in such number.1 A Christmas number of a serial publication, although published in an entirely different form with separate pagination and sold at a different price from the ordinary numbers, is part of the periodical, and separate publication of the stories therein will be prohibited under section 18.2

An article may be contributed to a periodical under express or implied terms that the copyright shall belong to the proprietor for all purposes, in which case there will be no reservation of a right of separate publication.3

It should be clearly noted that the second part of section 18 applies only to periodical works. Therefore in the case of an encyclopædia or similar collective works the owner has, apart from special terms, a right to publish the contributor's article separately from the original publication.

Employer's Rights where Section 18 does not Apply.-A question of some difficulty has been raised from time to time to which there is no definite authoritative answer, viz. whether apart from the provisions of section 18 the copyright ever vests ab initio in the employer of an author. We shall see in dealing with assignment that probably the sole right before publication to acquire the copyright of a book on first publication may pass from the author to his assignee without writing, either by an implied gift on delivery of the manuscript or by express oral assignment. The question now considered is whether by the fact of employment alone the work of the employee may not ipso facto on production become the property of his employer. In Sweet v. Benning it was held that the employment of certain members of the bar as reporters came within section 18, and that the copyright vested in the employers themselves; but during the argument Maule, J., is reported to have said :

"One might almost infer without the aid of an Act of Parliament that one who employs another to write an article or to make anything else for him is the owner or proprietor."

I think that this suggestion is wrong if applied to the case of an independent contractor, and that if such an employment does not come within section 18 there will be no proprietary right in the

1 Mayhew v. Maxwell (1860), 1 J. and H., 312.
3 Hereford v. Griffin (1848), 16 Sim., 190.

2 Ibid.

4

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

employer ab initio, although it may be transferred to him before publication by mere delivery of the manuscript with the mutual intention to convey all rights. But in the case of a servant or agent who produces literary work in the course of his employment, I think it is different. I think that his work will vest ab initio irrespective of section 18, and that section 18 only applies to an independent contractor and not to a servant. In Hildesheimer v. Dunn1 Kekewich, J., takes this view. He says:

"I entertain a strong opinion that when a person has composed verses, we will say on behalf of another, that is to say as his servant or agent, whether for pay or not, the person on whose behalf such verses are composed is properly registered under the Act as the proprietor, notwithstanding that there is no assignment in writing or indeed any assignment at all."

SECTION V.-THE ASSIGNEE.

Before Publication.-Before a manuscript has been published the right to publish and acquire the copyright may be assigned so that on publication the copyright will be the property of the assignee. If the publication takes place during the lifetime of the author, the assignee takes the copyright under sections 2 and 3 of the Copyright Act, 1842.2 Section 3 provides "that the copyright in every book which shall, after the passing of the Act, be published in the lifetime of its author . . shall be the property of such author and his assigns." Section 2 provides that the word "assigns "assigns" shall be "construed to mean and include every person in whom the interest of an author in copyright shall be vested, whether derived from such author before or after the publication of any book, and whether acquired by sale, gift, bequest, or by operation of law or otherwise." If the publication takes place after the death of the author, the assignee takes the copyright under section 3, which enacts that "the copyright in every book which shall be published after the death of its author . . . shall be the property of the proprietor of the author's manuscript from which such book shall first be published and his assigns." The possession and 2 5 & 6 Vict. c. 45.

1 (1891), 64 L. T., 452.

right of property in the manuscript is primâ facie proof of the right to publish and acquire copyright, but such proof may be rebutted by showing that the possession or ownership of the manuscript has been separated from the right to publish and acquire copyright. Thus in the case of letters the literary property remains in the writer and his assigns, whereas the property in the physical substance of the manuscript has passed to the receiver and his assigns.

If an assignment of manuscript, purporting to carry with it the right to publish and acquire copyright, is made before publication, it is submitted that no writing is required. The requirement that an assignment of copyright after publication must be in writing is founded not on an express enactment, but on implication from section 15 of the Copyright Act, 1842.1 This section prohibits the reproduction of any book in which there is subsisting copyright without the consent in writing of the proprietor thereof. From this it is deduced by a fortiori argument that an assignment of subsisting copyright must be in writing. It does not in the least follow that the common law right in manuscript may not be assigned by any mode by which property of that description might be assigned at common law. The Courts have not, however, sufficiently distinguished between an assignment before and an assignment after publication, and as a result the case law on the subject is in a most unsatisfactory condition. There are several cases under the statute of Anne, which statute, in very similar words to the statute of Victoria, provides that copyright shall belong to the author and his assignee or assigns. There is no definition of "assigns," as in the statute of Victoria, but the rule that assignment of copyright must be in writing is deduced in the same way from the proviso that consent to copy must be in writing. The cases under the statute of Anne should therefore be equally applicable as authorities under the statute of Victoria. In Clementi v. Walker a French author had assigned orally to an English subject the exclusive right of printing and publishing a musical composition in this country. 1 5 & 6 Vict. c. 45, sec. 15. 2 See p. 77, infra.

3 (1824), 2 B. and Cr., 861; see Cary v. Kearsley (1802), 4 Esp., 168; Storace v. Longman (1788), 2 Camp., 26 n.

The work had not been published in England, and apart altogether from the question of a prior publication in France, the Court was of opinion that the publication in England did not give copyright to the English publisher, "because there was not any assignment or consent in writing given to the author previously to that publication. The case of Power v. Walker1 is an authority to show that a parole assignment is not sufficient to give to the assignee the privileges conferred by the legislature upon the author." In Colburn v. Duncombe 2 there was a written publishing agreement whereby the author agreed to write a book and assign the whole copyright therein. On completion the manuscript was delivered to the publisher, and the author gave a written receipt for the consideration and agreed to deliver a regular assignment when called upon. This was never done, and in an action by the publisher against an infringer it was held that he could not sue without the author in whom the copyright had vested and remained. In Sweet v. Shaw the plaintiffs agreed with A and B that A and B should report cases for them. A and B accordingly took notes of cases, and these were printed and published by the plaintiffs. Shadwell, V.C., said that he thought the plaintiffs had a copyright in equity but not in law. "I cannot," he said, "see how the agreement that persons shall prepare a work for the plaintiffs gives the plaintiffs a copyright in law, for there can be no assignment in law except of that which actually exists." In all these three cases last cited it is submitted that the whole right of the author should have been held to have passed to the publisher by the delivery to him of the manuscript with the mutual intention that he should acquire all rights therein. The first case in which it is recognised that the author's right may before publication pass without writing is Jefferys v. Boosey.1 Erle, J.,5 and Coleridge, J., decided that no writing was required. Speaking of an oral assignment abroad of a manuscript subsequently published here, Coleridge, J., said: "The assignee is clearly

1 (1814), 3 M. and S., 7.

2 (1838), 9 Sim., 151.

3 (1839), 8 L. J. Ch., 216; see Hodges v. Welsh (1840), 2 Ir. Eq. R., 266.

4 (1854), 4 H. L. C., 815; see M'Lean v. Moody (1858), 20 D., 1154; Jefferys v. Kyle (1856), 18 D., 906; Cocks v. Purday (1848), 5 C. B., 860.

4 H. L. C., at p. 880.

6 54 H. L. C., at p. 907.

within the enabling clause of the statute (8 Anne, c. 19); he is the assignee of an author, and even if these words may in some cases mean an assignee under an instrument in writing attested by two witnesses, it has not been shown or decided that they must or can mean this in all cases. I think the contrary has been shown. Larger words and less restrained the legislature could scarcely have used, and on what sound principle are we to import a restraint by implication?" Lord St. Leonards, however, in the same case, seemed to be of opinion that the assignment must be in writing and attested by two witnesses (under 8 Anne, c. 19) even although made before publication. In some of the cases the publisher with whom the author has agreed that he shall have the whole copyright, but to whom there has been no assignment in writing, has been said to be an equitable owner of the copyright. But it is submitted that if the manuscript passes before publication with mutual intention to convey to the publisher all right, title, and interest therein, the publisher is the legal assignee, and on publication is the legal owner of the copyright, and there is no necessity for a formal assignment in writing. The same principle may not apply to performing rights in dramatic and musical works under 3 & 4 Will. IV. c. 15. It is probable that statutory performing rights vest in the author on production, and if this is so there would probably be no common law performing right, and therefore no common law assignment; the statutory mode of assignment would attach from the beginning.*

2

After Publication.-After publication an assignment must be in writing. It need not be by deed nor attested by witnesses,

1 Hazlitt v. Templeman (1866), 13 L. T. (N.S.), 593; Grace v. Newman (1875), L. R., 19 Eq., 623; Cox v. Cox (1853), 11 Hare, 118.

6

2 See Frowde v. Parish (1896), 27 Ont. Rep., 526; Macmillan v. Suresh Chunder Deb (1890), Ind. L. R., 17 Calc., 951.

3 See p. 128.

4 See Shepherd v. Conquest (1856), 17 C. B., 427; Eaton v. Lake (1888), 20 Q. B. D., 378. 5 5 & 6 Vict. c. 45, sec. 15; Leyland v. Stewart (1876), 4 Ch. D., 419; Power v. Walker (1814), 3 M. and S., 7; Davidson v. Bohn (1848), 6 C. B., 456; Clementi v. Walker (1824), 2 Bar. and Cres., 861; Jefferys v. Boosey (1854), 4 H. L. C., 815; [See the judgment of Lord St. Leonards at p. 944; but note also that Coleridge, J., at p. 906, expressed his disapproval of the reasoning in Power v. Walker and Davidson v. Bohn]; Kyle v. Jefferys (1859), 3 Macq., 611, 617, 18 D., 906; Cumberland v. Copeland (1862), 1 H. and C., 194; Cocks v. Purday (1848), 5 C. B., 860; see Drone on "Copyright," pp. 304-316, where the soundness of the case law that assignment must be in writing is doubted.

Kyle v. Jefferys (1859), 3 Macq., 611; Jefferys v. Boosey (1854), 4 H. L. C., 815.