The

Nor would the distribution by a sculptor amongst his friends of copies of a plaster cast taken from the bust of a statue be a publication of the statue itself. (a) exhibition of the picture itself for the purpose of obtaining subscribers to an engraving of it is not a publication of the picture. (b) Nor, as already stated, is the private circulation among friends of lithographic impressions of drawings a publication of the drawings themselves. (c)

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It is by publication of the thing itself that the common law right is lost, and not by the publication of something else that resembles it; so that the author of a literary work does not lose his common law right of property in it before its publication by previously publishing an abridgment of Publication of it.(d)

abridgment.

The public performance of a play by the author's per- Performance mission is not such a publication of it by him as disentitles of a play. him to restrain the unauthorised printing or publishing of it by any other person. This was decided in Macklin v. Richardson. (e) The plaintiff in that case was the author of the farce called "Love à la Mode," which was performed, by his special permission, at the different theatres several times in 1760, and the following years, but never printed or published by him; and it appeared that when the play was over the plaintiff used to take the copy away from the prompter. The defendants employed a short hand writer to go to the playhouse and take down the words of the farce from the mouths of the actors. These notes having been corrected by one of the defendants from his own memory, the first act of the farce was published by them in a magazine called the Court Miscellany, of which they were the proprietors, and notice was given that the second act would be published in the next month's Miscellany. The plaintiff filed a bill to restrain this publication; and the Lord Commissioner (Smythe) granted an injunction. He said, "It has been argued to be a publication by being acted, and therefore the printing is no injury to the plaintiff; but that is a mistake, for besides the advantage from the performance, the author has another means of profit from the printing and publishing; and there is as much reason that he should be protected in that right as any other author."

The acting of a piece is in no case a publication of it. In Coleman v. Wathen(f) the defendant acted on the stage a piece of which the plaintiff had purchased the copyright, and it was sought to make the defendant liable for the (a) 10 Ir. Ch. Rep. 134. (b) Ib. (c) Prince Albert v. Strange, ante p. 50. (d) Ib. 133. (e) Ambl. 694. (f) 5 T. R. 245.

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What conduct is deemed to authorise publication.

penalty under the statute 8 Anne, c. 19, as for an unauthorised publication of the piece. Buller, J., said, "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." (a)

In connection with the author's property in unpublished works an important question arises as to what conduct on his part may be deemed to have authorised their publication.

In the case of letters written and sent to another person we have already seen that the writer does not lose his right to prevent their publication. (b) We have seen also that a licence to act an unpublished play is not a licence to print or publish the play. (c) Nor does the mere gift of copies of the author's work to a few friends amount to an abandonment of his copyright before publication in the work. (d)

Where the author of a musical composition had sold several thousand copies of it in manuscript, a year before it was printed, it was held that he had not thereby lost the copyright. (e) Abbot, C. J., in that case, was of opinion that it was not the intention of the Legislature in conferring a copyright upon authors, to impose on them as a condition precedent, that they should not sell their compositions in manuscript before they were printed.

Nor does the mere parting with the possession of a manuscript, or entrusting its possession to another person, or a permission to that person to take and hold a copy of the manuscript amount to an authorisation of its publication by that other person. Such acts must be deemed strictly limited in point of effect to the very occasions expressed or implied, and ought not to be construed as a general gift or authority for any purposes of profit or publication to which the receiver may choose to devote them. (f) "Suppose," says Willes, J., in Millar v. Taylor, (g) "the original or a transcript was given or lent to a man to read, for his own use; and he publishes it; it would be a violation of the

(a) See also Murray v. Elliston, 5 B. & Ald. 657.

(b) Ante, pp. 11, et seq.

(d) Prince Albert v. Strange, ante, p. 50.

(e) White v. Geroch (2 B. & Ald. 298).

(c) Ante, p. 57.

(f) St. Eq. Jur. 943; See Bartlett v. Crittenden (4 M'Clean, 303; 5 M Clean, 41), where the Court says, "To make a gift of a copy of the manuscript is no more a transfer of the right or abandonment of it than it would be a transfer or an abandonment of an exclusive right to republish, to give the copy of a printed work."

(g) 4 Burr. 2330.

author's common law right to the copy. This never was doubted, and has often been determined."

Where the son of the great Earl of Clarendon gave permission to a Mr. Gwynne to take a copy of the manuscript of his deceased father's "History of the Reign of Charles II.," and Mr. Gwynne's son and administrator sold it to a Dr. Shebbeare, the Court of Chancery, at the suit of the Duke of Queensberry (the personal representative of the Earl of Clarendon and his son), restrained Dr. Shebbeare from printing and publishing the copy of the manuscript. (a) The Lord Keeper Henley said it was not to be presumed that Lord Clarendon (the younger), when he gave a copy of his work to Mr. Gwynne, intended that he should have the profit of multiplying it in print; that Mr. Gwynne might make every use of it, except that.(b) Where, however, the author of a poem had sent it to a bookseller, and had allowed it to remain in his hands unpublished for twenty-three years, Lord Eldon was of opinion that the writer had abandoned his right as an author, and refused to grant an injunction to prevent the publication of the poem by the bookseller. (c) Notwithstanding this decision, the decided cases seem to warrant the rule laid down by Willes, J., in Millar v. Taylor, (d) that "when express consent is not proved, the negative is implied as a tacit condition."

A teacher of the art of book-keeping, who had reduced to writing the system he taught, on separate cards for the convenience of imparting instruction to his pupils, and permitted his students to copy these cards, with a view to their own instruction, and to enable them to instruct others, was held in an American case (e) not to have thereby abandoned these manuscripts to the public, or authorised their publication. "The students," said the court, "who made these copies, have a right to them, and to their use as originally intended. But they have no right to a use which was not in the contemplation of the complainant and of themselves when the consent was first given. Nor can they, by suffering others to copy the manuscripts, give a greater licence than was vested in themselves."

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Where a person contracted for reward to write a certain Alteration of

(a) 2 Eden. 329.

(b) We learn from a note to this case that Dr. Shebbeare afterwards recovered before Lord Mansfield, a large sum against Mr. Gwynne for having represented that he had a right to print the manuscript. (c) Southey v. Sherwood (2 Meriv. 435).

(e) Bartlett v. Crittenden (4 M'Clean, 300).

(d) 4 Burr. 2330.

sold manuscript before publication.

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portion of a book to be published by another, equity will not aid him by injunction to prevent his portion of the work being printed and published inanaltered or mutilated form. (a) Wood, V.C., intimated an opinion, though the point did not arise in the case before him, that, unless there be a special contract, either express or implied, reserving to the author a qualified copyright, the purchaser of a manuscript is at liberty to alter and deal with it as he thinks proper. The court is not moved in such a case by the possible effects of the alterations as affecting the writer's reputation. "The possible effect on reputation," said Wood, V.C., "unless connected with property, is not a ground for coming to this court, though it may be an ingredient for the court to consider, when the question of a right of property also arises." Summary of the To sum up, then, the law relating to the property in unpublished works ::

law.

Manuscripts.

Letters.

Lectures.

Dramatic compositions.

Musical compositions.

The author or owner of unpublished manuscripts has a right independent of statute to the exclusive use of them, and to prevent their publication by any one else.

The writer of letters has a special property in them, and has a right to prevent their publication by the receiver, unless by his own misconduct (for the decided cases go no further than this) he has rendered their publication necessary to the vindication of the receiver's character from some unfounded imputation. And, with respect to this right, there would seem to be no distinction between private letters, or letters of friendship, and letters intended as literary compositions.

The author, or his assignee, of lectures, has now by statute(b) the sole right to publish them, provided notice of the delivering of the lectures shall be given two days at least before the delivery, to two justices living within five miles of the place where they are to be delivered. But the right does not extend to lectures delivered in a university, public school, or college, or on any public foundation, or by any one in virtue of any gift, endowment, or foundation.

The author, or his assignee, of a dramatic composition has a right similar to the foregoing to prevent the printing and publishing of his composition. And he does not lose his exclusive right of printing and publishing it, by allowing it to be represented on the stage. He has now, also, by Stat. 3 & 4 Will. 4, c. 15, s. 1, the sole right of having it represented in any part of the British dominions.

Musical compositions, when in manuscript, stand on the same footing with other unpublished compositions, and by sect. 20 of 5 & 6 Vict. c. 45, the provisions of 3 & 4 Will. 4, (a) Cox v. Cox (11 Hare, 118). (b) Vide ante, pp. 20-22.

c. 15, as to the sole right of representing dramatic are extended also to musical compositions.

Engravings, maps, and charts, also, whilst unpublished, stand on the same footing as the foregoing.

PART L CHAPTER V.

Engravings, maps, and charts.

CHAPTER VI.

COPYRIGHT AFTER PUBLICATION.

On the subject of copyright after publication, widely different views have been entertained by some of our ablest lawyers living at different times. There have been those who considered the title of the author to the property in the creations of his intellect as of so absolute a nature that it was not only exclusive but also perpetual, and gave him the sole right to determine, not only during his life, but for all time after his death, who should enjoy the benefits of his literary works. On the other hand, there have been those who, though not doubting the author's title to the property in the products of his mind before he has published them, were of opinion that by the act of publication his compositions became publici juris, and the author's right to a property in them ceased thenceforth for ever. Neither of these two opposite opinions represents the law on the subject as it is now finally determined. The firstmentioned opinion was the prevailing one down to the year 1744. "The general consent of the kingdom for ages,' Lord Mansfield considered to be in favour of that view of the question, and the decisions in several cases proceeded on the ground of its correctness. The question assumed the form, whether copyright in the productions of an author existed at common law previous to and independently of statutory enactment, and if it had an existence previous to statutes, whether the statutes dealing with the subject and conferring on authors a copyright for a certain number of years took away from them all copyright in their works after the time so specified had expired. In other words, had an author copyright in his published works indefinite and unlimited in point of time, or was his right strictly confined to the period marked out in the legislative enactments relating to copyright?

The first Act of Parliament which deals with the question of copyright after publication is the 8 Anne, c. 19, and it

Anne, c 19.