CHAPTER VIII. INFRINGEMENT OF COPYRIGHT. (a) Literary and General. Definition of THE Act of 1911 provides (a) with regard to all works, that the infringement. copyright therein " shall be deemed to be infringed by any person who, without the consent (b) of the owner of the copyright, does anything the sole right to do which is by this Act conferred on the owner of the copyright," but the section goes on to provide that six specific acts therein mentioned (c), which might otherwise have been deemed to be infringements of copyright, shall not be considered to be such. The Act also provides that any person dealing in certain specified ways with works made or imported in infringement of the provisions of the Act shall be deemed to infringe copyright (d). It is probably correct to say that any act which would have been an infringement of copyright under the old law-unless it be one of the above-mentioned six acts-will be an infringement of copyright under the new law, but that, on the other hand, there are several acts which were not infringements under the old law, but which are made so by the new Act. Whereas the Act of 1842 conferred the exclusive liberty of 66 printing or otherwise multiplying copies" of a work, the Act of 1911 confers a wider right upon the copyright owner, namely, "the sole right to produce or reproduce the work or any substantial part thereof in any material form whatsoever.” The question of what is, and what is not, a piracy must necessarily often be a matter of difficulty. It is always important to bear in mind that plagiarism is not necessarily an invasion of copyright, for there can be no copyright in an idea, and it is necessary for the plaintiffs to satisfy the Court that the defendant has reproduced a substantial part of his work in a material form. But even if reproduction, in the sense of similarity, is established the owner of a copyright does not stand in the same (a) Section 2, sub-section 1. (b) See p. 114, as to consent. (c) These six acts are all examples of what might be considered 'fair dealing with the original work (post, p. 120). They will be treated in greater detail later in this Chapter. (d) Section 2, sub-section 2, post, p. 140. position as the owner of a patent. A patentee has the sole right to use his invention within certain limits, and if anybody uses that patent, although he has made independent investigations, he infringes the patent. But in the case of copyright that is not so. It is always possible to arrive at the same result from independent sources, and the fact that the defendant produces something like the plaintiff's earlier work does not necessarily create an infringement it must be shown that the defendant has derived his work from the plaintiff's (e). As Lord Atkinson pointed out in Macmillan v. Cooper (f), the moral basis upon which the protective provisions of the Copyright Act of 1911 rests is the Eighth Commandment: "Thou shalt not steal." But it makes no difference whether the defendant derived the offending work directly from the plaintiff's work, or indirectly by copying a work which itself was a copy of the plaintiff's (g). Copyright being a proprietary right, except in those cases Ignorance no where the Act especially provides to the contrary, ignorance is no excuse. excuse for infringement (h). Questions have from time to time arisen with regard to the Liability for liability of persons for infringements of copyright by other persons acts of agent. with whom they stand in some contractual or other relation. These matters have been discussed in relation to the wording of particular statutes. Under the old law it was an infringement to cause a piracy to be printed or represented, and under the Act of 1911 it is an infringement to authorise an infringing act. It was held in Karno v. Pathé Frères (i) under the old law that a person was only liable for infringements committed by his servant or agent. Thus a man will be liable for any infringement committed by his servant in the course of his employment (k), and if the infringer is not the servant of the defendant he will also be liable if he authorised the particular act complained of, and it must be a question of fact in each case whether he gave such authority-a question which gave rise to the real difficulty in most of the decided cases. In Monaghan v. Taylor (1), it was decided that a man who (e) McCrum v. Eisner, 87 L. J. Ch. 99. 40 T. L. R. 186. (g) Cate v. Devon Newspaper, 40 Ch. D. 500; Beal, Ex parte, L. R. 3 Q. B. 394. (h) Mansell v. Valley Printing Co., [1908] 2 Ch. 441; Lee v. Simpson (1847), 3 C. B. 871; Wittman v. Oppenheim (1884), 27 Ch. D. 260; Byrne v. Statist Co., [1914] 1 K. B. 622. Ignorance may, however, affect the remedies : see section 8, post, Chapter IX. (i) 100 L. T. 260. (k) Performing Right Society v. Mitchell and Booker, [1924] 1 K. B. 762. (1) (1885), 2 T. L. R. 685. See also Bolton v. London Exhibitions (1898), 14 T. L. R. 550; Green v. Irish Independent, [1899] 1 Ir. R. 386; Colburn v. Simms (1843), 2 Ha. 543, 547. Modes in which copyright may be infringed. employed a singer and took no pains to ascertain what songs he proposed to sing, and was present at the performance, had caused him to sing the songs including one which was in fact an infringement. In the case of the Performing Right Society v. Ciryl Syndicate (m), the Court of Appeal held that there was no evidence of authorisation by a managing director who had engaged a band on behalf of a limited company and was himself away at the time of an infringing performance. 66 It was doubted in the latter case whether the word "authorise" in the Act of 1911 added anything to the law, but it has been hold by the Court of Appeal in the case of Falcon v. Famous Players Film Co. (n) that the new Act overrules the decision in Karno v. Pathé Frères, and that anyone who sanctions, approves or countenances " an infringement may be liable although the infringer is not his servant or agent. There is some authority for the proposition that the word 99 authorise in the Act of 1911 makes it an infringement to authorise the commission of an infringement, whether the actual infringing act be done or not (o). This view, however, has been doubted (p), and it seems improbable that a mere instruction which might be revoked before it caused damage can of itself be an actionable wrong. 66 Copyright in a literary work may be invaded in several ways: 3rd. By imitating the whole or a part, or by reproducing the 4th. By reproducing the whole or a part under an abridged form. 5th. By reproducing the whole or a part under the form of a translation. 6th. By performing it in public. 7th. By converting it into a dramatic work. 8th. By making mechanical contrivances whereby it may be reproduced (q). 9th. By dealing with copies made or imported in contravention of the Act. (m) [1924] 1 K. B. 1. (n) [1926] 2 K. B. 474. (0) Fenning Film Service v. Wolverhampton, &c., Cinemas, [1914] 3 K. B. 1171. (p) Performing Right Society v. Mitchell and Booker, [1924] 1 K. B., at p. 773. (q) See Part III., Chapter V. Piracies of the nature of the first class are comparatively 1. By reseldom committed, on account of the ease with which they can be printing the detected. When such cases do arise generally either the defendant has mistaken his rights or the infringement has been imported from abroad. It must be remembered that, according to section 1, subsection 2 of the Copyright Act, copyright is "the sole right to produce or reproduce" a work, and to constitute a piracy there must be an invasion of this right. To make use of a book is not a piracy, if the copies are not multiplied. To take a familiar instance, it is the custom for many Law Societies to print general conditions relating to the sale of real estate. A. and B. enter into a contract for sale and incorporate by reference into their agreement "the Conditions of Sale of the X. Y. Law Society." Assuming these conditions to be the subject of copyright, A. and B. are not infringing that copyright if they confine themselves to a reference and do not copy the conditions into their agreement. whole verbatim. verbatim & Piracies of the second division are more frequent and more 2. By redifficult to deal with. Historically, copyright law was first printing directed to the prevention of reprints and extended to prevent the evasion of its provisions by the publication of parts of books or the publication of imitations. Even under the Act of 1842 there was no general statutory prohibition of the multiplication of parts of books except in the single instance of "parts of a volume." At an early date, however, it was established that the copying of a part of the work might be restrained (r). As Lord Eldon said in Wilkins v. Aitkin (s): “ There is no doubt that a man cannot, under the pretence of quotation, publish either the whole or a part of another's book, although he may use, what in all cases is difficult to define, fair quotation." And it became established before the Act of 1911 that any "unfair use 99 of another's work could be restrained (t). The Act of 1911 provides that it shall be an infringement to reproduce" any substantial part" of a work. It would appear that considerations similar to those employed in determining whether "unfair use" had been made of a work can be applied to the question of whether the part taken is substantial. In questions as to the extent of appropriation which is necessary to establish an infringement, extreme difficulty is usually (r) Mawman v. Tegg (1826), 2 Russ. 385. (8) (1810), 17 Ves. 422. (t) Weatherby v. International Horse Exchange, [1910] 2 Ch. 297. Quantity taken only slight test. "Fair user." experienced, for the quality of the piracy is frequently more important than the proportion which the borrowed passages bear to the whole work (u). If so much is taken that the value of the original is sensibly diminished, or that labours of the original author are substantially, to an injurious extent, appropriated by another, that is sufficient, in point of law, to constitute a piracy pro tanto. Lord Cottenham, in the cases of Bramwell v. Halcomb (v) and Saunders v. Smith (x), adverting to this point, said: "When it comes to a question of quantity, it must be very vague. One writer might take all the vital part of another's book, though it might be but a small proportion of the book in quantity. It is not only quantity, but value, that is always looked to. It is useless to refer to any particular cases as to quantity." In short, we must often, in deciding questions of this sort, look to the nature and objects of the selections made, the quantity and value of the materials used, and the degree in which the use may prejudice the sale, or diminish the profits, direct or indirect, or supersede the objects of the original work. Many mixed ingredients enter into the discussion of such questions. In some cases a considerable portion of the materials of the original work may be fused into another work, so as to be indistinguishable in the mass of the latter, which has other professed and obvious objects, and cannot fairly be treated as a piracy; or they may be inserted as a sort of distinct and mosaic work into the general texture of the second work, and constitute the peculiar excellence thereof, and then it may be a clear piracy. If a person should, under colour of publishing" elegant extracts" of poetry, include all the best pieces at large of a favourite poet, whose volume was secured by copyright, it would be difficult to say why it was not an invasion of that right, since it might constitute the entire value of the volume. In short, it is submitted that the substantiality of the infringement will be considered having regard to all the circumstances. It would appear, however, that "substantiality" is not to be considered as co-extensive with "fair user under the old law, since it is expressly provided by section 2, sub-section 1 (i), that "any fair dealing with any work for the purposes of private study, research, criticism, review, or newspaper summary" shall 425. (u) Tinsley v. Lacey (1861), 1 H. & M. 747; Warner v. Seebohm (1888), 39 Ch. D., 73; and see Trade Auxiliary Co. v. Middlesbrough (1889), 40 Ch. D. (v) (1836), 3 My. & Cr. 737; Neale v. Harmer (1897), 13 T. L. R. 209. (x) (1838), 3 My. & Cr. 711. |