nor, it would seem, need it be signed by the proprietor or any one. The assignment may be given by an agent. An assignment does not require to be registered in order to make it valid as a transfer of the property: but an assignee who sues must be registered. If the assignor is registered as proprietor complete assignment may be made by entry on the Book of Registry at Stationers' Hall.3 Probably an author, even although not registered, may make a valid assignment by registering the book in the name of his assignee as proprietor. It has been held that an unregistered author may so register himself and two others and give all three a title to sue as joint proprietors, from which it seems to follow that he could have registered the two others without himself. An assignee may make the entry on the register himself without the concurrence or consent of his assignor.

In the case of an assignment made otherwise than by entry on the register, the writing must in itself amount to a present conveyance of the copyright although no particular words of conveyance are required. An executory contract to assign is not sufficient, neither will it invalidate a subsequent regular assignment to others. A written agreement "to let A have" a particular drama in discharge of a debt of £10 was held a complete assignment of all rights in the drama.9 A receipt for money purporting to be paid in respect of an assignment is not in itself an assignment.10 The copyright will not pass merely by the sale and transfer of possession of any instrument whereby the book may be reproduced such as stereotype blocks.11 In the

1 Morton v. Copeland (1855), 16 C. B., 517.

2 Liverpool General Brokers v. Commercial Press [1897], 2 Q. B., I; see contra opinion of Lord Cockburn in Wood v. Boosey (1867), 7 B. and S., at p. 897; Morang v. Publishers (1900), 32 Ont. Rep., 393.

3 5 & 6 Vict. c. 45, sec. 13.

4 Stevens v. Wildy (1850), 19 L. J. Ch., 190.

6 Liverpool General Brokers v. Commercial Press [1897], 2 Q. B., 1.

5 Ibid.

7 Levy v. Rutley (1871), L. R., 6 C. P., 523; Leader v. Purday (1849), 7 C. B., 4; Colburn v. Duncombe (1838), 9 Sim., 151; London Printing and Publishing Co. v. Cox [1891), 3 Ch., 291.

9 Lacy v. Toole (1867), 15 L. T. (N.S.), 512.

8 Leader v. Purday (1849), 7 C. B., 4. 10 Tree v. Bowkett (1895), 74 L. T. (N.S.), 77; Lover v. Davidson (1856), 1 C. B. (N.S.), 182; Latour v. Bland (1818), 2 Stark, 382; Levy v. Rutley (1871), L. R., 6 C. P., 523 ; Colburn v. Duncombe (1838), 9 Sim., 151; but see Kyle v. Jefferys (1859), 3 Macq., 611, 18 D., 911.

11 Cooper v. Stephens [1895], 1 Ch., 567; Marshall v. Petty (1900), 17 T. L. R., 501.

event of mesne assignments the burden of proof is in those disputing the title to show that they were not rite et solenniter acta; and even in the case of an alleged assignment to a party in the action, a valid assignment has been presumed from a long course of dealing without actual evidence of an assignment in writing.2

An executory contract or a purported assignment not valid at law will be recognised in equity, and the Court will order specific performance or compel the assignor to allow the assignee to sue in the assignor's name.3

The assignee cannot sue in his own name in respect of acts of infringement committed before he became proprietor. An assignee cannot, apart from special agreement, prevent his assignor selling against him copies of the book which such assignor has printed before assignment.5 Probably the assignment of copyright implies a warranty of the right to convey, free from encumbrances, and quiet enjoyment."

8

Co-assignees take as tenants in common and not as joint tenants, and any one or more may maintain an action against a stranger for an infringement of the entire copyright. It follows that one of several co-assignees cannot grant an effective licence without the concurrence of the others."

In Jefferys v. Boosey 10 Chief Baron Pollock expressed an opinion that if a foreigner resident abroad had a copyright in this country, an assignment valid by the laws of a foreign country would be sufficient, inasmuch as copyright is expressly enacted to be personal property, and would therefore pass according to the laws of the country where the transfer took place.

1 Morris v. Kelly (1820), 1 Jac. and W., 481.

2 Dennison v. Ashdown (1897), 13 T. L. R., 226.

3 Sweet v. Cater (1841), 11 Sim., 572; Sweet v. Shaw (1839), 8 L. J. Ch., 216; Sims v. Marryat (1851), 17 Q. B., 281; Strahan v. Graham (1867), 16 L. T. (N.S.), 87; Thombleson v. Black (1837), 1 Jur., 198.

4 Dupuy v. Dilkes (1879), 48 L. J. Ch., 682; Chappell v. Purday (1843), 12 M. and W., 303.

5 Taylor v. Pillow (1869), L. R., 7 Eq., 418; Howitt v. Hall (1862), 6 L. T. (N.S.), 348.

6 Sims v. Marryat (1851), 17 Q. B., 281; Queensberry v. Shebbeare (1758), 2 Eden Cha.

Cas., 330; Williams' "Law of Personal Property," 15th edition, p. 523.

7 Powell v. Head (1879), 12 Ch. D., 686.

8 Lauri v. Renad [1892], 3 Ch., 402.

9 Powell v. Head (1879), 12 Ch. D., 686.

10 (1854), 4 H. L. C., at p. 940; and see Cocks v. Purday (1848), 5 C. B., 860.

Partial Assignment.—It was laid down in Jefferys v. Boosey1 by Lord St. Leonards that copyright was one and indivisible, and could not be partially assigned. If this is correct, any attempt to assign a partial right would operate if at all as a mere licence. This opinion of Lord St. Leonards was in respect of the statute of Anne. It seems to be more or less accepted that under the statute of Victoria copyright is divisible; that there may be partial assignment limited as to place,2 e.g. provincial rights, right to publish in a particular country, or limited as to the nature of the right,3 e.g. the right to dramatize, the right to translate. This view appears to be based on section 13 of the Act of Victoria, which enacts that a registered proprietor may assign his interest or any portion therein by making entry on the register. I do not think that this provision in itself is conclusive or that it necessarily follows that a copyright can be split up and partially assigned. Section 13 may merely mean that the owner can assign a certain undivided share in his copyright to another. Cotton, L.J., in Trade Auxiliary v. Middlesborough,5 refers to Lord St. Leonards' doctrine. He does not disapprove of it, but he distinguishes the case of common ownership in a copyright from the case of a partial assignment as to place.

In a case decided in the Supreme Court of New South Wales, it was held that the assignee of a performing right limited to the Australian colonies could sue in his own name for infringement. The Court distinguished between the performing right and the copyright. They said that even although the copyright, in accordance with Lord St. Leonards' opinion, was not divisible the performing right was.7

In any view of partial assignment I do not think there can be partial assignment as to time.s Such an assignment would create an estate in possession and reversion in personal property, and there is no reason for holding that copyright is any

1 (1854), 4 H. L. C., 815.

2 Taylor v. Neville (1878), 26 W. R., 299; Tree v. Bowkett (1895), 74 L. T. (N.S.), 77 ; see doubt expressed in Shepherd v. Conquest (1856), 17 C. B., at p. 436.

3 Lucas v. Cooke (1880), 13 Ch. D., 872.

4

5 & 6 Vict. c. 45, sec. 13.

5 (1889), 40 Ch. D., 434, 435.

6 Holt v. Woods (1896), 17 N. S. W. R., Eq., 36.

7 See ex parte Dobson (1892), 12 N. Z. L. R., 171.

8 See contra Howitt v. Hall (1862), 6 L. T. (N.S.), 348; Sweet v. Cater (1840), 11 Sim., 572; Davidson v. Bohn (1848), 6 C. B., 458.

exception to the general rule that such an interest cannot be created in personalty. Equitable estates, limited as to time, can no doubt be created as in the case of any other personal property.1 What purports to be an assignment limited as to time must as a rule be treated as a licence.

Assignment distinguished from Licence.-The distinction between an assignment and a licence must be carefully observed; questions of the utmost importance will often depend on whether a transaction was one or the other. An assignment is a conveyance of the right denuding the grantor and carrying to the grantee the whole interest including the right to sue and the right to re-assign, whereas a licence is only a personal permission to the grantee to infringe the grantor's right, and carries with it no right of action except in the grantor's name. In determining whether a particular transaction is an assignment or a licence, the first question is whether, on a true construction of the statute, the right purported to be given can be given by assignment or only by licence. If the right is one so limited that it cannot legally be the object of assignment, the transaction must necessarily be a licence; but if it can legally be the object of assignment, the further question arises as to what was the intention of the parties as evidenced by what they have said and done. There may often be clear words to show what was intended, but more often it may never have occurred to the parties that there was any distinction between an assignment and a licence, and the form used will consequently be ambiguous. The principal test in such cases is to examine the contract and the circumstances under which it was made, and see whether or not it bears the impress of a reliance by the grantor on the personal skill or reputation of the grantee. If it does a licence will be presumed rather than an assignment; for instance, in a publishing agreement a licence only will be presumed, since either the pocket or the reputation of the author would suffer if the right of publication were to pass into incompetent hands.2

1 Rippon v. Norton (1839), 2 Beav., 63.

2 Hole v. Bradbury (1879), 12 Ch. D., 886; Stevens v. Bradbury (1854), 1 K. and J., 168; Reade v. Bentley (1857), 3 K. and J., 271; Cooper v. Stephens [1895], 1 Ch., 567; ex parte Bastow (1854), 14 C. B., 631.

F

SECTION VI.-THE LICENSEE.

Whether a bare licensee can bring an action for infringement without joining the legal owner of the copyright is open to doubt. It is submitted that he cannot. The essence of a licence proper is that it is merely a personal relationship between a licensor and a licensee whereby the latter is permitted to infringe the former's copyright. The old cases are not satisfactory. The distinction between partial assignment and licence is not clearly drawn, and the result is a confusion of the respective rights of the assignee and the licensee. In several cases it was said that licensees could sue1 but quære whether they were not really partial assignees. It has also been said that an owner of copyright who has granted an exclusive licence cannot sue in respect of an infringement which touches only the rights included in such licence, unless such owner has the consent of his licensee. This again, it is submitted, is not a correct statement of the law, and arises from a confusion between a partial assignee and a licensee. In Taylor v. Neville the grant of provincial performing rights although called a licence was really treated as an assignment and distinguished from a "merely personal licence." It is submitted that a licence proper is always "merely personal" and that the grantor may sue without consent of his licensee. Where a licence has been granted or when there is doubt as to whether a particular grant is an assignment or a licence, it will always be safer to join both grantor and grantee as co-plaintiffs. A licence will not be presumed to be a sole licence, and unless it is expressly stated, or must necessarily be implied from the circumstances that it is so, the first licensee cannot restrain the licensor from granting, or a second licensee from acting on, a second licence.*

1 Trade Auxiliary v. Middlesborough (1889), 40 Ch. D., 425, per Cotton, L.J.; Tuck and Sons v. Canton (1882), 51 L. J., Q. B., 363; Sweet v. Cater (1841), 11 Sim., 572.

2 Taylor v. Neville (1878), 26 W. R., 299; Tree v. Bowkett (1895), 74 L. T., 77. 3 (1878), 26 W. R., 297.

4 Warne v. Routledge (1874), L. R., 18 Eq,, 497; see Sweet v. Cater (1841), 11 Sim., 572; Stevens v. Benning (1855), 1 K. and J., 168.