82

CAP. V.

THE LAW OF COPYRIGHT.

which the assignment is made, and to which law both assignee and foreigner are subject, yet (being a foreigner), he has not, by the English law, an interest in the copyright, such as he may assign to an Englishman for exclusive publication in England; nor would such an assignment hold good though made according to the law of this country.

This point was determined in Jefferys v. Boosey, to which we have already referred. Bellini, a foreigner, while living at Milan composed a musical work, in which, by the laws there in force, he had a certain copyright. In February, 1831, he there, by an instrument in writing valid by the law of Milan, assigned the copyright to S. Ricordi, who afterwards came to this country, and in June, 1831, by deed under his hand and seal, in the presence of, and attested by, two witnesses, assigned for a valuable consideration the copyright in the composition to Boosey, for publication in the United Kingdom only. Boosey then printed and published the work in this country, and Jefferys, without licence from Boosey, printed and published a portion of it in England. The case was carried eventually into the Upper House, and judgment given by Lords Cranworth, Brougham, and St. Leonards. The last-named learned judge was of opinion that copyright by the law of Milan could have no effect in this country; that the law of Milan, which gave to Bellini this copyright, could of course give him no right in this country. The first question was, how could a right exist in Bellini, as a foreigner, to copyright in this country? He had it by the law of Milan, because he was a native-born subject, or a subject, at all events, by residence, and the law of that country gave it to him; but the moment he stepped out of that country he could have no other right than was involved in the mere possession of the subject-matter in his hands, except so far as the law of any country to which he resorted might give him such a right. Then, in order to obtain copyright here, he must come and perform the conditions annexed to the enjoy

ment of that right; and he (Lord St. Leonards) held it to be perfectly clear that that condition is, that he must reside in this country. Then, if that were so, as Bellini did not perform the condition, he never had the right to assign, and he could not assign that which never existed. Remaining abroad, he could not have the right, for the common law of this country gave him no such right. Neither did the statute law of this country give him any such right. Therefore, whilst at Milan he had a Milanese copyright; but he had not, and could not acquire, a British copyright; and if he had no right in this country he could assign none. And in this view he was supported by the other learned judges.

CAP. V.

This case completely overruled that of Cocks v. Pur- Cocks v. Purday (a). It had been held that, in the instance in which day overruled. (by the law of Austria, which prevailed where A., the author of a musical composition, and B., his assignee, were respectively domiciled) A. assigned his right to B., and B., before the publication of the work, sold his copyright to C., an Englishman, there being a sale valid by the law of Austria, the country in which the sale took place, the interest of the author became vested in C. before publication, so as to make him an assignee within the meaning of the 5 & 6 Vict. c. 45, s. 3, and to confer upon him a good derivative title. The absence of an assignment in writing must be specially pleaded at law (b), unless, of course, admitted by the other side (c).

It has lately been determined that, in the absence of a Right of special contract to the contrary, the assignor of a copy-stock on hand assignor to sell right is entitled, after the assignment, to continue selling after assigncopies of the work printed by him before the assignment and remaining in his possession (d).

(a) 5 C. B. 860; 12 Jur. 677; 17 L. J. (C.P.) 273; and that of Boosey v. Davidson, 13 Q. B. 257; 13 Jur. 678; 18 L. J. (Q.B.) 174; and Boosey v. Jefferys (in error), 6 Ex. 580; 15 Jur. 540; 20 L. J. (Ex.) 354; overruled by Jefferys v. Boosey, 4 H. L. C. 815; 24 L. J. (Ex.) 81; 1 Jur. (N.S.) 615. (b) Barnett v. Glossop, 1 Bing. N. C. 633; De Pinna v. Polhill, 8 C. & P. 78; Cocks. v. Purday, 5 C. B. 860.

(c) Moore v. Walker, 4 Camp. 9, n.

(d) Taylor v. Pillow, Law Rep. 7 Eq. 418.

ment.

Infringement THE question must obviously arise somewhat frequently, of copyright. what is, and what is not, a piracy. In many cases the

line of demarcation is so loosely and indifferently drawn, that arrival at a just conclusion is a matter of difficulty. So entirely must each case be governed and regulated by the particular circumstances attending it, that any general rules on the subject must be received with extreme caution. Regard must be had to the value of the work, and the value of the extent of the infringements; for while, on the one hand, the policy of the law allows a man to profit by all antecedent literature, yet, on the other, the use made of such antecedent literature may not be so extensive as to injure the sale of the original work, even though made with no intention to invade the previous author's right (a); for the copyright having been violated, the penalty must be paid (b).

The result, in such cases, is the true test of the act. Full acknowledgment of the original, and the absence of any dishonest intention, will not excuse the appropriator

(a) Roworth v. Wilkes, 1 Camp. 94; Emerson v. Davies, 3 Story (Amer.) 768; Campbell v. Scott, 11 Sim. 31; Clement v. Maddick, 1 Giff. (Ch.) 98; 5 Jur. (N.S.) 592; vide Kindersley, V.C., in Murray v. Bogue, 1 Drew. 353; Wood, V.C., in Reade v. Lacy, 1 J. & H. 524; and Story, J., in Folsom v. Marsh, 2 Story (Amer.) 115; see Gambart v. Sumner, 5 H. & N. 5.

(b) Millett v. Snowden, 1 West. L. J. (Amer.) 240; Parker v. Hulme, 7 ibid. 426; Webb v. Powers, 2 Wood & M. (Amer.) 497.

when the effect of his appropriation is, of necessity, to injure and supersede the sale of the original work; for a man must be presumed to intend all that the publication of his work effects (a).

CAP. VI.

invasion of

Plagiarism does not necessarily amount to an invasion Plagiarism not of copyright, and the author of a published book has no necessarily an monopoly in the theories and speculations, or even in the copyright. results of observations therein contained; but no one, whether with or without acknowledgment, can be permitted to take a material and substantial portion of the published work of another author, for the purpose of making or improving a rival publication (b).

modern works.

La Bruyère declares that we are come into the world Want of too late to produce anything new, that nature and life are originality in preoccupied, and that description and sentiment have been long exhausted. However this may be, it is apparent that some similarities, and a use, to a certain extent, of prior works, even to the copying of small parts, must be tolerated in the case of such works as dictionaries, gazetteers, grammars, maps, arithmetics, almanacs, concordances, encyclopædias, itineraries, guide books, and similar productions, if the main design and execution are in reality novel and improved, and not a mere cover for important piracies (c).

All definitions of the same thing must be nearly the same, and descriptions, which are definitions of a more lax and fanciful kind, must always have in some degree that resemblance to each other which they all have to their object. Consequently, in compiling such works, the materials, to a considerable extent, must be nearly identical, and the prior compiler cannot monopolize what was not original with himself, nor a subsequent compiler

(a) Wood, V.C., in Scott v. Stanford, Law Rep. 3 Eq. 723; Reade v. Lacy, 9 W. R. 531; 7 Jur. (N.S.) 463; 30 L. J. (Ch.) 655; Millett v. Snowden, 1 West. L. J. (Amer.) 240; Nichols v. Ruggles, 3 Day (ibid.) 158; Story v. Holcombe, 4 McLean (ibid.) 306; McLean, J., Ohio, 1847.

(b) Pike v. Nicholas, 38 L. J. (Ch.) 529; 20 L. T. (N.S.) 906; reversed, Law Rep. 5 Ch. 251, but not in opposition to the principle above laid down. (c) Webb. v. Powers, 2 Wood & M. (Amer.) 497-512; vide 2 Hilliards on 'Torts,' 49.

CAP. VI. employ a prior arrangement and materials to such an extent as to be a substantial invasion of the anterior compilation.

Encyclopæ

dias may not outstrip the limits of fair

quotation.

The latter, to be a piracy,

need not serve

for the former work.

Thus, where it appeared that 75 out of 118 pages of a work on fencing had been transcribed into an encyclopædia, the court held that a piracy had been committed ; for though it is true that an encyclopædia may be allowed to embrace all the information contained in the newest works on the subject, yet definite limits must be set to its extracts. The same rule holds in respect of works under review; the reviewer may fairly make extracts, and may comment on those portions, but it would be unfair if he were allowed to exhibit the substance of the work he chose to review. Sufficient may be taken to form a correct idea of the whole, but no one is allowed to review in such a manner as to make the review serve as a substitute for the work reviewed (a).

And yet to be a piracy it is not necessary that the latter work should be a substitute for the original composition. as a substitute It can seldom be the criterion. Vice-Chancellor Shadwell, on one occasion, put the case in a simple aspect: "We all know that there has been a very valuable Greek lexicon published by Mr. Liddell and another friend of his at Oxford; no person who published this lexicon, omitting three or four words at the end of each letter of the alphabet, could have done a work of which it could be said, that it might be taken as a substitute, for nobody would take it as a substitute. But can it be doubted that it might have a very material effect in diminishing the price of the first book? For, though nobody would take it as a substitute, many people might not care about so much, and might take it cheaply for what it really did contain, which might be more than ninety-nine hundredths of the whole, and yet it would in no manner be a substitute; and, therefore, the language is not generally correct, so as to be capable of application to every case."

(a) 1 Camp. 97; 4 Esp. 168; 17 Ves. 422; Eden on Injunc. 281; see Murray v. M Fargilhar, June 25, 1785, Mor. Dic. of Dec. 8309.