representing or performing any dramatic piece or musical composition as if the same were herein expressly re-enacted and applied thereto, save and except that the first public representation or performance of any dramatic piece or musical composition shall be deemed equivalent in the construction of this Act to the first publication of any book."

Under such Employment.-The author must be "employed and the work must be composed "under such employment." It appears therefore that a work or part of a work would not come within this 18th section unless actually executed in the course of the author's employment by the proprietor. In other words, there must be antecedent employment.1 A contribution voluntarily sent to a magazine would not, even although accepted and paid for on the terms that the copyright should belong to the proprietors, come under the provisions of section 18. It is submitted that it would become the sole property of the proprietor of the magazine for all purposes without any reservation of the right of separate publication to the author.2

If A employs B, who in his turn employs C, the copyright will vest in A if B acted as a mere agent for A. Thus in Stubbs v. Howard, Stubbs employed the Mercantile Press to obtain the necessary information for their Gazette, and the Mercantile Press employed P. to collect and compile. It was held that the copyright vested ab initio in Stubbs under section 18. But if A employs and pays B to do certain literary work, and B, of his own authority, employs and pays C, D, and E to do certain portions of it, it is doubtful whether the copyright in these portions will vest in A under section 18. The author has been neither employed nor paid by the proprietor of the work since B acted not as an agent for him, but as an independent contractor.* The operation of section 18 seems to be exhausted in the first employment.

"On the terms that the copyright therein shall belong to such proprietor."-The terms may be implied from the nature of the employment and the circumstances under which the work is

1 Brown v. Cooke (1846), 16 L. J. Ch., 140.

2 As to whether a written assignment of the copyright from the author would be necessary in such a case, see infra, at p. 74.

3 (1895), 11 T. L. R., 507.

▲ Brown v. Cooke (1846), 16 L. J. Ch., 140.

composed. In Sweet v. Benning1 various members of the bar had furnished reports of cases to the plaintiffs, the proprietors of the Jurist. The reporters selected what cases they thought fit to report and were paid for their work. The arrangements were entirely oral, and nothing seems to have been said about copyright. The Court of Common Pleas held that the proprietors of the Jurist became the owners of the copyright under the 18th section. Maule, J., in support of his opinion said :

"When a man employs another to write an article or to do anything else for him, unless there is something in the surrounding circumstances or in the course of dealing between the parties to require a different construction, in the absence of a special agreement to the contrary, it is to be understood that the writing or other thing is produced upon the terms that the copyright therein shall belong to the employer."

In Trade Auxiliary v. Middlesborough the proprietors of Stubbs' Weekly Gazette and two other weekly papers jointly employed on salary two men to examine the official records and extract the particulars of bills of sale and deeds of arrangement registered in accordance with the Acts. The information so obtained was published in the weekly papers. It was held that the proprietors of the respective papers became owners of the copyright under section 18. In Lamb v. Evans the plaintiff employed and paid several persons in canvassing for advertisements and arranging them under appropriate headings in a Trades Directory. Lindley, L.J., in giving judgment, said he thought that

"The burthen of proof was on the plaintiff to show that the headings were composed upon the terms that the copyright therein should belong to him; but the statute does not say anything about the kind of evidence which is to be adduced for the purpose of proving that an article has been composed on these terms. . . . If there is no express agreement the question is, what is the inference to be drawn from the circumstances of the In drawing the inference regard must be had to the nature of the articles which are here merely the headings to groups of advertisements with translations, and the view expressed by Mr. Justice Maule in Sweet v. Benning may be very safely acted upon, viz. that primâ facie at all events

case.

369.

1 (1855), 16 C. B., 459.

2 (1889), 40 Ch. D., 425; and see Trade Auxiliary v. Jackson (1887), 4 T. L. R., 130.

3 [1893], 1 Ch., 218; and see Maple v. Junior Army and Navy Stores (1882), 21 Ch. D.,

4 (1855), 16 C. B., at p. 484.

you will infer, in the absence of evidence to the contrary, from the fact of employment and payment that one of the terms was that the copyright should belong to the employer. That is not a necessary inference; but in a case of this sort, where any other inference would be unbusinesslike, I should not hesitate myself to draw that inference."

Bowen, L.J., in the same case, says:—

"From where are you to collect the terms? You may collect them from what passed between the parties, that is to say between the plaintiff and the persons whom he employed, but you may also collect them from the nature of the business itself, and it seems to me to be impossible as a matter of business to suppose that these headings were composed and furnished to the plaintiff upon any other terms than that he was to have the copyright in them, because otherwise those who composed them having furnished them to the plaintiff might themselves have published them and defeated his object."

On the other hand in Walter v. Howe, Jessel, M.R., held that the Times could not sue in respect of a biography of Lord Beaconsfield which had appeared in their columns. There was evidence that the author had been paid for his literary services, but there was apparently no evidence as to whether he had been "employed" "on the terms that the copyright should belong" to the plaintiff. Notice that in this case no antecedent employment whatsoever is shown. In Johnson v. Newnes a series of stories were contributed to the Weekly Dispatch under an arrangement between the proprietor and the author. The author was not on the permanent staff of the Weekly Dispatch. He was paid by the proprietors for his contributions, the arrangement being that the author should have the right of separately publishing the stories, provided such separate publication did not take place until after all the stories had appeared in the Weekly Dispatch. In an action by the author against an infringer, Romer, J., in giving judgment for the plaintiff, said that he had come to the conclusion that although the plaintiff was paid he was not paid on the terms that the copyright in the stories should belong to the proprietors of the journal. The author had therefore not parted with the copyright and was the proper plaintiff.3

1 (1881), 17 Ch. D., 708; and see Bishop of Hereford v. Griffin (1848), 16 Sim., 190. 2 [1894], 3 Ch., 663.

3 And see Coote v. Judd (1883), 23 Ch. D., 727.

In Aflalo v. Lawrence1 the defendants published a work called "The Encyclopædia of Sport." A, one of the plaintiffs, agreed with the defendants that he would edit the work. He was to receive £500 for his services, and to write without further remuneration 7000 words of special articles. He was entitled to pursue his literary work in so far as it did not interfere with the performance of his duties. A contributed an article to the encyclopædia under his agreement. A, by the request of the defendants, procured C, the other plaintiff, to write certain articles for the encyclopædia at the rate of £2 per thousand words. The articles of both plaintiffs were published in the encyclopædia. Joyce, J., held that the contributions of neither plaintiff came within section 18, since there was nothing to show that they were contributed on the terms that the copyright therein should belong to the defendants. The defendants were therefore not entitled to publish the plaintiff's articles in any other form than as part of the encyclopædia. In view of the earlier authorities I think this decision is extremely doubtful.

Joint Employers. As has been seen above in the case of Trade Auxiliary v. Middlesborough,2 two or more proprietors of several periodicals may jointly employ an author so as to acquire the copyright under this section. Each has a separate copyright in his respective paper, and, although the matter contributed to the several papers is the same, may sue without joining the other proprietors. Each is "a transferee by virtue of section 18 of a limited portion of the copyright in that particular composition."

Payment. Not only must there be employment for reward, but payment is a condition precedent. If payment is not proved the section will not operate to transfer the copyright from the author. Payment must be made before the commencement of an action. It has been suggested that it must be made before piracy, and this appears a sound view since there is no copyright in the proprietor until payment, and an infringement before 1 [1902], I Ch., 264.

3 Chitty, J., 40 Ch. D., at p. 431.

2 (1889), 40 Ch. D., 425.

4 Brown v. Cooke (1846), 16 L. J. Ch., 140; Richardson v. Gilbert (1851), 1 Sim. (N.S.), 336; Collingridge v. Emmott (1888), 57 L. T. (N.S.), 864; Trade Auxiliary v. Middlesborough (1889), 40 Ch. D., 425; Trade Auxiliary v. Jackson (1887), 4 T. L. R., 130.

5 Trade Auxiliary v. Middlesborough (1889), 40 Ch. D., at p. 430.

copyright is assigned is no cause of action in the assignee.1 There is nothing to suggest that payment must be made before publication.2

Author's Separate Rights.-When an author has contributed to a periodical and the conditions of the section have been fulfilled so as to vest the copyright in the proprietor of the periodical, it would seem that for twenty-eight years, i.e. until the right of publishing in separate form reverts to the author, the author has no right to sue third parties in respect of an infringement without joining the proprietor of the periodical as co-plaintiff. If, however, the author, while contributing on the terms that the proprietor should have the copyright, reserves the right of publishing his composition in a separate form within the meaning of the proviso at the end of the section, when he does publish in separate form he will be entitled to copyright concurrently with the proprietor, but semble that he will have no right to sue alone until publication in separate form,3 or until the lapse of twenty-eight years.

During the twenty-eight years the proprietor of a periodical work is not, apart from express agreement, entitled to publish the contribution in separate form. If the proprietor does publish separately in breach of the provision of the section, the author has a right of action against him, and the author's right not being one of copyright but in respect of a breach of implied or statutory contract he does not require to be registered.* "Separate" means in any other form than the original collective publication, whether as a single work by itself or in conjunction with other matter. When the proprietor of a magazine reprinted certain stories which had appeared in the magazine from time to time, and published them as a supplement to the current number, this was held to be a publication in separate form which the author could prevent. So also the republication of the Christmas number of a periodical under a different title, form, and price, is a separate publication of an article contained

1 See cases cited, p. 79, footnote 4.

2 See Chitty, J., Trade Auxiliary v. Middlesborough (1889), 40 Ch. D., at p. 430.

3 See Johnson v. Newnes [1894], 3 Ch., 663.

4 Mayhew v. Maxwell (1860), 1 J. and H., 312.

I

5 Smith v. Johnson (1863), 4 Giff., 632.