protection. It was said that without the application of the conductor's punch, the ticket was senseless and meaningless.1

Mechanical

and Direc

on.

In Boosey v. Whight it was held that a sheet of music was Scroll for not infringed by a perforated scroll for use in a mechanical Instrument instrument; and further, that the directions in the printed tions theremusic, e.g. pp., crescendo, were not the subject of copyright apart from the printed sheet, and therefore might be taken and used in conjunction with the perforated scroll. It seems to follow that neither the perforated scroll nor the directions thereon would constitute a "book" within the meaning of the Act.

Chilton's Special Guide published weekly sporting informa- Sporting Tips. tion. Among other matter it contained their sporting prophet's tips" for the big races in the ensuing week. This was contained in a list, thus:

The Progress Printing and Publishing Company published daily at the various race meetings racing sheets with the day's "tips" from various sporting papers, thus:

3

Chilton
Grant's Opinion
Turf Marvel

The Court of Appeal held that there could be no copyright in the individual selections for each day, but suggested that there might be copyright in the list of selections for the week, and that it would be an infringement to take it bodily. Lindley, L.J., in giving judgment, said :

"Unless you find the one horse selection and that block which is headed by the title "One Horse Selections" in the shape in which the plaintiff

1 Griffin v. Kingston (1889), 17 Ont. Rep., 660; see Church v. Linton (1894), 25 Ont. Rep., 131, where some of the dicta in the above case were disapproved.

2 [1900], I Ch., 122.

3 Chilton v. Progress Printing and Publishing Co. [1895], 2 Ch.,: 29.

с

Illustrations.

To Noncopyright Letterpress.

No Letter

press.

has published it, I doubt whether you can bring it within literary composition at all. Perhaps the whole of that might be called literary composition; but there is no literary composition in the word 'Priestholm.'"

1

Engravings, prints, designs, or other reproductions of artistic matter will be protected under the law of literary copyright either when published in the form of a volume or when published in connexion and together with letterpress. By this means compliance with the stringent requirements of the Acts relating to artistic copyright is avoided. The first case where an illustration was held to be part of a book, and therefore protected under 5 & 6 Vict. c. 45, was Bogue v. Houlston.2 The plaintiff published some old non-copyright tales, including "Reynard the Fox," and illustrated them with original drawings of animals. These woodcuts were pirated by the defendants, and used as illustrations in their serial publication, "The Story-Book for Young People, by Aunt Mary.” The plaintiff did not claim copyright in any letterpress. The defendants maintained that the woodcuts not having been published so as to comply with the provisions of the Engravings Acts, could not be protected from piracy. It was held, however, that they were part of a book. Parker, V.C., in giving judgment, quoted the definition of a book from the Act 5 & 6 Vict. c. 45, and continued :—

"This definition does not extend to prints or designs separately published, but only to the prints and designs forming part of a book, and the book is not less a book because it contains prints or designs or other illustrations of the letterpress. This Act vested in the proprietor of such book duly registered the right to sue in respect of any invasion or infringement of the copyright of his book. It appears to me that a book must include every part of the book; it must include every print, design, or engraving which forms part of the book as well as the letterpress therein which is another part of it."4

In Maple & Co. v. Junior Army and Navy Stores, the engravings in an illustrated catalogue, containing almost no letterpress, were protected under 5 & 6 Vict. c. 45. "There may

1 Lindley, L.J. [1895], 2 Ch., at p. 34.

2 (1852), 5 De Gex and Smale, 267; see Roworth v. Wilkes (1807), 1 Camp., 94; Newton

v. Cowie (1827), 4 Bing., 234.

3 See 21 Ch. D., 380.

4 Parker, V.C., 5 De Gex and Smale, at p. 274.

(1882), 21 Ch. D., 369; and see Cooper v. Stephens [1895], 1 Ch., 567; Marshall v. Petty (1900), 17 T. L. R., 501.

Card.

issued

be such things," said Jessel, M.R., "as picture-books for those who cannot read letterpress." 1 In Hildesheimer & Faulkner v. Christmas Dunn & Co., protection was claimed for a Christmas card cut out and painted in the form of a lady's hand. It opened out book-wise, and inside were delineated the lines of life according to the rules of palmistry, and on one side there was an original verse. This work was registered both under 5 & 6 Vict. c. 45 as a book and 25 & 26 Vict. c. 68 as a painting. Kekewich, J., in granting an injunction against a piracy, said he would not decide whether the work was a picture or a book, but as it was well registered under both Acts, an action lay. In Comyns v. Hyde, a coloured plate representing an Orpington Plate cock was issued with the weekly number of a serial publica- separately. tion called The Feathered World. The plate was not in any way physically connected with the rest of the publication, but it was illustrative of an article in the journal, and a copy was given to every purchaser. Stirling, J., held that it must be protected as part of the book. If a plate or picture has been previously published in separate form, without complying with the provisions of the Engravings Acts, it will not subsequently receive protection by reason of its incorporation into a volume.* In Strong v. Worskett a magazine was before publication advertised by means of illustrated posters. The same illustration as appeared on the posters was afterwards reproduced in the magazine. It was held that it could not be protected as part of the magazine. The result of these decisions appears to be that an artistic work will be protected under the Literary Copyright Act, 1842, if it is bound up with other artistic works in the form of a volume, or if it is published in connexion with letterpress. The picture on a Christmas card on which there are also verses, would, it is submitted, be protected as a book, and, it would seem, whether or not the verses were copyright, and whether or not (but this is more doubtful) the picture was in any way illustrative of the verses. It is also submitted that an engraving published in a magazine without 2 (1891), 64 L. T. (N.S.), 452.

1 At p. 377.

5

3 (1895), 43 W. R., 266; and see Guggenheim v. Leng (1896), 12 T. L. R., 491. 4 Strong v. Worskett (1896), 12 T. L. R., 532; Fisher v. Folds (1834), 1 Jones, Ir. Ex., 12.

5 (1896), 12 T. L. R., 532.

Maps.

Music.

any relation to the letterpress, except that of physical connexion, would be protected as part of the book; but an engraving or print which had neither any relation to the letterpress nor physical connexion would probably not be protected even although issued gratis with every copy of the magazine.

It need hardly be said that anonymous works are entitled to copyright. The publication of a work without the author's name is not to be construed as an abandonment of the literary property.1

Maps, charts, and plans are expressly included in the definition of a "book." If incorporated in a volume they will be protected with the rest of the volume under its general title; if published separately they will be protected as "books" by themselves. The meaning of "maps," &c., will be literally construed; but it must be something which in itself conveys information to the person studying it. Davey, L.J., in speaking of maps, said:2_

"I agree that a 'map' is not confined to what is popularly known as a map—viz. a geographical map; and that a 'chart' is not confined to what is popularly called a chart-viz. a map of a portion of the seas showing the rocks, soundings, and such-like information for the use of navigators. . . There may, no doubt, be an anatomical and physiological plan showing the structure and distribution of the muscles and bones of the human arm, or any other part of the human frame, which would be protected by the Copyright Act."

The exclusive right of making copies of original music is expressly protected by the Act of 5 & 6 Vict. c. 45 under the definition of a book. Under the statute of Anne it was protected by case law, "book" being held to include a volume or sheet of music.3

SECTION II.-PUBLICATION.

Publication divests the author or proprietor of an unpublished work of his common law rights therein.

1 Beckford v. Hood (1798), 7 T. R., 620.

2 Hollinrake v. Truswell [1894], 3 Ch., at p. 427.

After

3 Bach v. Longman (1777), 2 Camp., 623; Clementi v. Golding (1809), 2 Camp., 25; White v. Geroch (1819), 2 B. and Ald., 298; D'Almaine v. Boosey (1835), 1 Y. and C. Ex., 288; Jeffreys v. Boosey (1854), 4 H. L. C., 815.

publication his right to protection depends solely upon the statute. Publication must be looked at from two points of view -divestitive, i.e. as taking away the author's common law right; and investitive, i.e. as clothing him with the statutory right.

Divestitive Publication.-If a literary work is communicated to the public without restriction, the common law right of the author terminates. This may be done orally or by written or printed manuscript. Either kind of communication, however, may be so limited as not to amount to a publication. A drama or musical work is not published by being publicly performed in a theatre or concert room, since the communication is limited to those who have paid their price for admission, and they are admitted under an implied contract that they will not make any use of what they hear except for their own entertainment and instruction. The same applies to lectures delivered at a University 2 or by a private lecturer. The question as to when a public speaker or preacher publishes the speech or sermon which he delivers is one of extreme difficulty, and depends on the relation of the speaker to his audience.* If a literary composition is orally communicated in a place to which all have admission as of right, or to which all are admitted without distinction, and where there are no circumstances from which a contractual relationship between the speaker and his audience can be inferred, the matter so communicated will be abandoned to the public to make what use of it they please. Similarly communication by means of manuscript or print may be limited or unlimited. Private distribution of copies of a book is not publication, because the essence of publication is that the matter must be available to all comers and not only to a class; but the issue of a book to subscribers only would

5

1 Coleman v. Wathen (1793), 5 T. R., 245; Macklin v. Richardson (1770), Amb., 694; D'Almaine v. Boosey (1835), 1 Y. and C. Ex., 288.

2 Caird v. Sime (1887), 12 A. C., 326; Abernethy v. Hutchinson (1825), 3 L. J. (O.S.), Ch., 309. See p. 222, infra.

3 Nicols v. Pitman (1884), 26 Ch. D., 374. 4 See Walter v. Lane [1900], H. C., 539. 5 Kenrick v. Danube Collieries (1891), 39 W. R., 473; Prince Albert v. Strange (1849), 2 De G. and Sm., 652; Jefferys v. Boosey (1854), 4 H. L. C., 815; Exchange Telegraph v. Gregory [1896], 1 Q. B., 147; Exchange Telegraph v. Central News [1897], 2 Ch., 48; Millar v. Taylor (1769), 4 Burr., at p. 2417; Turner v. Robinson (1860), 10 Ir. Ch. R., 121, 510.