CAP. VII. the proprietor of such copyright; and such proprietor shall, after demand thereof in writing, be entitled to sue for and recover the same, or damages for the detention thereof, in an action of detinue, from any party who shall detain the same, or to sue for and recover damages for the conversion thereof in an action of trover (a). Notice of objection to plaintiff's title to be given. The 16th section of the Copyright Act, 1842, enacts that in actions for piracy the defendant shall give notice of the objections to the plaintiff's title on which he intends to rely; and if the nature of his defence be that the plaintiff in such action was not the author or first publisher of the book in which he shall by*such action claim copyright, or is not the proprietor of the copyright therein, or that some other person than the plaintiff was the author or first publisher of such book, or is the proprietor of the copyright therein, then the defendant shall specify in such notice the name of the person whom he alleges to have been the author or first publisher of such book, or the proprietor of the copyright therein, together with the title of such book, and the time when and the place where such book was first published; otherwise the defendant in such action shall not, at the trial or hearing of such action, be allowed to give any evidence that the plaintiff in such action was not the author or first publisher of the book in which he claims such copyright as aforesaid, or that he was not the proprietor of the copyright therein; and at such trial or hearing no other objection shall be allowed to be made on behalf of such defendant than the objections stated in such notice, or that any other person was the author or first publisher of such book, or the proprietor of the copyright therein, than the person specified in such notice, or give in evidence in support of his defence any other book than one substantially corresponding in title, time, and place of publication, with the title, time, and place specified in such notice. (b) In Leader v. Purday (c) a gentleman named Bellamy (a) 5 & 6 Vict. c. 45, s. 23; App. xxxii. (b) App. xxviii. (e) 7 C. B. 4. adapted words to an old air called 'Pestal,' and procured CAP. VIE a friend of the name of Horne to write an accompani- Notice of ment. The defendant, in an action for piracy of the same, defendant. objection by gave notice of the following objections, among others: 'That the plaintiffs were not the owners of the copyright; that there was no subsisting copyright in the musical publication.' It was held that the objection could not be taken by the defendant, that the copyright of the air was in Horne, and not assigned by writing to Bellamy, Horne's name not being mentioned in the objections, as required by the above section. This was decided, although the objection appeared upon the plaintiff's case. cient. The notice of objection is sufficient, if it allege a When suffidefinite publication of the disputed work at some particular place, by some definite party, either before, or simultaneously with, the publication by the plaintiff, or with a publication in another place (a). tion, And on application by the plaintiff to have the notice Amending of objections delivered with the defendant's pleas under notice of objecthis same section, amended, it was held that the alleged first publication having occurred abroad, and so far back as the year 1831, it was sufficient for the defendant to state the year of the first publication, and that it was not necessary that he should be bound to specify the day or month; but that he was bound to state the name of the party whom he alleged to be the proprietor or first publisher, the title of the work, the place where and the time when the first publication took place (b). In Chappell v. Purday (c), however, the defendant was allowed to plead that the plaintiff was not the proprietor of the copyright at the time of commencing the grievance; and also that he was not the proprietor of the copyright when the books were printed. (a) Boosey v. Purday, 10 Jur. 1038; see Boosey v. Davidson, 4 D. & L. 147; Leader v. Purday, 7 C. B. 4; 1 D. & L. 408; Sweet v. Benning, 16 C. B. 459; Bullen and Leake's 'Pleadings,' 298, 720; and see Neilson v. Harford, 8 M. & W. 806. For form of particulars of objections, Cocks v. Purday, 5 C. B. 862. (b) Boosey v. Davidson, supra. (c) 1 D. & L. 458; 12 M. & W, 303, I CAP. VII. the defendant The 26th section of the Act enacts that if any action or In any action suit be commenced or brought against any person for doing may plead the or causing to be done anything in pursuance of this Act, general issue the defendant may plead the general issue and give the and give special matter special matter in evidence; and if upon such action a in evidence. Construction of the words "in pursuance of this Act." All actions to be commenced months. verdict be given for the defendant, or the plaintiff become nonsuited, or discontinue his action, then the defendant shall have and recover his full costs, for which he shall have the same remedy as a defendant has by law in any case. According to numerous decisions, the words, in pursuance of this Act, do not only refer to those who have kept within the strict line of their duty, but also to those who intended to do so, but have by mistake gone beyond it. The general rule seems to be settled, that persons who bona fide and honestly believe that they are acting in the execution of the powers conferred on them by such a statute as the above, are within its privilege, although, in fact, they may have mistaken the extent of their power and have exceeded it, or failed to comply with the directions of the enactment (a). All actions, suits, bills, indictments, or informations for within twelve any offence committed against this Act, must be commenced within twelve calendar months after the commission of the offence; but this limitation does not extend to any actions, suits, or proceedings commenced under this Act in respect of copies of books required to be delivered to the British Museum and the four other libraries (b); nor to suits in equity, or to actions at common law for infringement (c). In an action of damages for infringement of copyright, the locus of the infringement was not specified; yet the (a) Smith v. Shaw, 10 Barn. & Cres. 277; cited Burke's Sup. to Godson's Copy, 99; Gaby v. The Wilts and Berks Canal Co., 3 M. & Selw. 580; Theobald v. Crichmore, B. & Ald. 227; Parton v. Williams, 3 ibid. 330; Smith v. Wiltshire, 2 B. & B. 619; Cook v. Leonard, 6 B. & C. 351. (b) 5 & 6 Vict. c. 45, s. 26. (c) See the principle on which were decided the cases of Clark v. Bell, 29 Feb. 1804; Mor. Dict. of Dec. No. 3, App., Lit. Prop.; and Stewart v. Black, 9 Sess. Cas., 2nd series, 1026, plaintiff was allowed to amend his statement on payment_ CAP. VII. of expenses incurred since the closing of the record (a). The Act 2 & 3 Vict. c. 22, imposes a penalty of 57. per copy for every omission to print the name and place of abode of the printer, on the first or the last leaf of every paper or book. It is no answer, however, to an action for infringing the copyright of a work, that it was printed and published without the name and residence as required by this Act (b). (a) Graves & Co. v. Logan, 7 Sess. Cas. 3rd series, 204. Remedy by injunction. CHAPTER VIII. REMEDY IN EQUITY IN CASES OF INFRINGEMENT OF IN equity is to be found the most usual and expeditious Where the question of legal injury is referred to a court of law under the sanction of a court of equity, an injunc tion is granted to restrain the evil complained of until the merits of the case can be finally heard, when, if the opinion of the court of law be in favour of the plaintiff, it will grant its final preventive relief, which, by way of distinction from the temporary process just mentioned, is termed a perpetual injunction. Definition of An injunction may be described as a prohibitory writ, an injunction. issuing out of Chancery to restrain the defendant from using some legal right, the exercise of which would be contrary to equity and good conscience; or from doing some act inconsistent with the admitted or probable legal rights of the complainant, and with the due preserva(a) 2 Inst. 299. (b) Vide 2 Story, Eq. Jur. 926; 1 Fonbl. Eq. 34, notis; Kerr. on Injunc, 439; Saunders v. Smith, 3 My. & Cr. 728; Platt v. Button, 19 Ves. 447. |