Unlawful Importing Prohibited. Action for Damages Given. By section 10, the importing of piratical copies is expressly prohibited. Besides prescribing penalties and forfeitures, the statute gives to the injured owner a remedy by action for damages. The statute also prescribes penalties for the sale of a painting, drawing, or photograph fraudulently represented to be the work of a person who is not the author.2 Limitation of Actions. - No limitation of time within which actions under it shall be brought is prescribed by 25 & 26 Vict. c. 68. SCULPTURE. The 54 Geo. III. c. 56, which secures to the owner the copyright in sculpture, models, copies, and casts, gives an action for damages against any person who shall "make or import, or cause to be made or imported, or exposed to sale, or otherwise disposed of, any pirated copy or pirated cast," whether it "be produced by moulding or copying from, or imitating in any way" the original. It is provided that no person shall be subject to such action who has bought the original work by only on each contract to sell. In point of fact twenty-six copies were sold, but they were sold in two parcels, thirteen copies in each; and it has been contended that there were but two offences. In the case of Brooke v. Milliken, 3 T. R. 509, the penalty was imposed by 12 Geo. II. c. 36, for importing for sale any book first published in this kingdom and reprinted in any other place, and it enacted that the offender should forfeit £5 and double the value of every book sold. In that case, there could be no doubt that the meaning of the statute was, the penalty should be cumulative, viz., double the value of each book. In the present case, the words are, such person for every such offence shall forfeit to the proprietor of the copyright for the time being a sum not exceeding £10. It is quite clear that this imposes a penalty for every copy sold: a different construction would result in an absurdity, and defeat the intention of the legislature. The penalty is im posed also for importation, and it would 2 s. 7. See also as to piracy of paintings, In re Johnson, 15 L. T. N. s. 163; Ex parte Graves, Law Rep. 3 Ch. 642; of photographs, Strahan v. Graham, 16 L. T. N. s. 87, on ap. 17 Id. 457. 3 s. 3. a deed in writing, signed by the owner in the presence of two witnesses.1 Actions for piracy are to be begun "within six calendar months next after the discovery of every such offence, and not afterwards." 2 Section 7 of 13 & 14 Vict. c. 104, imposes on the offender a penalty of not less than five nor more than thirty pounds for every offence, to be recovered by the owner of the copyright. The act of 1831 provided that any person who should print, publish, or import a book, without the written consent of the owner of the copyright, or should sell a book knowing it to have been so printed or imported, should forfeit every copy to such owner, and should be liable to pay fifty cents for every sheet found in his possession; one-half of the penalty to go to the United States, and the other half to the owner of the copyright. Like provisions were contained in the statute of 1790, except that the owner of the copyright was required to destroy the forfeited copies. The act passed in 1870 abolished penalties for piracy in the case of books, and was the first American statute to give an action for damages for the infringement of copyright.5 3 Section Action for Damages and Recovery of Piratical Copies. 4964 of the Revised Statutes enacts that "every person who, after the recording of the title of any book as provided by this chapter, shall within the term limited, and without the consent of the proprietor of the copyright first obtained in writing, signed in presence of two or more witnesses, print, publish, or import, or knowing the same to be so printed, published, or imported, shall sell or expose to sale any copy of such book, shall forfeit every copy thereof to such proprietor, and shall also forfeit and pay such damages as may be recovered in a civil action by such proprietor in any court of competent jurisdiction." A wrong-doer is here made liable for a wrongful act done at any time after the recording of the title of any book," and 2 8.5. 8 s. 6; 4 U. S. St. at L. 437. 4 s. 2; 1 Id. 124. The statute of 1856, 11 Id. 138, gave an action for damages for the invasion of playright. within the term of protection; but, before an action for damages or forfeitures can be brought, the copyright must be completely secured by the performance of all the statutory requisites. The person entitled to bring such action is the owner of the copyright, who must either be the author of the book or hold a good legal title of ownership derived from the author. An equitable title, or interest in the work, which might entitle the holder to an injunction for the protection of his rights, is not enough in a court of law. Two distinct remedies are given by the statute to the owner for the invasion of his property. He may sue for the damages which he has sustained, and for the recovery of the printed copies. He is not restricted to either one of these, but may avail himself of both at the same time. Persons Liable. Knowledge of Piracy. These remedies lie against four classes of persons, the printer, the publisher, the importer, and the seller of piratical copies. The first three are made liable though ignorant of the piracy; but, in the case of the seller, it must be shown that the book was unlawfully printed, published, or imported, and that in selling or exposing to sale he was aware of that fact.3 All of the wrong-doers are made liable; and there appears to be no reason why the injured person may not proceed against any one of them whom he may select, or more than one, if necessary to the vindication of his rights. Of course the printing, publishing, or selling, to amount to piracy, must be done in the United States.5 When piratical copies are imported, it is immaterial where they were printed. Gratuitous Circulation of Copies. — In subjecting the printer, publisher, and importer to the penalty of forfeiture and an action for damages, the statute does not, as does the English law, prescribe that the copies shall be printed, published, or 1 See ante, p. 265. 2 Numerous authorities cited in considering transfer of copyright, Chap. VI., are to the effect that the plaintiff in an action at law must show a good legal title. In the English equity cases, Mawman v. Tegg, 2 Russ. 385, Sweet v. Maugham, 11 Sim. 51, and Sweet v. Cater, Ibid. 572, the court ordered the defendant to admit the legal title of the plaintiff in an action at law to determine the latter's rights. See also Sweet v. Shaw, 3 Jur. 217. 8 See Millett v. Snowden, 1 West. Law Jour. 240. See ante, pp. 470, 478, 401-404. 4 Greene v. Bishop, 1 Cliff. 186, 203. 5 See Graves v. Logan, 7 Sc. Sess. Cas. 3d ser. 204, cited ante, p. 481, note 6. imported for sale. Hence, the wrong-doer is made liable when he publishes or imports for gratuitous circulation, or other purposes harmful to the owner of the copyright. So the gratuitous distribution of piratical copies would be an infringement of the copyright.1 Are Copies Subject to Forfeiture when only Part of Book is Piratical? It is settled that when one book contains a substantial part of another, the former is, within the meaning of the law governing the infringement of copyright, a copy of the latter, and its unlawful publication will amount to piracy. Hence, under section 4964 of the Revised Statutes, which provides that any person who shall unlawfully print, publish, or import any copy of a book shall forfeit such copy, and be liable to an action for damages, there is no doubt that such action will lie when the book complained of is a substantial copy, or contains a material part, of the one entitled to protection. But is the word copy used in the same sense in relation to forfeitures? This question cannot arise concerning any other subject of copyright than a book; because in the case of maps, charts, musical compositions, prints, engravings, &c., the statute imposes penalties and forfeitures when the work is pirated "either in whole or in part." 2 In Rogers v. Jewett, the Circuit Court of the United States expressly held that the word copy of a book in section 6 of the statute of 1831 must be taken to mean a transcript or reprint of the entire work, and hence that the penalties imposed by that section were not incurred by the wrongful publication of any part of a book. The contrary doctrine had previously Circuit Court of the United States in another circuit by a pro forma ruling in Backus v. Gould, been affirmed by the 1 See this point under the English statute considered, ante, p. 474. 2 s. 4965. Rogers v. Jewett, infra. 8 12 Monthly Law Reporter, 339. In Rooney . Kelly, wherein the Court of Queen's Bench in Ireland held that, in an action for damages under section 15 of 5 & 6 Vict. c. 45, it was sufficient to declare that parts of the book complained of were piratical, O'Brien, J., said obiter: "I may observe that, from other provisions of the statute, there appears to me great difficulty in holding that the word book wherever it is used in the statute, comprises and includes 'part of a book.' It would, for instance, be difficult to maintain that under the 23d section [imposing forfeitures] the proprietor of the copyright in a book would acquire the property of all copies of another book which contained printed therein a few pages or passages of his book." 14 Ir. Law Rep. N. s. 158, 171. which was an action for the penalties under the act of 1831 for the publication of parts of certain books. The case was taken for review to the Supreme Court of the United States; but the question which we are now considering was not passed upon by that tribunal, which simply decided that the penalty was limited to the sheets found in the possession of the defendant.1 The doctrine that a wrong-doer is not liable to the penalties or forfeitures unless the whole of the book entitled to protection has been copied, especially in considering the meaning of the present statute with reference to forfeitures, is open to question. The early rule that penal laws are to be strictly construed has been materially modified in later times. In interpreting such statutes, the strict meaning of the language used is still kept in view; but it is not allowed to defeat the plain intent of the legislature. The courts seek to ascertain that intent and to give effect to it. In section 4964 of the existing statute the word copy is used without distinction with reference to a forfeiture of the piratical work and an action for damages. In the latter case, as has been seen, a book which contains a substantial part of another is clearly a copy; and there is nothing in the section to show that a different rule is to be applied in the case of forfeitures. The question, therefore, is, What was the intention of the legislature? In declaring that every copy of a piratical book should be forfeited to the owner of the copyright, Congress had these objects in view: 1, to deter persons from committing piracy; 2, after its commission, to punish the offender, and to remedy the injury done. The end sought was the protection of copyrighted books. It is true that the action for damages is a means to the same end. But Congress manifestly considered this to be an insufficient remedy, and therefore gave an additional one by prescribing forfeitures. If the provision concerning forfeitures is to apply only when the whole of a book is pirated, it is clear that the purposes of such provision may easily, and often will, be defeated. It will be in the power of any wrong-doer to annul the law as far as a forfeiture of copies is concerned, by leaving out a small part — a chapter, or even a few pages in reprinting the book which he pirates. He may thus take all that is valuable in a copyrighted work, and escape the 17 How. 798. |