2

however, seems to be that Lords Cairns and Westbury were right and Lords Cranworth and Chelmsford wrong. This view is adopted by Stephen, J., in his digest.1 Mr. Scrutton is of the same opinion, and cites the Naturalisation Act and the proviso that copyright is personal property. Mr. Chamier does the same. It is respectfully submitted that the provisions of the Naturalisation Act and the indisputable fact that a foreigner wherever resident can acquire a British copyright are entirely beside the mark, and do not in the least help one to decide whether the legislature is to be presumed to have applied the Act of 5 & 6 Vict. to the works of foreign authors. The decision that the work of a non-resident foreign author will not be protected is in no way contrary to the provision of the Naturalisation Act that an alien friend may acquire and hold personal property in the same way in all respects as a British subject. The logical conclusion from that provision is that an alien friend as well as a British subject may acquire British copyright wherever it exists; but it does not necessarily follow that British copyright exists in the work of a foreign author, and that either an alien friend or a British subject can acquire it. After the passing of the Chace Act (1891) in the United States, the law officers of the Crown in England were consulted by the American law officers, and they advised that an American author could acquire copyright in his work by simultaneous publication in this country and America, even although he was not at any time resident within the British dominions. Consequently on that advice the President of the United States proclaimed Great Britain as one of the countries which gave by their law reciprocal rights to American authors; and English authors are thereby entitled to acquire copyright in the United States. It would certainly be most unsatisfactory if the law of England were now to be declared contrary to the advice then given by our law officers, but it cannot be said that this should influence our Courts if their decision on the point was called for.

1 Art. 6, "Report Copyright Commission," 1878, p. lxix.

2 Scrutton on "Copyright," 3rd ed., p. 121.

SECTION IV.-IMMORAL WORKS.

Profane,1 indecent,2 seditious, and libellous books will not be protected. Neither will those which are a fraud upon the public.5 For instance, a book published as translated from the German of Sturm, which was entirely untrue and induced purchasers to buy it, was refused protection. Quare whether a piratical book would be protected in so far as it was original. Probably it would. If a book is not wholly mischievous, but only in part, it will probably be protected except as to that part; and if a book is subsequently published purged of its immoral matter or fraudulent nature it would be protected." If an action is brought in respect of a mischievous publication the practice of the Court is to dismiss the action without costs.1o In one case 11 Mathew, J., would not take cognisance of immorality mero motu, and when it was not pleaded by the defendant he gave the plaintiff his remedy. Notwithstanding this, there can be no doubt that the Court may refuse to interfere even when both parties are willing to waive the question of immorality. The Court cannot be compelled to sit to take an account between public malefactors.

SECTION V.-REGISTRATION.

Before Action.-Before an owner of copyright sues for infringement his book must be registered at Stationers' Hall.12

1 Lawrence v. Smith (1822), Jac., 471; Murray v. Benbow (1822), Jac., 474 n.; Cowan v. Milbourn (1867), L. R., 2 Exch., 230; Burnett v. Chetwood (1720), 2 Mer., 441; see 9 Will. III. c. 35 (1698).

2 Stockdale v. Onwhyn (1826), 5 B. and Cr., 173; Dodson v. Martin (1880), 24 Sol. J., 572. 3 Hime v. Dale (1803), 2 Camp., 27 n.; Dr. Priestley's case, cited 2 Mer., 437. 4 Hime v. Dale (1803), 2 Camp., 27 n.; Walcot v. Walker (1802), 7 Ves., 1.

5 Wright v. Tallis (1845), 1 C. B., 893; Hogg v. Kirby (1803), 8 Ves., 215; MacFarlane v. Oak Foundry (1883), 10 R., 801; Hayward v. Lely (1887), 56 L. T. (N.S.), 418; Ward v. Beeton (1874), L. R., 19 Eq., 207; Metzler v. Wood (1878), 8 Ch. D., 606; Chappell v. Davidson (1856), 2 K. and J., 123.

6 Wright v. Tallis (1845), 1 C. B., 893.

7 Cary v. Faden (1799), 5 Ves., 24; Reade v. Conquest (1862), 11 C. B. (N.S.), at p. 492.

8 Baschet v. London Illustrated [1900], 1 Ch., 73; Hayward v. Lely (1887), 56 L. T.

(N.S.), 418.

See point suggested, 1 C. B., 902.

10 Baschet v. London Illustrated [1900], 1 Ch., 73; Newman v. Pinto (1887), L. T. (N.S.), 31.

11 Dodson v. Martin (1880), 24 Sol. J., 572.

The omission to register does not affect the copyright in a book, but it is a condition precedent to the right to sue in respect of the infringement thereof.1 At one time it was thought that registration was only a condition precedent to an action for the particular remedies given by the statute, and that whether registration was effected or not the common law right of action for damages lay. This, however, is not law. Registration is a condition precedent to any right of action for infringement of copyright. If an action is brought without proper registration, that action must fail; but a correct entry may then be made and a fresh action commenced.3

No registration is necessary to maintain an action for the infringement of performing rights in a book which is a dramatic or musical work.4

Registration need not be made before infringement : it may be effected at any time before the writ is issued.5 In one case it was held a good registration when entry was made on the same day, but a few hours before the issue of the writ. In Hole v. Bradbury, Fry, J., held that registration after infringement did not entitle the plaintiff to delivery up of copies for his own use under the 23rd section of the Act of 1842, but that under its general jurisdiction the Court had power to order delivery up for destruction. In Isaacs v. Fiddemann,8 Jessel, M.R., thought that even although infringement was before registration the plaintiff was entitled to have delivery up for his own benefit, and that the 23rd section applied to such a case. Which is the correct view it is difficult to say. The argument of Fry, J., in support of his view is elaborate and appears sound, whereas Jessel, M.R., seems to have gone more on the ground of convenience.

Registration must be effected after the publication of the

1 5 & 6 Vict. c. 45, sec. 24.

2 Beckford v. Hood (1798), 7 T. R., 620; Roworth v. Wilkes (1807), 1 Camp., 94.

3 Low v. Routledge (1864), L. R., 1 Ch., 42; Stannard v. Lee (1871), L. R., 6 Ch., 346 ; Hogg v. Scott (1874), L. R., 18 Eq., 444.

4 Russell v. Smith (1848), 12 Q. B., 217; Lacy v. Rhys (1864), 4 B. and S., 873; Marsh

v. Conquest (1864), 17 C. B. (N.S.), 418; Clark v. Bishop (1872), 25 L. T., 908.

5 Goubaud v. Wallace (1877), 36 L. T. (N.S.), 704; Macmillan v. Suresh Chunder Deb (1890), Ind. L. R., 17 Calc., 951.

6 Warne v. Lawrence (1886), 34 W. R., 452.

7 (1879), 12 Ch. D., 886.

8 (1880), 49 L. J. Ch., 412.

book.1 In several cases an attempt has been made to secure a monopoly in a title by registration before the book was published or even written.2 Such registration is entirely inoperative to secure a monopoly in the title or the right to sue in respect of the copyright in the book when published. Registration does not give the plaintiff any right (except perhaps as to delivery of copies) which he would not equally have had without registration. All registration does is to perfect the right and give a title to sue on it.

It must be remembered that it is the book which is to be registered and not the copyright. It is common but erroneous to talk of "registering copyright." The distinction was pointed out in Trade Auxiliary v. Middlesborough. The three several proprietors of three periodicals had employed and paid a contributor under section 18 on the terms that the matter contributed should belong to these three proprietors. The matter appeared in each of the three newspapers and each registered his own newspaper in his own name. It was argued that the registration was bad, since they should have been registered as joint proprietors, but the Court of Appeal held that the registration was good, since each had registered his "book," and section 19 was literally complied with.

A newspaper is a sheet of letterpress within the Act and must be registered. In one case Malins, V.C., protected a newspaper which was not registered, but that case has been expressly overruled and is clearly unsound. No registration is necessary other than that required by the Act of 1842. In Cate v. Devon 8 it was contended that a newspaper would not be protected unless it had been registered under the Newspaper Libel Act, 1881. This contention was held erroneous, and registration under the Act of 1842 was alone required. Similarly

1 Henderson v. Maxwell (1877), 5 Ch. D., 892; Dicks v. Yates (1881), 18 Ch. D., 76. 2 Hogg v. Maxwell (1866), L. R., 2 Ch., 307; Correspondent v. Saunders (1865), 11 Jur. (N.S.), 540; Primrose Press v. Knowles (1886), 2 T. L. R., 404.

3 Talbot v. Judges (1887), 3 T. L. R., 398; Schove v. Schmincké (1886), 33 Ch. D., 546. 4 (1889), 40 Ch. D., 425.

5 Walter v. Howe (1881), 18 Ch. D., 708; Trade Auxiliary v. Middlesborough (1889), 40 Ch. D., 425; Cate v. Devon (1889), 40 Ch. D., 500.

6 Cox v. Land and Water (1869), L. R., 9 Eq., 324.

7 Trade Auxiliary v. Middlesborough (1889), 40 Ch. D., 425.

8 (1889), 40 Ch. D., 500; see also Prowett v. Mortimer (1856), 2 Jur. (N.S.), 414.

it is not a good defence to an action for infringement that the publisher's name and address is not printed on the first or last page of a book as required by 2 & 3 Vict. c. 12.1

The Requisite Entry.-Registration is made in the Book of Registry which the Act enacts 2 shall be kept at the Hall of the Stationers' Company. The fee for registration is five shillings. The Book of Registry must at all convenient times be open to the inspection of any person on payment of one shilling for every entry searched for or inspected. This, however, does not entitle any one to make a copy of an entry; but any one may demand a certified copy of an entry from the keeper of the Registry on payment of five shillings.

The proprietor of the copyright must register in the Book of Registry: 3

i. The title.

ii. The time of first publication.

iii. The name and place of abode of the publisher.

iv. The name and place of abode of the proprietor.

In the case of an encyclopædia, review, magazine, periodical work, or other work published in a series of books or parts, the publisher must register : *—

i. The title.

ii. The time of first publication of the first part.

iii. The name and place of abode of the proprietor.

iv. The name and place of abode of the publisher if different from the proprietor.

The Actual Title.—This must be registered: a description of the book will not be sufficient, even although accurate. Thus in Harris v. Smart the plaintiffs' book was intituled "Illustrated Catalogue and Price List," and they registered it as "Illustrated Book of Shop-fittings." The Court of Appeal, reversing the decision of Mathew and Grantham, JJ., held that the objection to the registration was fatal. When there is a clear and distinct title, that title they held must be registered. It might be different if a book had no title; perhaps such a book could not be registered at all; but probably a description of the book, stating that

1 Chappell v. Davidson (1856), 18 C. B., 194. See 32 & 33 Vict. c. 24.

2

5 & 6 Vict. c. 45, sec. II.

4

5 & 6 Vict. c. 45., sec. 19.

3

5 & 6 Vict. c. 45, sec. 13.