you will infer, in the absence of evidence to the contrary, from the fact of employment and payment that one of the terms was that the copyright should belong to the employer. That is not a necessary inference; but in a case of this sort, where any other inference would be unbusinesslike, I should not hesitate myself to draw that inference." Bowen, L.J., in the same case, says:— "From where are you to collect the terms? You may collect them from what passed between the parties, that is to say between the plaintiff and the persons whom he employed, but you may also collect them from the nature of the business itself, and it seems to me to be impossible as a matter of business to suppose that these headings were composed and furnished to the plaintiff upon any other terms than that he was to have the copyright in them, because otherwise those who composed them having furnished them to the plaintiff might themselves have published them and defeated his object." On the other hand in Walter v. Howe,' Jessel, M.R., held that the Times could not sue in respect of a biography of Lord Beaconsfield which had appeared in their columns. There was evidence that the author had been paid for his literary services, but there was apparently no evidence as to whether he had been "employed" "on the terms that the copyright should belong" to the plaintiff. Notice that in this case no antecedent employment whatsoever is shown. In Johnson v. Newnes a series of stories were contributed to the Weekly Dispatch under an arrangement between the proprietor and the author. The author was not on the permanent staff of the Weekly Dispatch. He was paid by the proprietors for his contributions, the arrangement being that the author should have the right of separately publishing the stories, provided such separate publication did not take place until after all the stories had appeared in the Weekly Dispatch. In an action by the author against an infringer, Romer, J., in giving judgment for the plaintiff, said that he had come to the conclusion that although the plaintiff was paid he was not paid on the terms that the copyright in the stories should belong to the proprietors of the journal. The author had therefore not parted with the copyright and was the proper plaintiff.3 1 (1881), 17 Ch. D., 708; and see Bishop of Hereford v. Griffin (1848), 16 Sim., 190. 2 [1894], 3 Ch., 663. 3 And see Coote v. Judd (1883), 23 Ch. D., 727. In Aflalo v. Lawrence1 the defendants published a work called "The Encyclopædia of Sport." A, one of the plaintiffs, agreed with the defendants that he would edit the work. He was to receive £500 for his services, and to write without further remuneration 7000 words of special articles. He was entitled to pursue his literary work in so far as it did not interfere with the performance of his duties. A contributed an article to the encyclopædia under his agreement. A, by the request of the defendants, procured C, the other plaintiff, to write certain articles for the encyclopædia at the rate of £2 per thousand words. The articles of both plaintiffs were published in the encyclopædia. Joyce, J., held that the contributions of neither plaintiff came within section 18, since there was nothing to show that they were contributed on the terms that the copyright therein should belong to the defendants. The defendants were therefore not entitled to publish the plaintiff's articles in any other form than as part of the encyclopædia. In view of the earlier authorities I think this decision is extremely doubtful. Joint Employers.-As has been seen above in the case of Trade Auxiliary v. Middlesborough,2 two or more proprietors of several periodicals may jointly employ an author so as to acquire the copyright under this section. Each has a separate copyright in his respective paper, and, although the matter contributed to the several papers is the same, may sue without joining the other proprietors. Each is "a transferee by virtue of section 18 of a limited portion of the copyright in that particular composition." Payment. Not only must there be employment for reward, but payment is a condition precedent. If payment is not proved the section will not operate to transfer the copyright from the author. Payment must be made before the commencement of an action. It has been suggested that it must be made before piracy, and this appears a sound view since there is no copyright in the proprietor until payment, and an infringement before 5 1 [1902], I Ch., 264. 3 Chitty, J., 40 Ch. D., at p. 431. 2 (1889), 40 Ch. D., 425. 4 Brown v. Cooke (1846), 16 L. J. Ch., 140; Richardson v. Gilbert (1851), 1 Sim. (N.S.), 336; Collingridge v. Emmott (1888), 57 L. T. (N.S.), 864; Trade Auxiliary v. Middlesborough (1889), 40 Ch. D., 425; Trade Auxiliary v. Jackson (1887), 4 T. L. R., 130. 5 Trade Auxiliary v. Middlesborough (1889), 40 Ch. D., at p. 430. copyright is assigned is no cause of action in the assignee.1 There is nothing to suggest that payment must be made before publication.2 Author's Separate Rights.-When an author has contributed to a periodical and the conditions of the section have been fulfilled so as to vest the copyright in the proprietor of the periodical, it would seem that for twenty-eight years, i.e. until the right of publishing in separate form reverts to the author, the author has no right to sue third parties in respect of an infringement without joining the proprietor of the periodical as co-plaintiff. If, however, the author, while contributing on the terms that the proprietor should have the copyright, reserves the right of publishing his composition in a separate form within the meaning of the proviso at the end of the section, when he does publish in separate form he will be entitled to copyright concurrently with the proprietor, but semble that he will have no right to sue alone until publication in separate form,3 or until the lapse of twenty-eight years. During the twenty-eight years the proprietor of a periodical work is not, apart from express agreement, entitled to publish the contribution in separate form. If the proprietor does publish separately in breach of the provision of the section, the author has a right of action against him, and the author's right not being one of copyright but in respect of a breach of implied or statutory contract he does not require to be registered.* "Separate" means in any other form than the original collective publication, whether as a single work by itself or in conjunction with other matter. When the proprietor of a magazine reprinted certain stories which had appeared in the magazine from time to time, and published them as a supplement to the current number, this was held to be a publication in separate form which the author could prevent. So also the republication of the Christmas number of a periodical under a different title, form, and price, is a separate publication of an article contained 1 See cases cited, p. 79, footnote 4. 2 See Chitty, J., Trade Auxiliary v. Middlesborough (1889), 40 Ch. D., at p. 430. 3 See Johnson v. Newnes [1894], 3 Ch., 663. 4 Mayhew v. Maxwell (1860), 1 J. and H., 312. 5 Smith v. Johnson (1863), 4 Giff., 632. in such number.1 A Christmas number of a serial publication, although published in an entirely different form with separate pagination and sold at a different price from the ordinary numbers, is part of the periodical, and separate publication of the stories therein will be prohibited under section 18.2 An article may be contributed to a periodical under express or implied terms that the copyright shall belong to the proprietor for all purposes, in which case there will be no reservation of a right of separate publication.3 It should be clearly noted that the second part of section 18 applies only to periodical works. Therefore in the case of an encyclopædia or similar collective works the owner has, apart from special terms, a right to publish the contributor's article separately from the original publication. Employer's Rights where Section 18 does not Apply.-A question of some difficulty has been raised from time to time to which there is no definite authoritative answer, viz. whether apart from the provisions of section 18 the copyright ever vests ab initio in the employer of an author. We shall see in dealing with assignment that probably the sole right before publication to acquire the copyright of a book on first publication may pass from the author to his assignee without writing, either by an implied gift on delivery of the manuscript or by express oral assignment. The question now considered is whether by the fact of employment alone the work of the employee may not ipso facto on production become the property of his employer. In Sweet v. Benning it was held that the employment of certain members of the bar as reporters came within section 18, and that the copyright vested in the employers themselves; but during the argument Maule, J., is reported to have said : "One might almost infer without the aid of an Act of Parliament that one who employs another to write an article or to make anything else for him is the owner or proprietor." I think that this suggestion is wrong if applied to the case of an independent contractor, and that if such an employment does not come within section 18 there will be no proprietary right in the 1 Mayhew v. Maxwell (1850), 1 J. and H., 312. 2 Ibid. 4 (1855), 16 C. B., 459. employer ab initio, although it may be transferred to him before publication by mere delivery of the manuscript with the mutual intention to convey all rights. But in the case of a servant or agent who produces literary work in the course of his employment, I think it is different. I think that his work will vest ab initio irrespective of section 18, and that section 18 only applies to an independent contractor and not to a servant. In Hildesheimer v. Dunn1 Kekewich, J., takes this view. He says: "I entertain a strong opinion that when a person has composed verses, we will say on behalf of another, that is to say as his servant or agent, whether for pay or not, the person on whose behalf such verses are composed is properly registered under the Act as the proprietor, notwithstanding that there is no assignment in writing or indeed any assignment at all." SECTION V.-THE ASSIGNEE. ... Before Publication.-Before a manuscript has been published the right to publish and acquire the copyright may be assigned so that on publication the copyright will be the property of the assignee. If the publication takes place during the lifetime of the author, the assignee takes the copyright under sections 2 and 3 of the Copyright Act, 1842.2 Section 3 provides "that the copyright in every book which shall, after the passing of the Act, be published in the lifetime of its author . . . shall be the property of such author and his assigns." Section 2 provides that the word "assigns" shall be "construed to mean and include every person in whom the interest of an author in copyright shall be vested, whether derived from such author before or after the publication of any book, and whether acquired by sale, gift, bequest, or by operation of law or otherwise." If the publication takes place after the death of the author, the assignee takes the copyright under section 3, which enacts that "the copyright in every book which shall be published after the death of its author. . . shall be the property of the proprietor of the author's manuscript from which such book shall first be published and his assigns." The possession and |