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Partial Assignment.—It was laid down in Jefferys v. Boosey1 by Lord St. Leonards that copyright was one and indivisible, and could not be partially assigned. If this is correct, any attempt to assign a partial right would operate if at all as a mere licence. This opinion of Lord St. Leonards was in respect of the statute of Anne. It seems to be more or less accepted that under the statute of Victoria copyright is divisible; that there may be partial assignment limited as to place,2 e.g. provincial rights, right to publish in a particular country, or limited as to the nature of the right, e.g. the right to dramatize, the right to translate. This view appears to be based on section 13 of the Act of Victoria, which enacts that a registered proprietor may assign his interest or any portion therein by making entry on the register. I do not think that this provision in itself is conclusive or that it necessarily follows that a copyright can be split up and partially assigned. Section 13 may merely mean that the owner can assign a certain undivided share in his copyright to another. Cotton, L.J., in Trade Auxiliary v. Middlesborough,5 refers to Lord St. Leonards' doctrine. He does not disapprove of it, but he distinguishes the case of common ownership in a copyright from the case of a partial assignment as to place.

In a case decided in the Supreme Court of New South Wales, it was held that the assignee of a performing right limited to the Australian colonies could sue in his own name for infringement. The Court distinguished between the performing right and the copyright. They said that even although the copyright, in accordance with Lord St. Leonards' opinion, was not divisible the performing right was.7

In any view of partial assignment I do not think there can be partial assignment as to time. Such an assignment would create an estate in possession and reversion in personal property, and there is no reason for holding that copyright is any

1 (1854), 4 H. L. C., 815.

2 Taylor v. Neville (1878), 26 W. R., 299; Tree v. Bowkett (1895), 74 L. T. (N.S.), 77 ; see doubt expressed in Shepherd v. Conquest (1856), 17 C. B., at p. 436.

3 Lucas v. Cooke (1880), 13 Ch. D., 872.

4 5 & 6 Vict. c. 45, sec. 13.

5 (1889), 40 Ch. D., 434, 435.

6 Holt v. Woods (1896), 17 N. S. W. R., Eq., 36.

7 See ex parte Dobson (1892), 12 N. Z. L. R., 171.

8 See contra Howitt v. Hall (1862), 6 L. T. (N.S.), 348; Sweet v. Cater (1840), 11 Sim., 572; Davidson v. Bohn (1848), 6 C. B., 458.

exception to the general rule that such an interest cannot be created in personalty. Equitable estates, limited as to time, can no doubt be created as in the case of any other personal property.1 What purports to be an assignment limited as to time must as a rule be treated as a licence.

Assignment distinguished from Licence.-The distinction between an assignment and a licence must be carefully observed; questions of the utmost importance will often depend on whether a transaction was one or the other. An assignment is a conveyance of the right denuding the grantor and carrying to the grantee the whole interest including the right to sue and the right to re-assign, whereas a licence is only a personal permission to the grantee to infringe the grantor's right, and carries with it no right of action except in the grantor's name. In determining whether a particular transaction is an assignment or a licence, the first question is whether, on a true construction of the statute, the right purported to be given can be given by assignment or only by licence. If the right is one so limited that it cannot legally be the object of assignment, the transaction must necessarily be a licence; but if it can legally be the object of assignment, the further question arises as to what was the intention of the parties as evidenced by what they have said and done. There may often be clear words to show what was intended, but more often it may never have occurred to the parties that there was any distinction between an assignment and a licence, and the form used will consequently be ambiguous. The principal test in such cases is to examine the contract and the circumstances under which it was made, and see whether or not it bears the impress of a reliance by the grantor on the personal skill or reputation of the grantee. If it does a licence will be presumed rather than an assignment; for instance, in a publishing agreement a licence only will be presumed, since either the pocket or the reputation of the author. would suffer if the right of publication were to pass into incompetent hands.2

1 Rippon v. Norton (1839), 2 Beav., 63.

2 Hole v. Bradbury (1879), 12 Ch. D., 886; Stevens v. Bradbury (1854), 1 K. and J., 168; Reade v. Bentley (1857), 3 K. and J., 271; Cooper v. Stephens [1895], I Ch., 567; ex parte Bastow (1854), 14 C. B., 631.

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SECTION VI.-THE LICENSEE.

Whether a bare licensee can bring an action for infringement without joining the legal owner of the copyright is open to doubt. It is submitted that he cannot. The essence of a licence proper is that it is merely a personal relationship between a licensor and a licensee whereby the latter is permitted to infringe the former's copyright. The old cases are not satisfactory. The distinction between partial assignment and licence is not clearly drawn, and the result is a confusion of the respective rights of the assignee and the licensee. In several cases it was said that licensees could sue1 but quære whether they were not really partial assignees. It has also been said that an owner of copyright who has granted an exclusive licence cannot sue in respect of an infringement which touches only the rights included in such licence, unless such owner has the consent of his licensee. This again, it is submitted, is not a correct statement of the law, and arises from a confusion between a partial assignee and a licensee. In Taylor v. Neville3 the grant of provincial performing rights although called a licence was really treated as an assignment and distinguished from a "merely personal licence." It is submitted that a licence proper is always "merely personal" and that the grantor may sue without consent of his licensee. Where a licence has been granted or when there is doubt as to whether a particular grant is an assignment or a licence, it will always be safer to join both grantor and grantee as co-plaintiffs. A licence will not be presumed to be a sole licence, and unless it is expressly stated, or must necessarily be implied from the circumstances that it is so, the first licensee cannot restrain the licensor from granting, or a second licensee from acting on, a second licence.*

1 Trade Auxiliary v. Middlesborough (1889), 40 Ch. D., 425, per Cotton, L.J.; Tuck and Sons v. Canton (1882), 51 L. J., Q. B., 363; Sweet v. Cater (1841), 11 Sim., 572. 2 Taylor v. Neville (1878), 26 W. R., 299; Tree v. Bowkett (1895), 74 L. T., 3 (1878), 26 W. R., 297.

77.

4 Warne v. Routledge (1874), L. R., 18 Eq,, 497; see Sweet v. Cater (1841), 11 Sim., 572; Stevens v. Benning (1855), 1 K. and J., 168.

SECTION VII.-THE EXECUTORS OR ADMINISTRATORS. Copyright is personal property, and descends on the death of an owner to his personal representatives.1 "Assigns" is expressly interpreted to include one taking by bequest or by operation of law. The common law property in the manuscript passes on the death of the owner in the same way as copyright. A bequest of "all my books" has been held to include valuable manuscript notes left by a physician.2

SECTION VIII.-THE TRUSTEE IN BANKRUPTCY.

Copyright comes within the vesting section of the Bankruptcy Act and passes to the trustee of a bankrupt owner.3 A bankrupt's unpublished works, probably, cannot be published for the benefit of his creditors without his consent.

1 Latour v. Bland (1818), 2 Stark, 382.

2 Willis v. Curtois (1838), 1 Beav., 189.

3 See Mawman v. Tegg (1826), 2 Russ., at p. 392.

CHAPTER IV

INFRINGEMENT OF COPYRIGHT IN BOOKS

SECTION I.-PROHIBITED ACTS, AND REMEDIES. COPYRIGHT is defined by the Copyright Act, 1842, as "the sole and exclusive liberty of printing or otherwise multiplying copies." Any invasion of this monopoly is an infringement of copyright. Besides infringement of copyright, i.e. illegal copying, the Act makes it an offence to deal in certain ways with unlawful copies. The offences against copyright and the owner's remedies may be conveniently summarised as follows:

For the following offences:1

i. Piratical copying.

ii. Importing for sale or hire unlawfully printed books. iii. Selling or hiring, or having in possession for sale or hire, unlawfully printed books, knowing the same to be unlawfully printed.2

iv. Causing any of the above acts to be done.

The remedies 3 are an action in a Court of Record for:

1. Damages and account of profits.

2. Delivery up of copies.

3. Injunction.

For the following offences : ——

v. Importing without the consent of the proprietor a foreign copy or copies, i.e. printed outside the British dominion.

1 5 & 6 Vict. c. 45, secs. 15 and 2.

2 See Butterworth v. Kelly (1888), 4 T. L. R., 430; Leader v. Strange (1849), 2 Car. and K., 1010.

3 5 & 6 Vict. c. 45, secs. 15 and 23. The remedies given by these two sections are cumulative, and may be recovered by one action; Muddock v. Blackwood [1898], 1 Ch., 58. 4 5 & 6 Vict. c. 45, sec. 17; 39 and 40 Vict. c. 36, sec. 42.

5 Ignorance will not excuse in the case of importing, but contra in the case of selling or hiring, Cooper v. Whittingham (1880), 15 Ch. D., 501.

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