as the work of the original author, when in point of fact sent it as the work of it has been revised by a third person (Archbold v. Sweet, original supra; and see Wright v. Tallis, 1 C. B. 893). The author. reason of this is of a twofold nature-in the first instance, the public might and probably would be deceived; and secondly, the author's literary reputation would be in the hands of a stranger.

Remedies for infringe. ment.

At com

CHAPTER V.

ON THE REMEDIES FOR INFRINGEMENT OF COPYRIGHT.

(a.) Remedies at Law.

THE proprietor of a copyright is possessed of several remedies for the protection thereof: in the first place, he may have a right of action at common law; again, he mon law. may have a right of action by virtue of some statute in By statute. which a particular remedy is pointed out or provided, he For penal- may have a right to the recovery of penalties, or to the a statute. delivery up of the pirated works themselves. Such proIn Equity. prietor has also in some cases an equitable remedy,

ties under

Remedies at law.

Action cn

consisting of an action for an injunction founded on the common law right, or he may have a similar action based on the ordinary principles of equity itself, where the piracy can be shown to have been accompanied by circumstances of fraud, or breach of trust, confidence or contract, express or implied (see Turner v. Robinson, 10 Ir. Ch. (N. S.) 131, per M. R.).

We will first proceed to consider the remedies at law, including in this term, actions for damages founded on statute and at common law, and proceedings before the magistrates for the recovery of penalties. The Judicature Acts, while they have decided in favour of an equitable interpretation in those cases in which the rules of law and equity were formerly in conflict, do not in the least affect the rights and remedies of persons aggrieved, and it is as advisable now as heretofore, to seek in the proper court, that remedy which is most appropriate to the particular circumstances of the case.

It is to be observed, that such remedies as are in

damages at

law.

separably attached to the Lex non Scripta or ancient the case for common law, are available under the Lex Scripta or common statutory law, in all those cases in which the latter, while conferring a right, does not at the same time provide a sufficient remedy for the protection thereof, for where a right is secured by the statute, a remedy is if necessary supplied by the Lex non Scripta, for otherwise there would be a right without a remedy. (See Comyns's Digest, Action on Statute, A 2; Novello v. Sudlow, 12 C. B. 187, per Talfourd, J.) The remedy so imported, assumes in the case of copyright, the form of an action for damages, and as a matter of technical distinction, it is clear upon general principles of law, that this action is one of case and not of trespass (see Atwill v. Ferrett, 2 Blatchf. (Amer.), 47).

The proprietor of a copyright which has been infringed, would not appear to have any common law right to the delivery up of the pirated copies of his work (Colburn v. Simms, 2 Hare, 543; but see McRae v. Holdsworth, 2 De G. & Sm. 496).

tion.

Where a statute creates a new offence and imposes Injunca penalty, the auxiliary remedy by injunction may be claimed, for that is a mode of preventing a thing being done, which if done would be an offence. If the thing threatened is illegal, the Court can interfere. As to the mode of granting the injunction, the Court will grant it, either when the illegal act is threatened, or when the thing has been done, and there is a threat to continue (Cooper v. Whittingham, 28 W. R. 720). The right to apply the appropriate common law remedy is, of course, dependent upon the statute, for if no right is secured by the latter, it is obvious that a remedy cannot exist. For instance, where the statute 5 & 6 Vict. c. 45, speaks of a "Book," part of a book is equally referred to, and this upon common law principles, for a right is secured by virtue of the statute, and the common law supplies any deficiency in

Proceed

ings under

c. 45, s. 15.

the remedy. On the other hand, an actor or any other person, may recite a copyright poem or other work, and this even in public, although he would not be permitted to distribute copies for sale (Tinsley v. Lacy, 1 Hem. & M. 751, per Wood, V.-C.). The reason of this is, that the statute 5 & 6 Vict. c. 45, by its very terms, and the connexion of its sections, is directed against printing or otherwise multiplying copies of works only, and has nothing to do with the right of representation or performance, itself expressly secured by statute (3 & 4 Will. IV. c. 15). Where there is no right there is no remedy, but when the right is provided, though without any adequate remedy, then the common law steps in (refer to Clark v. Bishop, 25 L. T. (N. S.) 908). By 5 & 6 Vict. c. 45, s. 15, it is provided, that if any 5 & 6 Vict. person shall, in any part of the British Dominions, print or cause to be printed, either for sale or exportation, any book in which there shall be subsisting copyright, without the consent in writing of the proprietor thereof, or shall import for sale or hire, any such book so having been unlawfully printed, from parts beyond the sea, or, knowing such book to have been so unlawfully printed or imported, shall sell, publish, or expose to sale or hire, or cause to be sold, published, or exposed to sale or hire, or shall have in his possession, for sale or hire, any such book so unlawfully printed or imported, without such consent as aforesaid, such offender shall be liable to a special action on the case at the suit of the proprietor of the copyright, and such action can be brought in any court of record in that part of the British Dominions in which the offence is committed. Now it is obvious at the first glance, that the manner in which this section is worded is sufficient to destroy its utility, for all that is prohibited is, the unlawful printing "in any part of the British Dominions," of any copyrighted work, and the importing or selling any book "so having been unlawfully printed," that is to say, printed in any

part of the British Dominions. Consequently, if the section is to apply at all, it will be to those cases in which a person has piratically printed a book in the British Dominions, exported it "to parts beyond the sea," and then imported it (refer to Boozey v. Tolkien, 5 C. B. 480, per Wilde, C. J.).

It is clear that although the publisher or seller of a pirated work would escape liability under the section, on showing that he did not sell, publish, or expose to sale or hire, knowing the work to have been unlawfully printed or imported, yet the printer or importer cannot rely on such a defence (Colburn v. Simms, 2 Hare, 557; Leader v. Strange, 2 Car. & Kir. 1010). Nor is it any defence to show, that the work was printed or imported for gratuitous circulation, and not for "sale or hire," because here the common law supplements the section of the Act, and provides a remedy sufficiently adequate (Novello v. Sudlow, 12 C. B. 177).

dant's

certain

objections.

Where any person is proceeded against under the section, Defenfor unlawfully printing any book for sale, hire, or exporta- notice of tion, or "for importing, selling, publishing, or exposing to sale or hire, or causing to be imported, sold, published, or exposed to sale or hire, any such book," the defendant on pleading thereto, is to give to the plaintiff a notice in writing of any objections on which he means to rely on the trial (5 & 6 Vict. c. 45, s. 16). If the nature of his defence is, (a) that the plaintiff in such action is not the author or first publisher of the book, or (B) is not the proprietor of the copyright, or (y) that some other person than the plaintiff was the author or first publisher of the book or proprietor of the copyright, then the defendant must specify in the notice, (a) the name of the person who he alleges to have been the author or first publisher, or (B) the proprietor of the copyright, together with the title of the book, and the time when and the place where such book was first