had not been taken; and because the latter publication ___CAP. VI. was adapted for dancing only, and that some degree of art was needed for the purpose of so adapting the piece; and, moreover, but a small part of the merit belonged to the original composer. Lord Lyndhurst, then Lord Chief Baron, observed that it was a nice question, what should be deemed such a modification of an original work as should absorb the merit of the original in the new composition. "No doubt," said he, "such a modification may be allowed in some cases, as in that of an abridgment or a digest. Such publications are in their nature original. Their compiler intends to make of them a new use; not that which the author proposed to make. Digests are of great use to practical men, though not so, comparatively speaking, to students. The same may be said of an abridgment of any study; but it must be a bona fide abridgment, because if it contains many chapters of the original work, or such as made that work most saleable, the maker of the abridgment commits a piracy. Now it will be said that one author may treat the same subject very differently from another who wrote before him. That observation is true in many cases. A man may write upon morals in a manner quite distinct from that of others who preceded him; but the subject of music is to be regarded upon very different principles. It is the air or melody which is the invention of the author, and which may in such case be the subject of piracy; and you commit a piracy if, by taking, not a single bar, but several, you incorporate in the new work that in which the whole meritorious part of the invention consists.

"I remember, in a case of copyright, at nisi prius, a question arising as to how many bars were necessary for the constitution of a subject or phrase. Sir George Smart, who was a witness in the case, said, that a mere bar did not constitute a phrase, though three or four bars might do so. Now it appears to me that if you take from the composition of an author all those bars consecutively which form

108

THE LAW OF COPYRIGHT.

CAP. VI. the entire air or melody, without any material alteration it is a piracy; though, on the other hand, you might take them in a different order, or broken by the intersection of others, like words, in such a manner as should not be a piracy. It must depend on whether the air taken is substantially the same with the original. Now the most unlettered in music can distinguish one song from another, and the mere adaptation of the air, either by changing it to a dance, or by transferring it from one instrument to another, does not, even to common apprehensions, alter the original subject. The ear tells you that it is the same. The original air requires the aid of genius for its construction, but a mere mechanic in music can make the adaptation or accompaniment. Substantially, the piracy is, where the appropriated music, though adapted to a different purpose from that of the original, may still be recognised by the ear. The adding variations makes no difference in the principle."

5. By translation.

5th. Copyright may be infringed by reproducing the whole or part under the form of a translation. Translations are protected in this country, and an unauthorized copy of a translation, though the original be not entitled to copyright here, is a piracy.

Though it does not appear, if the original work be a foreign work, not entitled to protection in this country, and a translation of it be made and published first by A., and a translation be subsequently made and published by B., that this latter would be necessarily a piracy of A.'s translation or an infringement of his right; yet, a retranslation without the consent of the author of the original work is a piracy whenever that original work is entitled to copyright.

In Murray v. Bogue (a), a case respecting an alleged infringement of the copyright in a guide book, the ViceChancellor put the following case: If Boedeker's were a translation of Murray's into German, and the other defendant had re-translated Boedeker's work into English,

(a) 1 Drew. 353, 368.

even if he did not know that Boedeker's was taken from Murray, the plaintiff's book could not be thus indirectly pirated.

By the International Copyright Act, translations, entitled under that Act to protection in this country, are prohibited (a).

(a) See post, chapter on International Copyright, and App. liv.

CAP. VI.

dies for in

copyright.

CHAPTER VII.

REMEDY AT LAW IN CASES OF INFRINGEMENT OF

COPYRIGHT.

Three reme- THERE are three remedies in cases of infringement of fringement of copyright—an action at law, a suit in equity, and in some instances by summary proceeding before justices of the peace. We propose to deal, in the first place, with the remedy provided by the 5 & 6 Vict. c. 45.

Remedy for piracy by action on the

case.

By the 15th section of this Act, it is provided, that if any person in any part of the British dominions shall print or cause to be printed, either for sale or exportation, any book in which there shall be a subsisting copyright, without the consent in writing of the proprietor, or import for sale or hire any such book unlawfully printed from parts beyond the sea, or knowing such book to have been so unlawfully printed or imported, shall sell, publish, or expose for sale or hire, or shall have in his possession for sale or hire, any such book without the consent of the proprietor, such offender shall be liable to a special action on the case, at the suit of the proprietor of the copyright, to be brought in any court of record in that part of the British dominions in which the offence shall be committed: Provided always, that in Scotland such offender shall be liable to an action in the Court of Session, there to be brought and prosecuted in the same manner as any other action of damages to the like amount (a). No person except the proprietor of the copyright, or some authorized by him, may import into the United Kingdom,

(a) 5 & 6 Vict. c. 45, s. 15; App. xxvii.

one

or other parts of the British dominions, for sale or hire, CAP. VII. any printed book first composed or written, or printed and published, in the United Kingdom, wherein there is copyright, and reprinted in any country or place out of the British dominions; and if any person, not the proprietor or party authorized by him, shall import or bring, or cause to be imported or brought, for sale or hire, any such printed book into the British dominions, or shall knowingly sell, publish, or expose for sale, or let to hire, or have in his possession for sale or hire, any such book, then every such book shall be forfeited and be seized and destroyed by any officer of the customs or excise, and every person so offending shall, on conviction, forfeit the sum of ten pounds, and double the value of every such book so unlawfully imported, sold, published, or exposed for sale, or let to hire; five pounds to the use of such officer of customs or excise, and the remainder of the penalty to the use of the proprietor of the copyright in such book (a).

By the customs laws it is absolutely prohibited to import into the United Kingdom books wherein the copyright shall be subsisting, (first composed, or written, or printed in the United Kingdom, and printed or reprinted in any other country), as to which the proprietor of such copyright or his agent shall have given to the Commissioners of Customs a notice in writing that such copyright subsists, such notice also stating when such copyright will expire.

All copies of any book wherein there may be copyright, and of which entry shall have been made in the registry book, and which shall have been unlawfully printed or imported without the consent of the registered proprietor of such copyright, shall be deemed to be the property of

(a) 5 & 6 Vict. c. 45, s. 17; App. xxix. As to separate penalties upon each separate violation of the Act on the same day, see 12 Geo. 2, c. 36, and Brooke v. Milliken, 3 T. R. 509. A publisher of a piratical work will not be liable at law for the infringement, unless guilty knowledge can be brought home to him; such knowledge will not be presumed from the mere fact of his selling piratical works in print: Leader v. Strange, 2 Car. & Kir. 1010.