The same rules apply to communication by delivery of the manuscript or a copy. If I give my manuscript to another to read or for any other limited purpose, he may not exceed the limits of use expressly or impliedly agreed. Publication by printing and circulation among a limited class will not destroy the common law right.1 The common law right in a manuscript may be abandoned by neglect or acquiescence in an adverse use. Thus it was said that Southey had no right to complain when having left his poem "Wat Tyler" in the hands of a publisher for twentythree years the publisher published it for his own profit.2 A man's right to the exclusive use of his unpublished work does not depend on its value, and it is immaterial whether he did or did not intend to make profit by its publication. It is also immaterial whether the publication would prove creditable or discreditable, advantageous or disadvantageous.* The question has been raised whether the Courts would prevent an unauthorised person from publishing manuscript of an immoral nature which the author may have repented of and refused to place before the public.5 Ignorance of the author's right is no defence to an action. for interfering with unpublished literary matter. A bona fide purchaser for value gets no better title than the original pirate.6 Speeches and Sermons.-Literary matter delivered orally from an extempore composition without having been previously reduced to writing, is protected at common law from unauthorised use. The extent of the protection as in the case of delivery from manuscript is defined by the terms of the relationship existing between the speaker and his audience. He may have freely abandoned all exclusive interest in the matter of his address, or he may give them only the right to listen, or he may 1 Prince Albert v. Strange (1849), 1 M'N. and G., 25; and see Mayall v. Higbey (1862), 1 H. and C., 148. 2 Southey v. Sherwood (1817), 2 Mer., 435. 3 Southey v. Sherwood (1817), 2 Mer., 435; and see cases as to publication of private letters, p. 225. A Prince Albert v. Strange (1849), 2 De G. and Sm., at p. 697. 5 Southey v. Sherwood (1817), 2 Mer., 435. 6 Prince Albert v. Strange (1849), 2 De G. and Sm., at p. 688. give them the right of taking notes and using them for their own instruction. It seems to be doubtful, however, whether the right in unwritten speeches is one based on property, or whether it must depend entirely on implied contract between the speaker and his audience. In Abernethy v. Hutchinson 1 Dr. Abernethy delivered surgical lectures to students at St. Bartholomew's Hospital. These lectures had not been previously reduced to writing. Lord Eldon, L.C., granted an injunction against their unauthorised reproduction in the Lancet. There was no evidence as to how the defendants got possession of the lectures, but Lord Eldon thought that was immaterial :— "They must have been taken from a pupil or otherwise in such a way as the Court would not permit, and the injunction ought to go on the ground of property, and although there was not sufficient to establish an implied contract as between the plaintiffs and the defendants, yet it must be decided that as the lectures must have been procured in an undue manner from those who were under a contract not to publish for profit, there was sufficient to authorise the Court to say the defendants shall not publish." In Nicols v. Pitman a case of previously written lectures, Kay, J., reviews the judgment of Lord Eldon in the last cited case : "Now it is quite true that the learned judge seems at one moment to refer to the ground of property and at another to that of implied contract. But I take his meaning to be this, that when a lecture of this kind is delivered to an audience, especially when the audience is a limited one admitted by tickets, the understanding between the lecturer and the audience is that, whether the lecture has been committed to writing beforehand or not, the audience are quite at liberty to take the fullest notes they like for their own personal purposes, but they are not at liberty having taken those notes to use them afterwards for the purpose of publishing the lecture for profit." The question of whether the right in an oral speech is property or not might well be of the highest importance in a question between the speaker and a publisher who acquired the matter in entire ignorance of his right. The facts might be such that the Court would not, as they did in Abernethy v. Hutchinson,3 1 (1825), 3 L. J. (O.S.), Ch., 209. 2 (1884), 26 Ch. D., 374. presume that the material "must have been procured in an undue manner." If there was no such presumption from the facts, it would appear that, apart from a right of property, the speaker must be without remedy unless he has given notice as a lecturer within 5 & 6 Will. IV. c. 65.1 Letters. Private letters are protected from publication as much as any other manuscript. In an early case it was suggested that there could be no property in business letters or others with no literary merit; but as the idea of literary merit in connection with copyright is now entirely exploded, the obiter dicta in this case may be disregarded. In all letters then there is a literary property in the writer which entitles him or his executors to prohibit any publication without his consent, express or implied. It is immaterial whether the publication is for the purpose of profit or not. If a letter is written by one as agent for another the property is in the principal, and the agent cannot restrain him from publishing. The receiver of a letter has a property in the paper on which it is written and is entitled to retain possession even against the writer. The receiver may make no use of a letter except such as is implied in the sending or with the consent of the writer." The receiver may even be restrained from parting with possession or showing the letters to any one. The receiver is probably entitled to prevent the publication of the letters from copies not in his possession or from the originals which have passed from his possession.9 Although the sender has a right of property in the literary matter in the letters, the receiver may without his consent destroy the letters and so destroy the writer's chance of obtaining benefit from them. The literary property of the writer and 1 See p. 57, supra. 2 Perceval v. Phipps (1813), 2 V. and B., 19. 3 Pope v. Curl (1741), 2 Atk., 342; Thompson v. Stanhope (1774), Amb., 737; Granard v. Dunkin (1809), 1 Ball and B., 207; Gee v. Pritchard (1818), 2 Swanst., 402; Palin v. Gathercole (1844), 1 Coll., 565. 4 Gee v. Pritchard (1818), 2 Swanst., 402. 5 Howard v. Gunn (1863), 32 Beav., 462. 6 Oliver v. Oliver (1861), 11 C. B. (N.S.), 139. 7 Gee v. Pritchard (1818), 2 Swanst., 402. 8 Lytton v. Devey (1884), 52 L. T. (N. S.), 121. 9 Gee v. Pritchard (1818), 2 Swanst., 402. Р the property in the paper of the receiver descend to their respective executors.1 The question has been suggested but never answered: What would be the rights of trustees in bankruptcy to publish for the benefit of creditors private letters ?? Letters may be published against the will of the writer when published bond fide for the purpose of vindication of character.3 1 Thompson v. Stanhope (1774). Amb., 737; Lytton v. Devey (1884), 52 L. T. (N.S.), 121. 2 Perceval v. Phipps (1813), 2 V. and B., 19. 3 Perceval v. Phipps (1813), 2 V. and B., 19; Gee v. Pritchard (1818), 2 Swan., 402; Palin v. Gathercole (1844), 1 Coll., 565; Lytton v. Devey (1884), 52 L. T. (N.S.), 121. CHAPTER XII PUBLISHING AND PRINTING AGREEMENTS Publishers' Agreements. - These agreements are governed by the law of contract, and only incidentally involve questions of copyright. The contract between an author and his publisher is a personal one and cannot be assigned; each party is presumed to have relied on the personal skill or reputation of the other. Thus it was held that a half profit agreement could not be assigned by a publisher's firm to a firm which had succeeded to their business but which contained none of the partners of the original firm. The same principle has been applied in the case of a limited company carrying on a publishing business.3 A publishing agreement ought to provide for an assignment of the publisher's rights and obligations to the person or persons who may succeed to the business. Unless otherwise agreed, the death or bankruptcy of a publisher will terminate a publishing agreement. Similarly if an author had not performed his part of an agreement, viz. to write and revise the manuscript, his death 5 or bankruptcy would terminate his obligations in that respect. The publisher could not insist on the author's representatives completing the work, nor could they if they completed the work insist on the publisher publishing.7 6 An agreement to write a book or an article cannot be enforced by specific performance. The only remedy for breach is an action for damages, or, if the author has agreed not to 9 1 Hole v. Bradbury (1879), 12 Ch. D., 886; Stevens v. Benning (1855), 1 K. and J., 168; Reade v. Bentley (1857), 3 K. and J., 271. 2 Hole v. Bradbury (1879), 12 Ch. D., 886. 3 Griffith v. Tower Publishing [1897], 1 Ch., 21. 4 Gibson v. Carruthers (1841), 8 M. and W., 321, at pp. 343, 4. 5 Gale v Leckie (1817), 2 Stark, N. P., 107. 6 Gibson v. Carruthers (1841), 8 M. and W., 321, at pp. 343, 4. 7 Marshall v. Broadhurst (1831), 1 Tyr., 348, at p. 349. 8 Clarke v. Price (1819), 2 Wills, C. C., 157; and see Whitwood v. Hardman [1891], 2 Ch., 416. • Gale v. Leckie (1817), 2 Stark, 107. |