SECTION VII.-THE EXECUTORS OR ADMINISTRATORS.

Copyright is personal property, and descends on the death of an owner to his personal representatives.1 "Assigns" is expressly interpreted to include one taking by bequest or by operation of law. The common law property in the manuscript passes on the death of the owner in the same way as copyright. A bequest of "all my books" has been held to include valuable manuscript notes left by a physician.2

SECTION VIII. THE TRUSTEE IN BANKRUPTCY.

Copyright comes within the vesting section of the Bankruptcy Act and passes to the trustee of a bankrupt owner. A bankrupt's unpublished works, probably, cannot be published for the benefit of his creditors without his consent.

1 Latour v. Bland (1818), 2 Stark, 382.

2 Willis v. Curtois (1838), 1 Beav., 189.

3 See Mawman v. Tegg (1826), 2 Russ., at p. 392.

CHAPTER IV

INFRINGEMENT OF COPYRIGHT IN BOOKS

SECTION I.-PROHIBITED ACTS, AND REMEDIES. COPYRIGHT is defined by the Copyright Act, 1842, as "the sole and exclusive liberty of printing or otherwise multiplying copies." Any invasion of this monopoly is an infringement of copyright. Besides infringement of copyright, i.e. illegal copying, the Act makes it an offence to deal in certain ways with unlawful copies. The offences against copyright and the owner's remedies may be conveniently summarised as follows:

For the following offences:1

i. Piratical copying.

ii. Importing for sale or hire unlawfully printed books. iii. Selling or hiring, or having in possession for sale or hire, unlawfully printed books, knowing the same to be unlawfully printed.2

iv. Causing any of the above acts to be done.

The remedies 3 are an action in a Court of Record for :

1. Damages and account of profits.

2. Delivery up of copies.

3. Injunction.

For the following offences : +

v. Importing without the consent of the proprietor a foreign copy or copies, i.e. printed outside the British dominion.

1 5 & 6 Vict. c. 45, secs. 15 and 2.

2 See Butterworth v. Kelly (1888), 4 T. L. R., 430; Leader v. Strange (1849), 2 Car. and K., 1010.

3 35 & 6 Vict. c. 45, secs. 15 and 23. The remedies given by these two sections are cumulative, and may be recovered by one action; Muddock v. Blackwood [1898], 1 Ch., 58. 5 & 6 Vict. c. 45, sec. 17; 39 and 40 Vict. c. 36, sec. 42.

4

5 Ignorance will not excuse in the case of importing, but contra in the case of selling or hiring, Cooper v. Whittingham (1880), 15 Ch. D., 501.

vi. Selling or hiring or having in possession for sale or hire foreign copies knowing them to be unlawfully imported.1

The remedies are :—

1. Seizure and destruction by any officer of Customs,2 and on conviction before two justices of the peace.

2. £10 for every offence.3

3. Double the value of every copy dealt with,* and An action in the High Court for

4. An injunction.5

Causing to be Printed.—The prohibition in section 15 is against "printing, or causing to be printed." Thus the author, publisher, and printer of a piratical book are all equally liable, and it is no defence for the publisher, who has employed the printer, or for the printer to say he was acting merely as an innocent agent. There may sometimes be difficulty in determining whether a person who, to a certain extent, is interested in the publication has yet caused it to be printed within the meaning of the section. Thus, in the case of Kelly's Directories v. Gavin and Lloyds, the plaintiff had published a directory of merchants and shipping statistics. The defendant Gavin prepared a similar directory, and agreed with the defendants Lloyds for its publication. Lloyds were to print part of it and allow the use of their name in the title and receive some share in the profits. The book was accordingly published under the title of "Lloyds' Diary for Merchants, &c.," and bore on the title-page the statement "printed at Lloyds, Royal Exchange, London." Part of the book was held to be an infringement of the plaintiff's copyright; but it was proved on the trial that that part was not printed by Lloyds, but by a printer employed by Gavin, and that Lloyds had no knowledge of its piratical nature. Byrne, J., found that Lloyds were not partners in the undertaking with Gavin, and that

1 Cooper v. Whittingham (1880), 15 Ch. D., 501.

2 5 & 6 Vict. c. 45, sec. 17; and see 39 & 40 Vict. c. 35, sec. 42.

3 £5 to the use of the officer of customs, remainder to the use of the proprietor of 4 Ibid. copyright.

5 Cooper v. Whittingham (1880), 15 Ch. D., 501.

the printing of the piratical portion was not done by the printer as their agent. He therefore held that Lloyds had not "caused" that portion to be printed within the meaning of the section, and dismissed the action as against Lloyds, but without costs, as they had allowed their name to appear on the title-page as printers.

Damages. An action for damages lies, irrespectively of sections 15 or 23, for any infringement of copyright as defined by section 2.1 The damages are damages as for conversion or detinue, and may be matter for inquiry before a master or official referee, but frequently are assessed by the judge on a rough estimate.

Account of Profits.-An order for an account of profits is an equitable remedy. The defendant is held to have been in possession of the plaintiff's property, and must account for the profits thereof. The account will be for an account of net profits.* On an interlocutory application for an injunction the defendant may undertake to keep an account of profits until trial; but, strictly, the right to an account depends on the right to an injunction, and will not be ordered when the case for an injunction fails. If the defendant's work is not wholly piratical, the profits must be apportioned according to the relative value of the piratical with the non-piratical matter. The defendant's profits may not entirely recoup the plaintiff for the damage he has suffered, and in that event he is entitled to an inquiry into damages to supplement his compensation.

Injunction. This is also an equitable remedy. It is not specially provided for in the Copyright Act, but being the ancillary remedy in equity for the protection of legal rights, it will be

1 Novello v. Sudlow (1852), 12 C. B., 177; and see Beckford v. Hood (1798), 7 T. R., 620; Cambridge University v. Bryer (1812), 16 East, at p. 322.

2 Muddock v. Blackwood [1898], 1 Ch., 58; Pike v. Nicholas (1869), L. R., 5 Ch., 251, at PP. 255 and 260.

3 Hogg v. Kirby (1803), 8 Ves., 215, at p. 223; Grimson v. Eyre (1804), 9 Ves., 341, at p. 346; Kelly v. Hooper (1841), 1 Y. and C., 197, at p. 199; Colburn v. Simms (1843), 2 Hare, 543.

4 Delfe v. Delamotte (1857), 3 K. and J., 581; but see Pike v. Nicholas (1869), L. R.,

5 Ch., 251.

5 Baily v. Taylor (1829), 1 R. and M., 73; Price's Patent Candles v. Bavwen (1858),

4 K. and J., 727; Delondre v. Shaw (1828), 2 Sim., 240; Sweet v. Maughan (1840), II Sim., 51.

6 Eldon, L. C., in Mawman v. Tegg (1826), 2 Russ., at p. 400.

granted or withheld according to the discretion of the Courts in all cases of infringement or other offences against the Act.1

An interim injunction is usually granted on motion before trial where the plaintiff shows a prima facie case on affidavit. In doubtful cases weight will be given to the consideration which side is more likely to suffer from an erroneous judgment.2 The Court will consider the balance of convenience on the one side and the other. The reason for granting an interim injunction is that a continuing infringement might cause damage for which it would be difficult or impossible to assess an adequate money compensation. If the taking is of an inconsiderable part, an interim injunction might not be given, although an injunction might go at the hearing. In urgent cases an interim injunction may be granted ex parte. In all interim injunctions the plaintiff is, as a rule, required to undertake to give compensation to the defendant if on trial he fails to establish his case. When such an undertaking is given the defendant is, if he succeed in his defence, entitled to an inquiry as to the damage sustained on account of the interim injunction against him.5 When there has been undue delay in bringing an action, or where the conduct of the plaintiff has been such as to induce the defendant to believe that his conduct would not be objected to, an interim injunction will probably be refused." A mere expression of opinion by the plaintiff that it would be legal to make a certain use of his work is not a sufficient ground for refusing an injunction if in point of law the use made by the defendant is illegal. "Copyright is not to be lost by the mere expression of opinion." At the hearing of the action a perpetual injunction will be granted on the plaintiff proving his title and infringement. Delay or acquiescence not amounting

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1 Cooper v. Whittingham (1880), 15 Ch. D., 501.

2 M'Neill v. Williams (1847), 11 Jur., 344; Hogg v. Kirby (1803), 8 Ves., 215.

3 Hall, V.C., in Maple v. Junior Army and Navy Stores (1882), 21 Ch. D., at p. 372.

4 Chappell v. Davidson (1856), 8 De G. M. and G., I.

5 Novello v. James (1854), 24 L. J. Ch., 11I.

6 Southey v. Sherwood (1817), 2 Mer., 435; Platt v. Button (1815), 19 Ves., 447; Saunders v. Smith (1838), 3 My. and C., 711; Lewis v. Chapman (1840), 3 Beav., 133; Assignees of Robinson v. Wilkins (1805), 8 Ves., 224, n; Baily v. Taylor (1829), 1 Russ. and My., 73; Rundell v. Murray (1821), Jac., 311; and see Buxton v. James (1851), 5 De G. and Sm., 80. 7 Morris v. Ashbee (1868), L. R., 7 Eq., 34.

8 Per Gifford, V.C., L. R., 7 Eq., at p. 39.