THE LAW

RELATING TO

COPYRIGHT AND TRADE MARKS.

PART I.-COPYRIGHT.

CHAPTER I.

THE RIGHT OF COPY IN A LITERARY COMPOSITION AS

IT SUBSISTS AT COMMON LAW.

COPYRIGHT is the sole and exclusive liberty of printing Copyright, definition or otherwise multiplying copies of an original work or of composition (Jefferys v. Boosey, 4 H. L. C. 920); and it exists either by virtue of the Common Law, or under the protection of some particular statute. It may also be described as the exclusive right of the owner to multiply and to dispose of copies of an intellectual production, which in the case of statutory copyright endures only for a limited time. The word "copyright" is sometimes used to signify the right of the owner to the production resulting from his own skill and labour, in some instances before, and in others after the publication thereof; in the former case, it is called Copyright at Common Law, and in the latter Statutory Copyright. Now this Common Law right of copy, which the owner Copyright of every intellectual production has in the fruits of his Law. labour, has for its essence not merely the paper and print

B

at Common

not a sub

of the author, nor the marble block of the sculptor, nor yet again the canvas of the painter; but the performance-considered as an incorporeal creation embodied in material form. All ideas are free, and no one can Bare Idea, therefore claim for himself the exclusive possession of a ject of bare conception, yet where such conception is reduced copyright. to some tangible and definite form so as to be capable of identification, the rights of the author will be entitled to protection. Thus, a lecture delivered extempore has all the attributes of property attached to it; that is to say, to the ideas and sentiments of the lecturer as expressed and conveyed in the words which he utters, and if anyone should take down these words as they are dictated, and afterwards publish them either verbatim or with mere colourable differences, he would, without doubt, be restrained (see Abernethy v. Hutchinson, Copyright, 3 L. J. Ch. 209; 1 Hall & Tw. 40; Caird v. Sime, incorporeal 28 Journ. Juris., Jan. 1884). The property in an intel

property.

Common
Law right.

lectual production is therefore incorporeal, and wholly distinct from the material in which the conception is concentrated; such material is indeed necessary as a vehicle of transmission, and the recognition of this fact forms the basis of the law of copyright considered in relation to infringement. So long as the intellectual production is stolen, it matters not that the pirate may have varied the language in which it is expressed, for if he has unwarrantably taken the arrangement and combination of the ideas and sentiments as displayed in the original work, no diversity in the mere detail of expression will protect him from the consequences of his act.

As already stated, the Common Law right of copy in a composition of the intellect subsists only so long as the owner does not publish it in the technical sense of that word; the composition may indeed be reduced to a tangible and material form, and still remain the exclusive property

of the author, but once published, his right has gone for ever; unless, indeed, he has taken care to bring himself within the protective provisions of any statute which may happen to subsist with regard to the particular subject. Before actual publication the author has the uncontrolled mastery over his material production; he may destroy it or give it away, either with or without any conditions, he may part with the possession and reserve the property (Marquis of Queensbury v. Shebbeare, 2 Eden, 329; Thompson v. Stanhope, Amb. 737; Southey v. Sherwood, 2 Meriv. 435), or exercise any other act of ownership over it (see Prince Albert v. Strange, 2 De G. & Sm. 652; 1 Mac. & G. 25; Bartlett v. Crittenden, 4 McLean, 300 (Amer.); Ibid., 5 McLean, 41, per McLean, J.; Jefferys v. Boosey, 4 H. L. Cas. 867, per Erle, J.). His creditors may indeed seize, by fi. fa., the composition itself, a manuscript for instance, but they cannot publish the words contained in it; the author's property in them they cannot touch, however valuable it may be (Bartlett v. Crittenden, 5 McLean, 37 (Amer.); and refer also to Stevens v. Cady, 14 How. (Amer.) 528; Stevens v. Gladding, 17 How. (Amer.) 447). The Common Law right as subsisting before publication must therefore be carefully contrasted with the Statutory right as conferred by virtue of the authority of some particular Act of Parliament; for upon a true appreciation of the difference depends the whole. law relating to copyright. The Common Law right of copy is personal property, and primâ facie passes with a transfer of the manuscript or work of art to which it is incident (Turner v. Robinson, 10 Ir. Ch. 142, per Smith, M. R.; Palmer v. De Witt, 2 Sickel, 538, per Allen, J.) ; yet it will not do so if the owner should manifest an intention to reserve the right of publication to himself (Queensbury v. Shebbeare, 2 Eden, 329; Lucas v. Cooke, 13 L. R. Ch. D. 872), and in the absence of any express

3

ment,

or review,

or unau

thorized publication.

Effect of authorized

understanding between the parties, the question is always one of evidence of intention (Queensbury v. Shebbeare, Ibid.; Thompson v. Stanhope, Amb. 737; Southey v. Sherwood, 2 Meriv. 435). Consequently the literary property in an unpublished manuscript may be assigned by mere word of mouth, and a writing is never necessary, for it is the statute (if anything) that insists on writing, and not the Common. Not lost by Law (see Power v. Walker, 3 Maule & S. 7). The right abridyat Common Law cannot, in the case of a manuscript, be summary, evaded by an abridgment, a summary, or even a review (Prince Albert v. Strange, 2 De G. & Sm. 693, per Bruce, V.-C.); nor is it lost by a publication made by a third person without the authority of the proprietor (Boucicault v. Wood, 2 Biss. (Amer.) 34, 39; Crowe v. Aikin, 2 Biss. (Amer.) 208; Palmer v. De Witt, 2 Sweeny (N. Y.), 530, 551; 2 Sickel, 532; Shook v. Neuendorf, 11 Daily Reg. (N. Y.) 985). If, publication however, the author of the production should publish it, on Common he must minutely comply with the provisions contained in Lawrights. the statute governing the case, or else both his common law and statutory right of copy will be gone, for on publication the common law right ceases, and unless such publication be in accordance with the statute, the statutory right will not attach; and such common law right of property once destroyed by publication is not revived after the expiration of the time allowed by the Copyright Acts (Donaldson v. Becket, 4 Burr. 2408) as it would be if both description of rights could subsist concurrently; for as the law is at the present time generally supposed to stand, the common law right of property is divested simultaneously with the publication of the work or production. On analysis of the cases, however, it would appear to be by no means clearly settled that the Common Law right becomes merged in or otherwise destroyed by the statute, or ceases to exist on the publication of the work to which it originally attached.

The first copyright Act, passed in 1710 (8 Anne, c. 19) was repealed by 5 & 6 Vict. c. 45, s. 1, and prior to the former statute there is no doubt but that authors had a perpetual right of property in their works by virtue of the common law; if, therefore, that right of property was taken away, it must have been by operation of the statute. This question was first raised in the case of Tonson v. Collins, 1 W. Bl. 301, 321, in which the Court inclined to the plaintiff's contention that he had a right of property independently of the statute, but as the action seemed to have been brought by collusion, and a nominal defendant set up in order to obtain a judgment, the Court refused to proceed (see per Willes, J., 4 Burr. 2327). At any rate the common law right of the author was so extremely doubtful in 1765, that Lord Northington declined to continue an injunction obtained by the assignee of an author after the expiration of the two terms of years allowed by the statute of Anne (Osborne v. Donaldson, 2 Eden, 327). In the famous case of Millar v. Taylor, 4 Burr. 2303, it Millar v. Taylor. was decided by a majority of three judges of the King's Bench, that it was impossible to say that the Act of Anne tacitly abolished the common law right, or could be quoted to show that no such right ever existed, and that had there been any intention to take away every pretence of right at the common law it would have been so expressly enacted. The opinion of Mr. Justice Yates, the one dissenting judge, was based upon a belief that there could be no right of property at all in any intellectual production, or in anything else that had not a corporeal existence, but that in the case of literary copyright such right was confined to the manuscript, and, further, that before the statute of Anne, no copyright existed, either at the common law, or otherwise. He admitted, however, that the statute gave a certain right of property in books for the time mentioned therein, though he denied that an intellectual production