This test, however, will hardly apply to the piracy of an adaptation where the air or melody is a non-copyright one. A comparison of the actual notes and treatment of the phrases would have to be made.

Public has been contended that the protection afforded by 3 & 4 Will. IV. c. 15 to musical compositions is only an exclusive right of performance in places of dramatic entertainment. That is the protection given to dramatic pieces, and it was said that 5 & 6 Vict. c. 45, in applying 3 & 4 Will. IV. c. 15 to musical compositions did not give them a wider protection than dramatic pieces had. In Wall v. Taylor1 the Court held that this view was wrong. Bowen, L.J., said :

"I think the answer is this, that what is called in the argument a 'condition' of recovering a penalty in sec. 2 of 3 & 4 Will. IV. c. 15 is nothing of the kind, but part of the definition of the offence upon which the penalty is to be incurred. . . . The right granted is the privilege of representing at places of dramatic entertainment. . . . Now sec. 20 of 5 & 6 Vict. c. 45 creates a new right of property as to a musical composition, and gives the author and his assigns the sole liberty of representing or performing it. That is the right given, and sec. 21 says that the person who shall have that right 'shall have and enjoy the remedies given and provided' in the Act of 3 & 4 Will. IV. c. 15. Why read into that word 'remedies' that the second section of that Act is only to be put in force not where there is an infringement of that right, but where there has been a representation or performance at a place of dramatic entertainment."

The view of Cotton, L.J., in the same case was that the remedies of 3 & 4 Will. IV. c. 15 were not applicable unless the musical composition was performed in a place of dramatic entertainment; but that in every case of public performance there was a remedy under 5 & 6 Vict. c. 45 for damages and injunction. Since the Musical Copyright Act of 1888 the distinction between these opinions has become immaterial, for in every case in which the performance is actionable at all the Court may assess the damages as it thinks proper.

Causing to be Represented. The offence is representing or

1 (1883), 11 Q. B. D., 102.

"causing to be represented." As to what the latter includes see page 139, on performing right in dramatic pieces. The liability for "causing to be represented " differs from that in the case of dramatic pieces in that since the Copyright (Musical Compositions) Act, 1888, "the proprietor, tenant, or occupier of any place of dramatic entertainment or other place at which any unauthorised representation or performance of any musical composition shall take place . . . shall not by reason of such representation or performance be liable to any penalty or damages in respect thereof, unless he shall wilfully cause or permit such unauthorised representation or performance, knowing it to be unauthorised." 1 In respect of those who are not proprietors, tenants, or occupiers the liability is the same as in the infringement of dramatic performing right.

SECTION XI.-REMEDIES FOR INFRINGEMENT OF DRAMATIC PERFORMING RIGHT.

An action for

1. Penalty2 of 40s. for each performance, or the defendant's profits, or the actual damage sustained, whichever

be the greater.

2. Injunction.3

3. A full and reasonable indemnity as to costs.*

Action must be brought within twelve calendar months of the offence.5

1 51 & 52 Vict. c. 17, sec. 3. Wright, J., has held that a knowledge that the music contained the statutory notice reserving performing rights is not of itself sufficient evidence that the proprietor knew the performance to be unauthorised. Moul v. Coronet, Nov. 30, 1901. 2 Not a true 41 penalty," but in the nature of liquidated damages, Adams v. Batley (1887), 18 Q. B. D., 625; Saunders v. Will [1892], 2 Q. B., 18; see Fitzbull v. Brooke (1844), 2 D. and L., 477.

3 See p. 86.

4

3 & 4 Will. IV. c. 15, sec. 2, provided “double costs of suit." This was amended by 5 & 6 Vict. c. 97, sec. 2, to a "full and reasonable indemnity as to all costs, charges, and expenses.' This probably means nothing more than ordinary party and party costs, Reeve v. Gibson [1891], 1 Q. B., 652; Avery v. Wood [1891], 3 Ch., 115; but it would seem that as the costs are given by statute they are not in the discretion of the Court, and must be awarded to a successful plaintiff, Reeve v. Gibson [1891], 1 Q. B., 652; Hasker v. Wood [1885], 54 L. J. Q. B., 419; Judicature Act, 1890, sec. 5. Sec. 2 of 5 & 6 Vict. c. 97 is repealed by the Public Authorities Protection Act in so far as that Act applies.

53 & 4 Will. IV. c. 15, sec. 3.

SECTION XII.-REMEDIES FOR INFRINGEMENT OF MUSICAL PERFORMING Right.

An action for

1. Damages.1

2. Injunction.2

3. Costs in the discretion of the Court.3

Action must be brought within twelve calendar months of

the offence.4

1 51 & 52 Vict. c. 17, sec. 1; and see p. 86 as to mode of assessing.

2 See p. 86.

3

51 & 52 Vict. c. 17, sec. 2; 3 & 4 Will. IV. c. 15, sec. 2; 5 & 6 Vict. c. 96, sec. 2.

4

3 & 4 Will. IV. c. 15, sec. 3.

K

CHAPTER VI

COPYRIGHT IN ENGRAVINGS

SECTION I.-WHAT WORKS ARE PROTECTED.

THE following works are protected under the Engraving Acts :

1. Every original engraving or print :1

2. [Made within the British dominions :] 2

3. First published within the British dominions :3

4. Which bears the date of first publication and the proprietor's name thereon:

5. And is innocent.5

The protection endures for twenty-eight years from publication.

The protection is limited to the United Kingdom."

What is an Original Engraving.-By 8 Geo. II. c. 13 (1734) copyright is given to "every person who shall invent and design, engrave, etch, or work in mezzotinto or chiaro oscuro, or from his own works and invention shall cause to be designed and engraved, etched, or worked in mezzotinto or chiaro oscuro any historical or other print or prints."

In Blackwell v. Harper8 (1740) it was decided that the above Act was not limited to works of invention such as an historical group, but extended to the "designing or engraving anything that is already in nature."

In Jefferys v. Baldwin (1753) it was held that prints of herring fishing-boats were notwithin the protection of the Act.

By 7 Geo. III. c. 38 (1766), which was passed in consequence probably of the doubt thrown upon the earlier Act by

the above and other decisions, the copyright in engravings is given to "all and every person or persons who shall invent or design, engrave, etch, or work in mezzotinto or chiaro oscuro, or from his own work, design, or invention shall cause or procure to be designed, engraved, etched, or worked in mezzotinto or chiaro oscuro any historical print or prints, or any print or prints of any portrait, conversation, landscape, or architecture, map, chart, or plan, or any other print or prints whatsoever," and "to all and every person who shall engrave, etch, or work in mezzotinto or chiaro oscuro, or cause to be engraved, etched, or worked any print taken from any picture, drawing, model, or sculpture either ancient or modern."

Notwithstanding this widely worded protection, doubts arose as to whether lithographs and certain new processes of reproducing prints came within the Acts, and in consequence a clause was inserted in the Copyright Act of 18521 whereby it was declared that the provisions of the Engraving Acts were intended to include prints taken by lithography or any other mechanical process by which prints or impressions of drawings or designs are capable of being multiplied indefinitely.

Prints of every description, therefore, are protected under the Engraving Acts, and it is immaterial whether the design produced is

1. The imaginative invention of the maker,

2. Taken from some object in nature, or

3. Taken from some other work of art, such as a picture or model.

Originality. The only originality required is an originality in execution, i.e. the work must not be taken from some other print and reproduce from that other print those characteristics of execution wherein the peculiar merit of the engraver's art lies.

"The engraver produces his effects by the management of light and shade, or as the term of his art expresses it, the chiaro oscuro. The due degrees of light and shade are produced by different lines and dots; he who is the engraver must decide on the choice of the different lines or dots for himself, and on his choice depends the success of his print. If

1 15 & 16 Vict. c. 12, sec. 14.