represent the goods sold by himself as the goods of the person whose name he uses, but where the defendant sells goods under his own name it does not follow that the defendant is selling his goods as the goods of the plaintiff. It is a question of evidence in each case whether there is false representation or not" (1). () Massam v. Thorley's Cattle Food Co., 14 Ch. D. 748, at pp. 752, 753. citing with approval the judgment of Lord Justice Turner in Burgess v. Burgess, 3 De G. M. & G. 896, at p. 900; also see Singer Manufac turing Co. v. Loog, ante, p. 301. See, as to the analogous law with regard to companies: Hendriks v. Montagu, 17 Ch. D. 638; Merchant Banking Co. of London v. Merchants' Joint Stock Bank, 9 Ch. D. 560. CHAPTER X. COPYRIGHT. The interesting subject of copyright may be considered under five heads: 1. Copyright in literary works; 2. Copyright in engravings, prints, and lithographs; 3. Copyright in sculpture, models, casts, and busts; 4. Copyright in musical and dramatic representations or performances; 5. Copyright in pictures, drawings, and photographs. The statute on which the Copyright in literary works pub- Literary lished in the United Kingdom depends, is the Act of 1842 works. (5 & 6 Vict. c. 45), and it defines "copyright" as the sole and exclusive right to print or otherwise multiply copies of an original work or composition (1). In the celebrated case of Jefferys v. Boosey (2) the Lord Chancellor (Lord Cranworth) said copyright is not the right to publish, or abstain from publishing, a work not yet published at all, but the exclusive right of multiplying copies of a work already published. Copyright may exist in any book published within the United Kingdom so long as such book is of an innocent nature. If the work be of an immoral nature the Courts will not restrain a piracy. This, as pointed out by Mr. Shortt, is in accordance with the fundamental principle of our common law, that no action can be maintained on any contract, express or implied, parol or under seal, which is in direct violation of lawwhether statutory or unwritten-or which is of an immoral tendency or contrary to sound policy (3). The work must also be original. For a book to be original "there must be," as Mr. Curtis tells us (4), "some important additions, some intellectual skill shewn by the author, whether purely original (1) 5 & 6 Vict. c. 45, s. 2, and see Warne & Co. v. Seebohm, 39 Ch. D. 73; Cate v. Devon and Exeter Constitutional Newspaper Co., 40 Ch. D. 500, and Trade Auxiliary Co. v. Middlesbrough Tradesmen's Protection Asso ciation, ib., 425. (2) 4 H. L. C. 977. 172. Definition of book. thought or principle unpublished before, or a new combination of old thoughts and ideas and sentiments, or a new application, or use of known and common materials, or a collection, the result of his industry and skill. In whatever way he claims the exclusive privilege accorded by these laws, he must show something which the laws can fix upon as the product of his own, and not another's labour." In Jefferys v. Boosey (1) the House of Lords decided that under the Act of Anne a foreigner could have no copyright, although his work was published in the United Kingdom. But the same tribunal has since decided, and it is now settled law, that a foreigner residing in the British possessions, although only for the purpose of publication of the book, is entitled under the Act of 1842 to copyright in his work (2), and Lord Cairns expressed the opinion that any foreigner, wherever resident, might have copyright if only his book were published within the United Kingdom. A book as defined by the Act includes "every volume, part or division of a volume, pamphlet, sheet of letterpress, sheet of music, map, chart, or plan separately published" (3). And it has been decided that a catalogue containing representations of furniture, with the price added, is a book within the statute (*). In this case Sir George Jessel said, that although the definition of the Act did not extend to prints or designs separately published, but only to the prints or designs forming part of a book, a book was not less a book because it contained prints or other illustrations of the letterpress, and then proceeded: "It appears to me that a book must include every print, design, or engraving which forms part of the book as well as the letterpress therein." In a very recent case, however, it was decided that an album for holding photographs, which contained pictures of castles, together with a list and a short description of them, was not a book within the statute (5). "The plaintiff's album,” it was said, "is a book in form, but in form only. It is not a book within the scope of the preamble of the statute, which speaks of literary works,' nor a book within sect. 1, which contains an interpretation of the term as used in the statute. The only letterpress which it contains consists of the title Castle Album,' a list of the castles represented by coloured drawings, and a short description of the castles themselves, not covering more than a portion of a page." (1) 4 H. L. C. 815. (2) Routledge v. Low, L. R. 3 H. L. 100. (3) 5 & 6 Vict. c. 45, s. 2. (*) Maple v. Junior Army and Navy Stores, 21 Ch. Div. 369. (5) Schove v. Schmincké, 33 Ch. D. 546. The right to copyright in lectures orally delivered was first Lectures. considered in Abernethy v. Hutchinson (1), and Lord Eldon, while declining to grant an injunction on the ground of the lecturer's right of property in them after they were delivered, granted it upon an implied contract" between the lecturer and his hearers. But by an Act of 5 & 6 Will. 4, c. 65, a distinct right of property is given to a lecturer in his lectures, who before delivering the same has given to two justices, within five miles of the place in which such lectures are to be delivered, two clear days' notice of his intention so to do (2). But nothing in the statute is to affect lectures delivered in any university or public school or college, or on any foundation. And in a recent case before the House of Lords it was decided that a professor who orally delivers in his class-room lectures which are his own literary composition does not communicate them to the whole world so as to entitle any one to republish them without the permission of the author (3). right. The duration of the copyright in any literary work is limited Duration by the Act of 1842 to the life of the author and seven years of copybeyond that period, but if such further period of seven years expires before the end of forty-two years, then such copyright is to last until the end of forty-two years, and if a work is published after the author's death such work is to have a copyright for forty-two years from the date of publication (*). It is not necessary to register in order to acquire copyright in a book-copyright exists as soon as it is published; but before the proprietor of the copyright can sue, the book must be registered at the Hall of the Stationers' Company (5). Registration is effected by making entry in the registry Registrabook of 1. The title of the book; 2. The time of first publication thereof; 3. The name and place of abode of the publisher; 4. The name and place of abode of the proprietor of the As soon as a book is registered the registration relates back to the time when the book was first published, and damages may be recovered for any infringement although it took place before registration. But the requisites of registration must be minutely complied with. It is not sufficient to enter the month (1) 3 L. J. (Ch.) 209; and see Nicols v. Pitman, 26 Ch. D. 374. (2) 5 & 6 Wm. 4, c. 65, s. 5. (3) Caird v. Sime, 12 App. Cas. VOL. I. 326. (4) 5 & 6 Vict. c. 45, s. 3. (5) 5 & 6 Vict. c. 45, ss. 11 and 24. Y tion. Newspapers, encyclopædias, &c. Tests of piracy. in which the work was first published, the day of the month must be stated (1); nor will the date of the publication of a subsequent edition, which is a mere reprint of an old one, be sufficient (2). It is sufficient to enter the "publisher," by which is meant the first publisher, of the book under the trade name of the firm; by the "proprietor of the copyright" is meant the proprietor of the copyright at the time of registration (3). Newspapers must also be registered under the Copyright Act, 1842, before the proprietor can sue in respect of a piracy. The copyright in encyclopædias, reviews, magazines, and other periodicals is the same as in other literary works, except that by sect. 18 it is provided that the copyright in any article therein which has been paid for by the proprietor of the work on such terms, shall for the first twenty-eight years belong to him, but he shall not be at liberty, nor shall the author, to publish the same in separate form, and after the twenty-eight years have expired the copyright shall return to the author (4). The registration of such encyclopædias, reviews, magazines, and periodical works is sufficient if the first part or number is registered (5). Infringement of copyright is the unauthorized multiplication of copies. It is a piracy of the works of another which will prevent him from reaping the due reward of his labours (6). The following tests of piracy have been laid down by judicial decisions: Was the one publication a legitimate use of the other in the fair exercise of a mental operation deserving the character of an original work? (7) Had the vital part of the work been taken? (8) And Lord Jeffreys, in the case of Alexander v. Mackenzie (9), said, "Is there reasonable evidence that the two works are identical, and that the last author did not mount upon the back, (1) Matheson v. Harrod, L. R. 7 Eq. 270. (2) Thomas v. Turner, 33 Ch. Div. 292. (3) Weldon v. Dicks, 10 Ch. D. 252; Coote v. Judd, 23 Ch. D. 727. (4) Walter v. Howe, 17 Ch. D. 708; Trade Auxiliary Co. v. Middlesborough, &c., Association, 40 Ch. D. 425; and see as to the registration of newspaper proprietors under the Newspaper Libel and Registration Act, 1881, post, p. 473. The British Museum, the Bodleian Library at Oxford, the Public Library at Cambridge, the Library of the Faculty of Advocates at Edinburgh and the Library of Trinity College, Dublin, are entitled to a copy of every book published, the British Museum without demand, the others on demand: 5 & 6 Vict. c. 45, ss. 6, 7, 8. (5) 5 & 6 Vict. c. 45, s. 19, and see Hogg v. Maxwell, L. R. 2 Ch. 316. () Rowoth v. Wilkes, 1 Camp. 98. (7) Lord Eldon in Wilkins v. Aikin, 17 Ves. 426. () Vice-Chancellor Kindersley in Murray v. Bogue, 1 Drew. 369. (*) 9 Scotch Sess. Cas. 2nd Series, 758. |