PART I.

to restrain the publication, not only of certain unpublished etchings belonging to the plaintiff, but even of a descriptive CHAPTER XVII catalogue of them.

Equity has also restrained the unauthorised publication of works not previously published, in the case of a conveyancer's clerk, who sought to publish the conveyancing drafts of his deceased master, (a) and in the case of an attempted publication of notes belonging to another which had been surreptitiously obtained. (b) The Court of Chancery also restrained the publication of a certain paper of trials which the applicant for its aid had bought from the Lord Mayor.(c)

In the case of the Duke of Queensberry v. Shebbeare, (d) the defendant was restrained from publishing the Earl of Clarendon's History of the Reign of Charles II., though the Earl of Clarendon had in his lifetime given the defendant permission to take a copy of the original manuscript.

An injunction will also be granted to restrain the publication of letters, except in such cases as are mentioned in chapter ii. of this work. (e) The nature of the property which the writer of letters has in them, is explained in that chapter.

The property in unpublished engravings, maps, and charts, would of course be protected in a similar manner.

In the case of Abernethy v. Hutchinson, (f) an injunction was granted to restrain the publication of oral lectures delivered to medical students at a hospital, on the ground of an implied contract between the lecturer and his hearers that the latter should only make use of them for their own information. The property in oral lectures is now regulated by 5 & 6 Will. 4, c. 65.(g)

PUBLISHED WORKS.

Sect. 1.-Remedies at Law.

In the case of published works the same remedies are open to the proprietor as in the case of unpublished works, and in addition, special penalties for infringement are by

(a) Webb v. Rose (cited 4 Burr. 2330). (b) Forrester v. Waller (lb.).

(d) 2 Eden. 329.

(c) Manley v. Owen (Ib. 2329).

(e) Vide ante, pp. 15-18; Pope v. Curl (2 Atk. 342); Thompson v. Stanhope (Amb. 737); Percival v. Phipps (2 V. & B. 19); Gee v. Pritchard (2 Swanst. 402); per Story, J., in Folsom v. Marsh (2 St. Rep. 100, 111).

(ƒ) 1 H. & T. 39; 3 L. J. 209, Ch.; ante, pp. 19, 20.

(g) Vide ante, pp. 20-22.

PART I.

Remedy for

by action on the

case.

statute made recoverable from the offender. The enactCHAPTER XVII. ments relating to the remedy by action at law are as follow: 5 & 6 Vict. c. 45, s. 15, enacts "that if any person shall in piracy of books any part of the British dominions, after the passing of this Act, print or cause to be printed, either for sale or exportation, any book in which there shall be subsisting copyright, without the consent in writing of the proprietor thereof, or shall import for sale or hire any such book so having been unlawfully printed, from parts beyond the sea, or, knowing such book to have been so unlawfully printed or imported, shall sell, publish, or expose to sale or hire, or cause to be sold, published, or exposed to sale or hire, or shall have in his possession for sale or hire, any such book so unlawfully printed or imported, without such consent as aforesaid, such offender shall be liable to a special action on the case at the suit of the proprietor of such copyright, to be brought in any court of record in that part of the British dominions in which the offence shall be committed."

The same section provides that "in Scotland such offender shall be liable to an action in the Court of Session in Scotland, which shall and may be brought and prosecuted in the same manner in which any other action of damages to the like amount may be brought and prosecuted there."

An interesting point on the construction of this section came before the Court of Common Pleas for decision in the case of Novello v. Sudlow, (a) in which the defendant had published, unauthorised, a piece of music of the plaintiff's by gratuitously distributing lithographed copies of it. The words of the interpretation clause of 5 & 6 Vict. c. 45, are wide enough to embrace such a case, as it defines copyright to be "the sole and exclusive liberty of printing or otherwise multiplying copies of any subject" to which the word is applied in the Act; thus protecting literary works from unauthorised multiplication by other means than the press. But sect. 15 gives the remedy by special action on the case only where anyone shall "print or cause to be printed" any book for sale, hire, or exportation. Did this clause operate to take away the common law remedy by action in all other cases than those which it enumerates? If so, the plaintiff in that action could not recover; if it did not, then the ordinary rule by which the common law gives an action on the case for the violation of rights conferred by statute, would apply, and would render the unauthorised multiplication of copies by lithography the proper subject of an action. The court held that sect. 15 did not take away the common law (a) 12 C. B. 177.

PART I.

remedy by action in cases of multiplication of copies, not enumerated in that section, and that if otherwise construed CHAPTER XVIL it would destroy the effect of the words "otherwise multiplying" in the interpretation clause.

Any doubt that existed on the subject of multiplication of copies by lithography is now put an end to by sect. 14 of 15 & 16 Vict. c. 12, which declares that the provisions of the Copyright Acts shall apply to prints taken by lithography, or any other mechanical process by which prints or impressions of drawings or designs are capable of being multiplied indefinitely. (a)

In a case decided under the repealed statute 9 Geo. 2, c. 36 [see now 5 & 6 Vict. c. 45, sec. 17], it was held that two penalties might be recovered from the defendant for two distinct acts of selling, on the same day, pirated copies of books imported into this country. One act of sale was by the defendant himself in the morning, the other by his wife in the afternoon in an open shop. (b)

The defendant in an action of piracy must give notice in writing of the objections to the plaintiff's title on which he means to rely on the trial.

Sect. 16 provides, "that after the passing of this Act, in any action brought within the British dominions against any person for printing any such book for sale, hire, or exportation, or for importing, selling, publishing, or exposing to sale or hire, or causing to be imported, sold, published, or exposed to sale or hire, any such book, the defendant, on pleading thereto, shall give to the plaintiff a notice in writing of any objections on which he means to rely on the trial of such action; and if the nature of his defence be that the plaintiff in such action was not the author or first publisher of the book in which he shall by such action claim copyright, or is not the proprietor of the copyright therein, or that some other person than the plaintiff was the author or first publisher of such book, or is the proprietor of the copyright therein, then the defendant shall specify in such notice the name of the person whom he alleges to have been the author or first publisher of such book, or the proprietor of the copyright therein, together with the title of such book, and the time when and the place where such book was first published, otherwise the defendant in such action shall not at the trial or hearing of such action be allowed to give any evidence that the plaintiff in such action was not the author (a) See also Boosey v. Tolkien (5 C. B. 476).

(b) Brooke v. Milliken (3 T. R. 509). See Ex parte Beal (9 B. & S. 395; ante, p. 210).

Defendant to give notice of

the objections to plaintiff's title on which

he

rely.

means to

PART 1.

or first publisher of the book in which he claims such copyCHAPTER XVII. right as aforesaid, or that he was not the proprietor of the copyright therein; and at such trial or hearing no other objection shall be allowed to be made on behalf of such defendant than the objections stated in such notice, or that any other person was the author or first publisher of such book, or the proprietor of the copyright therein, than the person specified in such notice, or give in evidence in support of his defence any other book than one substantially corresponding in title, time, and place of publication with the title, time, and place specified in such notice."

Plea of not guilty.

Requisites of sect. 16 must

be strictly complied with.

A plea of not guilty merely, in an action for infringement of copyright, only denies the alleged infringement, whether it be selling, printing, &c., or whatever be the wrongful act; it does not deny the copyright of the plaintiff. This must be done by a special plea. (a)

The requisites laid down by sect. 16 as to the notice of objections must be strictly complied with. Thus a general objection to the plaintiff's title to copyright in a book that some person whose name is to the defendant unknown, and not the plaintiff, was the proprietor of the said copyright, was held in Boosey v. Davidson (b) not sufficient to satisfy the words of the section, which require the defendant in such a case to specify in his notice of objections "the name of the person whom he alleges to have been the author or first publisher of such book, or the proprietor of the copyright therein."

"The Copyright Act," says Wightman, J., "throws on a defendant, if he seek to defend the infringement on the ground that the plaintiff is not the proprietor, the onus of showing who is, in order that the plaintiff may not be taken by surprise at the trial."(c)

In the subsequent case of Boosey v. Purday (d) the judges of the Court of Exchequer took a less strict view of the requirements of the section, and pointed out the inconveniences which would follow from a rigid adherence to its words. Alderson, B., addressing the counsel, who moved for a rule to amend the notice of objections given in that case, said, "Suppose a man were to enter his name at Stationers' Hall as proprietor of the 'Eikov Baoiλin; according to your argument he would acquire the property in it, for it would puzzle excessively to find out the author of that book; or, as proprietor of the works of Homer-that

(a) See No. 16 of the Pleading Rules, T. T. 1853.

(b) Boosey v. Davidson (4 Dow. & L. 147). See also Leader v. Purday (7 C. B. 4). (c) 4 Dow. & L. 153. (d) 10 Jur. 1038.

PART I.

would raise the question, was there such a man ?" Rolfe, B., observed" the Court must endeavour to get at some construc- CHAPTER XVII. tion of the statute which shall not force a man to say who first published at one place or another. It may have been that the defendant saw the work at both places." Alderson, B., added "The defendant in his objections ought to show a definite publication by somebody. That construction will remove all the absurdity which otherwise would follow from a literal interpretation of the statute."

Where the defendant intends to rely on the objection that the plaintiff in the action was not the author or first publisher of the book, or the proprietor of the copyright, sect. 16 requires that he should specify, in addition to the name of the proprietor or first publisher, the title of the work, the time when, and the place where, the first publication took place.

first published.

"The time when" is sufficiently specified by naming the "Time when " year of the first publication; it is not necessary to name the day or month. (a)

first published.

"The place where" a book was first published is not suffi- "Place where " ciently specified by a statement that "the work was not first printed or published in the British dominions."(b)

vague.

The following objections were also considered too vague, Objections too and were struck out: "That the plaintiff never acquired any title by assignment or otherwise" to the copyright claimed ; "that there was no valid assignment of the copyright to the plaintiff, or to anyone under whom he claims," the word valid being ordered to be struck out; "that there is no copyright in a work first published out of the British dominions, under such circumstances as the books in question were published" under. (c)

Where, in an action for piracy at the suit of two plaintiffs, it appeared that the defendant had published the work in question pursuant to the conditions of a cognovit, given by him to one of the plaintiffs and one P. in a former action for not performing an agreement to write the same work, this was held to be a sufficient defence to the action for infringement of the plaintiff's copyright. (d)

action.

According to the decision of the Irish Court of Queen's Declaration in Bench in Rooney v. Kelly, (e) it is not necessary, in an action for the infringement of copyright in a book, to aver that the

(a) Boosey v. Davidson (4 Dow. & L. 155).

(b) Ib.

(c) lb. The notice of objections as amended is given in a note to this

case, p. 155. See also Boosey v. Purday (10 Jur. 1038).

(d) Sweet v. Archbold (10 Bing. 133).

(e) 14 Ir. Com. L. Rep. 158.