decided that a certain song, "The Ship on Fire," was a dramatic piece. Denman, C.J., said :

"It follows that as Crosby Hall was used for the public representation for profit of a dramatic piece, it became a place of dramatic entertainment for the time, within the statutes now in question. The use for the time in question and not for a former time is the essential fact. As a regular theatre may be a lecture-room, dining-room, ball-room, and concert-room on successive days, so a room used ordinarily for either of these purposes would become for the time being a theatre if used for the representation of a regular stage play. In this sense, as "The Ship on Fire" was a dramatic piece, in our view Crosby Hall, when used for the public representation and performance of it for profit, became a place of dramatic entertainment. In thus deciding we do not declare that the defendant's performances at Crosby Hall were unlawful without a theatrical licence within Stat. 6 & 7 Vict. c. 68."3

In the judgment of Brett, M.R., in Wall v. Taylor there is a suggestion that although a single item in a programme might be dramatic, that would not be sufficient to render the whole entertainment dramatic or to make the place a place of dramatic performance. In Duck v. Bates the defendant represented a dramatic piece without the author's consent. The representation took place in a room of Guy's Hospital, and was provided entirely for the amusement of the nurses and attendants of the hospital. The medical officers of the hospital, the students and some of their friends were present. A reporter to a theatrical newspaper was also present by invitation. It was held by Brett, M.R., and Bowen, L.J. (Fry, L.J., dissenting), that the room was not a place of dramatic entertainment. Neither profit nor habitual use were essential elements, but there must

be a representation to which a portion of the public is admitted. Brett, M.R., said :

"Did the legislature intend to forbid a representation without the author's consent by children in a nursery before their parents, or by grown-up persons in a drawing-room? It is clear that something more than that must have been intended; and why should not a representation of that kind be called a dramatic entertainment? Because it is obviously domestic and private. Suppose that the servants of the household are invited to witness the performance; nevertheless it is a domestic entertainment. As I have already intimated, the author wants protection for the pecuniary value of his drama, and a representation in a private room is of no pecuniary value. In order to entitle the author to penalties there must be a representation which will injure the author's right to money; such, for instance, as a representation which, although it is not for profit, would attract persons who are willing to pay money, and would induce them not to go and see a performance licensed by the author. Suppose that a representation in the presence of friends takes place for the amusement of friends and of the members of the household in an unfurnished house hired for the occasion: that is not an infringement of the statute: the representation must be other than domestic or private. There must be present a sufficient part of the public who would go also to a performance licensed by the author as a commercial transaction; otherwise the place where the drama is represented will not be a 'place of dramatic entertainment' within the meaning of the statute. Suppose that a drama is represented in a county town, and that all persons of a certain class throughout the county are free to come: suppose that a member for a parliamentary constituency (I do not mean shortly before or during an election) organises dramatic entertainments to which the inhabitants are admitted without paying: suppose that an amateur company choose to act some drama for a charitable object, with admission upon payment or by tickets issued generally in each of these instances an infringement of the statute has been committed. . . . I wish to say, by way of warning, that those who go beyond the facts of the present case may incur the penalties of the statute."

This case is most instructive as being quite on the border line between a private and public representation. Performing right in a drama may be infringed by a representation without scenery and appropriate dresses.

"We should take away a part of the protection conferred on authors if we hold that there could be no public representation without these accompaniments." 1

1 Denman, C. J., in Russell v. Smith (1848), 12 Q. B., 217, at p. 236.