the judicial committee of the privy council may, for the benefit of the public, grant license on application, under such limitations as they may deem fit, to publish it (§ 5).

The method of redress for the infringement of copyright is considered under the head of Remedies for civil injuries.

SECT. 2.-Nature and Principles of Literary Property independently of Statute.

It has been decided by the House of Lords that there exists no copyright in England, except by virtue of the statutes conferring it, and the same has been ruled both by that tribunal and the Court of Session in regard to Scotland.2 The circumstances by which the law has been accustomed to identify those cases to which the statutory privileges of copyright apply have now to be described.

In the case of literary productions in which the original efforts of the author's intellect are added to or mingled with productions previously existing, it will be often very difficult to determine whether and to what extent copyright is constituted. Separate notes and illustrations added to a book are undoubtedly copyright.3 It appears that improvements in the arrangement of the parts, typographical corrections, and slight alterations, made on a work which is not copyright, will not exclude others from reprinting the work so improved. This was found in the case of Dr Channing's writings, which were not copyright in this country. The amendments were made by himself, and he received a pecuniary acknowledgment of them. It was stated that the actual authorship alterations made by him amounted to only seventy-six in number, and that when collected together they would not fill half a page out of 568, to which the collection extended.4 An abridgment of a book, if it be a separate literary effort, applicable to particular purposes,say for the use of those who cannot afford time to read the larger work, or to form an introduction to it,-will be a foundation for copyright, even as against the original author. An injunction against printing an abridgment of the tale of Rasselas, which merely contained the narrative, and not the moral reflections of the original, was refused.5 Where a work, however great the labour it has cost, is such that any person going through the same process will arrive at the

1 Donaldsons v. Beckett, 1774. 2 Bro. 129. Bur. 2408.-2 Hinton v. Donaldson, 1773. 5 Br. Sup. 508.-3 Godson, 348.-4 Hedderwick v. Griffin, 20th January 1841.-5 Dodsley v. Kinnersley, 15th June 1761, Amb. 403.

same result, it is difficult to establish an exclusive right. Such is frequently the case with road-books, directories, interest tables, and other tables of calculation, a class of works which frequently form very valuable articles of copyright. On the one hand, the public in general must not be excluded from such a field, because one individual has occupied it. On the other hand, one person is not to take advantage of the ingenious arrangement or the labour of another. In the case of ordinary literary productions, the circumstance of the same ideas being expressed in the same words is generally of itself evidence that two works are the produce of the same mind. Where every one will reach the same result by the same means, and these means are obvious and in common use, a similar conclusion by no means follows. In the one case, the right may be said to be in the thing produced; in the other, in the way of producing it. In the latter case, then, the evidence is generally extraneous, tending to show that the one party has taken advantage of the labours of the other. The use of one work, as "copy" to print the other from, is perhaps the best evidence that can in such a case be obtained of plagiarism. The recurrence in the plagiarism of mistakes and peculiarities in the original, and the mechanical adoption of any peculiar arrangement, which circumstances show that the plagiarist does not understand the nature of, and cannot follow out, constitute evidence.1 When, a book being original, another appears which is in every respect an exact model of it, there can be little doubt of plagiarism;2 indeed, in such a case, if the writer of the second should go through the whole labour of calculation, &c., for himself, he has no right to adopt the model of another work, and so profit by its saleable character.

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It was held in one case, that schoolbooks for teaching children to read, consisting of the alphabet, initial lessons in the spelling of words, extracts from other books, and other matters which partake more of the character of mere arrangement than of literature, are entitled to copyright.3" Books of this sort," said Lord Mackenzie, are entitled to the protection of the law. When such books are printed, and another man prints the same thing, the law will apply." The difficulty of making out a charge of piracy in such cases was, however, shown in this instance; and the nice distinctions on which the matter must depend were thus stated in

1 Lord Kenyon in Cary v. Longman & Rees, 1801. 1 East. 358. Godson, 237. Maugham, 135.-2 Lord Erskine in Matthewson v. Stockdale, 27th February 1806. 12 Vesey, 270.-3 Lennie v. Pillans, 18th Jan. 1843.

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the interlocutor of the Lord Ordinary (Jeffrey) :-" That in respect the said works do necessarily consist, in a great degree, of extracts from, and repetitions of, previous publications by other authors, and can, for the most part, be entitled to protection only in so far as they exhibit an original arrangement, selection, abridgment, or amplification of such borrowed materials, the claim of copyright, and the charge of piracy, can only be sustained in relation to such works, by proof of large and precise copyings of such selection, arrangement, abridgment, or amplification, as can alone give the character of originality, and whole consequent value to any such publications."

Translations. In the general case there is a copyright in the translation of a book in a foreign tongue. It is a prevailing opinion with lawyers, that, supposing a book in a foreign language to give its author an undoubted copyright in this country, there may be a separate copyright in a translation, which the translator may defend against the author. There has, however, been no case directly to the point, and the only case, a very old one, which bears upon it, assumed the following aspect. A scientific book had been published in the Latin language, and the proprietor of the copyright applied for an injunction against a translation. The opinion of the Lord Chancellor was, that in ordinary circumstances there would be a free copyright in the translation against which there could be no injunction; but, he continued, "yet this being a book which, to his knowledge (having read it in his study), contained strange notions, intended by the author to be concealed from the vulgar in the Latin tongue, in which language it could not do much hurt, the learned being better able to judge of it, he thought it proper to grant an injunction to the printing and publishing of it in English."2 This is a question which will be open for full consideration, if a case should occur, where the translation comes into competition with the original copyright work. Books of value, written in English, are frequently translated into foreign languages, but it could scarcely be said that the privilege of translation would extend to allowing a retranslation of such a work into English, to compete with the original in our own market.

Foreigners. In England, doubt has been lately thrown on the capacity of a foreigner not resident in this country to hold copyright, unless under the act as to International copy

Godson, 347. Maugham, 75.-2 Burnett v. Chetwood, 1720, cited 2 Meriv. 441.

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right. On the one hand it has been found that a foreigner residing in Britain, and first publishing his work in the empire, has copyright; while on the other side, it has been found that a foreigner whose work has first been published abroad, cannot subsequently acquire a copyright for it in this country. The question still left in doubt is, whether, if such a work were first published in this country, its author remaining abroad, it would have copyright? The preponderance of opinion is decidedly in favour of such a copyright. Where the first publication is abroad, the cases above cited show that neither the Author nor his Assignee can hold copyright in this country; but in one case, an Assignee, a British subject, was protected by Injunction in the possession of the copyright of a work first published by him in this country, which he had bought of the author, a foreigner living abroad.

There is said to be copyright in the form and title of a work.3 An infringement in this case is not so much to be considered in the light of an appropriation of an author's labours, as a fraudulent attempt by one person to make his commodity pass off as that of another.

CHAPTER VI.

COPYRIGHT IN DESIGNS.

By 5 & 6 Vict. c. 100, and 6 & 7 Vict. c. 65, the law of exclusive privileges applicable to all designs which, whether in texture or in shape, or by the arrangement of colouring matter, are intended by their beauty or originality to give value to articles of commerce, was consolidated. The application of different periods of exclusive privilege to different classes of designs is arranged to the several species of design as follows:-" Whether such design be applicable to the ornamenting of any article of manufacture, or of any substance, artificial or natural, or partly artificial and partly natural, and that whether such design be so applicable for the pattern, or for the shape or configuration, or for the ornament thereof, or for any two or more of such purposes, and by whatever means such design may be so applicable, whether by printing, or by painting, or by em

1 Chappell v. Purdy, 12th June 1845. 23 Law Journ. Exch. 258. Clementi v. Walker, 2 B. & C. 861. Guichard v. Mori, 9 Law Journ. Chanc. 227."D'Almaine v. Boosey, 1 You. & Coll. 288.- Maugham, 126, 127. Hogg v. Kirby, 8 Vesey, 215.

broidery, or by weaving, or by sewing, or by modelling, or by casting, or by embossing, or by engraving, or by staining, or by any other means whatsoever, manual, mechanical, or chemical, separate or combined; be it enacted, that the proprietor of every such design, not previously published either within the United Kingdom of Great Britain and Ireland, or elsewhere, shall have the sole right to apply the same to any articles of manufacture, or to any such substances as aforesaid, provided the same be done within the United Kingdom of Great Britain and Ireland, for the respective terms hereinafter mentioned, such respective terms to be computed from the time of such design being registered according to this act; viz. where the design is applicable to ornamenting any article of manufacture contained in the first, second, third, fourth, fifth, sixth, eighth, or eleventh classes, for three years; where it is applicable to ornamenting any article of manufacture contained in the seventh, ninth, or tenth classes, for nine calendar months; where it is applicable to ornamenting any article of manufacture or substance contained in the twelfth or thirteenth classes, for the term of twelve calendar months (by 6 & 7 Vict. in the cases in class fourteen, for three years):

Class 1.-Articles of manufacture composed wholly or chiefly of any metal or mixed metals:

Class 2.-Articles wholly or chiefly of wood:

Class 3.-Articles wholly or chiefly of glass:

Class 4.-Articles wholly or chiefly of earthenware:
Class 5.-Paper-Hangings.

Class 6.-Carpets and (6 & 7 Vict. c. 65) floorcloths: Class 7.-Shawls, if the design be applied solely by printing, or by any other process by which colours are or may hereafter be produced upon tissue or textile fabrics:

Class 8.-Shawls not comprised in class 7.

Class 9.-Yarn, thread, or warp, if the design be applied by printing, or by any other process by which colours are or may hereafter be produced:

Člass 10.-Woven fabrics, composed of linen, cotton, wool, silk, or hair, or of any two or more of such materials, if the design be applied by printing, or by any other process by which colours are or may hereafter be produced upon tissue or textile fabrics; excepting the articles included in class 11: Class 11.-Woven fabrics, composed of linen, cotton, wool, silk, or hair, or of any two or more of such materials, if the design be applied by printing, or by any other process by which colours are or may hereafter be produced upon tissue