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And Keating, J., said :—

"I entirely agree with my brother Byles that though it may not be necessary that each should contribute the same amount of labour, there must be a joint labouring in furtherance of a common design."

Quare whether co-authors are joint owners with the right of survivorship. In Marzials v. Gibbons1 it was suggested that they were, but see the decisions where co-assignees are held to be owners in common, or part owners without the right of survivorship. Quære also whether each co-author, as is the case with each co-assignee, is entitled to sue in respect of an invasion without the concurrence of the other co-author or co-authors.

Until Walter v. Lane was decided in the House of Lords, it was a prevalent opinion that the author must be he who actually designs and by himself or through others composes the literary matter contained in the book. That case, however, demonstrates that the author is the first producer of literary matter in "book" form, i.e. in some permanent form from which it can be copied by the printer's compositor, usually, but not necessarily, manuscript. As a rule such person is also the composer of the literary matter contained in the book, but this is not a necessary attribute of the character of author. In Walter v. Lane Lord Rosebery had delivered without reserve of any kind certain public speeches. They were delivered orally, not having been previously committed to writing. On the various occasions when they were delivered reporters from the Times were present, and they took down the speeches verbatim. From these reports they were transcribed into long hand, and published in the Times. Mr. Lane, a publisher, took these speeches from the columns of the Times, and without any authority from the proprietors thereof, published them in a volume entitled "Appreciations and Addresses, by Lord Rosebery." In this action at the instance of the proprietors of the Times for the infringement of the copyright in their reports, it was finally held in the House of Lords, firstly, that as these reports contained literary matter pub

1 (1874), L. R., 9 Ch., 518; and see Bowen, L.J., in Nottage v. Jackson (1883), 11 Q. B. D., 627.

2 Powell v. Head (1879), 12 Ch. D., 686; Lauri v. Renad [1892], 3 Ch., 402.

3 Ibid.

[1900], A. C., 539.

5 Ibid.

E

lished for the first time in "book" form, they were the subject of copyright, and secondly, that the reporters were the authors within the meaning of the Act, since they first reduced the literary matter orally delivered by Lord Rosebery to "book" form.

SECTION IV.-THE EMPLOYER.

Under Section 18.-An employer is ab initio entitled to the copyright when he employs an author within the meaning of and subject to the conditions imposed by section 18. Section 181 enacts that—

"When any publisher or other person shall before or at the time of the passing of the Act have projected, conducted, and carried on, or shall hereafter project, conduct, and carry on, or be the proprietor of any encyclopædia, review, magazine, periodical work, or work published in a series of books or parts, or any book whatsoever, and shall have employed or shall employ any persons to compose the same in any volumes, parts, essays, articles, or portions thereof for publication in or as part of the same, and such works, volumes, parts, essays, articles, or portions, shall have been or shall hereafter be composed under such employment on the terms that the copyright therein shall belong to such proprietor, projector, publisher, or conductor, and paid for by such proprietor, projector, publisher, or conductor, the copyright in every such encyclopædia, review, magazine, periodical work, and work published in a series of books or parts, and every volume, part, essay, article, and portion so composed and paid for shall be the property of such proprietor, projector, publisher, or other conductor, who shall enjoy the same rights as if he were the actual author thereof, and shall have such term of copyright therein as is given to the authors of books by this Act; except only that in the case of essays, articles, or portions forming part of and first published in reviews, magazines, and other periodical works of a like nature, after the term of twenty-eight years from the first publication thereof respectively, the right of publishing the same in a separate form shall revert to the author for the remainder of the term given by this Act: provided always that during the term of twenty-eight years the said proprietor shall not publish any such essay, article, or portion separately or singly without the consent previously obtained of the author thereof or his assigns: provided also that nothing herein contained shall alter or affect the right of any person who shall have been or who shall be so employed as aforesaid to publish any such his composition in a separate form, who by any contract, express or implied, may have reserved or may hereafter reserve to himself such right; but

1 5 & 6 Vict. c. 45, sec. 18.

every author reserving, retaining, or having such right, shall be entitled to the copyright in such composition when published in a separate form, according to this Act, without prejudice to the right of such proprietor, projector, publisher, or conductor, as aforesaid."

The nature of a proprietor's rights in the articles contributed to his periodical under section 18 is well summarised by Chitty, J., as follows:

"This 18th section when fairly examined comes to this: the author of a literary work is the proprietor of the copyright under the general sections of the Act. If it is unpublished matter, probably the better term is to say that his right is to prevent any one else from publishing. If it is published matter, then his right is a true copyright, and it is to prevent anybody else from multiplying copies, and that right is vested in him. . . . Then comes this 18th section, the short effect of which is to transfer for a limited period a portion of the copyright to the proprietor of the periodical for whom the article has been composed; it being a condition that there shall not only be a composition of the article on the terms that it shall belong to the proprietor or publisher, but also that the sum agreed to be paid has been paid."1

Scope of Section.-In some of the earlier cases it seems to be suggested that section 18 applies only to works of a periodical nature. But this gives no meaning to the words "or any book whatsoever," which surely could not be construed as including only books ejusdem generis as periodicals. The first part of the section appears to include all books if produced under the conditions as to employment and payment there enacted. The judgment in Shepherd v. Conquest suggests that in the opinion of the Court in that case section 18 did not apply when the performing right in a play was claimed by the proprietors of a theatre, the play having been produced by a "stock author" in their employment. It is difficult to see why section 18 should not be equally applicable to the performing right as to the copyright. Section 20 of 5 & 6 Vict. c. 45 provides that—

"The provisions hereinbefore enacted in respect of the property of such copyright and of registering the same shall apply to the liberty of

1 Chitty, J., in Trade Auxiliary v. Middlesborough (1889), 40 Ch. D., at p. 430.

2 And in one case it was even doubted whether it applied to newspapers, Platt v. Walter (1867), 17 L. T. (N.S.), 157.

3 Lamb v. Evans [1893], 1 Ch., 218; Trade Auxiliary v. Middlesborough (1889), 40 Ch. D., 425. 4 (1856), 17 C. B., 427.

representing or performing any dramatic piece or musical composition as if the same were herein expressly re-enacted and applied thereto, save and except that the first public representation or performance of any dramatic piece or musical composition shall be deemed equivalent in the construction of this Act to the first publication of any book."

Under such Employment.-The author must be "employed" and the work must be composed "under such employment." It appears therefore that a work or part of a work would not come within this 18th section unless actually executed in the course of the author's employment by the proprietor. In other words, there must be antecedent employment.1 A contribution voluntarily sent to a magazine would not, even although accepted and paid for on the terms that the copyright should belong to the proprietors, come under the provisions of section 18. It is submitted that it would become the sole property of the proprietor of the magazine for all purposes without any reservation of the right of separate publication to the author.2

If A employs B, who in his turn employs C, the copyright will vest in A if B acted as a mere agent for A. Thus in Stubbs v. Howard, Stubbs employed the Mercantile Press to obtain the necessary information for their Gazette, and the Mercantile Press employed P. to collect and compile. It was held that the copyright vested ab initio in Stubbs under section 18. But if A employs and pays B to do certain literary work, and B, of his own authority, employs and pays C, D, and E to do certain portions of it, it is doubtful whether the copyright in these portions will vest in A under section 18. The author has been neither employed nor paid by the proprietor of the work since B acted not as an agent for him, but as an independent contractor.1 The operation of section 18 seems to be exhausted in the first employment.

"On the terms that the copyright therein shall belong to such proprietor."-The terms may be implied from the nature of the employment and the circumstances under which the work is

1 Brown v. Cooke (1846), 16 L. J. Ch., 140.

2 As to whether a written assignment of the copyright from the author would be necessary in such a case, see infra, at p. 74.

3 (1895), 11 T. L. R., 507.

4 Brown v. Cooke (1846), 16 L. J. Ch., 140.

composed. In Sweet v. Benning1 various members of the bar had furnished reports of cases to the plaintiffs, the proprietors of the Jurist. The reporters selected what cases they thought fit to report and were paid for their work. The arrangements were entirely oral, and nothing seems to have been said about copyright. The Court of Common Pleas held that the proprietors of the Jurist became the owners of the copyright under the 18th section. Maule, J., in support of his opinion said :—

“When a man employs another to write an article or to do anything else for him, unless there is something in the surrounding circumstances or in the course of dealing between the parties to require a different construction, in the absence of a special agreement to the contrary, it is to be understood that the writing or other thing is produced upon the terms that the copyright therein shall belong to the employer."

In Trade Auxiliary v. Middlesborough the proprietors of Stubbs' Weekly Gazette and two other weekly papers jointly employed on salary two men to examine the official records and extract the particulars of bills of sale and deeds of arrangement registered in accordance with the Acts. The information so obtained was published in the weekly papers. It was held that the proprietors of the respective papers became owners of the copyright under section 18. In Lamb v. Evans the plaintiff employed and paid several persons in canvassing for advertisements and arranging them under appropriate headings in a Trades Directory. Lindley, L.J., in giving judgment, said he thought that—

"The burthen of proof was on the plaintiff to show that the headings were composed upon the terms that the copyright therein should belong to him; but the statute does not say anything about the kind of evidence which is to be adduced for the purpose of proving that an article has been composed on these terms. . . . If there is no express agreement the question is, what is the inference to be drawn from the circumstances of the In drawing the inference regard must be had to the nature of the articles which are here merely the headings to groups of advertisements with translations, and the view expressed by Mr. Justice Maule in Sweet v. Benning may be very safely acted upon, viz. that primâ facie at all events

case.

369.

1 (1855), 16 C. B., 459.

2 (1889), 40 Ch. D., 425; and see Trade Auxiliary v. Jackson (1887), 4 T. L. R., 130.

3 [1893], I Ch., 218; and see Maple v. Junior Army and Navy Stores (1882), 21 Ch. D.,

(1855), 16 C. B., at p. 484.

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