Chap. XV. Right to prevent pub lication of letters. Copyright at common law. Origin and subject of copyright. An instance of the right to prevent publication of unpublished matter is to be found in the case of private letters; for the author of such a letter retains the general property in it, and can restrain the person to whom it is addressed, as well as all other persons, from publishing it.1 It seems to be agreed that the author's right to prevent publication exists at common law: but whether the right, after publication, to prevent multiplication of copies belonged to anyone at common law, apart from statute, is a question on which the highest authorities have differed. The ground of the author's right, and its subject-matter, are discussed as follows by Erle, J. :—3 As to works of "The origin of the property is in production. imagination and reasoning, if not of memory, the author may be said to create, and, in all departments of mind, new books are the product of the labour, skill, and capital of the author. The subject of property is the order of words in the author's composition, not the words themselves, they being analogous to the elements of matter, which are not appropriated unless combined, nor the ideas expressed by those words, they existing in the mind alone, which is not capable of appropriation. The nature of the right of an author in his works is analogous to the rights of ownership in other personal property, and is far more extensive than the control of copying after publication in print, which is the limited meaning of copyright in its common acceptation. Thus if, after composition, the author chooses to keep his writings private, he has the remedies for wrongful abstraction of copies analogous to those of an owner of personalty in the like case. He may prevent publication; he may require back the copies wrongfully made; he may sue for damages if any are sustained; also, if the wrongful copies were published abroad, and the books were imported for sale without knowledge of the wrong, still the author's right to his composition would be recognised against the importer, and such sale would be stopped. * "Again, if an author chooses to impart his manuscript to others without general publication, he has all the rights for disposing of it incidental to personalty. He may make an assignment either absolute or qualified in any degree. He may lend, or let, or give, or sell any copy of his composition, with or without liberty to transcribe, and if Leonards, ib., p. 978, as to this distinc- 1 Pope v. Curl, 2 Atk. 342; Thompson 2 See Prince Albert v. Strange, 1 Mac. & G. 25; Jefferys v. Boosey, 4 H. L. C. 867; Exchange, &c. Co. v. Gregory, [1896] 1 Q. B. 147. 3 Jefferys v. Boosey, sup. See also the remarks in 2 Bl. 405 et seq. with liberty of transcribing, he may fix the number of transcripts which Chap. XV. he permits. If he prints for private circulation only, he still has the same rights, and all these rights he may pass to his assignee. About the rights of the author before publication all are agreed." In 1709, the statute 8 Anne, c. 19,1 was passed, imposing penal- I. Books. ties for the protection of the exclusive rights of authors and their 8 Anne, c. 19. assigns to print, publish, and dispose of, copies of their works for the term of fourteen years, and for another term of the same duration if the author should be living at the end of the first term. The question arose, but was never finally determined, whether, anterior to the statute of Anne, there existed at common law a perpetual copyright in published works. The weight of authority in the time of Lord Mansfield was in favour of the existence of such a right, but the doctrine found less favour in modern times.2 It was, however, finally decided by the House of Lords in Donaldsons v. Becket, that whether such a right did or did not exist before the statute of Anne, that statute had abridged the right of the author, so that he had thenceforth no property in his published works beyond the periods specified in the statute; and it must now be considered to be settled that copyright or protection to works of literature, after they have been published, exists only by statute.1 In consequence of this decision, the statute 15 Geo. 3, c. 53, 15 Geo. III., was passed for enabling the two universities in England, the four c. 53. universities in Scotland, and the several colleges of Eton, Westminster, and Winchester, to hold in perpetuity their copyright in books, given or bequeathed to them for the advancement of learning and other purposes of education." And in 1801 and 1814 the statutes 41 Geo. 3, c. 107, and 54 Geo. 3, c. 156, were passed, extending for the benefit of authors the period of copyright. So numbered in Ruffhead's ed., but it is 8 Ann. c. 21, in the Statutes of the Realm and in the Revised Statutes. * Per Williams, J., in Reade v. Conquest, 9 C. B N. S. 755, 766. See Jefferys v. Boosey, 4 H. L. C. 815, ante, p. 243; and Millar v. Taylor, 4 Burr. 2303. 3 4 Burr. 2408. * See per Williams, J., in Reade v. Conquest, sup. ; referring to Donaldsons 5 The rights given by this Act are In 1842 the statutes of 1709, 1801, and 1814, were repealed by the statute 5 & 6 Vict. c. 45, by which, as amended,' the copyright of authors and their assigns in "books" and in "dramatic pieces. or musical compositions" is now regulated. "Book" is defined to mean and include:-2 "Every volume, part or division of a volume, pamphlet, sheet of letter-press, sheet of music, map, chart, or plan separately published.3 A "book" must be the result of some literary labour, but it may be composed wholly or partly of prints or illustrations. Where a book depends for its value upon a particular portion, that portion may be copyright though the rest is not." Notwithstanding this definition, not every verbatim reprint of part of a book is an infringement of copyright. "Books are published with an expectation, if not a desire, that they will be criticised in reviews, and, if deemed valuable, that parts of them will be used as affording illustrations by way of quotation or the like; and, if the quantity taken be neither substantial nor material, if, as it has been expressed by some judges, 'a fair use' only be made of the publication, no wrong is done and no action can be brought."7 But "to multiply copies of a material portion of a work entitled to copyright is as much a breach of the law, though differing in degree, as to multiply copies of the whole work. And it has long been settled that multiplying copies for private distribution among a limited class of persons is just as illegal as if it were done for the purpose of sale." 8 "A copy is that which comes so near the original as to give to every person seeing it the idea created by the original."9 1 39 & 40 Vict. c. 36, ss. 42, 44, 45; 45 & 46 Vict. c. 40; 51 & 52 Vict. c. 17. 25 & 6 Vict. c. 45, s. 2. 3 See Stannard v. Lee, 6 Ch. 346: Hollinrake v. Truswell, [1894] 3 Ch. 420; Boosey v. Whight, [1900] 1 Ch. 122; and Aflalo v. Lawrence, [1903] 1 Ch. 318, as to "separately published." 4 Schove v. Schmincke, 33 Ch. D. 546; Leslie v. Young, [1894] A. C. 335; Chilton v. Progress Co., [1895] 2 Ch. 29. 3 Maple v. Junior Army, &c. Stores, 21 Ch. D. 369; Lamb v. Evans, [1893] 1 Ch. 218. 6 Leslie v. Young, supra. Per Lord Hatherley, Chatterton v. Cave, 3 App. Cas. 492, cited per Stirling, J., in Warne v. Seebohm, 39 Ch. D. 79; Leslie v. Young, [1894] A. C. 335, 341. Per Kay, J., Ager v. P. & O. Co., 26 Ch. D. 637, 641. 9 Per Bayley, J., West v. Francis, 5 B. & Ald., 737, 743; 24 R. R. 541; Boosey v. Whight, [1900] 1 Ch. 122. "Dramatic piece" is defined to mean and include :—1 "Every tragedy, comedy, play, opera, farce, or other scenic, musical or dramatic entertainment." "The sole and exclusive liberty of printing or otherwise multiplying copies." It also, in reference to dramatic pieces and musical compositions, means the sole right of public representation or performance. The term of copyright in every "book" published in the life- Extent and time of its author is the life of the author and the further term of duration of copyright. seven years from his death, or 42 years from first publication if the seven years sooner expire, and such copyright is to be the property of the author and his assigns; and the copyright in every "book" published after the author's death is for the term of 42 years from first publication; and such copyright is to be the property of the proprietor of the author's manuscript from which the book is first published and his assigns.3 The term "author" is frequently used in the Act, but is not "Author." defined; and it is difficult to precisely determine what is its meaning and what amount of originality (if any) or other qualifications entitle a work to be the subject of copyright. It has been said on the one hand that the work must be "original" and that if it is not original there can be no copyright in it. On the other hand it has recently been laid down in the House of Lords that copyright has nothing to do with the originality or literary merits of the author, and that an "author" may come into existence without producing any original matter of his own. Thus, a person who makes notes of a speech delivered in public, and transcribes them and publishes a verbatim report of the speech, is the "author" of the report within the meaning of the Act.? "Literary property can be invaded in three modes:-First, Infringement. where a publisher in this country publishes an unauthorized edition of a work in which copyright exists, or where a man introduces and sells a foreign reprint of such a work, that is open piracy. 1 5 & 6 Vict. c. 45, s. 2. 2 Ss. 20, 21. 3 S. 3. Dicks v. Yates, 18 Ch. D. 76; Borthwick v. Evening Post, 37 Ch. D. 449. 6 5 Per Lord Davey, Walter v. Lane, [1900] A. C. 539, 552. 6 Per Lord James, Ib. p. 554. 7 Walter v. Lane, sup. Chap. XV. The second mode is where a man, pretending to be the author of a book, illegitimately appropriates the fruit of a previous author's literary labour, and that is literary larceny. Those are the two modes of invasion against which the Copyright Acts have protected an author. There is another mode which is wholly irrespective of any copyright legislation, and that is where a man sells a work under the name or title of another man or as another man's work; that is not an invasion of copyright; it is common law fraud, and can be redressed by ordinary common law remedies, wholly irrespective of any of the conditions or restrictions imposed by the Copyright Acts. . . . . .. Before a man can establish any right of complaint, he must bring the case under one of these three heads." The principle on which this last right rests is that one man is not entitled to represent his goods for sale as being the goods of someone else.? Area of copyright. Periodical works, &c. It has been held that the publication of the book must be in the United Kingdom, that the area, over and through which protection. is granted by the Act, is the whole of the British dominions; and that the protection is given to the author, if a subject of the Crown, whether he be or be not in the British dominions at the time of publication; but, if he be an alien friend, only if he be in the United Kingdom, or elsewhere in the British dominions, at the time of publication.3 The same copyright as is given to authors of "books" is given to a publisher or other person projecting, conducting and carrying on, or being the proprietor of, any encyclopædia, review, magazine, periodical work, or work published in a series of books or parts, or any book whatsoever, who employs any person to compose the same, or any volumes, parts, essays, articles, or portions thereof, for publication in or as part of the same, when such works, &c., have been composed upon the terms that the copyright shall belong to such publisher or other person and have been paid for by him; except that in the case of essays, articles, or portions forming part of and first published in reviews, magazines, 4 1 Per James, L.J., Dicks v. Yates, 18 Ch. D. 90. 2 See ante, Chap. XIII., p. 202. 3 Jefferys v. Boosey, 4 H. L. C. 815. See Routledge v. Low, L. R. 3 H. L. 100, where Lords Cairns and Westbury expressed opinions (not however necessary to the decision of the case) that the protection of the Act extends to alien friends wherever resident. As to a work first produced in the colonies, see 49 & 50 Vict. c. 33, s. 8, post, p. 260. 4 Brown v. Cooke, 16 L. J. Ch. 143. Accordingly no action can be maintained until payment has been made; Trade Auxiliary Co. v. Middlesborough Assocn., 40 Ch. D. 425, 431. |