PART L The separate publication of an article contributed to the CHAPTER VIIL "Encyclopædia Metropolitana" was restrained by injunction in the case of the Bishop of Hereford v. Griffin.(a) Meaning of What is a "separate publication" within the meaning of this section was considered in Smith v. Johnson. (b) that case the plaintiff had composed certain tales for the London Journal which were published in that periodical in the year 1849. In the year 1863 the proprietors proceeded to republish these tales in what they called a supplementary number of the London Journal published weekly, which might be had with or without the current number. The plaintiff had not given his consent to this republication, and filed a Bill praying for an injunction to restrain the proprietors of the London Journal from continuing the republication. It was contended on behalf of the proprietors that the act complained of was not a violation of the statute, because the author had no copyright and could not publish the stories himself; his only right was to prohibit any publication in a separate or single form of his contributions, i.e., a publication out of and unconnected with the work in which they first appeared; the defendants were not attempting to do that; the republication was a republication of their own periodical, with a simple difference in the order, and this case was therefore distinguishable from the cases of the Bishop of Hereford v. Griffin, and Mayhew v. Maxwell. Sir John Stuart, V.C., was, however, of opinion that the republication was a publication separately," within the meaning of sect. 18 of 5 & 6 Vict. c. 45, and granted the injunction prayed for. The Vice-Chancellor said "Keeping in view the principle of construction that the Act of Parliament was intended to give a licence only to the proprietors of periodical works purchasing and paying for a literary composition to be published as a part or portion of a periodical work—the construction of the words in the proviso which prohibits them from publishing these parts or portions which alone' are the property of the author-from publishing these portions separately and singly' seems reasonably plain. Publishing separately' must mean publishing separately from something. What is that 'publishing' which the Act of Parliament says shall not be separately made? It must be the publishing of the part or portion separately from that which has been before published. That is the view which has been previously taken. . . . . The Act of Parliament says the publishers shall not publish these portions separately (a) 16 Sim. 190. (b) 4 Giff. 632; 9 L. T. N. S. 437; 33 L. J. 137, Ch. PART L From those parts for the publication of which they have obtained a licence already. What they [the proprietors of CHAPTER VIIL the London Journal] have done is to print the portions, already published, of those antecedent parts, in what is called a supplementary number, and which may be purchased ith or without the number in which the portions' were iginally published. That is a separate publication, separate from the part in which it was originally published. To reprint in numbers which may be had with or without the concurrent number of the work is an act not permitted by the legislature." "and paid for," The words "and paid for by such proprietor, projector," Effect of words sc., in sect. 18 have received a very strict construction &c. rom the Courts of Equity, those courts having refused o recognise the proprietor's copyright in contributions. here it is not clearly shown that he has paid the conributors for them. Thus, where the publishers of the Fondon Medical Gazette employed and paid an editor, who mployed persons to write articles for the Gazette (whether e paid them or not did not sufficiently appear), the ViceChancellor of England, Sir L. Shadwell, was of opinion that he publishers had not made out that sort of derivative opyright which, under the Act of Parliament, would enable hem to prevent the publication by others of articles appearing the Gazette. (a) The meaning of the Act of Parliament," e said, " as I understand the language of it, is this, that if he publisher of a periodical work employs a person to write rticles for him, and pays him for them upon the terms that he copyright shall be the proprietor's-i.e., the proprietor f a periodical work-the proprietor shall have the copyright If the periodical work, containing all the articles, with ertain subsequent limitations, upon which nothing turns as r as this case is concerned. . . If I find the fact to be n the face of the affidavit that A. B. and C. have composed rticles which, by reason of some dealing between them and he editor, who alone has been paid by Messrs. Longman the publishers], have by the editor been inserted in this Ledical Gazette, which is published by the plaintiff, it appears o me, if that be the statement of the facts taken altogether, hat then the Messrs. Longman have not entitled themselves the copyright which is given under the terms of the 8th section as the publishers of the periodical work, who pay he composers of the articles inserted in the periodical work pon the terms that the copyright shall belong to them as he publishers." . (a) Brown v. Cooke (11 Jur. 77). PART I CHAPTER VIII. implied. The same doctrine was laid down by Lord Cranworth, V.C., in Richardson v. Gilbert. (a) He held that actual payment for an article originally published in the Dublin Review was made by the Act a necessary condition to the vesting of the copyright of that article in the proprietors of the Review. In this case, however, his lordship was of opinion, from the averments in the Bill, that the title of the proprietors was made sufficiently clear to entitle them to an injunction restraining the defendant from publishing the article. Contract may be The words of the 18th section, "on the terms that the copyright therein should belong to the proprietors," do not require that an express contract to that effect should be entered into between the proprietor of a periodical publication and the contributors to it. There may be an implied condition, understanding, or arrangement that the copyright in contributions should vest in the proprietor of the periodical to which they are furnished, and the terms of the arrangement may be inferred from the general nature and character of the employment. Thus, the publisher of a series of law reports, furnished by barristers without any express stipulation that the copyright should belong to the publisher, possesses the copyright in those reports, and is entitled to restrain their publication by any other person. (b) think," said Maule, J., "that where a man employs another to write an article, or to do anything else for him, unless there is something in the surrounding circumstances, or in the course of dealing between the parties, to require a different construction, in the absence of a special agreement to the contrary, it is to be understood that the writing or other thing is produced upon the terms that the copyright therein shall belong to the employer-subject, of course, to the limitation pointed out in the 18th section of the Act."(c) "I CHAPTER IX. ENGRAVINGS OR PRINTS. THE first Act passed to secure a property in prints or 8 Geo. 2, c. 13. engravings to the inventors and engravers was the 8 Geo. 2, c. 13. In the preamble it states that "whereas divers persons have by their own genius, industry, pains, and expense, invented and engraved, or worked in mezzotinto, (a) 1 Sim. N. S. 336. (b) Sweet v. Benning (16 C. B. 459, 481, 489). (b) Ib. 484. PART L chiaro oscuro, sets of historical and other prints, in hopes have reaped the sole benefit of their labours, printsellers CHAPTER IX. and other persons have of late, without the consent of the aventors, designers, and proprietors of such prints, freently taken the liberty of copying, engraving, and pubhing, or causing to be copied, engraved, and published, base(a) copies of such works, designs and prints, to the very great prejudice and detriment of the inventors, designers, and proprietors thereof." To prevent this for the future, the statute enacted (sect. 1) that from and after the 24th June, 1735, every person who should invent and design, engrave, ch, or work in mezzotinto or chiaro oscuro, or from his works and inventions should cause to be designed and graved, &c., any historical or other print or prints, should ave the sole right and liberty of printing and reprinting he same for the term of fourteen years [since extended to wenty-eight (b)] "to commence from the day of first pub- Date of publishshing thereof, which should be truly engraved with the g ame of the proprietor, on each plate, and printed on every ach print or prints." The section then inflicts a penalty printsellers or other persons guilty of piracy. (c) Sect. 2 exempts from the penalties any person or persons ho should, after the passing of the Act, purchase any late or plates, for printing, from the original proprietors hereof. This Act vested the property in prints only in those who hould "invent and design, engrave, &c.," or who, "from is own works and inventions," should cause to be designed nd engraved, &c., such prints. No provision was made r the protection of the property in prints which were not esigned by the person who engraved them. and proprie. print. tor's name to be affixed to each This defect was, however, supplied by 7 Geo. 3, c. 38, the 7 Geo. 3, c. 38. rst section of which enacted that the benefit and protection the preceding Act of Geo. 2 should be extended to all "base copy." (2) The meaning of the expression "base copy" in this statute is Meaning of anything which is not the genuine work of the author:" (Per lly, C.B., delivering the judgment of the Court of Exchequer hamber in Graves v. Ashford, L. Rep. 2 C. P. 419; 16 L. T. N. S. 98 ; L. J. 139, C. P.) In that case it had been suggested in argument at a thing would not be a "base copy" which was avowed to be a py, and did not profess to be the original from which it was taken. It seems to us," said the Chief Baron, "that to put that construction pon the word base' would be cutting down the meaning of the legisture to a most mischievous extent, and working great injustice to he author." (b) By 7 Geo. 3, c. 38, s. 7, post, p. 108. (c) See the chapters on "Piracy" and the "Remedies for Infringeent," post. PART I CHAPTER IX. Duration of copyright. 17 Geo. 3 c. 57. Ireland. Lithographs, &c. and every person who should "engrave, etch, or work in if such print had been graved or drawn from the original This Act also enlarged the term of enjoyment of the right from fourteen to twenty-eight years. Sect. 7 enacts, "that the sole right and liberty of printing and reprinting, intended to be secured and protected by the said former Act [8 Geo. 2, c. 13] and this Act, shall be extended, continued, and be vested in the respective proprietors, for the space of twentyeight years, to commence from the day of the first publishing of any of the works respectively hereinbefore and in the said former Act mentioned." The last Act on the subject, 17 Geo. 3, c. 57, was passed, as the title indicates, "for more effectually securing the property of prints to inventors and engravers by enabling them to sue for and recover penalties in certain cases." It recites the two former Acts and proceeds: "Whereas the said Acts have not effectually answered the purposes for which they were intended, and it is necessary for the encouragement of artists, and for securing to them the property of and in their works, and for the advancement and improvement of the aforesaid arts, that such further provisions should be made as are hereinafter mentioned and contained." It then gives to the proprietor of prints an action on the case against any offender by piracy, in which damages and double costs may be obtained. (a) The provisions of 17 Geo. 3, c. 57, were extended to Ireland by 6 & 7 Will. 4, c. 59; sect. 2 of which refers to engravings or prints "of any description whatever published in any part of Great Britain or Ireland." The action on the case may be brought against the person offending "in any court of law in Great Britain or Ireland." Doubts having been entertained whether the provisions of the preceding statutes extended to lithographs and other impressions taken by mechanical processes, sect. 14 of 15 & 16 Vict. c. 12, declares "that the provisions of the said Acts are intended to include prints taken by lithography or any other process by which prints or impressions of drawings or designs are capable of being multiplied indefinitely, and the said Acts shall be construed accordingly." The protection given by the statutes has been applied to panying letter- the case of prints not published alone, but appearing along (a) See the chapter on "Remedies for Infringement," post. Prints accom press. |