Chap. XI. making the sauce, of which he alone knows the recipe, under the original title (u). Upon the same principle (x) injunctions have been granted to restrain the use or publication of secret information obtained by a clerk or servant in the course of his employment, such as a list of the names and addresses of the plaintiff's customers copied from his books (y); a table of dimensions of machinery designed by the plaintiffs and collected from their plans by one of their draftsmen (z); materials for the construction of a book of advertisements collected by the plaintiff's canvassers (a); and of prints from a photographic negative which the defendants had been employed by the plaintiff to take (b). The jurisdiction extends to enable the Court to restrain a third party from using secret information which has been to his knowledge obtained or communicated in breach of faith or contract. Thus, where under a contract information was supplied to the plaintiffs by the Stock Exchange and the same information was surreptitiously obtained by the defendant from a third person, the defendant was restrained from publishing it (c). A motion to restrain a defendant from disclosing confidential information will be heard in camera where the object of the motion would be defeated by its being heard in open Court (d). (u) Cotton v. Gillard, 44 L. J. Ch. 90. See (a) I.e., implied contract. Pollard v. Photographic Co., 40 C. D. 345, per North, J. (y) Robb v. Green, (1895) 2 Q. B. 1, 16; ib. 315; Louis v. Smellie, W. N. (1895) 115. (z) Merryweather v. Moore, (1892) 2 Ch. 518. (a) Lamb v. Evans, (1892) 3 Ch. 462; (1893) 1 Ch. 218. (b) Pollard v. Photographic Co., ante. (c) Exchange Co. V. Gregory, (1896) 1 Q. B. 147 (C. A.); and see Exchange Co. v. Central News, (1897) 2 Ch. 48. (d) Mellor v. Thompson, 31 C. D. 55 (C. A.). CHAPTER XII. INJUNCTIONS AGAINST THE PUBLICATION OF MANUSCRIPTS, THE author or composer of a work of literature, science, or art, has, at common law, an absolute property in his work before publication (a). "The nature of the right of an author in his work before publication," said C. J. Erle, in Jefferys v. Boosey (b), "is analogous to the rights of ownership in other personal property. If he choose to keep his writings private, he has the remedies for wrongful abstraction of copies analogous to those of an owner of personalty. He may prevent publication; he may require back the copies wrongfully made; he may sue for damages if any are sustained; if the wrongful copies have been published abroad, and the books imported for sale without knowledge of the wrong, the author's right to his composition would be recognised against the importer, and the sale would be stopped. These rights would be enforced for an alien as well as for a native author, in case his writings were copied wrongfully abroad and published. Again, if an author choose to impart his manuscript to others without general publication, he has all the rights for disposing of it incidental to personalty. He may make an assignment, either absolute or qualified, in any degree. He may lend, or let, or give, or sell, any of his composition, with or without liberty to transcribe, and if with liberty of transcribing, he may fix the number of transcripts which he permits (c). If he prints for private circulation only, he still has the same rights and all (a) Jefferys v. Boosey, 4 H. L. C. 979, per Lord St. Leonards; Prince Albert v. Strange, 1 Mac. & G. 42, per Lord Cottenham. (b) 4 H. L. C. 867. (c) See Tuck v. Priester, 19 Q. B. D. 629 (C. A.). Chap. XII. Chap. XII. Grounds of equitable interference. these rights he may pass to his assignee" (d). "Every man,” said Mr. Justice Yates, in Millar v. Taylor (e), "has a right to keep his own sentiments if he pleases; he has a right to judge whether he will make them public or commit them only to the sight of his friends. The manuscript is, in every sense, his own peculiar property, and no man can take it from him or make any use of it which he has not authorised, without being guilty of a violation of his property; and as every author or proprietor of a manuscript has a right to determine whether he will publish it or not, he has a right to the first publication, and whoever deprives him of that privilege is guilty of a manifest wrong, and the Court has a right to stop it." In restraining by injunction the publication of a manuscript or other unpublished matter, the Court exercises an original and independent jurisdiction, not for the protection of a merely legal right, but to prevent what in equity the Court considers and treats as a wrong, whether arising from a violation of an unquestionable right or from a breach of contract or confidence (f). The author or composer of an unpublished work is entitled to an injunction to restrain the publication, whether he does or does not intend to seek profit by future publication. It is in either case equally an interference with his property (g). The leading case on the subject is Prince Albert v. Strange (h). Her late Majesty and the Prince Consort had made certain etchings, and had certain lithographs struck off from them for their own use, and not for the purpose of publication: one of the impressions had been surreptitiously retained by one of the workmen employed in the operation, and had passed from his hands into the hands of a publisher, who declared his intention of publicly exhibiting the impression so improperly obtained, and also of selling a descriptive catalogue of the lithographs. Lord Cottenham restrained the publication of the catalogue as well as the exhibition of the impression upon the ground that, (d) See Mayall v. Higby, 1 H. & C. 148; Tuck v. Priester, 19 Q. B. D. 629 (C. A.). (e) 4 Burr. 2379. (f) Prince Albert v. Strange, 1 Mac. & G. 42, per Lord Cottenham; and see Pollard v. Photographic Co., 40 C. D. 345, 354. (g) Ib. 2 Mer. 437, per Lord Eldon. () 1 Mac. & G. 25. as the etchings were the exclusive property of the plaintiff, no one had, without his consent, the right to make any use whatever of them, either by publishing a catalogue of them or otherwise. The order directed the copies of the impression and the catalogues to be delivered up (i). Chap. XII. The exclusive right which the author or composer of any Publication. work of literature, science, or art has at common law in his work ceases upon publication. After publication the right exists only by statute (k). Unless the right be secured by statute, any man may, after publication, copy a work whether for publication or otherwise (1). What amounts to a publication so as to defeat the common law right, is a question of some nicety. The publication of a work for private purposes and private circulation, and the gift of a few copies to friends, is not a publication (m). Nor is the printing of 100 copies of a report on a proposed company and showing or giving some of them to persons interested in floating the company (n). Nor is the representation of an unprinted work or manuscript play upon the stage a publication which will deprive the author or his assignee of his right of property therein (0). Nor is the exhibition of a picture at a public exhibition or gallery, where copying is expressly or impliedly forbidden, or the exhibition of a picture for the purpose of obtaining subscribers to an engraving, a publication (p). Nor is the delivery of a lecture to an audience of persons admitted upon the payment of a fee or reward, a publication (q). To (i) See also Turner v. Robinson, 10 Ir. Ch. 121, 510; Mayall v. Higby, 1 H. & C. 148; Hamilton v. Hector, 13 Eq. 511; Pollard v. Photographic Co., 40 C. D. 345, 354. (k) Jefferys v. Boosey, 4 H. L. C. 815; Reade v. Conquest, 9 C. B. N. S. 755. (1) See Magdalen College v. Ward, 1 Coo. C. C. t. Cot. 265; Turner v. Robinson, 10 Ir. Ch. 121, 510. (m) White v. Geroch, 2 B. & Ald. 298; Prince Albert v. Strange, 2 De G. & Sm. 686, 1 Mac. & G. 42; Jefferys v. Boosey, 4 H. L. C. 815; (n) Kenrick v. Danube Collieries (0) Macklin v. Richardson, Amb. 694; Palmer v. De Witt, 7 American R. 480; Tompkins v. Halleck, 43 American R. 480. (p) Turner v. Robinson, 10 Ir. Ch. 121, 510. But see Dalglish v. Jarvie, 2 Mac. & G. 231. (q) Abernethy v. Hutchinson, 3 L. Chap. XII. Transfer of the right. Right passes upon death of author to personal be a publication, there must be a publication of the thing itself, and not of a mere copy. The mere publication, for instance, of a bust is not a publication of the statue from which the bust is taken, nor is the publication of a wood engraving a publication of the picture from which it is taken (r). The right to unpublished matter passes with the transfer of the subject (s); but the mere parting with the possession of a manuscript is not of itself sufficient proof of an intent to part with the ownership of the intellectual contents. Thus the giving of a manuscript copy of Lord Clarendon's history to be used as the donor should think fit, was held not to authorise the publication (t); and the possession of letters by the person to whom they are addressed does not take away from the writer the right to publish them (u). In Mr. Southey's case, Lord Eldon seemed to think that the circumstance of a manuscript being left for a long time in the hands of a publisher without inquiry, authorised the inference that he had abandoned his own right as an author, and he refused upon this and other grounds to interfere until the establishment of the right at law (x). The opinion of Lord Eldon in this case is opposed to the authority of the Duke of Queensberry v. Shebbeare, and does not seem sound. The true rule upon the subject appears to be that when consent is not proved, the negative is implied as a tacit condition (y). Most of the cases proceed upon this principle. In Folsom v. Marsh (2), Mr. Justice Story held that unless there be an unequivocal dedication by the author of his papers or letters, either to the public or to some other person, he has the exclusive property therein. The right in manuscripts or other unpublished matter passes to the legal personal representatives of the author or representatives. J. Ch. 209, 1 H. & Tw. 28; Caird v. Sime, 12 App. Ca. 326. (r) Turner v. Robinson, 10 Ir. Ch. 121, 510. (8) Ib. (t) Duke of Queensberry v. Shebbeure, 2 Eden, 329. (u) Pope v. Curl, 2 Atk. 342. 438. (y) Per Willes, J., in Millar v. Taylor, 4 Burr. 2330. (z) 2 Story (Amer.), 100. |