translation. If the translating right is allowed to fall into the public domain by non-exercise within ten years, the performing right falls with it.1

There is not now as formerly any right in the public to make fair imitations or adaptations to the English stage.2

Express Provisions as to Particular Kinds of Infringement.-The Berne Convention, article 8, provides that the question of the right of extract is to be decided by the legislation of the different countries of the Union, or by special arrangement between them. There is no special arrangement as to this with the United Kingdom, therefore the law as to extract and quotation applicable to works produced in this country applies.

Article 10 of the Berne Convention enacts that indirect appropriations such as adaptations and arrangements are included among illicit reproductions when they do not bear the character of original work. Here also, therefore, the law is similar to that applicable to works produced in this country.

1 Berne Convention, Art. 9.

2 15 Vict. c. 12, sec. 6; 38 and 39 Vict. c. 12, sec. 1; Order in Council, Nov. 28, 1887,

sec. 6.

CHAPTER XI

COMMON LAW

As to works which have been published within the meaning of the Copyright Acts, the common law affords no protection in the nature of copyright, that is to say, as regards the exclusive right of reproduction, the author must rely entirely on the statutes. There is no copyright at common law after the expiration of the period prescribed by statute,1 neither is there any greater right during that period than the statute gives.2 Common law remedies, however, may be applied when the statute gives a right without a sufficient remedy. But apart altogether from rights in the nature of copyright, the principles of common law and equity do apply to both published and unpublished works to prevent or to remedy the consequences of fraud or breach of contract.

As to works which have been composed but have not been published, the common law affords protection to the author against reproduction or interference of any kind.5

The rights and remedies at common law are perpetual, and are neither limited in duration nor as regards the time within which action must be brought, except in so far as the general rules of equity as to acquiescence and delay or the statutes of limitation may be applicable.

Title: Passing off.—No Copyright in Title.-There is no copyright in a title consisting, as a title usually does, of only a few

1 Donaldson v. Becket (1774), 2 Bro. P. C., 129; and see Millar v. Taylor (1769), 4 Burr., 2303; Tonson v. Collins (1760), 1 W. Black., 301, 321.

2 See Cox v. Land and Water (1869), L. R., 9 Eq., 324; Reade v. Conquest (1861), 9 C. B. (N.S.), 755; Jefferys v. Boosey (1854), 4 H. L. C., 815.

3 Beckford v. Hood (1798), 7 T. R., 620.

4 Platt v. Walter (1867), 17 L. T. (N.S.), 157.

5 See cases cited in arguments in Tonson v. Collins (1760), 1 W. Black., 301, 321; Donaldson v. Beckett (1774), 2 Bro. P. C., p. 138; Millar v. Taylor (1769), 4 Burr., 2303; Lord St. Leonards in Jefferys v. Boosey (1854), 4 H. L. C., at p. 979.

ד

3

words. Thus Belgravia, Sporting Life,2 "Splendid Misery," & The Licensed Victuallers' Mirror, and "The Post Office Directory," "15 have all been decided not to be the subject of copyright. In two decisions "The Birthday Scripture Text-Book" and "Trial and Triumph" (as the title of a novel) were protected on the ground of copyright in title, but since Dicks v. Yates in which these two decisions were cited, and in so far as they were based on a claim of copyright in title, disapproved, no such claim could be entertained, and the exclusive user of a title will only be protected on the general principles of common law and equity which prevent one man passing off his wares as those of another man. As was pointed out by Jessel, M.R., in Dicks v. Yates, it is conceivable that there might be a title in which there was copyright; for instance, if it was extremely long and elaborate, but since Dicks v. Yates there is no case in the books where a title has been protected on the ground of copyright.

Whether Protection is based on a Right of Property in the Title.The great bulk of authority is to the effect that the right to prevent others passing off their literary works under the same or a similar title does depend on a right of property in the title as applied to a particular class of work, which right can only be acquired by user.10 This right is regarded as a chattel interest capable of assignment," and may be a partnership asset.12 In Walter v. Emmott,13 however, Cotton and Bowen, L.JJ., expressed a strong opinion that the right to prevent a deceitful use of title was not founded on a right of property in the title, but on the ground of deceit alone. It is submitted that the plaintiff in an action of this kind need not prove deceit on the part of the defendant, and that the right is strictly a proprietary right

1 Maxwell v. Hogg (1867), L. R., 2 Ch., 307. 2 Kelly v. Hutton (1868), L. R., 3 Ch., 703.

3 Dicks v. Yates (1881), 18 Ch. D., 76.

4 Licensed Victuallers v. Bingham (1888), 38 Ch. D., 139.

5 Kelly v. Byles (1879), 40 L. T. (N.S.), 623.

6 Mack v. Petter (1872), L. R., 14 Eq., 431.

7 Weldon v. Dicks (1878), 10 Ch. D., 247.

8 Dicks v. Yates (1881), 18 Ch. D., 76.

9 18 Ch. D., at p. 89.

10 Borthwick v. The Evening Post (1888), 37 Ch. D., 449; Bradbury v. Beeton (1869), 39 L. J. Ch., 57; Clement v. Maddick (1859), 1 Giff., 98.

11 Kelly v. Hutton (1868), L. R., 3 Ch., 703; Ward v. Beeton (1874), L. R., 19 Eq., 207. 12 Bradbury v. Dickens (1859), 27 Beav., 53.

13 (1885), 54 L. J. Ch., 1059.

which must have been acquired by user before the Court will intervene.

Knowledge of Existence and Value on part of the Public. This is necessary before an author or proprietor of a literary or artistic work can acquire a right to the exclusive use of a title in connexion with works of a certain class. It is not sufficient that the title of a proposed book or magazine has been extensively advertised or that it has been registered, even although great expenditure has been incurred in the preparation and advertisement. Any one, it would seem, can seize the opportunity of another's advertisements and bring out a similar book under the same or a similar title, either before the publication of that other's book or immediately after its publication, and before it became known to the public as an actually existing publication which they have had an opportunity of reading and forming an opinion of on its merits. The sale of a few copies only will not establish a common law right in title.2 Not only must the work be well known to the public, but it must also be distinctively known under the title in which a proprietary right is claimed.3

No right can be acquired by attaching an original title to an old work in which the publisher has no proprietary right. In Talbot v. Judges the plaintiffs published a work in which they had no copyright of any kind under a title of their own invention, "The Liberal and Radical Year-Book." The defendant published a similar work, intituled "The Liberal YearBook." It was held that they were entitled to do so, as the plaintiffs could have no right in the title when the material was in no sense their own.

Non-user of title for a considerable period will leave it open to others to adopt the same title and to acquire a right therein to the exclusion of the original user, but no representation must be made, express or implied, that the subsequent publication is a continuation of the first. If the proprietor of a magazine

1 Maxwell v. Hogg (1867), L. R., 2 Ch., 307; Licensed Victuallers v. Bingham (1888), 38 Ch. D.; Correspondent News v. Saunders (1865), 11 Jur. (N.S.), 540.

2 Maxwell v. Hogg (1867), L. R., 2 Ch., 307. 3 Schove v. Schmincké (1886), 33 Ch. D., 546.

4 Talbot v. Judges (1887), 3 T. L. R., 398.

5 Maxwell v. Hogg (1867), L. R., 2 Ch., 307.

incorporates it with another publication, such as the John Bull with the Britannia, and intitules the future publication with a joint name such as the John Bull and Britannia, he can prevent any taking of the original titles either simpliciter or colourably altered, as, for instance, The True Britannia.1

No Fraud need be Proved.-When the exclusive right to a title has been established, an innocent invasion is equally as actionable as one tainted with fraud or intent to deceive.2 It is a question what the public are likely to believe, not what it was intended they should believe.

Must be Calculated to Deceive.-The question is whether the man of ordinary intelligence is likely to be deceived, and purchase the later publication while intending to purchase the original. It is not sufficient to show that some thoughtless or stupid people have made mistakes and taken the one for the other. The exclusive right to the use of a title only extends so far as to prevent the whole or any part of the title being used in such a way as to deceive the public, to the injury of the proprietor of the title. Thus a part of the title may be taken and so used in conjunction with other words, that there can be no possibility of confusion, or the whole title may be taken and used for an entirely different class of work, or otherwise put before the public in such a way that mistake is practically impossible. Thus in questions of passing off, besides the similarity of title, the result depends on the peculiar circumstances under which the works are produced: the time and place of publication, appearance, such as similarity in print and binding and price, may all be of vital importance.

Cases in which an Injunction was Granted.-In Hogg v. Kirby the defendant was interested in the sale and profits of a magazine called The Wonderful Magazine. A dispute arose between him and the proprietor of the magazine, and the defendant thereupon published a magazine under the same title, described as New Series Improved. This publication was restrained. In Constable v. Brewster, a Scotch case, an interdict was granted on very 1 Prowett v. Mortimer (1856), 2 Jur. (N.S.), 414.

2 Borthwick v. Evening Post (1888), 37 Ch. D., 449; Clement v. Maddick (1859), 1 Giff., 3 Bradbury v. Beeton (1869), 39 L. J. Ch., 57.

98.

4 (1803), 8 Ves., 215.

5 (1824), 3 Sh., 215.