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of this act (the 1st July, 1842), be PUBLISHED IN THE LIFETIME OF ITS AUTHOR, SHALL ENDURE FOR THE NATURAL LIFE OF SUCH AUTHOR, AND FOR THE FURTHER TERM OF SEVEN YEARS, COMMENCING AT THE TIME OF HIS DEATH, and shall be the property of such author and his assigns: Provided always, that IF THE SAID TERM OF SEVEN YEARS SHALL EXPIRE BEFORE THE END OF FORTY-TWO YEARS FROM THE FIRST PUBLICATION of such book, THE COPYRIGHT SHALL, IN THAT CASE, ENDURE FOR SUCH PERIOD OF FORTY-TWO YEARS; and that the COPYRIGHT IN EVERY BOOK which shall be PUBLISHED AFTER THE DEATH OF ITS AUTHOR SHALL ENDURE FOR THE TERM OF FORTY-TWO YEARS FROM THE FIRST PUBLICATION thereof, and shall be the property of the proprietor of the author's manuscript, from which such book shall be first published, and his assigns.” Thus, according to the present law, the copyright of a book published in its author's lifetime is to last for forty-two years certain, commencing from the date of its first publication ; and for longer, if the natural life of the author, and the seven years after his decease, reach to a more extended period. The copyright in a book produced after the author's death will endure for a certain term of forty-two years from the date of its first publication.
The 5&6 Vict. c. 45. makes a peculiar provision with regard to those books which have been published before the passing of the act, and in which a copyright still subsists. The 4th section of the act enacts, " that the copyright which, at the time of passing this act (1st July, 1842), shall subsist in any book theretofore published (except as hereinafter mentioned), shall be extended and endure for the full term provided by this act in cases of books thereafter published, and shall be the property of the person who at the time of passing of this act shall be the proprietor of such copyright: provided always, that in all cases in which such copyright shall belong in whole or in part to a publisher, or other person who shall have acquired it for other consideration than that of natural love and affection, such copyright shall not be extended by this act, but shall endure for the term which shall subsist therein at the time of passing of this act, and no longer; unless the author of such book, if he shall be living, or the personal representative of such author, if he shall be dead, and the proprietor of such copyright, shall, before the expiration of such term, consent and agree to accept the benefits of this act in respect to such book, and shall cause a minute of such consent, in the form in that behalf given in the schedule to this act annexed, to be entered in the book of registry hereinafter directed to be kept, in which case such copyrights shall endure for the full term by this act provided in cases of books to be published after the passing of this act, and shall be the property of such person or persons as in such minute shall be expressed.” Thus the copyright which subsisted before this act, and which had not expired at the time of its passing, has now an extended existence for the natural life of the author, and seven years after his death, or for forty-two years certain from the date of first publication. This benefit will not, however, accrue to the whole or part proprietor of a copyright who has obtained its assignment for other consideration than that of natural love and affec
tion, unless its extension be agreed on between such proprietor and the author or his personal representative.
TITLE TO LITERARY PROPERTY. LITERARY PROPERTY whilst IN MANUSCRIPT ONLY.-A literary composition, and the right to its first publication while it remains in manuscript, are the private and exclusive property of the author, and he may keep the work in that condition for ever: Donaldson v. Beckett, 2 Bro. P. C. 144., 4 Burr. 2408.; Godson on Patents, last edition, p. 325.
LITERARY PROPERTY WHEN PUBLISHED. - The title to literary property, when the work is printed and published, belongs, during the period of copyright, to the author of the composition, his representatives or assigns. The 25th section of the 5 & 6 Vict. declares all copyright personal property, transmissible by bequest, or, in case of intestacy, subject to the same law of distribution as other personal property; and in Scotland it is to be deemed personal and moveable estate. In the case of Beckford v. Hood, 7 T. R. 620., it was decided that it is not necessary that an author should affix his name to a book in order to render his copyright effectual.
TITLE BY LAPSE.— To guard against the suppression of books of importance to the public, the fifth section of the 5 & 6 Vict. c. 45. enacts, that on complaint made to the Judicial Committee of the Privy Council, that the proprietor of a copyright in a book after the death of the author refuses to republish it, or to allow its republication, and that consequently the book is withheld from the public, the Judicial Committee may license the complainant to publish the book, in such manner, and according to such conditions, as they may think fit.
OMISSION OF ENTRY IN REGISTRY NOT DESTRUCTIVE OF COPYRIGHT. - Pursuant to the 24th section of the 5 & 6 Vict. c. 45., the omission to make an entry in the book of registry at Stationers' Hall (of which more hereafter) does not affect the copyright in any book, but only the right to sue or proceed in respect of its infringement.
ESSENTIAL REQUISITES OF A COPYRIGHT. It is essential to the existence of a copyright, that the book be not what in law would be termed a piracy upon another: Trusler v. Murray, 1 East, 362. Of what amounts to literary piracy more will be said presently.
There can be no copyright in any work the tendency of which is obscene, immoral, or libellous: Fores v. Johnes, 4 Esp. N. P. C. 97.; Hime v. Dale, 2 Camp. N. P. C. 28. n. The reason for this is, that there can be no property in what is publicly injurious. In the case of Southey v. Sherwood, 2 Meriv, 438., the Lord Chancellor Eldon, refusing to grant an injunction on this account, said, “I have examined the cases that I have been able to meet with, containing precedents for injunctions of this nature, and I find that they all proceed upon the ground of a title to the property in the plaintiff. On this head a distinction has been taken, to which a considerable weight of authority attaches, supported as it is by the opinion of Lord C. J. Eyre, who has expressly laid it down that a person cannot recover in damages for a work which is in its nature to do injury to the public. Upon the same principle this Court re
fused an injunction in the case of Walcot v. Walker, 7 Ves. 1., inasmuch as the plaintiff could not have recovered damages in an action. After the fullest consideration I remain of the same opinion as that which I entertained in deciding the case referred to. It is very true that in some cases it may operate so as to multiply copies of mischievous publications, by the refusal of the Court to interfere by restraining them; but to this my answer is, that sitting here as a judge upon a mere question of property, I have nothing to do with the nature of property, nor with the conduct of parties, except as relates to their civil interests; and if the publication be mischievous, either on the part of the author or the publisher, it is not my business to interfere with it.” In the case of Murray v. Benbow, in Ch. 1822, MSS., Lord Eldon, giving a similar decision, said, “ This Court has no criminal jurisdiction ; it cannot look on anything as an offence; but it only administers justice for the protection of the civil rights of those who possess then. .... There is a great difficulty in these cases, because it appears a strange thing to permit the multiplication of copies by way of preventing the circulation of a mischievous work, which I do not presume to determine that it is; but that I cannot help.” Again, in the case of Lawrence v. Smith, in Ch. 1822, MSS. the same Lord Chancellor expresses himself thus: “ There was a peculiar circumstance attending this case, which was, that the defendant possessed no right in the work, but said to the plaintiff, This book is so criminal in its nature as to deprive you of all protection at law against others and myself, and I will therefore publish it. Now he (the Lord Chancellor) knew it to be