In each case

are standing beside one another close to a stile or fence. the woman is shading her head by a parasol, and the dress of the man is somewhat similar in the two, but the idea of a young man courting a young woman at a country stile is of great antiquity. It has often formed the subject of pictorial representation. This cannot be said to be the design of the plaintiff's painting within the meaning of the Act. Much more must be comprehended than this. There can only be a copy of such design if the treatment of the subject be the same. Now, comparing the sketch of the photograph from the painting, I do not think this can be said to be the case. The faces are different, the dress especially in the case of the woman is different, the pose is different, the attitudes are different, the backgrounds are different, and in the case of the sketch the foreground is wanting. In the artistic design all these things play a part, although I do not say that a variation in one or even more of these respects would prevent the sketch being a copy of the design. Yet, comparing the two and considering the design of the painting as a whole, I cannot avoid the conclusion that the sketch is not a copy of the painting or of the design thereof, and therefore there has been no infringement."

His lordship concluded by saying that such questions really depended on the effect produced on the mind by a study of the picture and of that which is alleged to be a copy of it. In Guggenheim v. Leng1 the plaintiff was the owner of the copyright in a photograph of a football team. The defendant, without authority, made from the photograph rough sketches of the various individual portraits, and published them in his newspaper. It was held not to be an infringement.

Material Part.-There is no piracy of an artistic work unless a material part of the work is taken. What amounts to a material part must be a question of fact in each case, and it is impossible to lay down any definite rule. In Moore v. Clarke a horse was taken from a copyright print and inserted in another print among different surroundings. In the second print the horse appeared to be going in a different direction, and the jockey on his back was differently dressed. The judge directed the jury to consider whether the defendant's engraving was substantially a copy of the plaintiff's, and the jury came to the conclusion that it was not. In Brooks v. Religious Tract Society a collie dog, identical in expression, attitude, and position, was, together with a wall in

1 (1896), 12 T. L. R., 491.

2 (1842), 9 M. & W., 692.

3 (1897), 45 W. R., 476; see also West v. Francis (1822), 5 B. and Ald., 737; London Stereo v. Kelly (1888), 5 T. L. R., 169; Bolton v. London Exhibitions (1898), 14 T. L. R., 550.

the background and a table, taken from a copyright picture and inserted in a woodcut. The woodcut differed from the picture in that the figure of a child was omitted, and in its place two cats and a tortoise and other details were inserted. Romer, J., held that there was a piracy :—

"It was not only the dog that was taken, but also the feeling and artistic character of the plaintiff's work. . . . If a person were to take an historical picture, and take out of it the principal figure, and reproduce that figure without the other surroundings, that would be an infringement. The present case was a stronger case, because the defendants had not only taken the principal figure of a dog, but copied as well the sentiment of the picture."

Indirect Taking.—It is equally an infringement although the copying is indirect.1 Thus, for instance, the photograph of an engraving may infringe the copyright of the picture from which it is taken.2

Guilty Knowledge.-It is no defence to say that the taking was an innocent one and unintentional. In the case of a claim for penalties in respect of importing or selling piratical copies, knowledge of infringement must necessarily be proved, but in no other case. But the question of intention cannot always be wholly disregarded, as it may guide the Court in determining whether the alleged infringement is a copy or not.*

Replicas. It is an infringement of the proprietor's right for an author who has parted with his copyright to make a replica of the work; but if he has made replicas before selling his copyright it would be no infringement to sell these replicas. Quære whether it would be an infringement after selling his copyright in the original work to take photographs or engravings of the replicas; probably it would.

Licence a Defence.-Licence must be in writing, signed by the proprietor of copyright or by his agent authorised in writing; 5 but probably an oral consent would be a good defence."

1 Hanfstaengl v. Baines [1895], A. C., 20; ex parte Beal (1868), L. R., 3 Q. B., 387; Turner v. Robinson (1860), 10 Ir. Ch., 121, 510.

2 Ex parte Beal (1868), L. R., 3 Q. B., 387.

3 Brooks v. Religious Tract Society (1897), 45 W. R., 476; West v. Francis (1822), 5 R. and Ald., 737

4 Hanfstaengl v. Empire Palace [1894], 3 Ch.,

5 25 & 26 Vict., sec. 3.

109.

625 & 26 Vict., sec. 6.

An assignee is not bound by a licence granted by the assignor before the assignment, unless he has notice of it.1

The licensee will be kept strictly within the limits of his licence. When a licence was granted to reproduce a photograph in one magazine, it was held an infringement of copyright to reproduce it in another, and the contention that there was a custom in the publishing trade allowing this to be done on tender of payment was characterised as ridiculous.2

1 London Printing and Pub. All. v. Cox [1891], 3 Ch., 291.

2 Nicholls v. Parker (1901), 17 T. L. R., 482; and see Guggenheim v. Leng (1896), 12 T. L. R., 491.

CHAPTER IX

COLONIAL COPYRIGHT

EVERY British Possession has the power to legislate independently as regards the protection within its own territory of literary or artistic works first produced therein.1 In respect of such works they may either limit or extend the protection afforded by the Imperial Acts. Most of our larger colonies have local Acts. Some of the colonies 3 have, for instance, created a copyright in the news contained in foreign telegrams, a monopoly unknown under the Imperial Acts. It is not proposed here to deal with the colonial local Acts. They are of interest only in the various colonies themselves. This chapter will be restricted to the rights of a work published in one part of the British dominions to receive protection in any other part of the British dominions. This is controlled by the Imperial Copyright Acts, which extend since 1886 to every British Possession, and protect works published anywhere therein apart from any local legislation.

Books. Before 1886, the Copyright Act, 1842, although it applied to the whole of the British dominions, only protected those books which were first published in the United Kingdom. A book, therefore, published first, say in Canada or Australia, received no copyright protection except by local legislation, if any, within the territory of the particular colony where it was first published.

A book first published in the United Kingdom was protected in every British colony, not only against copying but against

1 49 & 50 Vict. c. 33, sec. 8 (4).

2 The following colonies have local legislation: India, Ceylon, Canada, the Australian Colonies, New Zealand, Cape of Good Hope, Natal, Hong Kong, Tasmania, Newfoundland. 3 Australian Colonies, Tasmania, Cape of Good Hope, Natal, New Zealand, Hong Kong, Ceylon. The period of protection in foreign telegrams varies from 24 to 120 hours in the respective colonies.

the importation of reprints. The smaller and poorer colonies found this a considerable grievance. They alleged that they were unable to afford the price of English books, and that as they were prohibited from importing foreign reprints and had little or no contemporary literature of their own, they were reduced to reading the classics or nothing at all. The Colonial Copyright Act, 1847,1 was passed to give them relief. It enacts that when reasonable protection to the British author shall be provided in any British possession by the legislature of such possession, Her Majesty may, by Order in Council, declare that so long as such protecting provision shall be in force all Acts prohibiting the importation or sale or hire of foreign copies shall be in respect of such possession suspended. Altogether twenty colonies have taken advantage of this Act. It has been found, however, that the protecting provisions are of little value, and that the duties which are supposed to be levied on foreign reprints for the benefit of the British author are continually evaded, and the colonies under the Foreign Reprints Act are overrun with foreign reprints of popular books which, coming in practically free of duty, make the authors' copyright in such colonies absolutely valueless.

3

Books first published in the colonies received Imperial protection in 1886, when the International Copyright Act of that year was passed. It enacts that the Copyright Acts shall apply to a literary or artistic work first produced in a British Possession in like manner as they apply to a work first produced in the United Kingdom, with a proviso, firstly, that the enactments as to registration shall not apply if the law of the Possession in question provides for registration; and, secondly, that no delivery of copies shall be required. There is also a provision

4

1 10 & 11 Vict. c. 95, usually known as the Foreign Reprints Act.

2 The following are the colonies now under the provisions of the Foreign Reprints Act, 1847. The dates are of the respective Orders in Council. Bermuda, February 13, 1849; Bahamas, May 21, 1849; Newfoundland, July 30, 1849; St. Christopher, November 6, 1849; Antigua, June 19, 1850; St. Lucia, November 13, 1850; British Guiana, October 23, 1851; Mauritius, April 1, 1853; Grenada, December 29, 1853; Nevis, March 10, 1855; Cape of Good Hope, March 10, 1855; Natal, May 16, 1857; Jamaica, April 23, 1859; Trinidad, March 17, 1875; Barbados, August 15, 1890; St. Vincent, August 26, 1881.

3 49 50 Vict. c. 33, sec. 8.

4 The following colonies have provided a system of registration: Canada, New South Wales, Victoria, Western Australia, Queensland, South Australia, Natal, Cape of Good Hope.