2 common law,1 but the bulk of authority is in favour of the view that there was, although the delivery up was for destruction only. It is a doubtful point whether section 23 applies to unlawful copies made before registration of the plaintiff's title. Fry, L.J., held that it did not, and therefore in the case of such copies ordered delivery up for destruction as a common law remedy, but refused the statutory remedy of delivery up for the plaintiff's benefit. Jessel, M.R., however, differed from this view, and thought that the 23rd section applied to unlawful copies made before the plaintiff's title was registered. It must also be considered doubtful whether section 23 applies where the defendant's book is not merely a reprint of the plaintiff's. In an Irish case O'Brien, J., said :— "It would be difficult to maintain that under the 23rd section the proprietor of the copyright in a book would acquire the property of all copies of another book which contained printed therein a few pages or passages of his book."6 8 But, whether or not in such a case the plaintiff would be entitled under the section to extraction and delivery up for his benefit of the pirated parts, he is under the general jurisdiction of the Court entitled to delivery up for cancellation. In Warne v. Seebohm the order was that the defendant should first state upon oath what copies of the work exist; secondly, extract from those copies which are in his possession or power and deliver up to the plaintiffs for cancellation all passages copied, taken, or colourably imitated from the plaintiffs' book; thirdly, produce to the plaintiffs, if required by them for examination, the copies after the pirated passages have been extracted.9 Quære whether the Court would order delivery up in an action to which the person who owned the books and paper and at whose expense the printing was executed was not a party.10 1 Colburn v. Simms (1843), 2 Hare, 543. 2 Prince Albert v. Strange (1849), 2 De G. and Sm., 652; Kelly v. Hodge (1873), 29 L. T. (N.S.), 387; Emperor of Austria v. Day (1861), 3 D. F. and J., 217. 3 Hole v. Bradbury (1879), 12 Ch. D., 886; but see Delfe v. Delamotte (1857), 3 K. and J., 581; Stannard v. Harrison (1871), 19 W. R., 811. • Hole v. Bradbury (1879), 12 Ch. D., 886; cf. Colburn v. Simms (1843), 2 Hare, 543. 5 Isaacs v. Fiddemann (1880), 49 L. J. Ch., 412. 6 Rooney v. Kelly (1861), 14 Ir. C. L. R., per O'Brien, J., at p. 171. 7 Warne v. Seebohm (1888), 39 Ch. D., 73. 9 Warne v. Seebohm (1888), 39 Ch. D., at p. 83. 8 Ibid. 10 Colburn v. Simms (1843), 2 Hare, 543; Hole v. Bradbury (1879), 12 Ch. D., 886. Customs Act.-The Customs Laws Consolidation Act, 1876,1 provides for the seizure of foreign books, and in this respect is somewhat inconsistent with section 17 of the Copyright Act. Section 42 of the Customs Act prohibits the importation of books "first composed or written or printed in the United Kingdom and printed or reprinted in any other country, as to which the proprietor of such copyright or his agent shall have given to the Commissioners of Customs a notice in writing duly declared 2 that such copyright subsists, such notice also stating when such copyright will expire." On reference to section 17 of the Copyright Act it will be noticed that the prohibition there is as to books "reprinted in any country or place outside the British dominions." Quære does the provision in the Customs Act enlarge the protection by the words "printed or reprinted in any other country"? Does this include the colonies? Again it will be noticed that the Copyright Act has no condition as to notice to the Commissioners of Customs. Quare is the notice required by the Customs Act a condition precedent to all protection from unlawful importation, and in this respect does the Customs Act limit the provisions of the Copyright Act, or is the Customs Act merely directory to the Custom-house officials? To be on the safe side the notice should always be given. Section 44 of the Customs Act provides for the keeping of a list of books as to which notice has been given, and section 45 entitles any person who shall have cause to complain of the insertion of any book in such list to apply to a judge at chambers for the rectification thereof. Every Offence.-Each separate transaction of sale or importation will constitute a separate offence, for which a separate penalty of £10 will accrue.3 It would seem that 'every such offence" does not, as in the Artistic Copyright Act, mean "or the sale or importation of every copy."4 Limitation of Action.-Section 26 of the Copyright Act, 1842, enacts, "that all actions, suits, bills, indictments or informations for any offence that shall be committed against this Act shall be brought, sued, and commenced within twelve calendar months 239 & 40 Vict. c. 36, sec. 44. 1 39 & 40 Vict. c. 36, sec. 42. 3 Brooke v. Milliken (1789), 3 T. R., 509. 1 next after such offence committed, or else the same shall be void and of none effect." It is clear that even although the remedy for one offence is barred, that in no way extinguishes the owner's right, and the owner may sue for subsequent offences; 1 thus although a piratical book has been printed and published more than twelve months before action brought, yet the owner will be entitled to sue in respect of sales, &c., made within the twelve months. In a Scotch case, Stewart v. Black,2 it seems to have been held by Lord President Boyle that the limitation in the 26th section did not apply to an action of damages for infringement, and Malins, V.C., says obiter in Weldon v. Dicks, that in his opinion the limitation only applies to an action for penalties. It is submitted that Stewart v. Black, if applied to books published after 1842, is wrong, and that the dictum of Malins, V.C., in Weldon v. Dicks, is also wrong. The section seems sufficiently clear and applicable to all actions brought in respect of an infringement of copyright. The argument contra seems to be based on the use of the words "for any offence that shall be committed," from which it is argued, that penalties only are pointed at. Offence, however, is used in the 15th section as applicable to infringement of copyright not involving penalties. In cases where the Public Authorities Protection Act applies, the shorter limitation of six months must be substituted.4 Pleading. The defendant is required to give to the plaintiff a notice in writing of any objections on which he means to rely on the trial of the action. If the defendant intends to dispute that the plaintiff is author or first publisher, or that he is proprietor, he must state the name of the person whom he alleges to be the author or proprietor, together with the title of the book and the time when, and the place where, such book was first published. It has been said to be sufficient, in the case of an old publication, to state the year of first publication without stating the day and month in the notice of objections." 1 Hogg v. Scott (1874), L. R., 18 Eq., 444; see Macmillan v. Suresh Chunder Deb (1890), Ind. L. R., 17 Calc., 951. 2 (1846), 9 D., 1026; and see Clark v. Bell (1804), Mor. Dic., Literary Property, App., 9. 3 (1878), 10 Ch. D., 247, at p. 262. 456 & 57 Vict. c. 61; Muddock v. Blackwood [1898], 1 Ch., at p. 64. 5 5 & 6 Vict. c. 45, sec. 16; Hole v. Bradbury (1879), 12 Ch. D., 886. Boosey v. Davidson (1846), 4 Dow. and Low, at p. 155. The notice of objections must be specific, and give full notice of the nature of the defence. If the defence is that the book has not been registered at all, that must be stated. If a faulty registration is relied on, it is not sufficient to deny that the book has been duly registered; the notice must state what the particular objection to the registration is. If the plaintiff's title is denied, it will not do merely to state that the proprietor " is some person unknown, but not the plaintiff;" the full particulars as required by the section must be given. In objecting to the registration, however, it is not necessary for the defendant to state what the correct entry should be. Thus if he says the time of first publication is wrongly entered, he does not require to specify the true date of first publication. It is unnecessary to deliver a separate "Notice of Objections," as was the practice at one time, it is sufficient if it is incorporated in the defence. A suggestion of defective title contained in an affidavit would not be sufficient.8 If a defective title is apparent from the plaintiff's own statement of claim or evidence, the action would probably be dismissed by the Court, proprio motu, even although the defendant had not given notice of objection. Leave to amend the pleadings and take further objection may be allowed on conditions under the judicial discretion given by the Rules of the Supreme Court,10 but if the objection be merely technical, the Court will not give leave to amend, unless, perhaps, the plaintiff had otherwise fair notice that the objection might be taken.12 It has been held by a County Court judge that section 16 of the Copyright Act does not apply to proceedings in the 1 Collette v. Goode (1878), 7 Ch. D., 842; Boosey v. Purday (1846), 10 Jur., 1038; Boosey v. Davidson (1846), 4 D. and L., 147; Leader v. Purday (1849), 7 C. B., 4; Barnett v. Glossop (1835), 1 Bing. N. C., 633; 1 Scott's Rep., 621. 886. 2 Chappel v. Davidson (1856), 18 C. B., 194. 3 Collette v. Goode (1878), 7 Ch. D., 842. 4 Boosey v. Davidson (1846), 4 D. and L., 147; Hole v. Bradbury (1879), 12 Ch. D., 5 Ibid. 6 Collette v. Goode (1878), 7 Ch. D., 842. 7 Sweet v. Benning (1855), 16 C. B., 459; Cocks v. Purday (1848), 5 C. B., 860. 8 Hayward v. Lely (1887), 56 L. T. (N.S.), 418. Coote v. Judd (1883), 23 Ch. D., 736; Hole v. Bradbury (1879), 12 Ch. D., 886; Collette v. Goode (1878), 7 Ch. D., 842; but see Leader v. Purday (1848), 6 Dow. and Low, 408. 10 Collette v. Goode (1878), 7 Ch. D., 842. 11 Ibid. 12 Hayward v. Lely (1887), 56 L. T. (N.S.), 418. County Court, as that Court was created after the date of the Act.1 The plaintiff may be ordered to specify the particular passages which he is prepared to prove have been pirated from his work.2 Evidence. The great test of piracy is coincidence of blunders, and when some passages are proved by the recurrence of blunders to have been copied, other passages which are the same with passages in the original book are presumed primâ facie to be likewise copied, although no blunders occur in them.3 It will greatly prejudice the defendant if his manuscript is not produced or accounted for.4 A denial by the defendant that he has made any use whatsoever of the plaintiff's work raises a presumption of piracy if it is shown that he must have made some use of it, however fair.5 To prove that A on a certain date heard certain music performed from printed sheets, is no evidence that the music was published as a book at that date.R Discovery. The defendant is entitled to administer interrogatories to ascertain the extent of the sale of plaintiff's book, and to enable the defendant to ascertain the damages and pay into Court. 7 The plaintiff is entitled to interrogate as to the original sources from which the defendant alleges his work to have been compiled.8 Mode of Trial.-Formerly the question of piracy or no piracy and the amount of damages was frequently tried by jury, but now the trial of the action is almost invariably before a judge alone, either in the Chancery or the King's Bench Division. Either party may ask for a trial by jury, but not as a matter of right, it is a matter entirely in the discretion of the Court and semble that the onus lies on the party applying 708. 1 Harris v. Smart (1889), W. N., 92, 5 T. L. R. 594. 2 But see Sweet v. Maughan (1840), 11 Sim., 51. 3 Eldon, L.C., in Mawman v. Tegg (1826), 2 Russ., at p. 394. 4 Hotten v. Arthur (1863), 1 H. and M., 603; Jarrold v. Houlston (1857), 3 K. and J., 5 Ibid. 6 Boosey v. Davidson (1849), 13 Q. B., 257. 7 Wright v. Goodlake (1865), 3 H. and C., 540. 8 Kelly v. Wyman (1869), 17 W. R. 399; Stevens v. Brett (1864), 10 L. T. (N.S.), 231. |