Card.

issued

be such things," said Jessel, M.R., "as picture-books for those who cannot read letterpress." ", 1 In Hildesheimer & Faulkner v. Christmas Dunn & Co., protection was claimed for a Christmas card cut out and painted in the form of a lady's hand. It opened out book-wise, and inside were delineated the lines of life according to the rules of palmistry, and on one side there was an original verse. This work was registered both under 5 & 6 Vict. c. 45 as a book and 25 & 26 Vict. c. 68 as a painting. Kekewich, J., in granting an injunction against a piracy, said he would not decide whether the work was a picture or a book, but as it was well registered under both Acts, an action lay. In Comyns v. Hyde, a coloured plate representing an Orpington Plate cock was issued with the weekly number of a serial publica- separately. tion called The Feathered World. The plate was not in any way physically connected with the rest of the publication, but it was illustrative of an article in the journal, and a copy was given to every purchaser. Stirling, J., held that it must be protected as part of the book. If a plate or picture has been previously published in separate form, without complying with the provisions of the Engravings Acts, it will not subsequently receive protection by reason of its incorporation into a volume.* In Strong v. Worskett a magazine was before publication advertised by means of illustrated posters. The same illustration as appeared on the posters was afterwards reproduced in the magazine. It was held that it could not be protected as part of the magazine. The result of these decisions appears to be that an artistic work will be protected under the Literary Copyright Act, 1842, if it is bound up with other artistic works in the form of a volume, or if it is published in connexion with letterpress. The picture on a Christmas card on which there are also verses, would, it is submitted, be protected as a book, and, it would seem, whether or not the verses were copyright, and whether or not (but this is more doubtful) the picture was in any way illustrative of the verses. It is also submitted that an engraving published in a magazine without

1 At p. 377.

5

2 (1891), 64 L. T. (N.S.), 452.

3 (1895), 43 W. R., 266; and see Guggenheim v. Leng (1896), 12 T. L. R., 491. 4 Strong v. Worskett (1896), 12 T. L. R., 532; Fisher v. Folds (1834), 1 Jones, Ir. Ex., 12.

5 (1896), 12 T. L. R., 532.

Maps.

Music.

any relation to the letterpress, except that of physical connexion, would be protected as part of the book; but an engraving or print which had neither any relation to the letterpress nor physical connexion would probably not be protected even although issued gratis with every copy of the magazine.

It need hardly be said that anonymous works are entitled to copyright. The publication of a work without the author's name is not to be construed as an abandonment of the literary property.1

Maps, charts, and plans are expressly included in the definition of a "book." If incorporated in a volume they will be protected with the rest of the volume under its general title; if published separately they will be protected as "books" by themselves. The meaning of "maps," &c., will be literally construed; but it must be something which in itself conveys information to the person studying it. Davey, L.J., in speaking of maps, said: 2_

"I agree .. that a 'map' is not confined to what is popularly known as a map-viz. a geographical map; and that a 'chart' is not confined to what is popularly called a chart-viz. a map of a portion of the seas showing the rocks, soundings, and such-like information for the use of navigators. . . . There may, no doubt, be an anatomical and physiological plan showing the structure and distribution of the muscles and bones of the human arm, or any other part of the human frame, which would be protected by the Copyright Act."

The exclusive right of making copies of original music is expressly protected by the Act of 5 & 6 Vict. c. 45 under the definition of a book. Under the statute of Anne it was protected by case law, "book" being held to include a volume or sheet of music.3

SECTION II.-PUBLICATION.

Publication divests the author or proprietor of an unpublished work of his common law rights therein.

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

2 Hollinrake v. Truswell [1894], 3 Ch., at p. 427.

After

3 Bach v. Longman (1777), 2 Camp., 623; Clementi v. Golding (1809), 2 Camp., 25; White v. Geroch (1819), 2 B. and Ald., 298; D'Almaine v. Boosey (1835), 1 Y. and C. Ex., 288; Jeffreys v. Boosey (1854), 4 H. L. C., 815.

publication his right to protection depends solely upon the statute. Publication must be looked at from two points of view -divestitive, i.e. as taking away the author's common law right; and investitive, i.e. as clothing him with the statutory right.

Divestitive Publication.-If a literary work is communicated to the public without restriction, the common law right of the author terminates. This may be done orally or by written or printed manuscript. Either kind of communication, however, may be so limited as not to amount to a publication. A drama or musical work is not published by being publicly performed in a theatre or concert room, since the communication is limited to those who have paid their price for admission, and they are admitted under an implied contract that they will not make any use of what they hear except for their own entertainment and instruction. The same applies to lectures delivered at a University 2 or by a private lecturer. The question as to when a public speaker or preacher publishes the speech or sermon which he delivers is one of extreme difficulty, and depends on the relation of the speaker to his audience.* If a literary composition is orally communicated in a place to which all have admission as of right, or to which all are admitted without distinction, and where there are no circumstances from which a contractual relationship between the speaker and his audience can be inferred, the matter so communicated will be abandoned to the public to make what use of it they please. Similarly communication by means of manuscript or print may be limited or unlimited. Private distribution of copies of a book is not publication, because the essence of publication is that the matter must be available to all comers and not only to a class; but the issue of a book to subscribers only would

1 Coleman v. Wathen (1793), 5 T. R., 245; Macklin v. Richardson (1770), Amb., 694; D'Almaine v. Boosey (1835), 1 Y. and C. Ex., 288.

2 Caird v. Sime (1887), 12 A. C., 326; Abernethy v. Hutchinson (1825), 3 L. J. (O.S.), Ch., 309. See p. 222, infra.

3 Nicols v. Pitman (1884), 26 Ch. D., 374. 4 See Walter v. Lane [1900], H. C., 539. 5 Kenrick v. Danube Collieries (1891), 39 W. R., 473; Prince Albert v. Strange (1849), 2 De G. and Sm., 652; Jefferys v. Boosey (1854), 4 H. L. C., 815; Exchange Telegraph v. Gregory [1896], 1 Q. B., 147; Exchange Telegraph v. Central News [1897], 2 Ch., 48; Millar v. Taylor (1769), 4 Burr., at p. 2417; Turner v. Robinson (1860), 10 Ir. Ch. R., 121, 510.

be publication if the subscription list was open to the public at large, and even although the number of copies available was very small. In one case1 the words of a song were held to be published by being printed on a music-hall programme and distributed in the streets as an advertisement. Exhibition in a public place without distribution of copies would undoubtedly be divestitive publication. Divestitive publication must be with the consent of the proprietor; an unlicensed publication would merely be an infringement of his rights.

Investitive Publication.- Publication vests the statutory right of copyright, but a publication which divests the common law right does not necessarily invest the statutory right. An investitive publication is of necessity also a divestitive publication, but not vice versa. The principal distinction is that an investitive publication must be a publication of a book, while a divestitive publication is a publication of the literary composition which is or may be contained in a book. Thus the delivery of a lecture does not vest copyright, although under certain circumstances it may divest the common law right. The book itself must be given to the public, and not merely the contents, in order to secure copyright. It has been suggested that a book will not be published within the meaning of the Copyright Act unless it is also printed. There is certainly some colour for this suggestion. The Act 5 & 6 Vict. c. 45 gives protection to all books which are "published" without any express restriction to printed books. It seems to be assumed, however, throughout the Act that a book when published must necessarily be in print. For instance, section 6 requires "That a printed copy shall be delivered at the British Museum." In section II again, where provision is made for registration, it is not contemplated that a book in which there is copyright could be in manuscript, although the section makes express provision for the registration of manuscript dramatic and musical pieces, in respect of performing right. There is no authority on this point. In White v. Geroch 2 it was said that publication of a musical piece in manuscript

1 Blanchett v. Ingram (1887), 3 T. L. R., 687.

2 (1819), 2 B. and Ald., 298.

vested the statutory copyright; but this was under the statute of Anne, which seems expressly to contemplate publication in manuscript which 5 & 6 Vict. certainly does not. In Boucicault v. Chatterton1 James, L.J., says: "a book is published by being printed and issued to the public;" but this was said only in illustration of the point he was then making, viz. that publication does not necessarily mean the same thing in dealing with copyright as it does in dealing with performing right. On the whole, although the point is extremely doubtful, I am of opinion that printing is not required. Suppose an illuminated hand-made book, fifty copies put on the market, is that to be denied copyright ? If it is, the result seems to be that it is unprotected from piracy, since the common law right terminates with unconditional publication. Another point on publication has been raised but not decided, viz. Must there be a distribution of copies to the public, or will it be sufficient if one or more copies are made accessible to the public; for instance, by deposit of a copy at the British Museum or in other public libraries. Sir James Stephen, in his Digest appended to the "Report of the Copyright Commission, 1878," Art. 4, says: "publication . . . means in reference to books, publication for sale;" and James, L.J., as cited above, suggests that there must be an "issuing to the public." On the other hand, the disjunctive use of the terms "published" and "offered for sale" in section 6 of 5 & 6 Vict. c. 45 is rather in favour of the view that there can be investitive publication without "offering for sale." Analogy from other branches of the law is unreliable; the exhibition of a picture in a public gallery is publication of the picture, but that is the only way in which a picture can be published. On the whole, I think that if the public have free and unrestricted access to a book there will be publication, even although they may not be able to procure copies for themselves. Something might depend on the rules of a library where the book was deposited.

There is a common practice among publishers to accept as proof of first publication a receipt given on the sale of a single

1 (1876), 5 Ch. D., 267.

2 Turner v. Robinson (1860), 10 Ir. Ch. R., 121, 510.