Sect. 3 of that Act provides that "all copyright under the Act shall be deemed personal or movable estate, and shall be assignable at law, and every assignment thereof, and every licence to use or copy by any means or process the design or work which shall be the subject of such copyright, shall be made by some note or memorandum in writing, to be signed by the proprietor of the copyright, or by his agent appointed for that purpose in writing.

Sect. 4, after providing for the keeping at the Hall of the Stationers' Company a book or books entitled "The Register or Proprietors of Copyright in Paintings, Drawings, and Photographs" enacts that therein "shall be entered a memorandum of every copyright to which any person shall be entitled under this Act, and also of every subsequent assignment of any such copyright; and such memorandum shall contain a statement of the date of such agreement or assignment, and of the names of the parties thereto, and of the name and place of abode of the person in whom such copyright shall be vested by virtue thereof, and of the name and place of abode of the author of the work in which there shall be such copyright, together with a short description of the nature and subject of such work, and, in addition thereto, if the person registering shall so desire, a sketch, outline, or photograph of the said work, and no proprietor of any such copyright shall be entitled to the benefit of this Act until such registration, and no action shall be sustainable nor any penalty be recoverable in respect of anything done before registration."

This enactment, although it prevents an assignee from suing for penalties before the assignment to him has been registered, does not render it necessary in order to entitle him to sue, that all, or any previous assignments should also be registered, or that the copyright of the original author should be registered. (a)

In the case of paintings, drawings, and photographs, as already stated, no equitable title can be acquired by a parol agreement to assign. (b)

PART I.

CHAPTER XV

models aud

Copyright in works of sculpture may be assigned to Sculpture purchasers by deed signed by the proprietor or pro- busts. prietors, in the presence of, and attested by, two or more witnesses.(c)

Sect. 8 of the International Copyright Act, 7 Vict. c. 12, International provides that all the enactments contained in the Copyright copyright. (a) Graves's case (L. Rep. 4 Q. B. 715; 20 L. T. N. S. 877)

(b) Strahan v. Graham (16 L. T. N. S. 87),

(c) See 54 Geo. 3, c. 156, s. 4. Appendix, post,

PART I.

Amendment Act of 5 & 6 Vict. c. 45, as to entries and CHAPTER XV. assignments of copyright and proprietorship, shall apply to the books, dramatic pieces, and musical compositions, prints, articles of sculpture, and other works of art to which any Order in Council issued in pursuance of the International Copyright Act shall extend; except that the forms of entry prescribed by the 5 & 6 Vict. c. 45, may be varied to meet the circumstances of the case, and that the sum to be demanded by the officer of the Stationers' Company for making any entry required by the International Copyright Act shall be one shilling only. The subsequent Act, 15 Vict. c. 12, to extend and explain the International Copyright Acts, incorporates 7 Vict. c. 12, with which it is to be read and construed as one Act. (a) All the provisions, then, of 5 & 6 Vict. c. 45, with respect to the mode of assignment, apply to assignments of the foreign copyright conferred by the International Copyright Acts.

Foreign copyright, under the International Copyright Acts, may, therefore, be assigned either, first, by writing, which need not be under seal; or, secondly, by making entry in the book of registry at Stationers' Hall of such assignment, and of the name and place of abode of the assignee thereof.

Piracy in general.

CHAPTER XVI.

PIRACY.

PIRACY is the infringement of copyright. It would not be easy, perhaps, to give any other definition of piracy which would apply to the infringements of property in all the different subjects in which our law now confers a copyright; but the leading and distinguishing feature of piracy is, that it reproduces the pirated work in such a manner as to interfere with the profit and enjoyment which the proprietor derives from it. (b) Yet everything that does this by

(a) Sect. 10 of 15 Vict. c. 12.

(b)"It is enough that the publication complained of is in substance a copy, whereby a work vested in another is prejudiced:" (Lord Ellenborough in Roworth v. Wilks, 1 Camp. 98.) "If so much is taken that the value of the original is sensibly diminished, or the labours of the original author are substantially to an injurious extent appropriated by another, that is sufficient in point of law to constitute a piracy pro tanto" (Story, J., in Folsom v. Marsh, 2 St. Rep. 115.) "The inquiry is, what effect must the extracts have upon the original work. If they render it less valuable by superseding its use in any degree the right of

PART I.

no means lays the author of the interference open to the charge of piracy. For example, a bona fide abridgment of a book CHAPTER XVL may seriously impair the profit which the proprietor of the larger work derives from it, at the same time that it subjects. the author of the abridgment to none of the penalties which the law attaches to piracy. Nevertheless, where the act done is not one of those which are in express terms prohibited by statute, no finer test of piracy has been applied in the various cases on record than that of the degree in which one work interferes, by reproduction, with the benefits derivable from another work in which copyright exists. It may well be supposed that a test of this character has afforded scope for variance of opinion, and that many litigated cases have arisen with respect to its application. It will be well to treat the subject separately as to each class of productions in which piracy may be committed.

Books.

copies.

As piracy is the infringement of copyright, and copyright Only by multiis defined by 5 & 6 Vict. c. 45, to mean "the sole and plication of exclusive liberty of printing or otherwise multiplying copies of any subject" to which the word is applied in the Act, it follows that piracy can be committed in no other manner than by the multiplication of copies. (a)

So long ago as 1793(b) it was held that the public recitation from memory of any production in which copyright existed was not a piratical publication. In that case (an action for infringement of copyright in a dramatic piece) which was decided under the Act of Anne, Buller, J., observed: "Reporting anything from memory can never be a publication within the statute. Some instances of strength of memory are very surprising, but the mere act of repeating such a performance cannot be left as evidence to the jury that the defendant had pirated the work itself." The law did not at that time give the author of a dramatic piece the sole right of representing it, and the decision goes simply to the extent of showing that public recitation from memory is not a publication of a literary work. In the similar case of Murray v. Elliston (c) in 1822, the Court of King's the author is infringed: it can be of no importance to know with what intent this was done:" (M'Lean, J., in Story's Executors v. Holcombe, 4 M Lean, 310.)

(a) A translation may be called a transcript or copy of the author's though, or conception, but in no correct sense can be it called a copy of his book: (Stowe v. Thomas, 2 Amer. Law Reg. 231).

(b) Coleman v. Wathen (5 T. R. 245).

(c) 5 B. & Ald. 657.

PART I.

Bench was of opinion that such a mode of publication gave CHAPTER XVI. no right of action.

Gratuitous distribution of copies.

The law remains the same under the more recent Act of 5 & 6 Vict. c. 45, as the case of Reade v. Conquest(a) shows. In that case, a novel written by the plaintiff had been dramatised by the defendant and performed at his theatre. This was treated by the plaintiff as an infringement of the copyright in his book, and he brought an action to recover the penalty imposed by 5 & 6 Vict. c. 45, for such alleged infringement. But the Court of Common Pleas, following the decision in Coleman v. Wathen, (b) held that the defendant had not infringed the plaintiff's copyright in his book by dramatising it and publicly performing it at his theatre.

Even if the public recitation of a book in which copyright exists is not made from memory, but takes the form of a public reading out, from the work itself, of the whole or portions of it, this would not amount to an infringement of the author's copyright. (c)

But, although the whole work might be read out or dramatised, copies of the work so read out or dramatised cannot, without infringing the copyright, be distributed and sold to the audience, though for the mere purpose of assisting them to follow the representation or reading. (d)

A multiplication of copies for the purpose of gratuitous distribution is as much an infringement of the proprietor's copyright as if the multiplication had been made for purposes of pecuniary profit. Thus, where a member of a Philharmonic Society desiring to have a particular piece of published music performed at a concert of the society to which, besides the members, other persons were admitted for money, caused a number of copies of the piece of music to be lithographed and distributed amongst the members of the choir without the consent of the proprietor of the copyright, this was held to be an illegal multiplication of copies, and a violation of the proprietor's right. (e)

The same view has been taken by the Scotch Court of Session in a case of gratuitous circulation. (f)

Where an original catalogue of old and curious books in the possession of a bookseller, intended merely as an advertisement of the books, was in great part copied and published as his own by a rival bookseller, who had a similar

(a) 9 C. B. N. S. 755; 30 L. J. 209, C. P.
(c) Per Wood, V.C., in Tinsley v. Lacy (1

535, Ch.; 11 W. R. 877).

(e) Novello v. Sudlow (12 C. B. 177).

(b) 5 T. R. 245. H. & M. 747; 32 L. J. (d) Ib.

(ƒ) Alexander v. Mackenzie (9 Scotch Sess. Cas. 2 Ser. 748).

PART L

stock of old books to dispose of, this was held to be an
infringement of the copyright in the original catalogue, CHAPTER XVL
though the second catalogue was not offered for sale, but
merely used to promote the sale of the books mentioned
in it. (a)

an author may

Anything like absolute originality in the composition of a To what extent work nowadays seems to be almost an impossibility. The use another's range of human ideas on any subject is limited, and the work. productions of the busy brains and pens of preceding

thinkers are so numerous, that, if books are to be written, the Seeg cute. writers must be, to some extent at least, beholden for their materials to those who have written before. If no copyright exist in a work, of course subsequent writers may make of it what use they like, and reproduce it to any extent they please. But if a copyright does exist in it, then the important and somewhat difficult question arises, in what manner and to what extent may subsequent authors make use of the materials contained in it without an infringement of the copyright. In other words, how far may one writer avail himself of the product of another's labour in which copyright exists, without subjecting himself to the charge of piracy?

The answers to the question, what amounts to piracy? rests of piracy. given by different judges, have been variously expressed; but they all point to the conclusion that the question must be treated as one of fact, to be determined with reference to the peculiar circumstances of each individual case; and this question of fact may be determined differently by judges who are at one as to the principle. (b) A summary of the principal tests of piracy which have been given by the most eminent judges will furnish, perhaps, the clearest idea of the nature of the offence, and, consequently, of the degree of liberty allowed to an author in the use of the copyright. works of his predecessors.

Lord Eldon stated the test to be-whether the one publication is 66 legitimate use of the other in the fair exercise of a mental operation deserving the character of an original work." (c)

According to Vice-Chancellor Kindersley, an illegitimate or unfair use of another's work is that which amounts to "such

(a) Hotten v. Arthur (1 H. & M. 603; 9 L. T. N. S. 199; 32 L. J. 771, Ch.; 11 W. R. 934).

(See Pike v. Nicholas, 20 L. T. N. S. 906; 38 L. J. 529, Ch.; L. Rep. 5 Ch. App. 251; where Vice-Chancellor James thought that the defendant had pirated the work of the plaintiff, whereas the Lords Justices of Appeal considered that the use made of the plaintiff's work did not amount to a piracy of it.

(c) Wilkins v. Aikin (17 Ves. 426).