in both the English and American statutes, and the question has arisen, whether its construction is to be confined to those forms of publication only which are popularly called books.

The question first arose in England at Nisi Prius upon a song printed on a single sheet of paper, which it was contended could not be within the protection of the act 8 Anne, c. 19, which, in the enacting clause, mentions only "books." Lord Ellenborough was inclined to think that such a publication was not protected by the statute, as the word book only means in common acceptation a plurality of sheets, and is decidedly used in this sense in the clause of the statute which speaks of "every sheet or sheets being part of such book or books." He therefore consuited the plaintiff, but reserved the point for the opinion of the court. Erskine, at the next term, moved and obtained a rule to show cause why the nonsuit should not be set aside;1 but when

1 Mr. Erskine, on this occasion, argued that the legislature could never have meant to make the operation of the statute depend upon the type in which any composition is printed, or the form in which it is bound up. This song might easily have been extended over several sheets, and rendered a duodecimo volume. In Bach v. Longman, Cowp. 623, it was decided that music is within the act, and musical compositions most generally appear in this fugitive form. [Lord Ellenborough. In the case cited, the musical composition was a sonata, and a sonata may be a book.] It

never occurred to the lord chancellor who directed the issue, or to Lord Mansfield, or any of the judges who decided the case, that the form of the publication could make any difference, and therefore it is not stated. If a different construction were put upon the act, many productions of the greatest genius, both in prose and verse, would be excluded from its benefits. But, might the papers of the Spectator, or Gray's Elegy in a Country Church Yard, have been pirated as soon as they were published, because they were first given to the world on single sheets? The voluminous ex

the counsel for the defendant proceeded to show cause, the court directed the matter to be reconsidered by a special verdict, that it might be ascertained whether the piece was a book within the meaning of the legislature. But the cause was not again carried down for trial.1

In a subsequent case, upon the same point, Lord Ellenborough reconsidered his former opinion, and it was settled unanimously by the court that it could not depend upon the form of the publication, whether it were entitled to the privileges of the statute or not; that a composition on a single sheet might well be a book within the meaning of the legislature.2

tent of a production cannot, in an enlightened country, be the sole title to the guardianship the author receives from the law. Every man knows that the mathematical and astronomical calculations which will enclose the student during a long life in his cabinet, are frequently reduced to the compass of a few lines: and is all this profundity of mental abstraction, on which the security and happiness of the species in every part of the globe depend, to be excluded from the protection of British jurisprudence? But there is nothing in the word book to require that it shall consist of several sheets bound in leather, or stitched in a marble cover. Book is evidently the Saxon boc, and the latter term is from the beech-tree, the rind of which supplied the place of paper to our German ancestors. The Latin word hber is of a similar etymology, meaning originally only the bark of a tree. Book may therefore be applied to any writing; and it has often been so used in the Eng

lish language. Sometimes the most humble and familiar illustration is the most fortunate. The horn book, so formidable to infant years, consists of one small page protected by an animal preparation, and in this state it has universally received the appellation of a book. So in legal proceedings, the copy of the pleadings after issue joined, whether it be long or short, is called the paper book or the demurrer book. In the court of exchequer, a roll was anciently denominated a book, and so continues in some instances to this day. An oath as old as the time of Edward I. runs in this form: And you shall deliver into the Court of Exchequer a book fairly written," &c. But the book delivered into court in fulfilment of this oath. has always been a roll of parchment.” 2 Campb. 28, 29, note.

1 Hime v. Dale, 2 Campb. 27,

note.

Clementi v. Goulding, 2 Campb. 25, 32; 11 East, 244.

By the 5 and 6 Vict. c. 45, s. 2, the word "book," as used in that act, is to be construed to mean and include every volume, part, or division of a volume, pamphlet, sheet of letter press, sheet of music, map, chart, or plan separately published. It is said, however, to have been held in this country, that a pricecurrent, published in a semi-weekly newspaper, is not a book within the act of congress, because not a work of science or learning, but of mere industry. This is inconsistent with the previous decisions, and the reason given for it is at variance with all the analogous principles on the subject. Works of industry are as much the subjects of protection as works of genius. Indeed, there can be no line drawn between a production, the fruit of learning, and one the fruit of mere industry. All learning is the accumulation of knowledge gathered by the exercise of industry.2

VI. MUSIC was formerly held in England to be within the protection of the act of Anne, it being a writing; and now by the statute of 5 and 6 Vict.

3

Clayton v. Stone, cited 2 Kent's Com. 380, note, as decided in the circuit court of the United States, at New York, Dec. 1828. The case is not reported.

I cannot but think that the true reason was that the publication, being in a newspaper, had not been duly entered according to the act of congress.

Bach v. Longman, Cowp. 623. In this case Lord Mansfield said, "The words of the act of parliament are very large-books and other

writings. It is not confined to language or letters. Music is a science: it may be written; and the mode of conveying ideas is by signs and marks. If the narrow interpretation contended for in the argument were to hold, it would equally apply to algebra, mathematics, arithmetic, hieroglyphics. All these are conveyed by signs and figures. There is no color for saying that music is not within the act." See also Platt v. Button, 19 Ves. 447. Clementi v. Walker, 2 B. & C. 861.

c. 45, s. 2, the word "book," in the construction of that act, is to mean and include "every volume, part or division of a volume, pamphlet, sheet of letterpress, sheet of music, map, chart, or plan, separately published."1 Musical compositions, intended for the stage, fall under the head of dramatic compositions. In the United States, published music is included in the "Act for the encouragement of learning," under the term "musical composition." 2 But we have no statute in this country to secure to the authors of musical compositions the sole right of performance in public.

VII. PERIODICAL PUBLICATIONS. Periodical publications, when the requisites of the statutes have been complied with, of course fall under their protection as books.3 There is also a particular remedy, through the jurisdiction of courts of equity, by which the property in the good will of a periodical can be protected from invasion. Thus an injunction will be granted against publishing as a continuation or new series of an established periodical, new num

sec. 1.

1 See Appendix. the book of registry, 1. The title of Act of congress of 3d Feb, 1831, such encyclopedia or periodical. 2. The time of the first publication of its first volume, number or part, or of the first number or volume published after the passing of the act. 3. The name and place of abode of the proprietor, or of the publisher when the publisher is not the proprie tor. 5 & 6 Vict. chap. 45, Newspapers are regulated by the act 6 & 7 Wm. IV. ch. 76.

In the United States, in order to claim the benefit of the statute, it would be necessary to enter each volume or number of the work. In England, special provision is now made for " encyclopedias, reviews, magazines, periodical works, or other works published in a series of books or parts," by giving the benefits of registration, on entering in

19.

2

bers, so disguised with contrivances as to the cover, &c., as to induce purchasers to take it for the old work; and against assuming the name of a newspaper for the fraudulent purpose of deceiving the public and supplanting the plaintiff in the good-will of his own newspaper. The jurisdiction in cases of this kind is said, however, not to be founded in the law of copyright, but on the peculiar powers of the court to restrain a defendant from carrying on a trade or from publishing a work under a fraudulent representation that such trade or work is that of the plaintiff."

The rights of the authors of articles and essays, forming parts of periodical publications, have been recently regulated by statute in England. The act 5 & 6 Vict. c. 45, § 18, provides that when a volume, part, essay, article, or portion, written for publication in any encyclopedia, review, magazine, periodical work, or work published in a series of books or parts, or any book whatsoever, shall have been composed for the proprietor of such work, and paid for by him, upon the terms that the copyright therein shall belong to him, he shall enjoy the same rights therein as if he were the actual author, and shall have the same term of copyright therein as is given. to the authors of books; except that in the case of essays, articles, or portions forming part of and first

1 Hogg v. Kirby, 8 Ves. 215. Beli v. Locke, 8 Paige R. 75. 38 Ves. 215, note a, Sumner's ed. 2 Story's Eq. Jurisp.

951.

Eden on Injunctions (2d Am. edit.) 339, 369, et seq. Curtwell v. Lye, 17 Ves. 335.