CHAPTER X.

OF THE REMEDY FOR AN INFRINGEMENT OF COPY

RIGHT.

LITERARY property is protected by several remedies, which differ widely from each other in point of efficiency, as well as in form.

1. Common Law and Statute Remedies.

The question whether there is any common law remedy for the protection of this species of property which, since the year 1774, has been held, as to printed books, to depend entirely upon statute was decided by Lord Kenyon in the affirmative. He held that the statute having vested the right in the author, for a given period, the common law remedy attaches to the right, notwithstanding the statute gave an action for penalties to any common informer. The penalties were not provided as a remedy to the party aggrieved; and consequently the common law remedy attaches, no other being specifically provided.1

Beckford v. Hood, 7 T. R. 620. In this case it was also held, that an entry at Stationers' Hall was not necessary to enable the party to

sue at common law for damages, but only to bring his action for the penalty. See ante, p. 194, as to the law in the United States.

This decision was upon the statute 8 Anne, c. 19. Subsequently, the act 54 Geo. III. c. 156, gave a special action on the case to the proprietor of a book, against any person for printing, reprinting, importing or publishing or exposing it to sale, by which he may recover such damages as the jury may see fit to

assess.

The act 5 & 6 Vict. c. 45, § 15, provides, 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 subsisting copyright, without the consent in writing of the proprietor thereof, or shall import for sale or hire. any such book so having been unlawfully printed from parts beyond the sea, or, knowing such book to have been so unlawfully printed or imported, shall sell, publish, or expose to sale or hire, or cause to be sold published or exposed to sale or hire, or shall have in his possession for sale or hire, any such book so unlawfully printed or imported, without such consent as aforesaid, such offender shall be liable to a special action on the case at the suit of the proprietor of the copyright.

The 17th section of the same statute enacts, "that after the passing of this act, it shall not be lawful for any person, not the proprietor of the copyright or some one authorized by him, to import into the united kingdom, or other parts of the British dominions for sale or hire, 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, contrary to this act; or shall knowingly sell, publish, or expose to 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 due conviction before two magistrates of the county or place where such book is found, forfeit the sum of ten pounds, and double the value of every such book so unlawfully imported, sold, published, or exposed to sale, or let to hire, or had in possession for sale or hire; five pounds of this penalty are to go to the officer of customs or excise making the seizure, and the remainder to the proprietor of the copyright."

Pursuant to the 23d section of the same act, "all copies of any book having copyright, and entered in the registry book, which have been unlawfully printed or imported, without the previous written consent of the registered proprietor of the copyright, shall

1 5 & 6 Vict. c. 45, § 17. A subsequent act, 5 & 6 Vict. c. 47, § 23, a statute relating to the customs, absolutely prohibits the importation of foreign reprints of works having copyright, where the proprietor of

the copyright or his agent has given notice in writing to the commissioners of the customs, that such copyright subsists, and when it will expire.

be deemed the property of such registered proprietor; and after demand in writing he will be entitled to sue for and recover such printed copies, or damages for their detention, in an action of detinue, from any party detaining them, or to sue for and recover damages for their conversion in an action of trover."1

The 16th section of the 5 & 6 Vict. c. 45, enacts, that after the passing of that act, in any action brought within the British dominions against a person for printing a pirated book for sale, hire, or exportation, or for importing, selling, publishing, or exposing it to sale or hire, or causing it to be imported, sold, published, or exposed to sale or hire, the defendant, on pleading to the action, shall give to the plaintiff a notice in writing of any objections on which he means to rely on the trial of the action. If the nature of the defence be, that the plaintiff in the action is not the author or first publisher of the book in which by the action he claims copyright, or that he is not the proprietor of the copyright, or that some other person than the plaintiff is the author or first publisher or proprietor of the copyright, then the defendant must specify in his notice the name of the person he alleges to have been the author, first publisher, or proprietor of the copyright, together with the title of the book, and the time and place of its first publication; otherwise the defendant at the trial will not be

1 5 & 6 Vict. c. 45, § 23. See post, p. 76.

allowed to give any evidence that the plaintiff is not the author, first publisher, or proprietor of the copyright. At the trial also no other objection will be allowed to be made on behalf of the defendant than the objections stated in his notice, nor can it then be urged that any other person is the author, first publisher, or proprietor, of the copyright, than the person specified in the defendant's notice; nor can any other book be given in evidence in support of the defence than the one substantially corresponding in title, time, and place of publication with the title, time, and place specified in the notice.

The 26th section enacts, that if any action or suit be commenced or brought against any person for doing or causing to be done anything in pursuance of this act, the defendant may plead the general issue, and give the special matter in evidence; and if upon such action a 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.

The 26th section of the same statute enacts, that all actions, suits, bills, indictments, or informations for any offence committed against this act shall be commenced within twelve calendar months after the committing of the offence, or the same shall be void and of none effect; provided, that such limitation shall not extend to any actions, suits, or proceed