and fifty years after his death by the Copyright Act, 1911,1 which has repealed practically all earlier statutes dealing with

the subject.2

3

Copyright may also exist in a dramatic or musical composition. The author of any dramatic piece or musical composition, or his assign, has now during the life of the author and for fifty years after his death the sole liberty of representing or performing such piece or composition in public and of making "any record, perforated roll, cinematograph film or other contrivance by means of which the work may be mechanically performed." If he publishes his work as a book, he secures for himself the copyright in the book in addition to the exclusive right of representation or performance.

5

There is also copyright in engravings and prints, which lasts for the same period. A similar copyright also exists in sculpture, models and casts, and in original paintings, drawings and photographs, and now, under the Act of 1911, in architectural works of art. Lastly, copyright in designs, which was regulated by many former Acts," is now included in the Patents and Designs Act of 1907.

We must however restrict ourselves in the rest of this chapter to literary copyright.

The copyright in a literary work now "means the sole right to produce or reproduce the work or any substantial part thereof in any material form whatsoever; to perform, or in the case of a lecture to deliver, the work or any substantial part thereof in public; if the work is unpublished, to publish the work or any substantial part thereof." It includes the sole right to produce, reproduce, perform or publish any translation of the work, and in the case of a novel or other

1 1 & 2 Geo. V. c. 46, s. 3. And see ss. 21, 24.

2 As to international copyright, see ss. 29 and 30 of the Act.

3 As to what constitutes a dramatic piece or musical composition, see 5 & 6 Vict. c. 45, s. 42; Warne & Co. v. Seebohm (1888), 39 Ch. D. 73; Boosey v. Whight, [1899] 1 Ch. 836; [1900] 1 Ch. 122; Mabe v. Connor, suprà; and see the judgment of Lord Esher, M. R., in Fuller v. Blackpool Winter Gardens, &c., Co., [1895] 2 Q. B. at p. 432.

4 1 & 2 Geo. V. c. 46, s. 1 (2).

Ss. 7-11 of the Fine Arts Copyright Act, 1862 (25 & 26 Vict. c. 68), which imposed penalties on the fraudulent productions or sales of original paintings, drawings and photographs, still remain in force.

The most important of these Acts were 46 & 47 Vict. c. 57, and 49 & 50 Vict. c. 37. See also 9 & 10 Geo. V. c. 62, s. 2.

7 See Byrne v. Statist Co., [1914] 1 K. B. 622.

non-dramatic work to convert it into a dramatic work by way of performance in public or otherwise.1

The term "literary work

3

5

"literary work" includes lectures, examination papers, and also "maps, charts, plans, tables and compilations."4 But not all printed or written matter can be the subject of copyright. The composition must possess some literary value or be the result of literary skill and labour. Thus a race-card cannot be the subject of literary copyright, though a railway time-table can." There can be copyright in private letters if they have any value as literary productions. So there can be copyright in the report in a newspaper of an address delivered at a public meeting transcribed from shorthand notes taken at the time, or in a newspaper article; the practice of newspapers to copy from each other is no from each other is no justification for such an infringement." If a man exercises his labour and skill in compiling a work from materials which are open to the public, he may acquire copyright for his compilation. But so may any one else who exercises labour and skill in compiling a different work from the same materials, unless he makes an unfair use of the work of his predecessor. There is no copyright in works of a blasphemous, immoral or libellous character.11

8

10

The author of a work is prima facie the first owner of the copyright. He may assign the right either wholly or partially, and either for the whole term or any part of the copyright, and either generally or subject to limitations, such, for instance, as the reservation of royalties or a share of

1 1 & 2 Geo. V. c. 46, s. 1 (2).

2 Abernethy v. Hutchinson (1825), 1 H. & T. 28, 39; Caird v. Sime (1887), 12 App. Cas. 326; but see s. 2 (1) (v.).

8 University of London Press, Ltd. v. University Tutorial Press, Ltd., [1916] 2 Ch.

601.

4 S. 35.

5 Hollinrake v. Truswell, [1894] 3 Ch. 420; Chilton v. Progress Printing Co., [1895] 2 Ch. 29.

Leslie v. Young, [1894] A. C. 335.

7 Macmillan v. Dent, [1907] 1 Ch. 107. As to the publication of private letters which have no literary value, see Earl of Lytton v. Devey (1884), 54 L. J. Ch. 293. 8 Walter v. Lane, [1900] A. C. 539.

Walter v. Steinkopff, [1892] 3 Ch. 489.

10 Pike v. Nicholas (1870), L. R. 5 Ch. 250. Different copyrights can thus be acquired in different arrangements of common materials. See the cases as to street directories, Kelly v. Morris (1866), L. R. 1 Eq. 697; Morris v. Wright (1870), L. R. 5 Ch. 279. 11 Walcot v. Walker (1802), 7 Ves. 1; Southey v. Sherwood (1817), 2 Mer. 435.

the profits to himself.' He may also grant any interest in the right by licence. Where however the author is employed by some one else to write the work, the first copyright is, in the absence of any agreement, vested in the employer; but in the case of "an articie or other contribution to a newspaper, magazine or similar periodical," the employer has the copyright only in the original periodical, and the author can restrain any subsequent reproduction of his work.3

3

In order to succeed in an action for the infringement of a literary copyright, the plaintiff must prove that he is the present owner of the copyright and that the defendant has infringed his copyright.

On proof of the above facts the plaintiff has four remedies, all of which he may pursue concurrently :

(a) An action for an injunction.

(b) An action for damages for the infringement.

(c) An action for detinue for the recovery of pirated copies and damages for their detention, or an action of trover for their conversion, for all infringing copies of any work in which copyright subsists are deemed to be the property of the owner of the copyright."

(d He may also have the importation of pirated copies stopped at the Custom House.5

All such proceedings must be commenced within three years after the infringement. It is not necessary for the plaintiff to give direct evidence of any pecuniary loss; for, if his work has any literary value, the infringement of it must do him damage, and, except in the case of an action for damages, it is not necessary for the plaintiff to establish that the defendant was aware of the existence of his copyright and deliberately infringed it.

1 The bankruptcy of the assignee of the copyright will not affect the author's right to his royalties or share of the profits: Bankruptcy Act, 1914, s. 60.

2 Whether there is or is not such an agreement is a question of fact and not of law

;

it may be implied from the mere facts of employment and payment: Lawrence and Bullen, Ltd. v. Aflalo, [1904] A. C. 17 (the case of an article in an encyclopædia). 3 S. 5 (1) (b).

S. 7; and see Birn Brothers, Ltd. v. Keene & Co., Ltd., [1918] 2 Ch. 281.

5 Ss. 6-9. In addition he may take summary proceedings before justices of the peace, under s. 11, to have infringements delivered up for destruction and the infringer punished.

The plaintiff must be either the original owner of the copyright or an assign or licensee of the original owner. Copyright can only be assigned or a licence granted by a writing signed by the owner of the copyright or his authorised agent; the writing need not be under seal or attested. If an author be employed by A. to write for reward, the copyright of the composition, in the absence of any express agreement, will prima facie vest in A. and not in the author. The author cannot, therefore, reproduce it without the leave of A. This rule is, however, modified in the case of a contribution to a newspaper, magazine or similar periodical.

If a foreign author publishes in the United Kingdom an original work which has not previously been published elsewhere, he can now acquire British copyright for it in precisely the same way as if he were a British subject. The language in which the book is written is immaterial, and so is the nationality of the author. Again, if the executor, administrator or assign of a foreign author publishes the book under similar circumstances, he will also acquire British copyright. It is no longer necessary that the author should be temporarily resident in the British dominions at the date of publication. The subsequent production of the same book by the author or his executors in the native country of the author will not affect rights already acquired in the United Kingdom. If a work be written in a foreign language, no one except the author or some person authorised by him can produce, reproduce or publish any translation of it.2 The authorised translator will possess the copyright in his translation, and can restrain others from copying it.3

"In any action for infringement of copyright in any work, the work shall be presumed to be a work in which copyright subsists, and the plaintiff shall be presumed to be the owner of the copyright, unless the defendant puts in issue the existence of the copyright, or, as the case may be, the title of the plaintiff, and where any such question is in issue, then

(a) if a name purporting to be that of the author of the work is printed or otherwise indicated thereon in the usual manner, the person

1 S. 5.

2 S. 1 (2). See ante, p. 605.

3 Byrne v. Statist, [1914] I K. B. 622.

whose name is so printed or indicated shall, unless the contrary is proved, be presumed to be the author of the work;

(b) if no name is so printed or indicated, or if the name so printed or indicated is not the author's true name or the name by which he is commonly known, and a name purporting to be that of the publisher or proprietor of the work is printed or otherwise indicated thereon in the usual manner, the person whose name is so printed or indicated shall, unless the contrary is proved, be presumed to be the owner of the copyright in the work for the purposes of proceedings in respect of the infringement of copyright therein.” 1

By section 16 of the Copyright Act, 1842, the defendant in an action for infringement of copyright in a book was required, if he disputed the plaintiff's copyright, to give a notice in writing stating the grounds of his objections to the plaintiff's title to copyright. This section has now been repealed, and is not re-enacted by the Copyright Act, 1911. The defendant nevertheless must, it is submitted, under the general rules of pleading now in force, state such objections in the body of his Defence, or in a separate document delivered therewith.2

The plaintiff must also prove that the defendant has infringed his copyright. Any unauthorised reproduction of a book, or any substantial part of it, that interferes with the profit and enjoyment which the owner of the copyright may fairly expect to derive from it amounts to an infringement.3 It makes no difference that the reproduction was merely for gratuitous distribution and not for profit. Printing a copy or selling a copy is an infringement, and it is no answer to a claim for an injunction that at the date of the infringement the defendant" was not aware and had no reasonable ground for suspecting that copyright subsisted in the work.” 5

It is an infringement of the copyright in a book to import into any part of the British dominions any pirated copy of such book for sale or hire, or to knowingly sell, publish or offer for sale or hire, or have in possession for sale or hire, any such pirated copy."

Difficult questions sometimes arise as to the extent to which it is permissible for one author to quote from another. No tort is, of course,

1 S. 6 (3).

2 See Order XIX. rr. 4, 6, 15.

3 See Educational Co. of Ireland v. Fallon, [1919] 1 Ir. R. 62.

A Novello v. Sudlow (1852), 12 C. B. 177.

5 S. 8.

65 & 6 Vict. c. 45, s. 17.

B.C.L.

39