The notice of objections must be specific, and give full notice of the nature of the defence. If the defence is that the book has not been registered at all, that must be stated. If a faulty registration is relied on, it is not sufficient to deny that the book has been duly registered; the notice must state what the particular objection to the registration is. If the plaintiff's title is denied, it will not do merely to state that the proprietor "is some person unknown, but not the plaintiff;" the full particulars as required by the section must be given.5 In objecting to the registration, however, it is not necessary for the defendant to state what the correct entry should be. Thus if he says the time of first publication is wrongly entered, he does not require to specify the true date of first publication. It is unnecessary to deliver a separate "Notice of Objections," as was the practice at one time, it is sufficient if it is incorporated in the defence. A suggestion of defective title contained in an affidavit would not be sufficient. If a defective title is apparent from the plaintiff's own statement of claim or evidence, the action would probably be dismissed by the Court, proprio motu, even although the defendant had not given notice of objection. Leave to amend the pleadings and take further objection may be allowed on conditions under the judicial discretion given by the Rules of the Supreme Court,1o but if the objection be merely technical, the Court will not give leave to amend," unless, perhaps, the plaintiff had otherwise fair notice that the objection might be taken.12 It has been held by a County Court judge that section 16 of the Copyright Act does not apply to proceedings in the

1 Collette v. Goode (1878), 7 Ch. D., 842; Boosey v. Purday (1846), 10 Jur., 1038; Boosey v. Davidson (1846), 4 D. and L., 147; Leader v. Purday (1849), 7 C. B., 4; Barnett v. Glossop (1835), 1 Bing. N. C., 633; 1 Scott's Rep., 621.

886.

2 Chappel v. Davidson (1856), 18 C. B., 194.

3 Collette v. Goode (1878), 7 Ch. D., 842.

Boosey v. Davidson (1846), 4 D. and L., 147; Hole v. Bradbury (1879), 12 Ch. D.,

5 Ibid.

6 Collette v. Goode (1878), 7 Ch. D., 842.

7 Sweet v. Benning (1855), 16 C. B., 459; Cocks v. Purday (1848), 5 C. B., 860.

8 Hayward v. Lely (1887), 56 L. T. (N.S.), 418.

9 Coote v. Judd (1883), 23 Ch. D., 736; Hole v. Bradbury (1879), 12 Ch. D., 886; Collette

v. Goode (1878), 7 Ch. D., 842; but see Leader v. Purday (1848), 6 Dow. and Low, 408. 10 Collette v. Goode (1878), 7 Ch. D., 842.

11 Ibid.

12 Hayward v. Lely (1887), 56 L. T. (N.S.), 418.

County Court, as that Court was created after the date of the Act.1

The plaintiff may be ordered to specify the particular passages which he is prepared to prove have been pirated from his work.2

Evidence. The great test of piracy is coincidence of blunders, and when some passages are proved by the recurrence of blunders to have been copied, other passages which are the same with passages in the original book are presumed prima facie to be likewise copied, although no blunders occur in them.3

It will greatly prejudice the defendant if his manuscript is not produced or accounted for.4

A denial by the defendant that he has made any use whatsoever of the plaintiff's work raises a presumption of piracy if it is shown that he must have made some use of it, however fair.5

To prove that A on a certain date heard certain music performed from printed sheets, is no evidence that the music was published as a book at that date.

6

Discovery. The defendant is entitled to administer interrogatories to ascertain the extent of the sale of plaintiff's book, and to enable the defendant to ascertain the damages and pay into Court.7

The plaintiff is entitled to interrogate as to the original sources from which the defendant alleges his work to have been compiled.8

Mode of Trial.-Formerly the question of piracy or no piracy and the amount of damages was frequently tried by jury, but now the trial of the action is almost invariably before a judge alone, either in the Chancery or the King's Bench Division. Either party may ask for a trial by jury, but not as a matter of right, it is a matter entirely in the discretion of the Court and semble that the onus lies on the party applying

708.

1 Harris v. Smart (1889), W. N., 92, 5 T. L. R. 594.

2 But see Sweet v. Maughan (1840), 11 Sim., 51.

3 Eldon, L.C., in Mawman v. Tegg (1826), 2 Russ., at p. 394.

4 Hotten v. Arthur (1863), 1 H. and M., 603; Jarrold v. Houlston (1857), 3 K. and J., 5 Ibid.

6 Boosey v. Davidson (1849), 13 Q. B., 257.

7 Wright v. Goodlake (1865), 3 H. and C., 540.

8 Kelly v. Wyman (1869), 17 W. R. 399; Stevens v. Brett (1864), 10 L. T. (N.S.), 231.

for a jury to show that the cause could be more conveniently tried in that way.1

4

3

Costs. In copyright as in other actions a successful party may be refused his costs. The plaintiff will not get his costs if he has unduly acquiesced in the defendant's conduct, and thereby induced the defendant to incur expenses,2 or if after acquiescence and delay an action is brought without fair warning. So, too, if the plaintiff has suffered no real harm, but brings an action for the purpose of making money out of it; and in one case where the Court was of opinion that although the plaintiff was entitled to nominal damages, the action was one which should never have been brought, the plaintiff was ordered to pay the defendant's costs as well as his own.5 If the plaintiff has increased the expenses by raising other questions in which he has failed, the costs will be apportioned. A defendant, although successful, may lose his costs or part of them if he has acted in such a way as was not fair and right as between man and man ;7 for instance, if he has made some use of the plaintiff's book, but does not acknowledge it at the hearing. A successful defendant may lose his costs if in his defence he challenges the plaintiff's title and fails in his attack, but wins on the question of piracy. If a defendant by his conduct in lending his name to a publication has led the plaintiff to assume that he "caused it to be printed," he will probably not be allowed his costs. A defendant may also be refused his costs if the Court is of opinion that he brought the action on himself by sailing too near the wind.10 The Court will not encourage a plagiarist or one who has made an illiberal use of another's work, even although he has not actually committed a piracy. Costs have also been refused

1 Coote v. Ingram (1887), 35 Ch. D., 117.

2 Maxwell v. Somerton (1874), 22 W. R., 313.

3 Walter v. Steinkopff [1892], 3 Ch., 189.

4 Wall v. Taylor (1883), 11 Q. B. D., 102.

5 Dicks v. Brooks (1880), 15 Ch. D., 22.

6 Metzler v. Wood (1878), 8 Ch. D., 606.

7 Lord Romilly, M.R., in Cobbett v. Woodward (1872), L. R., 14 Eq., at p. 414; Hall, V.C., in Maple v. Junior Army and Navy Stores, 21 Ch. D., at p. 373.

8 Piddington v. Philip (1893), 14 N. S. W. R., Eq., 159.

9 Kelly's Directories v. Gavin & Lloyds [1901], I Ch., 374; affirmed in the Court of Appeal.

10 Pike v. Nicholas (1869), L. R., 5 Ch., 251; Cobbett v. Woodward (1872), L. R., 14 Eq., 407.

where, although the defendant succeeded, his defence was a merely technical one, such as a defect in registration.1 If copyright is claimed in part of a book only, the whole of which is registered without distinction, the notice of motion or statement of claim should specify the parts in which copyright is claimed, or the plaintiff may be liable in costs unnecessarily incurred by the defendant.2

SECTION II.-WHAT IS A PIRATICAL COPY.

Literary property may be invaded in three ways :— (i) Open Piracy;

(ii) Literary Larceny ;

(iii) Commercial Fraud.3

With the first there is no difficulty once a title has been established and the pirate caught. It consists in a bodily reprinting and publishing of the whole or of large portions of a copyright book. The third is not properly speaking an infringement of copyright. It is the invasion of the common law rights of an author or publisher, and will be dealt with later. The second, literary larceny, gives rise to many difficult questions and is dealt with in this section.

The question put by the law is, in its simplest form: "Is the alleged infringement an unauthorised copy of the whole or part of a copyright work?" The statute does not attempt to define what a copy is, and such rules as there are for determining whether one work is a copy of another are entirely derived from the case law on the subject. It is impossible to lay down any very definite rules as to infringement; it is really a question of fact not of law; and although now almost invariably tried by a judge sitting alone, it was at one time constantly referred to the decision of a jury. The judges either in giving their own decisions or in directing juries have from time to time laid down general rules as an aid to determining these questions of fact.

The Copyright Acts have always received a liberal interpretation in favour of the author, and against the plagiarist. "If we

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

2 Page v. Wisden (1869), 20 L. T., 435.

3 James, L.J., in Dicks v. Yates (1881), 18 Ch. D., 76.

can construe the Act so as to promote fair and honest dealing, such a construction is to be preferred." 1

1

What is a Copy.-A copy is that which will provide a substitute for the whole or for a substantial part of the original book.2 The owner of the copyright has the sole and exclusive liberty of printing or otherwise multiplying copies. It has been held that the right is not in any way limited by section 15 of the Copyright Act, 1842, which section applies its remedy only to cases where the subject-matter is multiplied by printing.3 Thus copies produced by writing, lithography,5 typewriting, photography,' are copies within the meaning of the Act. The symbols used matter little in themselves; the question in each case is whether the defendants are multiplying copies. It is not necessary that the copy should be primarily intended to be used for the same. purpose as the original. Thus a copy in shorthand characters intended for instruction in shorthand was held to be an infringement of a story in a magazine. But the copy must provide a reasonable substitute for the whole or part of the original work. A perforated scroll used for the mechanical reproduction of music from an instrument is not a copy, since no reasonable being would use it as a substitute for the original sheet of music.10 A Substantial Part must be Taken.-In other words, De minimis non curat lex.

"Part is not necessarily the same as particle, and there may be a taking so minute in its extent and so trifling in its nature as not to incur the statutable liability." 11

In Sweet v. Benning, 12 Jervis, C.J., said :

"It is undoubtedly exceedingly difficult, perhaps absolutely impossible, to lay down any general rule upon this subject. I do not assent to

1 Jessel, M. R., in Maple v. Junior Army and Navy Stores, 21 Ch. D., at p. 378.

2 Lord Ellenborough in Roworth v. Wilkes (1807), 1 Camp., at p. 97.

3 Novello v. Sudlow (1852), 12 C. B., 177.

4 White v. Geroch (1819), 2 B. and Ald., 298; Lindley, M. R., in Boosey v. Whight [1900], 1 Ch., at p. 123.

5 Novello v. Sudlow (1852), 12 C. B., 177. 6 Warne v. Seebohm (1888), 39 Ch. D., 73.

7 See Lindley, M.R., in Boosey v. Whight [1900], 1 Ch., at p. 123.

8 Bach v. Longman (1777), 2 Cowp., 623; D'Almaine v. Boosey (1835), 1 Y. and C.,

Ex., 288.

9 Nicols v. Pitman (1884), 26 Ch. D., 374.

10 Boosey v. Whight [1900], 1 Ch., 122.

11 Lord O'Hagan in Chatterton v. Cave (1878), 3 A. C., at p. 498.

12 (1855), 16 C. B., at p. 481.

G