others or not (Parsons v. Chapman, 5 Car. & P. 33); on the other hand, it is not sufficient to show that the defendant supplied the platform furniture, &c., for a room which he had let for a general musical entertainment, and that he had sold a ticket and received the money at the door (Russell v. Briant, 14 Jur. 201), for it must be shown that the defendant himself, or his agent by his direction, has participated to some extent in the actual performance (ibid.). Again, where the proprietor of a theatre lets it for a term to an actor, and provides gas, music, scene shifters, and other essentials, upon the understanding that the gross profits are to be divided, this does not of itself make the proprietor responsible either as partner or otherwise for the wrongful representation of a dramatic piece by the actor (Lyons v. Knowles, 11 W. R. 266; 10 L. T. (N. S.) 876). for the The remedies provided by the statute 3 & 4 Will. IV. Remedies c. 15, extended by 5 & 6 Vict. c. 45, s. 21 (see Wall v. infringe Taylor; Wall v. Martin, 11 Q. B. D. 102, 52 L. J. (N. S.) ment of playright. Q. B. 558), are the only remedies available for the protection of playright, and cannot be made applicable to the unlawful publication of a dramatic piece by printing, that is to say as a book, for if the infringement assumes this form, the injured party must proceed under 5 & 6 Vict. c. 45, s. 15, by action on the case. dramatic What is? Where a building is used for the public representation, Place of for profit, of a dramatic piece, it becomes ipso facto a entertainplace of dramatic entertainment within the meaning of men, s. 2 of 3 & 4 Will. IV. c. 15 (Russell v. Smith, 12 Jur. 725, per Lord Denman), even although it has never been used for such a purpose before, since the mere fact of performing a dramatic piece makes the place where it is performed a place of dramatic entertainment (Wall v. Taylor, 11 Q. B. D. 108, per Brett, M. R.); consequently the question whether a given place is or is not "a place of Lectures, infringe ment of dramatic entertainment" is not determined by reference to the circumstance whether or not a theatrical license has been taken out, but with regard to all the circumstances of the case, as for instance, whether any charge was made for admission and the like (see Duck v. Bates, 49 L. T. 507; 32 W. R. 169). Where the performance is public, the defendant cannot escape the penalty, by showing that the audience were admitted free; this is only one element in the case, and not in itself absolute proof. Furthermore, the plaintiff cannot contend that if the performance is dramatic in character, the place is consequently a place of dramatic entertainment, for according to this view of the case, the street where "Punch" is performed, or the place where a strictly private performance was held, would for the time being come within the Act (Russell v. Smith, 12 Q. B. 232, per Patteson, J.), nor can he contend that the phrases "place of public entertainment" and "place of dramatic entertainment" are identical (Wall v. Taylor; Wall v. Martin, 51 L. J. Q. B. 547). There is consequently no decision directly stating what is or is not a place of dramatic entertainment; but on the contrary, the opinion of Brett, M. R., in Wall v. Taylor, 11 Q. B. D. 108, and that of Patteson, J., in Russell v. Smith, supra, are diametrically opposed to each other, and leave the whole question in uncertainty and confusion. Where a lecture is delivered on the express or implied understanding that it shall be received as a lecture simcopyright pliciter, and not for publishing purposes, there, the in, by oral delivery or unauthorised delivery of such unpublished lecture will be publication in restrained, on the ground of breach of trust or confidence (Abernethy v. Hutchinson, 1 Hall & Tw. 40). A person has no right to report, phonographically or otherwise, a lecture or other written discourse, which the author delivers print. before a public audience, and which he desires again to use in like manner for his own profit, and consequently, although a student who attends a medical demonstration, may have a perfect right to remember as much of it as he can, and afterwards to use the information thus acquired in his own medical practice, or to communicate it to students or classes of his own, he would not be justified in committing the lecture to writing for the purpose of subsequent publication in print, or by oral delivery (Keene v. Kimball, 16 Gray (82 Mass.), per Hoar, J., 551 (Amer.), and see Bartlette v. Crittenden, 4 McLean (Amer.), 300). So also any person who is present at a concert or opera, may play a tune which his ear has enabled him to catch, or sing a song which he may carry away in his memory, whether for his own entertainment or that of others, for compensation or gratuitously, but at the same time he would have no right to copy or publish the musical composition (Keene v. Kimball, 16 Gray (82 Mass.), 551, per Hoar, J., supra). The Act 5 & 6 Will. IV. c. 65, entitled "an Act for 5 & 6 Will. IV. preventing the publication of lectures without consent," c. 5. confers upon the author of any lecture, or the person to whom he hath sold or otherwise conveyed the copy thereof for certain purposes, the sole right of printing and publishing such lecture, and imposes a penalty upon persons who without leave "shall print or lithograph or otherwise copy and publish the same," or who, "knowing the same to have been printed or copied and published without such consent, shall sell, publish, or expose to sale, or cause to be sold, published, or exposed to sale," any such lecture. By s. 2 the printer or publisher of a newspaper publishing a lecture without such leave, shall be deemed and taken to be a person printing and publishing as aforesaid, and by the 3rd section, persons allowed for certain fee and reward, or otherwise, to attend lectures, are not on that account licensed to publish them. In order, however, to secure the benefits of the Act it is necessary that notice in writing of an intention to deliver the lecture should be given to two justices, living within five miles of the place where such lecture shall be delivered, two days at least before delivering the same. Exceptions are, however, made in favour of any university or public school or college, and of lectures by any individual in virtue of or according to any gift, endowment, or foundation (s. 5). It will be observed that this statute applies only to printing, copying, publishing, and exposing for sale, and not to the oral repetition or delivery of the lecture. The common law remains to this extent, therefore, intact, while the statute itself is so little known to lecturers, that its protection is hardly ever sought in practice. CHAPTER IV. ON THE VESTING OF COPYRIGHT. title. In addition to the question whether an act amounts in Plaintiff's point of fact to an appropriation of the fruits of the labour of another, so as to constitute an infringement of his right of copy, the further enquiry necessarily arises, whether that right of copy is so exclusively vested in the person laying claim to it, as to enable him to prevent or to recover compensation for any infringement. necessary copy. lication Isles. In order to acquire exclusive copyright, it is absolutely What necessary that the first publication should take place to secure within the United Kingdom, for if either a foreigner or a right of British subject originally publishes his production abroad, First pubit is clear that he will have no copyright in this country, within save such as he may acquire under the International British Copyright Act (7 & 8 Vict. c. 12). In the event of no treaty existing to give effect to the Act in the particular instance, no copyright can subsist in this country (Boucicault v. Delafield, 1 Hem. & M. 602; 33 L. J. (Ch.) N. S. 38; and see Boucicault v. Chatterton, 5 Ch. D. 267). The International Copyright Act (extended to paintings, The Interdrawings, and photographs, 25 & 26 Vict. c. 68, s. 12) Copyright enacts inter alia, that neither the author of any book, nor composer of any dramatic piece or musical composition, nor the inventor, designer, or engraver of any print, nor the maker of any article of sculpture, or of such other work of art as is previously mentioned in the Act, which shall after the first passing of the Act be first published out of Her Majesty's dominions, shall have any copyright national Act. |