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word is the act of selling, that statutory copyright does not begin until the book is first offered for sale to the public. limit the sense of the word to printing is to change its true meaning and abridge the right. When, therefore, the owner sells or assigns the copyright in a work, he conveys the exclusive right to print and the exclusive right to sell that work. Obviously, the right of sale is not exclusive in the assignee, and he has not become vested with the copyright, for which he has contracted, as long as the assignor is at liberty to sell copies. When the assignee acquires the copyright, he becomes vested with the exclusive right of printing and selling the work. The assignor is then wholly divested of any right to print or to sell; and he cannot sell a single copy of the work without invading the copyright which he has transferred.

It may be argued that the exclusive right of sale acquired by the assignee applies only to the copies printed by him after the assignment, and not to those printed before he came into possession of the copyright. But this view is contrary to the nature of copyright, which embraces the right to sell exclusively, not merely certain copies, but all copies of the work. When the copyright is assigned, the assignor grants the exclusive right to sell the work itself; and from that time the assignor and all other persons, without the consent of the assignee, are excluded from selling copies, no matter when or by whom printed. There is, however, this limitation to the assignee's exclusive right to sell: At the time of the assignment, various booksellers may have on hand copies of the work, which were bought before the copyright was transferred. Such copies are beyond the control of the assignor. The liberty to sell them is a right which vested before the assignment was made, and cannot be disturbed by any subsequent change in the ownership of the copyright. Hence, the assignee has no right to interfere with such sales, though made after the assignment. But a wholly different principle applies to the copies which the assignor has printed, but not sold. In parting with the copyright, he voluntarily parts with the right to sell such copies, and in effect covenants not to sell them.

1 Copyright begins with publication, which takes place when the book is publicly offered for sale, or is given to the public.

May Assignee sell Copies after End of Limited Assignment ? — The same principle governs the rights of the parties to an assignment for a limited time. When the copyright is sold or assigned for a specified term, the assignee becomes vested with the exclusive right to print and to sell during that term, and the assignor parts with all rights both of printing and of selling. At the end of the term, the assignor becomes revested with the exclusive right of printing and of selling, and no right to print or to sell remains in the assignee. What the assignee receives from the assignor for a limited time, he is bound to return to him at the end of that time. What he receives is the exclusive right to print and to sell the work; what he must surrender is the exclusive right to print and to sell the work. And, as has been above shown in an analogous case, the right to sell, which reverts to the assignor, is exclusive, not merely with reference to the copies that may be printed by him after such reversion, but with reference to all copies of the work, excepting those held by persons who bought from the assignee while he was in possession of the copyright. The assignee, but not such buyers, are excluded from selling after the term of the assignment has ended.

It may be urged that the assignee may have a large stock of copies on hand at the end of the term; and that, unless he is free to sell them, he may be subject to heavy losses. The answer to this is, that he has not agreed for, paid for, or acquired the right to sell, except for a limited time. He must exercise his own judgment as to the number of copies which he can sell during that time. He prints at his own risk. If he prints more copies than he can sell, the fault is with him, and not with the assignor; and so he, and not the assignor, must bear the loss. Of course, as in the first case above considered, there may be an express or an implied agreement that the assignee shall have the right to sell whatever copies he may have on hand at the expiration of the term of the assignment.

I have thus endeavored to show what is the true interpretation of the law, when the copyright is assigned without any express or implied agreement as to the sale of copies. When such agreement has been made, the rights of the parties will be controlled by it.

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English Decisions Questioned. The judgments in Taylor v. Pillow and Howitt v. Hall were based on the ground that copyright, as defined by the statute, is the exclusive right of printing copies; that the statute is directed only against unlawful printing; and hence that the sale of copies, which have been lawfully printed, is not a violation of copyright. It is a question whether, on the point under consideration, the English statute in spirit, if not in letter, is not the same as the American; and whether, under the former as well as the latter, the true meaning of copyright is not the exclusive right of printing and selling. It is true that, by the statutory definition, English copyright is limited to printing; but it is not true that the statute is directed against unlawful printing alone. It prohibits unlawful importing and selling,' and thereby in effect secures the exclusive right of sale.

When

Author may not Reproduce Work after Assignment. an author has parted with his copyright in a work, he is not at liberty to reproduce substantially the same matter in another publication.2

Warranty of Title. Where a person had sold in good faith the exclusive right of publishing a book for a term of years, and it afterward appeared that he had no title to the copyright, it was held that the representations which he had innocently made, that the copyright was in him, amounted to an express warranty of the title, and that he was liable to damages for a breach of that warranty.3

1 5 & 6 Vict. c. 45, ss. 15, 17, 23. 2 Rooney v. Kelly, 14 Ir. Law Rep. N. s. 158; Colburn v. Simms, 2 Hare, 543.

3 Sims v. Marryat, 17 Q. B. 281. It appears that after Dr. Shebbeare had been enjoined (Duke of Queensbury v.

Shebbeare, 2 Eden, 329) from publishing Clarendon's History, which he had bought from Mr. Gwynne, he recovered damages against the latter for falsely representing that he had a right to print that work. See Millar v. Taylor, 4 Burr. 2330, 2397.

CHAPTER VII.

AGREEMENTS BETWEEN AUTHORS AND PUBLISHERS.

As the owner of the literary property in a work which he has created, the author may make of it any disposition he pleases. He may make an absolute assignment of the copyright, or an assignment for any limited term. He may convey a limited interest in the undivided copyright, and thereby make one or more persons joint owners with himself. Without parting with the ownership, or any part of it, he may confer upon another the right to use the work for a limited time, or for specified purposes; may license another to publish exclusively, or more than one to publish contemporaneously; may grant an irrevocable license to publish for a term, or a license revocable at will.

In ascertaining what rights the author has conveyed, the first point to be established is, whether the agreement made by him is an assignment of the copyright, or whether it is merely for a restricted use of the work. Assignments have already been treated. Here will be considered those agreements by which an author, without parting with the copyright, gives to a publisher certain privileges of publication and sale. In order to ascertain the respective rights of the parties under an agreement of this kind, it will be necessary to determine the duration or extent of the right given to publish, whether or not it is exclusive, and how the contract may be ended and the rights created by it annulled. The law on this subject may be best understood by reviewing the leading cases which have been decided.

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Agreement for Publication of One Edition. Number of Copies Specified. In Sweet v. Cater, the plaintiff sought to restrain the defendants from publishing a work containing matter copied without authority from the tenth edition of Sir Edward Sug

den's Treatise on the Law of Vendors and Purchasers, of which the plaintiff was the publisher. The rights of the plaintiff had been acquired under a written contract with the author, by which it was agreed that the former should print, at his own cost and in a certain style, twenty-five hundred copies of the tenth edition of this work, sell each copy at a named price, and pay to the author a specified sum for the privilege of publication. The defendants contended that, under this agreement, the title, equitable as well as legal, to the copyright was in Sir Edward Sugden, and that the plaintiff was a licensee, not exclusive, but merely to sell twenty-five hundred copies; and, therefore, that he had no right to prevent any other person from publishing the work. The court held that, while the legal title was in the author, the plaintiff had acquired an equitable title sufficient to give him a standing in a court of chancery. The injunction was granted on condition that the plaintiff would undertake to try his right at law; and Sir Edward Sugden, having refused to permit the action to be brought in his name, the defendants were ordered to admit at the trial that the plaintiff was the legal owner of the copyright in the tenth edition of the work.1

The direct decision in this case was that the contract with the author gave to the plaintiff the right, while any of the twenty-five hundred copies published by him remained unsold, to restrain any person not claiming under the author from publishing the same work. But Vice-Chancellor Shadwell went further, and expressed the opinion that the plaintiff had acquired the exclusive right to sell twenty-five hundred copies; and that, until they should be sold, not even the author was at liberty to publish any copies of the work.2

1 11 Sim. 572.

2" Now by this contract," said the Vice-Chancellor, "there is an obligation which is binding on both parties. Sweet is to sell at a given price; and therefore Sir E. Sugden has bound himself to abstain from doing any thing which might at all interfere with the act which Sweet was to do. Suppose that, before the two thousand five hundred copies, which form the tenth edition, are sold, Sir E. Sugden (to put

a hypothetical case) should fancy that he had a right to sell another edition to another bookseller, with the immediate right of publication; I apprehend that this court would certainly restrain him from doing so, on this contract. It is not merely optional with Sweet whether he will sell or not; but he is bound to sell, and to sell in a given manner. It is most probable that, when Sir E. Sugden drew this agreement, he was looking forward to the

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