PART I

answer, for private circulation only. This he did, as he alleged, in order to clear his character from the charge of CHAPTER II. want of veracity which the plaintiff had brought against it. In this case the defendant, by returning the originals, had abandoned whatever property he had-for if he had any right of property it was in the originals, (a) and Lord Eldon restrained the threatened publication. In giving judgment he observed, "I do not say there may not be a case, such as the Vice-Chancellor (Sir T. Plumer) thought the case before him, where the acts of the parties supply reasons for not interfering; but that differs most materially from this case. In April last, the defendant having so much of property in these letters as belongs to the receiver, and of interest in them as possessor, thinks proper to return them to the person who has in them, as Lord Hardwicke says, a joint property, keeping copies of them without apprising her, and assigning such a reason as he assigns for the return [his 'being unworthy of the sentiments and expressions of kindness contained in them']. Now I say, that if, in the case before the Vice-Chancellor, Lady Percival had given to Phipps a right to publish her letters, this case is the converse of that; and that the defendant, if he previously had it, has renounced the right of publication."

Lord Eldon was careful to rest his decision in this case on the ground of the plaintiff's property in the letters (as determined by previous cases) and not on any considerations as to wounded feelings. When reference was made to such considerations by the defendant's counsel, his lordship interposed. "I will relieve you from that argument. The question will be, whether the bill has stated facts of which the court can take notice, as a case of civil property, which it is bound to protect. The injunction cannot be maintained on any principle of this sort, that if a letter has been written in the way of friendship, either the continuance or the discontinuance of that friendship affords a reason for the interference of the court." ' (b)

If the agent or servant of a company write a letter, apparently on behalf of the company, to a shareholder, it is the property of the company, and the agent or servant cannot prevent the company from publishing the letter. (c) Where the solicitor of an insurance company established in London, wrote a letter not marked "private" or "confi(a) 2 Swans. 418.

(b) 5 T. R. 245; see also the American cases Wetmore v. Scoville (3 Ed. 527, Ch.); and Woolsey v. Judd (4 Duer, 382).

(c) Per Lord Romilly, M.R., Howard v. Gunn (32 Beav. 465).

C

dential," to one of the shareholders in the country, by which he appeared to negotiate a new arrangement as to certain shares allotted to the country shareholder, he was held not entitled to restrain the publication of this letter in a pamphlet, published after the winding up of the company by its late manager, to whom a copy of it had been sent by the shareholder the day after he received it. (a) "If the solicitor of an insurance company established in London," said the Master of the Rolls in this case, "by the direction of the directors, wrote a letter to one of the shareholders in the country, it is clear that such letter is not the property of the solicitor, and that he cannot say that the company have not a right to publish it. Take it a step further, and assume that the solicitor wrote a letter, but not by the direction or on behalf of the directors, though it had all the appearance of being written on their behalf, and by their direction. Thus, if it were written to a person who proposed to take shares in the company, and it related to the affairs of the company, and contained authoritative informa-. tion on behalf of the company, in answer to an application for shares, and the person who receives it treats it as such, and sends back to the company objecting to its contents, shall the solicitor be allowed to complain of its publication, and to insist that it is a private letter, though it appears to be written on behalf of the directors? The answer is, if that be so, it ought not to have been written. It has all the appearance of having been written by the plaintiff on their behalf, and Jamieson [the shareholder to whom it was addressed] so treats it, for he writes to the manager in answer to it. Can the plaintiff be allowed to say that the company have no right to publish it? and if they have, is not the defendant entitled, as regards the plaintiff, to bring it forward? It is obvious that this was not a private letter, and was not intended to be a private letter."

An excellent summary of the whole law on this subject is contained in the judgment of the American judge Story, in the case of Folsom v. Marsh. (b) "The author of any letter or letters, and his representatives, whether they are literary compositions or familiar letters or letters of business, possess the sole and exclusive copyright therein; and no person, neither those to whom they are addressed, nor other persons, have any right or authority to publish the same upon their own account, or for their own benefit. But, consistently with this right, the persons to whom they are addressed may have, nay, must by implication possess, the right to publish (a) Howard v. Gunn (33 Beav. 465). (b) 2 Story's Rep. 111.

any letter or letters addressed to them, upon such occasions as require or justify the publication or public use of them; but this right is strictly limited to such occasions. (a) Thus, a person may justifiably use and publish in a suit at law or in equity such letter or letters as are necessary and proper to establish his right to maintain the suit, or defend the same. So, if he be aspersed or misrepresented by the writer, or accused of improper conduct in a public manner, he may publish such parts of such letter or letters, but no more, as may be necessary to vindicate his character and reputation, or free him from unjust obloquy and reproach. If he attempt to publish such letter or letters on other occasions, not justifiable, a court of equity will prevent the publication by an injunction, as a breach of private confidence or contract, or of the rights of the author, and & fortiori if he attempt to publish them for profit; for then it is not a mere breach of confidence or contract, but it is a violation of the exclusive copyright of the writer. In short the person to whom letters are addressed, has but a limited right or special property (if I may so call it) in such letters, as a trustee or bailee for particular purposes, either of information or protection, or of support of his own rights and character. The general property, and the general rights incident to property, belong to the writer, whether the letters are literary compositions, or familiar letters, or details of facts, or letters of business. The general property in the manuscripts remains in the writer and his representatives as well as the general copyright. A fortiori, third persons standing in no privity with either party are not entitled to publish them, to subserve their own private purposes of interest, or curiosity, or passion."

PART I.

CHAPTER II.

The right of an oral lecturer, before the Stat. 5 & 6 Will. 4, Lectures, c. 65, to restrain the publication for profit of lectures delivered by him stood on a somewhat peculiar footing. In the year 1824, Mr. Abernethy, the distinguished surgeon, delivered a series of lectures on the principles and practice of surgery to the medical students of St. Bartholomew's Hospital. The Lancet newspaper proceeded to publish these lectures; and, besides publishing some, it contained an announcement that the remaining lectures would also be published as they were delivered. A bill was filed by Mr. Abernethy against the proprietors of the Lancet to restrain the publication. (b) It was contended on behalf of the defendants that no man could have any right of property in

(a) See 2 Swans. 415, 419, and Palin v. Gathercole (1 Coll. 565). (b) Abernethy v. Hutchinson (1 H. & T. 39; 3 L. J. 209, Ch.)

PART I.

case

ideas and language not reduced into writing; and it was CHAPTER II acknowledged by Mr. Abernethy, that although a good deal of the materials for his lectures had been reduced by him to writing, yet at the time of delivering the lectures he did not read or refer to any writing before him, but that he delivered them orally. As the written notes were not produced, the Lord Chancellor (Eldon), when the case first came before him, refused to grant an injunction grounded on an infringement of the plaintiff's copyright, because no had determined that there was such copyright in unpublished productions not reduced into writing. The case was postponed to enable Mr. Abernethy to produce his manuscripts if he wished to do so. The manuscripts were not produced, and Lord Eldon, treating the lectures as orally delivered, refused to grant an injunction on the ground of a right of property in sentiments and language not deposited on paper; though he did grant the injunction on another ground, namely, the existence of an implied contract between the lecturer and his hearers that the latter would make use of the lectures only for their own information, and not publish for profit that which they had not the right of selling. The Lord Chancellor is reported to have stated that where the lecture was orally delivered, it was difficult to say that an injunction could be granted upon the same principle upon which literary composition was protected; because the court must be satisfied that the publication complained of was an invasion of the written work, and this could only be done by comparing the composition with the piracy. But it did not follow that because the information communicated by the lecturer was not committed to writing but orally delivered, it was therefore within the power of the person who heard it to publish it. On the contrary, he was clearly of opinion that whatever else might be done with it, the lecture could not be published for profit. He had no doubt whatever that an action would lie against a pupil who published these lectures; and whether an action would or would not lie against a third person obtaining the lectures from a pupil, an injunction undoubtedly might be granted; because if there had been a breach of contract on the part of the pupil who heard the lectures, and if the pupil could not publish for profit, to do so would be regarded by the court as a fraud in a third party. (a)

5 & 6 Will. 4, c. 65,

But now a distinct property in lectures delivered is given to the lecturer by Stat. 5 & 6 Will. 4, c. 65. After (a) 3 L. J. 219, Ch.

PART I.

stating that printers, publishers, and other persons have frequently taken the liberty of printing and publishing CHAPTER II. lectures delivered upon divers subjects without the consent of the authors of such lectures, sect. 1 enacts, "that from and after the first day of September, one thousand eight hundred and thirty-five, the author of any lecture or lectures, or the person to whom he hath sold or otherwise conveyed the copy (a) thereof, in order to deliver the same in any school, seminary, institution, or other place, or for any other purpose, shall have the sole right and liberty of printing and publishing such lecture or lectures; and that if any person shall, by taking down the same in shorthand or otherwise in writing, or in any other way, obtain or make a copy of such lecture or lectures, and shall print or lithograph or otherwise copy and publish the same, or cause the same to be printed, lithographed, or otherwise copied and published, without leave of the author thereof, or of the person to whom the author thereof hath sold or otherwise conveyed the same, and every person who, knowing the same to have been printed or copied and published without such consent, shall sell, publish, or expose to sale, or cause to be sold, published, or exposed to sale, any such lecture or lectures, shall forfeit such printed or otherwise copied lecture or lectures, or parts thereof, together with one penny for every sheet thereof which shall be found in his custody, either printed, lithographed, or copied, or printing, lithographing, or copying, published or exposed to sale, contrary to the true intent and meaning of this Act, the one moiety thereof to His Majesty, his heirs or successors, and the other moiety thereof to any person who shall sue for the same, to be recovered in any of His Majesty's Courts of Record in Westminster, by action of debt.'

Sect. 2 enacts, "that any printer or publisher of any newspaper who shall, without such leave as aforesaid, print and publish in such newspaper any lecture or lectures, shall be deemed and taken to be a person printing and publishing without leave within the provisions of this Act, and liable to the aforesaid forfeitures and penalties in respect of such printing and publishing."

(a) "I use the word 'copy,' ," said Lord Mansfield, in Millar v. Taylor (4 Burr. 2396), "in the technical sense in which that name or term has been used for ages, to signify an incorporeal right to the sole printing and publishing of somewhat intellectual communicated by letters." "The copy of a book," said Aston, J., in the same case (Ib. 2346), "seems to have been not familiarly only, but legally used as a technical expression of the author's sole right of printing and publishing that work." See also per Willes, J. (1h, 2311).