Chap. VIII. If the plaintiff claims as assignee, he must by affidavit or otherwise show that the assignment to him has been in writing. He must make a particular title: it is not enough to say that he acquired the copyright, but he must trace his title to the author. But if he happens to be in the situation of assignee of an assignee, it is sufficient for him to show that the assignment to himself was in writing without tracing the title through the mesne assignees from the author. If he does so, the proof of want of title will be thrown on the defendant (g). It is not necessary that the plaintiff should specify either in his statement of claim or affidavits the parts of his works which have been pirated. It is sufficient to allege generally that the work of the defendant contains several passages which have been pirated (h); but the defendant would usually be entitled to particulars. There may also be a claim for an injunction to restrain the future infringement of the copyright and for a mandatory order for delivery of copies which have been printed in violation of the copyright. If there be no claim for damages, there may be a claim for an account (i). The statement of defence may be in the form given in Appendix D. sect. VI. (j). To the heads of defence there given may be added, if the circumstances of the case warrant it, an allegation that the copyright in question did not exist (k), or that the registry is defective (1), or that there has been acquiescence on the part of the plaintiff in the alleged infringement (m). In an action for infringement of literary copyright the defendant is bound to give notice in writing of the objections on which he relies, and no other objections will be allowed at the trial (n). It seems doubtful whether it is open to a defendant, who does not give such notice, to take an objection (g) Morris v. Kelly, 1 J. & W. 481. (h) Sweet v. Maughan, 11 Sim. 51; Hotten v. Arthur, 1 H. & M. 603. (i) De Vitre v. Betts, L. R. 6 H. L. 321. (j) Ord. XIX. 5. (m) Post, p. 277. (n) 5 & 6 Vict. c. 45, s. 16. to the plaintiff's registration arising on the plaintiff's own evidence. In some cases this has not been allowed (o); in others it has (p). Although the registered owners of a copyright take as tenants in common and not as joint tenants, yet any one or more of them may sue for infringement of the entire copyright (q). Chap. VIII. If the plaintiff has merely an equitable title, the party in Parties. possession of the legal title should be made a party (r). If there has been a complete legal assignment, the assignor should not be made a party (s). One action cannot be maintained against several persons for distinct invasions of copyright (t). The plaintiff in a copyright action has a right to a full and Discovery. particular discovery as to the original sources from which the defendant alleges that he has taken his work (u). But this is so only where the statutory penalty is really in the nature of liquidated damages (v). Where the sum forfeited must be taken to be a penalty, the plaintiff is not entitled to interrogate as, to the infringement charged (w). So also an order for inspection may be obtained by the defendant on making out a proper case (x). A man who seeks the aid of the Court for the protection of Delay and acquiescence. his copyright from violation must show due diligence in coming to the Court. Delay or acquiescence will be fatal to the application, unless it can be satisfactorily accounted for (y). Chap. VIII. Conduct of plaintiff. Course of the with the application. Nor can a man have relief if his own conduct has led to the state of things that occasions the application (z). The doctrine applies not only to the cases of his conduct towards the particular person with whom the controversy subsists, but also to cases where his conduct with others may influence the Court in the exercise of its equitable jurisdiction (a). According to 3 Will. IV. c. 15, s. 3, and 5 & 6 Vict. c. 45, s. 26, all actions must be commenced within twelve months of the offence. But a man who has neglected for a period of more than twelve months to bring an action for an infringement of his copyright may sue to prevent a repetition of the offence by the publication of a fresh edition of the work containing the pirated matter (b). The interference of the Court by injunction being founded on pure equitable principles, a man who comes to the Court must be able to show that his own conduct in the transaction has been consistent with equity. A book accordingly which is itself piratical cannot be protected from invasion (c), nor will the Court protect by injunction a work which is of an immoral, indecent, seditious, or libellous nature (d). If the Court is satisfied that the alleged title is good, and Court in dealing that there has been a piracy, it may interfere at once, and restrain the piracy simpliciter by injunction; but this course will not be adopted except where the title and the fact of its violation are clearly made out. If the title is not clear, or the fact of its violation is denied, the course of the Court is either to grant the injunction pending the trial of the legal right, or to direct the motion to stand over until the hearing, on the terms of the defendant keeping an account. alternatives shall be adopted depends on the Court, according to the case made out (e). If irreparable damage would be caused to the property of the plaintiff by (z) Rundell v. Murray, Jac. 316; (b) Hogg v. Scott, 18 Eq. 444. Which of these discretion of the (d) Southey v. Sherwood, 2 Mer. 435; Lawrence v. Smith, Jac. 471; Baschet v. London Illustrated, &c., (1900) 1 Ch. 73. (e) Bramwell v. Halcomb, 3 M. & C. 739; ante, p. 20. Sect. 1. the refusal of the Court to interfere, the injunction will be Chap. VIII. granted (ƒ). If, on the other hand, an injunction would be an extreme hardship on the defendant as compared with the inconvenience to which the plaintiff would be put by being required in the first instance to establish his legal right, the other alternative will be adopted (g). Where the work is of a transitory or ephemeral character, greater caution is necessary in exercising the jurisdiction than when the book is of a more permanent character (h). Where the plaintiff's title is clear, an injunction may be granted although there is only one instance of its infringement by the defendant (i). In cases where the Copyright Acts create a new offence and Waiver of penalties. impose a penalty, the ancillary remedy by injunction may still be claimed (j) but a man who seeks relief by way of injunetion will be required by the Court, as a condition of its assistance, to waive the penalty or forfeiture (k). If a case has been made out for an injunction, the Court has Extent of the injunction. then to determine whether the injunction shall be against the whole work or only against a part of it. The extent to which the injunction ought to go must depend in each case upon the extent of the piracy and the nature of the work (l). If the pirated matter is considerable in amount, and is so intermixed with the original matter that it cannot be separated, the injunction will go against the whole work generally (m). Notwithstanding that the effect may be to destroy altogether the use and value of the original matter, the Court will not refrain from granting an injunction. "If," said Lord Eldon (»), "the parts which have been copied cannot be separated from (f) Sweet v. Shaw, 8 L. J. Ch. N. S. 216; Dickens v. Lee, 8 Jur. 185. (g) Saunders v. Smith, 3 M. & C. 737; Bramwell v. Halcomb, ib. 739; ante, p. 21. (h) Matthewson v. Stockdale, 12 Ves. 275, per Lord Eldon; Spottiswoode v. Clark, 2 Ph. 154, per Lord Cottenham. (i) Cooper v. Whittingham, 15 C. D. 501; Butterworth v. Kelly, 4 (j) Cooper v. Whittingham, 15 (k) Colburn v. Simms, 2 Ha. 554. (m) Mawman v. Tegg, 2 Russ. Chap. VIII. When an injunction will not be granted. An injunctionwhen granted. those which are original without destroying the use and value of the original matter, he who has made an improper use of that which did not belong to him must abide the consequence of so doing. If a man mixes up what belongs to him with what belongs to another, and the mixture be forbidden by law, he must again separate them, and he must bear all the mischief and loss which the separation may occasion. If an individual chooses in any way to mix my literary work with his own, be must be restrained from publishing the literary work which belongs to me; and if the parts of the work cannot be separated, and if by that means the injunction which restrained the publication prevents also the publication of his literary matter, he has only himself to blame " (0). If, however, the pirated matter is not considerable in quantity or of much value in quality, or if, though considerable in value, it is very small in quantity, and quite out of proportion to the mass of original matter, the Court will not, as a general rule, interfere by way of injunction, but will leave the plaintiff to his remedy by damages (p). In an American case (q) the pirated matter pervaded the whole work, and could not be separated from the rest of the work without destroying the whole work, but, as it was small both in quantity and value, the Court would not interfere, on the ground that the remedy would be disproportionate to the injury. There may, however, be cases where the pirated matter, though small in quantity, is so material and of such value in quality that the Court may feel bound to interfere by injunc tion (r). In a case where the pirated matter formed a very small portion of the plaintiff's work, but constituted the bulk of the defendant's work, an injunction was granted (s). If an injunction has been granted against a work which is proposed to be published in successive numbers on the ground of piracy (0) Low v. Ward, 6 Eq. 417; Hogg v. Scott, 18 Eq. 457. (p) Mawman v. Tegg, 2 Russ. 394; Baily v. Taylor, 1 R. & M. 73. (g) Webb v. Powers, 2 Wood & M. 498. (r) Bohn v. Bogue, 10 Jur. 420; Saunders v. Smith, 3 M. & C. 736; Bramwell v. Halcomb, ib. 738; Bell' v. Whitehead, 8 L. J. Ch. 141; Leslie v. Young, (1894) A. C. 335. (8) Kelly v. Hooper, 4 Jur. 21. |