Copyright. ཙ

CHAPTER XIII.

Of Injunctions to restrain the Infringement of Copyright.

THE jurisdiction of courts of equity in interposing by injunction to restrain the violation of copyright has been assumed merely for the purpose of making effectual the legal right. Adequate relief cannot be given by any action for damages. It is impossible to lay before a jury the whole evidence as to all the publications which go out to the world to the plaintiff's prejudice; and the sale of copies by the defendant is in such instance, not only taking away the profit upon the individual book, which the plaintiff probably would have sold, but may injure him to an incalculable extent, which no inquiry for the purpose of damages can ascertain (a).

The statutes upon which the right to this important branch of property at present rests are the following:

By the 8 Ann, c. 19. an author and his assigns had the sole liberty of printing and reprinting his works for the term of fourteen years and no longer, and if

(a) 8 Ves. 225. 17 Ves. 424.

at the end of that term the author himself were Statutes. living, the right was to return to him for another term of the same duration.

c. 107.

As before the union no statute existed to protect 41 Geo. 3. copyright in Ireland, by the 41 Geo. 3. c. 107. similar provisions were extended to the whole of the

United Kingdom.

c. 156.

By the 54 Geo. 3. c. 156, the author, or his as- 54 Geo. 3. signee or assigns, have the sole liberty of printing and reprinting for the full term of twenty-eight years, to commence from the day of publication; and also, if the author be living at the end of that period, for the residue of his natural life (a).

c. 36.

By the 12 Geo. 2. c. 36. the importation of 12 Geo. 2. books reprinted abroad, and first composed or written and printed in Great Britain, is prohibited under certain penalties, with a proviso, not to prevent the importation of any book inserted among other books or tracts to be sold therewith in any collection, where the greatest part of such collection shall have been first composed or written and printed abroad. By the 15 Geo. 3. c. 53. the Universities in 15 Geo. 3. England and Scotland (and by the 41 Geo. 3. c. 107. s. 3. Trinity College, Dublin,) and Eton, Westminster, and Winchester, are enabled to hold in perpetuity their Copyright in books given or bequeathed to them, for the advancement of useful learning and other purposes of education.

c. 53.

By the 8 Geo. 2. c. 13. the property in certain Prints.

(a) It has been established upon the construction of this act, that an author whose works had been published more than twentyeight years before the passing of it, was not entitled to the copyright for life. Brooke v. Clarke, 1 B. & A. 396.

8 Geo. 2.

c. 13.

Statutes.

7 Geo. 3. c. 57.

Whether the

insertion of

the name and

prints (as to which see the next statute) is vested in the inventors, &c. for 14 years, from the day of publishing, which shall be truly engraved with the name of the proprietor on each print, and the statute inflicts on persons printing the same without the consent of the proprietor, the penalty of forfeiting the plate, the sheets on which the prints are copied, and 5s. for every print, &c.

By the 7 Geo. 3. c. 57. (by which the provisions of the last act are amended and extended) the sole right of printing and reprinting, intended to be secured by both the acts, is declared to be extended, continued, and vested for the term of twenty-eight years, in all and every person and persons who shall invent or design, engrave, etch, or work in mezzotinto or chiaro oscuro, or from his own work, design, or invention, shall cause or procure to be designed, engraved, etched, or worked in mezzotinto, or chiaro oscuro, any historical print or prints, or any print or prints of any portrait, conversation, landscape, or architecture; map, chart, or plan, or any print or prints whatsoever. The 17 Geo. 3. c. 57. gives a special action on the case to recover damages.

It has been determined upon these statutes that both the date and the name of the engraver must be engraved on the print, in order to entitle a party to the penalty imposed by the statute of Geo. 2.(a). But how far these circumstances are necessary to law or suit in support an action at law, or a bill for an injunction, equity. and an account, is at present vexata questio. Lord

date on the print is necessary to support an action at

(a) Sayer v. Dicey, 3 Wils. 60.

Hardwicke (a) was of opinion, that the clause in the Statutes. act was only directory, and that the property was vested absolutely in the engraver, although the day of publication was not mentioned, and compared it to the clause under the statute of Ann, which requires entry at Stationers' Hall, upon the construction of which, it has been determined, that the property vests, although the direction has not been complied with (b). Lord Ellenborough also held at nisi prius, that an action might be maintained, although the proprietor's name was not inscribed, observing that the interest was vested by the statute, and that the common law gave the remedy (c). On the other hand, it appears to have been taken for granted by the Court of King's Bench, in the case of Thompson v. Symonds (d), though it became unnecessary to decide the point, that both the name and the date should appear; the date, Lord Kenyon observed, is of importance, that the public may know the period of the monopoly; the name should appear, in order that those who wish to copy it, may know to whom to apply for consent. In the case of Harrison v. Hogg (e) (where it also became unnecessary to decide the point), Lord Alvanley stated it to be his opinion, that he differed from Lord Hardwicke, and

(a) Blackwell v. Harper, 2 Atk. 95. Barn. Ch. Rep. 213. This case, as well as Jefferys v. Baldwin, Amb. 164. are rendered unimportant by the provisions of the 7th Geo. 3. c. 57.

Statutes.

Sculptures, models, &c.

Patterns for linens,

cottons, &c.

that he believed the insertion of the name and date to be essential to the plaintiff's right.

The principal point determined in the above case of Thompson v. Symonds was, that the assignee of a print may maintain an action under the 17 Geo. 3., and that in such action it is not necessary to produce the plate itself in evidence, one of the prints taken from the original plate being good evidence.

It has recently been determined at nisi prius, by analogy to those cases in equity, which have decided that there can be no copyright in a particular subject (a), that where an engraving has been made from a picture, it is not a piracy to make another engraving from the original picture (b).

There are two other sorts of property, of a nature in some measure connected, and which are also protected by similar statutes.

By the 54 Geo. 3. c. 23. (which amended and extended the provisions of the 38 Geo. 3. c. 71. (c)), the property of all original sculptures, models, copies, and casts, are vested in the first maker of them, with an additional term of fourteen years, in case they shall be living at the end of that time.

By the 34 Geo. 3. c. 23. (which amended and extended the 27 Geo. 3. c. 38.) the property in all original patterns for printing linens, cottons, calicos, or muslins, are vested in the designers, printers, and proprietors, for three months, to commence from the

(a) Vide post. p. 282.

(b) De Berenger v. Weble, 2 Stark. N. P. C. 548.

(c) An instance of the absurdity and inefficiency of this act, will be found in the case of Gahagan v. Cooper, 3 Campb. 111.