Whether

a work

libellous is

Query vations is not sufficient (Drone on Copy. 185). Whether a work containing a libel on a particular individual would be personally entitled to protection is a matter of argument, since there entitled to is no decision on the subject, but it is anticipated that protection. inasmuch as an offence against an individual is also more or less an offence against society of which he is an integral part, there will be little difficulty in arriving at a satisfactory conclusion whenever such a question shall be propounded.

Indecent publica

tions not

On the contrary,

Upon the plainest principles of the law, founded upon common sense and justice, it is apparent that proprotected. ductions of an indecent nature will not be protected (Stockdale v. Onwhyn, 5 B. & C. 176; Poplett v. Stockdale, Ry. & M. 337), for laws are not passed "for the promotion or benefit of authors and inventors, except as a means of promoting the progress of science and the useful arts" (Martinetti v. Maguire, 1 Deady (Amer.), 216, per Deady, J.). By 20 & 21 Vict. c. 83, an Act for more effectually prohibited preventing the sale of obscene books, pictures, prints, and by statute. other articles, power is given to any metropolitan police magistrate, or other stipendiary magistrate, or for any two justices of the peace, to authorize a search of any premises in which any obscene books, papers, writings, prints, pictures, drawings, or other representations are suspected to be kept (s. 1), and any person wilfully exposing to view in any street, road, highway, or public place, any obscene print, picture, or other indecent exhibition shall be deemed a rogue and a vagabond, and may be punished accordingly (5 Geo. IV. c. 83, s. 4, amended by 1 & 2 Vict. c. 38, s. 2, and extended by 20 & 21 Vict. c. 83, supra).

No less deleterious to the public welfare are blasphemous writings punishable by law and subversive of all morality, and these consequently will not be protected (Murray v. Benbow, Jac. 474; Lawrence v. Smith, Jac. 471). Anything tending to impugn a fundamental doc

not pro

tected.

trine of the Christian religion would appear to be blas- Blasphemous pubphemous, as, for instance, a denial of the immortality of lications the soul (Lawrence v. Smith, supra, per Lord Eldon), for Christianity is part and parcel of the law of the land (Cowan v. Milbourn, L. R. 2 Ex. 230, per Kelly, C.B.). The general principle as laid down by Lord Eldon in Murray v. Benbow and Lawrence v. Smith would appear to be perfectly correct, but the only difficulty is in the application of that principle in such a practical way as to ensure substantial justice. It is evident that if to doubt the immortality of the soul is the beginning of blasphemy made perfect on the publication of such a doubt, other doctrines may be held equally obnoxious even though widely diffused or perhaps ardently embraced by a particular sect or body. A Unitarian, for instance, might be a blasphemer, and probably would have been held to be so by Lord Eldon, but now in all cases the intent to corrupt the public morals, to shock and insult believers, or to bring the established religion into hatred and contempt is an essential element in the crime. Actus non facit reum nisi mens sit rea (Odgers on Libel and Slander, 395).

intellectual

tion.

The law with respect to the essential qualifications of Same rules apply to copyright is equally applicable to one subject as to another, every and consequently it has been held that no copyright can species of exist in engravings or prints which have an obscene, producimmoral, or libellous tendency (Fores v. Johnes, 4 Esp. 95), and the same rule would no doubt apply to statuary or photographs. It is certain, however, that the law holds And these productions in such abhorrence that no protection parties engaged in whatever will be afforded to any one who has knowingly manufac been instrumental in the making of them. A printer, for instance, is not bound to continue printing a work which he finds to be tainted with libel, and if he stops he will be entitled to recover for so much as he has done before he made the discovery (Clay v. Yates, 1 H. & N.

ture cannot

recover.

cation or

circulation may be

forcibly abated.

Quare?

73; 2 Jur. (N. S.) 908; Poplett v. Stockdale, Ry. & M. 337; 2 Car. & P. 198); and so where A. agrees to supply B. with a manuscript to be printed by the latter on an equal division of profits, and it is found that the intended publication is of an illegal nature, no action will lie against A. for refusing to supply the manuscript (Gale The publi- and Another v. Leckie, 2 Stark. 107). It is thought that to an action of trespass for destroying a picture the defendant may plead that it was a scandalous libel upon individuals, and that being publicly exhibited he cut it to pieces by way of abating a nuisance; and if the defendant does not avail himself of that defence, still, in estimating the value of the picture for the purpose of assessing the damages, the nature of the subject will be taken into consideration (Du Bost v. Beresford, 2 Camp. 511; but see the remarks of the Lord Chancellor in The Emperor of Austria v. Day and Another, 7 Jur. (N. S.) 641; 4 L. T. (N. S.) 494), but secondary evidence of illegality will not be accepted where primary, such as the production of the obnoxious publication, can be obtained (Gale v. Leckie, 2 Stark. 110). Save in the instances previously enumerated, and others which might be considered as reflecting upon public good and morality, the liberty of the owner of an intellectual production is practically secured. The spirit which actuated and perhaps originated the restrictive influence of the old Star Chamber would seem to have disappeared from society, and of the practice and procedure of that obnoxious Court, its subpoenas and writs of rebellion, not a trace remains.

Difference between a

tor" and an "inventor."

It may here be mentioned that the term "proprietor" "proprie so frequently made use of in all the copyright Acts differs in signification from "inventor." A proprietor is one who finds out something either by his own ingenuity, or he may be a mere owner without having exercised his brains at all, e.g., he may acquire by purchase; an inventor, on

the contrary, signifies a person who actually discovers or contrives any new process, manufacture, or substance (see Millingen v. Picken, 9 Jur. 714). The word "proprietor," when applicable to the owner of a new and original design, is further defined in the Patents, Designs, and Trade Marks Act, 1883 (46 & 47 Vict. c. 57, s. 61).

of stage

plays.

The right of the Lord Chamberlain to prohibit the Censorship acting of stage plays (6 & 7 Vict. c. 68, s. 14) is founded upon just and generous principles clearly productive of the public good, and is the only instance of censorship which can be said to remain in England at the present day.

Infringement and plagiarism.

Invasion

of literary

three modes.

CHAPTER III.

ON THE INFRINGEMENT OF COPYRIGHT.

THE term infringement is identical with that of piracy, and both differ in some respects from mere plagiarism. The plagiarist appropriates to himself the labour of another, and passes the result off as his own production in such a way as to avoid the penalties of the law, which attach only on the invasion of some legal right. The literary pirate goes a step further and incurs actual liability, and that, whether he passes off the production as his own, or fairly acknowledges the sources from which he has copied or stolen (Scott v. Stanford, L. R. 3 Eq. 718); there can, therefore, be no plagiarism without at the same time misrepresentation as to authorship, although an infringer is equally liable whether there be any misrepresentation

or not.

Literary property is liable to invasion in three modes. property First, open piracy, as where a publisher in this country publishes an unauthorised edition of a work in which copyright exists, or where a man introduces and sells in this country a reprint made abroad. Secondly, literary larceny, as where a man, pretending to be the author of a book, illegitimately appropriates the fruits of previous authors' literary labour. Thirdly, where a man is selling a work under the name or title of another man or another man's work. Against the first two species of offences the Copyright Acts afford protection; against the third, the common law. (See the remark of James, L. J., in Dicks v.