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Rival works

brought

into Court.

A defendant should not deny copying, if his defence is a fair user for which he would not be liable (see Spiers v. Brown, 6 W. R. 352; Jarrold v. Houlston, 3 Kay & J. 708).

Where the onus is thrown on the defendant, it will not do for him to urge a probability as to where he derived the matter complained of, but he must show definitely, from whence he obtained it, producing his manuscript, and offering every facility for investigation (see Hotten v. Arthur, 1 Hem. & M. 603; Mawman v. Tegg, 2 Russ. 385, and the judgment of the L. C. in Pike v. Nicholas, L. R. 5 Ch. 251).

It is never necessary for a party who complains that his should be copyright has been infringed, to specify in his statement of claim the parts of the defendant's work which he thinks have been pirated from his work, but it is sufficient to allege generally that the defendant's work contains several passages which have been pirated from the plaintiff's work, and to verify the allegation by affidavit. Thus, where an injunction was moved for, the two works were brought into Court, and counsel pointed out to the Court, the passages which they relied upon as showing the piracy (Sweet v. Maugham, 11 Sim. 53, per Shadwell, V.-C.). The articles alleged to be piracies, whether consisting of literary productions or not, should therefore be brought into Court for comparison (Sheriff v. Coates, 1 Russ. & My. 159), although it must be understood that this is by no means absolutely essential (Fradella v. Weller, 2 Russ. & My. 249).

Where the defence relied on is that the plaintiff's production is of a blasphemous or immoral tendency, either the work itself should be produced, or the defendant must be prepared to prove its true character (Gale v. Leckie, 2 Stark. 107).

Substantial identity or great similarity, is in itself

prima facie proof of unlawful copying, and it rests on the defendant to explain such identity or similarity (Pike v. Nicholas, L. R. 5 Ch. 251).

Where the defendant pleads that the plaintiff authorised the act complained of, the consent must be affirmatively proved (Boucicault v. Wood, 2 Biss. (Amer.), 40).

Where an action is brought to recover damages for the unlawful destruction of an unpublished manuscript, evidence is admissible to show that the plaintiff has been in the habit of publishing works injurious to the government of the state (Priestley's Cases, cited 2 Meriv. 437).

should if

If the plaintiff can describe the modus operandi, show Plaintiff how, in what way, or by what process, the defendant com- possible" mitted, or endeavoured to conceal the acts of piracy, it show how piracy will be to the last extent desirable for him so to do (see effected. Lowndes v. Browne, 12 Ir. Law Rep. 293).

On the trial of an action for piracy, the defendant's counsel cannot ask a skilled witness called on behalf of the plaintiff, whether he has not seen printed copies of the work in question, many years ago, in a foreign country; for such a question has reference to an object not produced or accounted for, and the evidence, if given, would be merely secondary (Boosey v. Davidson, 13 Q. B. (N. S.), 257); it is settled that secondary evidence will not be accepted when primary, as, for instance, the production of the publication itself, might be procured (Gale v. Leckie, 2 Stark. 110).

trade no

Where a defendant is clearly guilty of an act of piracy, Custom of he cannot shelter himself by adducing evidence to show defence. that his conduct is justified by the custom of trade (Maxwell v. Somerton, 30 L. T. Rep. (N. S.) 11).

Where an action was brought to restrain the breach of an agreement not to publish a certain work, it was held that the defendant could not give in evidence an offer on the part of the plaintiff to stay proceedings for a specific

sum of money, at least not for the purpose of defeating the injunction, although possibly he might do so for other purposes (Ainsworth v. Bentley, 14 W. R. 630, 632).

Plaintiff's In an action for infringement, the plaintiff must prove evidence. his title, that is to say, show conclusively that he is

either author or proprietor; and he should also produce a copy or example of the work or production alleged to be pirated, and prove the allegations of the statement of claim by suitable evidence, pointing out in what the piracy consists, and showing if possible the modus adopted by the defendant, upon whom the onus will thereupon be thrown. The fact that the plan, arrangement, and combination of a copyright work originated in the brain of its author, may, however, be proved by some other person than such author (Bullinger v. Mackey, 15 Blatchf. (Amer.) 550).

Where the action is for pirating prints or engravings, the evidence to be adduced at the trial is that the plaintiff is the proprietor of such print or engraving, and he may produce the prints taken from the original plate without producing the plate itself.

Although the most obvious method of arriving at a conclusion in a question of piracy, is by a comparison of the offending production with one proved to be genuine, yet the plaintiff may, and most frequently does, produce other evidence, that of an expert for instance, in support of his allegation, or of witnesses to prove an intention on the part of the defendant to deceive, or to prove such facts as tend primâ facie to put such a construction on his conduct (Chappell v. Sheard, 2 K. & J. 117; Prowett v. Mortimer, 2 Jur. (N. S.), 414).

It is however impossible to establish a charge of piracy of a book, where mere passages or lines of print have been reproduced here and there through hundreds of pages, or

where the authors of a work have applied their labours to various sources of information (Jarrold v. Heywood, 18 W. R. 279).

An action will lie at the suit of the assignee of a print, and as already stated a print taken from the original plate is sufficient evidence without the production of the plate itself (Thompson v. Symonds, 5 T. R. 41).

If the assignee of the right of copying a painting, alleges that some other publication is an infringement of his copyright, he must show that the publication complained of has not been taken from the painting, but from his copy (Lucas v. Cooke, 13 Ch. D. 872).

In all cases a plaintiff suing as assignee must show how, i.e., in what way, he obtained the assignment, but he need not prove any mesne transfer or transfers (Morris v. Kelly, 1 Jac. & W. 481).

dant's evi

A certified copy of registration under 5 & 6 Vict. c. 45, Defenss. 11, 13, is only a prima facie proof of ownership or dence. assignment, and the defendant can bring forward evidence to rebut such evidence (Lucas v. Cooke, supra). The same remark would seem to apply to designs registered under the Patents Designs and Trade Marks Act, 1883. Under this same Act, printed or written copies or extracts, purporting to be certified by the Comptroller and sealed with the seal of the Patent Office, of or from patents, specifications, disclaimers and other documents in the Patent Office, and of or from registers and other books kept there, shall be admitted in evidence in all courts in her Majesty's dominions, and in all proceedings, without further proof or production of the originals (sect. 89). Where a contract provided, that if a second edition of a work should be called for the publishers would stereotype it, it was held they became bound to fulfil the contract in this respect; the question whether or no a new edition is required is a matter of fact to be determined by evidence

Interroga

torics.

Motion to

expunge.

(Pulte v. Derby, 5 McLean, 328; see Reade v. Bentley, 4 K. & J. 665).

In an action for piracy, the plaintiff should deliver stringent interrogatories for the examination of the defendant, ex. gr., as to the number of works printed, sold, or imported, as the case may be, the cost of such printing, &c., and the proceeds realized from the disposition thereof, the number of copies yet on hand, and the source from whence he derived his materials (Kelly v. Wyman, 17 W. R. 399; Tipping v. Clarke, 2 Hare, 383). Where a defendant offers to submit to an injunction and pay all costs, the plaintiff is nevertheless justified in insisting on a full and complete answer to his interrogatories (Stephens v. Brett, 10 L. T. (N. S.) 231) and for this purpose may continue the suit.

Profits on sales already taken place, may be proved by affidavit made by or on behalf of the defendant (Kelly v. Hodge, 29 L. T. (N. S.) 387).

Where a motion is made under s. 14 of 5 & 6 Vict. c. 45, to expunge an entry of proprietorship of copyright it must be clearly and unequivocally shown that such entry is false; if the motion be to vary it, the Court must be satisfied by affidavit that in so doing they would make a true entry (Ex parte Davidson, 18 C. B. 297).

Where a person offers to take a certain sum of money as the price of his rights, such offer cannot be given in evidence against him, for he might be willing to forego his rights and so avoid litigation; but after the litigation has begun the circumstances are altered, and he is at perfect liberty to insist on his rights to the utmost (Ainsworth v. Bentley, 14 W. R. 632).

Any party in any cause or matter, might require the attendance of any witness before an examiner, and examine such witness orally, for the purpose of using his evidence upon any claim, motion, petition, or other proceeding

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