A Treatise Upon the Law of Copyright in the United Kingdom and the Dominions of the Crown, and in the United States of America Containing a Full Appendix of All Acts of Parliament International Conventions, Orders in Council, Treasury Minute and Acts of Congress Now in Force.

,

TO

THOMAS EDWARD SCRUTTON, Esq., K. C.

IN GRATITUDE FOR
MUCH INSTRUCTION AND KINDNESS

---

The foundations of this work were laid by my endeavours to understand what is perhaps the most complicated and obscure series of statutes in the statute book. In working from time to time at the Law of Copyright I found great want of a text-book which should be exhaustive of the case law, and at the same time contain a concise and clearly arranged epitome of the statutory provisions. This want I have tried to supply for myself in the present compilation, and it is now published in the hope that it may prove useful to others. The present law is bad both in substance and form, but it is the more essential that those who have anything to do with literary or artistic property should comprehend it in so far as it is comprehensible. There are probably more pitfalls for the unwary in dealing with Copyright than with any other branch of the law.

We have for some time been on the eve of a general codification and amendment of the Law of Copyright. It is, however, an eve of long and indefinite duration. It is now twenty-eight years since the Royal Commission on Copyright was appointed, and still nothing has been done to ameliorate the lamentable condition in which the Commissioners then found the law. Dissensions among those who are interested in Copyright, failure to come to a satisfactory arrangement with the colonies, and want of time at the disposal of the legislature are mainly responsible for this delay. In the meantime it is well that all those who are interested in Copyright should make themselves conversant with the law as it now is, so that when the time for legislation does at last come the result may be the more satisfactory.

I have added to this work Part II., dealing with Copyright in the United States, and I hope it may prove useful not only to English but to American lawyers and publishers.

I have to acknowledge much assistance in the preparation of this work and many invaluable suggestions from my friends, Mr. Langridge, of the Middle Temple, and Mr. Mackinnon, of the Inner Temple.

E. J. MACGILLIVRAY.

3 Temple Gardens,
June 1902.

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	PAGE
Table of English, Scotch, Irish, Indian, and Colonial Cases	xix
Table of Cases in the United States	xxxi
PART I
THE LAW OF COPYRIGHT IN THE UNITED KINGDOM
AND THE DOMINIONS OF THE CROWN
CHAPTER I
INTRODUCTORY	3
CHAPTER II
WHAT BOOKS ARE PROTECTED
Sec. 1. What is an Original Book	10
Definition of a Book	10
Essential Elements of a Book	11
Physical Form	11
Literary Matter	13
Originality	15
Examples of what are Books	16
Sec. 2. Publication	36
Divestitive Publication	37
Investitive Publication	38
First Publication within the British Dominions	40
Sec. 3. Author's Nationality	42
Sec. 4. Immoral Works	46
Sec. 5. Registration	46
Before Action	46
The Requisite Entry	49
The Actual Title	49
The Time of First Publication	51
The Name and Place of Abode of the Publisher	52
The Name and Place of Abode of the Proprietor	52
Certificate of Registration	53
False Entries	54
Rectification of Register	54
Sec. 6. Delivery of Copies to Libraries	55
Sec. 7. Duration of Protection	56
Sec. 8. Copyright in Lectures	57
CHAPTER III
THE OWNER OF THE COPYRIGHT IN BOOKS
Sec. 1. The Crown	59
Sec. 2. The Universities	61
Sec. 3. The Author	62
Sec. 4. The Employer	66
Under Section 18	66
Scope of Section	67
Under such Employment	68
On Terms that Copyright shall belong to such Proprietor	68
Joint Employers	71
Payment	71
Author's Separate Rights	72
Employer's Rights where Section 18 does not apply	73
Sec. 5. The Assignee	74
Before Publication	74
After Publication	77
Partial Assignment	80
Assignment distinguished from Licence	81
Sec. 6. The Licensee	82
Sec. 7. The Executors or Administrators	83
Sec. 8. The Trustee in Bankruptcy	83
CHAPTER IV
INFRINGEMENT OF COPYRIGHT IN BOOKS
Sec. 1. Prohibited Acts, and Remedies	84
Causing to be Printed	85
Damages	86
Account of Profits	86
Injunction	86
Delivery up of Copies	89
Customs Act	91
Every Offence	91
Limitation of Action	91
Pleading	92
Evidence	94
Discovery	94
Mode of Trial	94
Costs	95
Sec. 2. What is a Piratical Copy	96
What is a Copy	97
A Substantial Part must be Taken	97
No Animus Furandi need be Proved	100
Taking not necessarily for Profit	101
Copying may be Indirect and Unintentional	102
Custom of Trade	102
Fair Use	103
No one can Monopolize a Field of Labour	103
No Infringement to take Facts	104
No Infringement to take the General Scheme of another's Work	105
Every Author must do his own work	105
Work with a Different Object	109
Extract for purpose of Criticism	111
Improvement or Addition of New Matter no Excuse	112
Dramatization of a Novel	114
Abridgments	114
Translations	116
Licence	118
Abandonment	119
Acquiescence and Delay	119
Provision against the Suppression of Books	119
CHAPTER V
PERFORMING RIGHTS
Sec. 1. Nature of Performing Right	120
Sec. 2. Performing Right at Common Law	121
Sec. 3. What is a Dramatic Work	123
Sec. 4. What Dramatic Works are Protected, and Duration of Protection	126
Sec. 5. What is a Musical Composition	130
Sec. 6. What Musical Works are Protected, and Duration of Protection	130
Sec. 7. Registration of Performing Rights	131
Musical Compositions	133
Sec. 8. Assignment of Performing Rights	134
Sec. 9. Infringement of Dramatic Performing Rights	135
Public Performance	135
Substantial Part	138
Causing to be Represented	139
Knowledge	142
Innocent Agents	142
Licence	142
Sec. 10. Infringement of Musical Performing Rights	142
Substantial Part	142
Public Performance	143
Causing to be Represented	143
Sec. 11. Remedies for Infringement of Dramatic Performing Rights	144
Sec. 12. Remedies for Infringement of Musical Performing Rights	145
CHAPTER VI
COPYRIGHT IN ENGRAVINGS
Sec. 1. What Works are Protected	146
What is an Original Engraving	146
Originality	147
Maps, Charts, and Plans	148
Engravings in a Book	149
Must the Engraving be made within the British Dominions	150
The Engraving must be First Published within the British Dominions	150
Date of First Publication and Proprietor's Name	151
Name of Proprietor	151
Immoral Works	152
Duration of Protection	152
Sec. 2. The Owner of the Copyright	152
The Engraver	152
The Employer	153
The Assignee	154
Sec. 3. Infringement of the Copyright	155
Prohibited Acts and Remedies	155
Guilty Knowledge	156
Limitation of Action	156
Costs	156
Copying for Private Use	156
What is a Piratical Copy	156
Licence a Defence	159
CHAPTER VII
COPYRIGHT IN SCULPTURE
Sec. 1. What Works are Protected	161
What is an Original Sculpture	161
The Sculpture must be First Published within the British Dominions	162
Publication	162
Author's Nationality	162
Proprietor's Name and Date	162
Proprietor's Name	163
Date	163
Immoral Works	163
Duration of Protection	163
Sec. 2. The Owner of the Copyright	164
The Artist	164
The Employer	164
The Assignee	164
Sec. 3. Infringement of the Copyright	164
Prohibited Acts and Remedies	164
Guilty Knowledge	165
Limitation of Action	165
Copying for Private Use	165
What is a Piratical Copy	165
CHAPTER VIII
COPYRIGHT IN PAINTINGS, DRAWINGS, AND PHOTOGRAPHS
Sec. 1. What Works are Protected	167
Every Original Painting, Drawing, and Photograph	167
Originality	167
Artistic Merit	168
Publication Outside the British Dominions	168
Published	169
Nationality or Residence of Artist	170
Registration	171
The Requisite Entry	171
Name	173
Place of Abode	173
Short Description	173
Immoral W	174
Duration of Protection	174
Sec. 2. The Owner of the Copyright	174
The "Author"	174
The Employer	175
The Assignee	176
Sec. 3. Infringement	177
Prohibited Acts and Remedies	177
Cause or Procure	178
Innocent Agent	179
Unlawful Copy	179
Separate Offence	179
Copying for Private Use	180
Action on Breach of Contract	180
Fraudulent Acts	180
Limitation of Action	181
Evidence	181
What is a Piratical Copy	181
No Monopoly	181
What is a Copy	181
General Idea may be Taken	182
Material Part	183
Indirect Taking	184
Guilty Knowledge	184
Replicas	184
Licence a Defence	184
CHAPTER IX
COLONIAL COPYRIGHT
Books	186
Artistic Works	191
CHAPTER X
INTERNATIONAL COPYRIGHT
Works Produced in His Majesty's Dominions	193
Works Produced in Foreign Countries with which this Country has no Treaty	193
Works Produced in Foreign Countries with which this Country has a Treaty	193
What Foreign Works are entitled to Protection	195
Produced	195
Character of Work	196
Unpublished Works	196
Special Provisions	197
Works Produced in Foreign Countries before 6th December 1887	197
Formalities Required in case of Foreign Work	198
Who are Entitled to Sue in respect of a Foreign Work	200
Evidence of Title	200
Protection afforded to Foreign Works	200
Works Published before 6th December 1887	202
Translating Right	203
Articles in Newspapers and Periodicals	204
Photographic Works	204
Performing Right in Dramatic or Dramatic Musical Works	204
Express Provision as to particular kind of Infringement	205
CHAPTER XI
COMMON LAW
Title—Passing off	206
No Copyright in Title.	206
Whether Protection is based on a Right of Property in Title	207
Knowledge of Existence and Value on the part of the Public	208
Non-user of Title	208
No Fraud need be Proved	209
Must be Calculated to Deceive	209
Cases in which an Injunction Granted	209
Cases where Injunction Refused	211
Malicious Criticism	213
Slander of Title	213
Author who has parted with Copyright is entitled to Protect his Reputation	213
Protection from Breach of Faith or Contract	215
Unpublished Works	220
Speeches and Sermons	223
Letters	225
CHAPTER XII
PUBLISHING AND PRINTING AGREEMENTS
Publishers' Agreements	227
Printers' Agreements	230
PART II
THE LAW OF COPYRIGHT IN THE UNITED STATES
CHAPTER I
INTRODUCTORY	235
CHAPTER II
WHAT WORKS ARE ENTITLED TO COPYRIGHT
Sec. 1. An Original Literary or Artistic Work	236
Sec. 2. Nationality of the Author	247
Sec. 3. Necessary Formalities	250
Conditions Precedent	251
Delivery of Title	251
Delivery of Description	253
Delivery of Copies	253
Printing in the United States	254
Retrospective Provision	254
Notice of Copyright	255
Publication	260
Sec. 4. Immoral Works	266
Sec. 5. Duration of Copyright	267
CHAPTER III
WHO IS THE OWNER OF THE COPYRIGHT
Sec. 1. The Author	269
Sec. 2. The Employer	271
Sec. 3. The State	272
Sec. 4. The Assignee	272
CHAPTER IV
INFRINGEMENT OF COPYRIGHT
Sec. 1. What is a Piratical Copy	276
Copying may be Indirect	277
The Intention need not be Bad	277
Proof of Copying	277
No Monopoly in the Subject-Matter	278
Taking a Substantial Part	279
Fair Use	281
Improvement no Excuse	283
Different Object	283
Extract for Review	284
Abridgments	284
Translations	286
Dramatic Performing Right	286
Musical Rights	287
Sec. 2. Prohibited Acts and Remedies	287
Account of Profits	289
Damages	290
Penalties	290
Forfeiture	290
Injunction	291
Who is Liable	291
Limitation of Action	292
Acquiescence	292
Pleading	293
Penalties for affixing False Notice	293
Importing Books Printed outside the United States	294
CHAPTER V
COMMON LAW RIGHTS
Sec. 1. Published Work	296
Passing Off	296
Sec. 2. Unpublished Work	298
APPENDIX
BRITISH STATUTES
The Engraving Copyright Act, 1734	303
The Engraving Copyright Act, 1766	305
The Copyright Act, 1775 (Universities)	307
The Prints Copyright Act, 1777	310
The Sculpture Copyright Act, 1814	311
The Dramatic Copyright Act, 1833	313
The Lectures Copyright Act, 1835	315
The Prints and Engravings Copyright Act, 1836	316
The Copyright Act, 1836 (Compensation to Libraries)	317
The Copyright Act, 1842	317
The International Copyright Act, 1844	329
The Colonial Copyright Act, 1847	337
Copyright in Designs Act, 1850, secs. 6 and 7 (Sculpture)	338
The International Copyright Act, 1852	339
The Fine Arts Copyright Act, 1862	343
The International Copyright Act, 1875	348
The Canada Copyright Act, 1875	349
The Customs Laws Consolidation Act, 1876	350
The Copyright (Musical Compositions) Act, 1882	351
The International Copyright Act, 1886	353
The Copyright (Musical Compositions) Act, 1888	360
The Revenue Act, 1889	361
INTERNATIONAL CONVENTIONS
The Berne Convention, 1886	361
Order in Council, 1887	370
The Additional Act of Paris, 1896	373
Order in Council, 1898	376
TREASURY MINUTE
Government Publications Treasury Minute, 1887	377
AMERICAN STATUTES
Revised Statutes, 1874	379
Act of Congress, June 18, 1874	384
""August 1, 1882	384
""October 1, 1890	385
""March 3, 1891	385
""March 3, 1893	389
""March 2, 1895	390
""January 6, 1897	390
""March 3, 1897	391

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N. B. In the page references the figures in larger type indicate that the facts of the case will be found most fully stated on that particular page.

ENGLISH, SCOTCH, IRISH, INDIAN, AND COLONIAL CASES

Abernethy v. Hutchinson	1825	3 L. J. (O. S.), Ch., 209	37, 38, 219, 222, 224
Adams v. Batley	1887	18 Q. B. D., 625	144
Aflalo v. Lawrence	—	[1902], 1 Ch., 264	71
Ager v. Collingridge	1886	2 T. L. R., 291	20
Ager v. P. & O. Steam Navigation Co.	1884	26 Ch. D., 637	20, 102, 118
Alexander v. Mackenzie	1847	9 D., 748	23, 101, 104
Allen v. Lyon	1884	5 Ont. Rep., 615	118
Anglo-Canadian v. Suckling	1889	17 Ont. Rep., 239	191
Anonymous Case	1774	Lofft., 775	115
Anstruther v. Bentley	1866	14 W. R., 630	228
Archbold v. Sweet	1832	5 C. and P., 219	214
Austria, Emperor of, v. Day	1861	4 L. T. (N. S.), 494	90
Avanzo v. Mudie	1854	10 Exch., 203	200
Avery v. Wood	—	[1891], 3 Ch., 115	144, 156
Bach v. Longman	1777	2 Cowp., 623	36, 97
Baily v. Taylor	1829	1 Russ. and My., 73	15, 23, 86, 87, 98, 105, 109
Barfield v. Nicholson	1824	2 Sim. and Stu., 1	62, 220, 229
Barnett v. Glossop	183	1 Bing., N. C., 633	93
Baschet v. London Illustrated Standard	—	[1900], 1 Ch., 73	46, 152, 174, 179, 180, 201
Baskett v. Cunningham	1762	1 Wm. Black, 370	59, 60
Baskett v. University of Cambridge	1758	2 Burr., 661	59
Bastow, ex parte	1854	14 C. B., 631	54, 81, 82
Beal, ex parte	1868	L. R., 3 Q. B., 387	91, 173, 179, 181, 184
Beckford v. Hood	1798	7 T. R., 620	36, 47, 86, 206
Beere v. Ellis	1889	5 T. L. R., 330	138
Bell v. Walker	1785	1 Bro. Ch. Cas., 450	115
Bell v. Whitehead	1839	8 L. J. Ch., 141	112
Bensley v. Bignold	1822	5 B. and Ald., 335	230
Bentley v. Foster	1839	10 Sim., 329	42
Black v. Murray & Son	1870	9 M., 341	12, 26, 27, 111
Blackie v. Aikman	1827	5 Sh., 719	229
Blackwell v. Harper	1740	2 Atk., 93	146, 151, 152
Blake v. Nicholson	1814	3 M. and S., 167	230
Blanchett v. Ingram	1887	3 T. L. R., 687	38
Bleaden v. Hancock	1829	4 C. and P., 152	230
Bogue v. Houlston	1852	5 De G.and Sm., 267	12, 34, 149
Bohn v. Bogue	1846	10 Jur., 420	98, 101
Bolton v. Aldin	1895	65 L. J. Q. B., 120	181
Bolton v. London Exhibitions	1898	14 T. L. R., 550	179, 183
Boosey v. Davidson	1846	4 D. and L., 147	92, 93
""	1849	13 Q. B., 257	42, 94
Boosey v. Fairlie	1877	7 Ch. D., 301	26
Boosey v. Jefferys	1851	4 Exch., 145	42
Boosey v. Purday	1846	10 Jur., 1038	93
""	1849	4 Exch., 145	40, 42
Boosey v. Whight,	—	[1899], 1 Ch., 836	11, 12
""	—	[1900], 1 Ch., 122	11, 33, 97
Borthwick v. Evening Post	1888	37 Ch. D., 449	88, 207, 209, 212
Boucicault v. Chatterton	1876	5 Ch. D., 267	36, 41, 127, 128, 129
Boucicault v. Delafield	1863	1 H. and M., 597	41, 129, 193
Boydell v. Drummond	1809	11 East., 142	230
Bradbury v. Beeton	1869	39 L. J. Ch., 57	207, 209, 211
Bradbury v. Dickens	1859	27 Beav., 53	207
Bradbury v. Hotten	1872	L. R., 8 Ex., 1	99, 109, 110
Bradbury v. Sharp	1891	[1891], W. N., 143	89
Bramwell v., Halcomb	1836	3 My. and Cr., 737	99
Bridgman v. Green	1755	2 Ves. Sen., 627	219
Britain v. Hanks	1902	Wright, J., April 15	162, 163
British Museum v. Payne	1828	2 Y. and J., 166	56
Brooke v. Chitty	1831	2 Coop. Cas., 216	229
Brooke v. Milliken	1789	3 T. R., 509	91
Brooks v. Cock	1835	3 Ad. and E., 138	151
Brooks v. Religious Tract Society	1897	45 W. R., 476	183, 184
Brown v. Cooke	1846	16 L. J. Ch., 140	68, 71
Burnett v. Chetwood	1720	2 Mer., 441	46, 117
Butterworth v. Kelly	1888	4 T. L. R., 430	84
Butterworth v. Robinson	1801	5 Ves., 709	28, 115
Buxton v. James	1851	5 De G. and Sm., 80	40, 41, 42, 87
Byron v. Johnston	1816	2 Meriv., 29	215
Cable v. Marks	1882	47 L. T. (N. S.), 432	31
Cadell v. Anderson	1787	Mor. Dic., 8310	26
Caird v. Sime	1887	12 A. C., 326	37, 38, 220, 221, 222
Cambridge University v. Bryer	1812	16 East, 317	56, 86
Campbell v. Scott	1842	11 Sim., 31	88, 101, 112
Caproni v. Alberti	1892	40 W. R., 235	162
Carnan v. Bowles	1786	1 Cox Cha. Cas., 283	16, 27, 113, 164
Carr v. Hood	1808	1 Camp., 354 n	213
Cary v. Faden	1799	5 Ves. 24	16, 46
Cary v. Kearsley	1802	4 Esp., 168	16, 75, 98, 100, 101, 113
Cary v. Longman	1801	1 East, 358	12, 16, 26
Cassell v. Stiff	1856	2 K. and J., 279	53, 202
Cate v. Devon	1889	40 Ch. D., 500	11, 21, 48, 50, 88, 99, 100, 102
Chappell v. Boosey	1882	21 Ch. D., 232	121, 127
Chappell v. Davidson	1855	2 K. and J., 123	210
""	1856	18 C. B., 194	46, 49, 87, 93
Chappell v. Purday	1843	12 M. and W., 303	54, 55, 79
""	1845	14 M. and W., 303	40, 42
Chappell v. Sheard	1855	2 K. and J., 117	50, 210
Chatterton v. Cave	1875	L. R., 10 C. P., 572	25, 26, 98, 123, 139
""	1878	3 A. C., 483	25, 26, 97, 98, 102, 138
Chilton v. Progress Printing Co.	—	[1895], 2 Ch., 29	14, 33
Church v. Linton	1894	25 Ont. Rep., 131	19, 24, 33
Clark v. Bell	1804	Mor. Dic. Literary Property, App. 9	92
Clark v. Bishop	1872	25 L. T. (N. S.), 908	47, 120, 124, 133, 134
Clarke v. Freeman	1848	11 Beav., 112	214
Clarke v. Price	1819	2 Wills, C. C., 157	227
Clay v. Yates	1856	1 H. and N., 73	231
Clement v. Maddick	1859	1 Giff., 98	101, 207, 209, 210
Clementi v. Golding	1809	2 Camp., 25	11, 36
Clementi v. Walker	1824	2 B. and C., 861	40, 41, 75, 77
Clowes v. Hogg	1870	W. N., 268	210
Cobbett v. Woodward	1872	L. R., 14 Eq., 407	18, 19, 95, 238
Cocks v. Purday	1848	5 C. B., 860	40, 42, 76, 77, 79, 93
Colburn v. Duncombe	1838	9 Sim., 151	76, 78
Colburn v. Simms	1843	2 Hare, 543	85, 86, 90
Cole v. Gear	1888	4 T. L. R., 246	141
Coleman v. Wathen	1793	5 T. R., 245	37, 122
Collette v. Goode	1878	7 Ch. D., 842	93
Collingridge v. Emmott	1887	57 L. T. (N.S.), 864	50, 51, 71
Collis v. Cater	1898	78 L. T. (N. S.), 613	19
Comyns v. Hyde	1895	43 W. R., 266	35, 149
Constable v. Brewster	1824	3 S., 215	209, 229
Cooper, in re	1902	19 Pat. Des. and Trade Mark Cases, 53	31
Cooper v. Stephens	—	[1895], 1 Ch., 567	34, 78, 81, 98, 99, 118, 154, 160
Cooper v. Whittingham	1880	15 Ch. D., 501	84, 85, 87, 102
Coote v. Ingram	1887	35 Ch. D., 117	95
Coote v. Judd	1883	23 Ch. D., 727	70, 93
Cornish v. Upton	1861	4 L. T. (N. S.), 862	17
Corns v. Griffiths	1873	[1873], W. N., 93	210
Correspondent Newspaper v. Saunders	1865	11 Jur. (N. S.), 540	48, 208
Cowan v. Milbourn	1867	L. R., 2 Ex.	46
Cowen v. Hulton	1882	46 L. T. (N. S.), 897	212
Cox v. Cox	1853	1 Eq. Rep., 94	77, 214
Cox v. Land and Water	1869	L. R., 9 Eq., 324	11, 21, 48, 89, 206
Cumberland v. Copeland	1861	7 H. and N., 118	134
""	1862	1 H. and C., 194	77
Cumberland v. Planché	1834	1 A. and E., 580	135
D'Almaine v. Boosey	1835	1 Y. and C. Ex., 288	36, 37, 42, 97, 113, 115, 142
Davidson, ex parte	1853	18 C. B., 296	54, 55
""	1856	2 E. and B., 577	54
Davidson v. Bohn	1848	6 C. B., 456	77, 80, 164
Davis v. Comitti	1885	52 L. T. (N. S.), 539	14, 32
Day v. Simpson	1865	18 C. B. (N. S.), 680	126
De Berenger v. Wheble	1819	2 Stark, 548	157
Delfe v. Delamotte	1857	3 K. and J., 581	86, 90
Delondre v. Shaw	1828	2 Sim., 237	42, 86
Dennison v. Ashdown	1897	13 T. L. R., 226	79
Dickens v. Lee	1844	8 Jur., 183	116
Dicks v. Brooks	1880	15 Ch. D., 22	95, 157, 159, 213
Dicks v. Yates	1881	18 Ch. D., 76	48, 52, 96, 207, 212
Dobson, ex parte	1892	12 N. Z. L. R., 171	41, 80
Dodsley v. Kinnersley	1761	Amb., 403	115, 116
Dodson v. Martin	1880	24 Sol. J., 572	46
Donaldson v. Beckett	1774	2 Bro. P. C., 129	6, 8, 61, 122, 152, 206, 220
Du Bost v. Beresford	1810	2 Camp., 511	174
Duck v. Bates	1884	13 Q. B. D., 843	136
Duck v. Mayen	1892	8 T. L. R., 339	142
Dupuy v. Dilkes	1879	48 L. J. Ch., 682	79, 172
Eaton v. Lake	1888	20 Q. B. D., 378	77, 118, 134, 142
Ellis v. Marshall	1895	11 T. L. R., 522	175, 176, 180
Ellis v. Ogden	1894	11 T. L. R., 56	175, 176
Exchange Telegraph v. Central News	—	[1897], 2 Ch., 48	37, 219
Exchange Telegraph v. Gregory	—	[1896], 1 Q. B., 147	37, 219
Eyre v. Carnan	1781	6 Bac. Abr., 509	59
Eyre v. Walker	1735	4 Burr., 2325	6
Fairlie v. Boosey	1879	4 A. C., 711	53, 134
Farina v. Silverlock	1858	4 K. and J., 650	168
Fishburn v. Hollingshead	—	[1891], 2 Ch., 371	199, 200
Fisher v. Folds	1834	1 Jon. Ir. Ex., 12	35
Fitzbull v. Brooke	1844	2 D. and L., 477	144
Fores v. Johnes	1802	4 Esp., 97	152, 174
Forrester v. Walker	1741	4 Burr., 2331	220
Fourmat v. Pearson	1897	14 T. L. R., 82	14
French v. Day	1893	9 T. L. R., 548	141
Frowde v. Parish	1896	27 Ont. Rep., 526	77, 191
Fuller v. Blackpool Winter Gardens	—	[1895], 2 Q. B., 429	124, 126, 131
Gale v. Leckie	1817	2 Stark, 107	227
Gambart v. Sumner	1859	5 H. and N., 5	156
Gambart v. Ball	1863	14 C. B. (N. S.), 306	157, 182
Garland v. Gemmill	1887	Canada, 14 S. C. R., 321	16, 106, 108, 256
Gee v. Pritchard	1818	2 Swanst., 402	225, 226
Geissendorfer v. Mendelssohn	1896	13 T. L. R., 91	170
Gibson v. Carruthers	1841	8 M. and W., 321	227
Gilbert v. Boosey	1889	The Law Times, Sept. 28, 1889	214
Gilbert v. Star Newspaper	1894	11 T. L. R., 4	218
Gillett v. Mawman	1808	1 Taunt., 140	230, 231
Goubard v. Wallace	1877	36 L. T. (N. S.), 704	47
Grace v. Newman	1875	L. R., 19 Eq., 623	19, 77
Granard v. Dunkin	1809	1 Ball and B., 207	225
Graves, ex parte	1868	L. R., 3 Ch., 642	178
Graves, ex parte Walker	1869	L. R., 4 Q. B., 715	54, 55, 168, 172, 173, 176, 182
Graves v. Ashford	1867	L. R., 2 C. P., 410	152, 157, 182
Graves v. Gorrie	1900	32 Ont. Rep., 266	192
Graves v. Mercer	1868	16 W. R., 790	156
Green v. Irish Independent	1899	[1899], 1 I. R., 386	180
Grierson v. Jackson	1794	Irish T. R., 304	59
Griffin v. Kingston	1889	17 Ont. Rep., 660	33
Griffith v. Tower Publishing Company	—	[1897], 1 Ch., 21	227
Grimson v. Eyre	1804	9 Ves., 341	86
Guggenheim v. Leng	1896	12 T. L. R., 491	35, 183, 185
Guichard v. Mori	1831	9 L. J. (O. S.), Ch.	227
Gyles v. Wilcox	1740	2 Atk., 142	25, 115
Hall, in re	1899	24 Vict., L. R., 702	54
Hall v. Whittington	1892	18 Vict., L. R., 525	21
Hanbury v. Dumsday	1884	10 Vict., L. R. Eq., 272	32
Hanfstaengl v. American Tobacco	—	[1895], 1 Q. B., 347	198, 199
Hanfstaengl v. Baines	—	[1895], A. C., 20	182, 184
Hanfstaengl v. Empire Palace	—	[1894], 2 Ch., 1	167, 182
Hanfstaengl v. Empire Palace	—	[1894], 3 Ch., 109	182, 184, 196
Hanfstaengl v. Holloway	—	[1893], 2 Q. B., 1	198, 199, 203
Harris v. Smart	1889	5 T. L. R., 594	49, 94
Harrison v. Hogg	1794	2 Ves., 322	151
Hasker v. Wood	1885	54 L. J. Q. B., 419	144, 156
Hatton v. Kean	1859	7 C. B. (N. S.), 268	26, 63, 123
Hayward v. Lely	1887	56 L. T. (N. S.), 418	26, 46, 51, 93
Hazlitt v. Templeman	1866	13 L. T. (N. S.), 593	77
Hedderwick v. Griffin	1841	3 D., 383	27
Henderson v. Maxwell	1876	4 Ch. D., 163	51
""	1877	5 Ch. D., 892	48
Hereford, Bishop of, v. Griffin	1848	16 Sim., 190	70, 73
Hildesheimer & Faulkner v. Dunn	1891	64 L. T. (N. S.), 452	35, 53, 74, 149
Hildesheimer v. Faulkner	—	[1901], 2 Ch., 552	179, 180
Hime v. Dale	1803	2 Camp., 27 n	11, 46
Hodges v. Welsh	1840	2 Ir. Eq. Rep., 266	28, 70, 111
Hogg v. Kirby	1803	8 Ves., 215	46, 86, 87, 104, 209, 213, 229
Hogg v. Maxwell	1866	L. R., 2 Ch., 307	48
Hogg v. Scott	1874	L. R., 18 Eq., 444	47, 88, 92, 107, 119
Hole v. Bradbury	1879	12 Ch. D., 886	47, 54, 81, 90, 92, 93, 227
Hollinrake v. Truswell	—	[1894], 3 Ch., 420	14, 32, 36, 105
Holt v. Woods	1896	17 N. S. W. Eq., 36	80, 135
Hotten v. Arthur	1863	1 H. and M., 603	18, 19, 20, 94, 101, 106
Houston v. Mills	1834	1 M. and Rob., 325	230
Howard v. Gunn	1863	32 Beav., 462	225
Howitt v. Hall	1862	6 L. T. (N. S.), 348	79, 80
Hutchins, ex parte	1879	4 Q. B. D., 483	135
Ingram v. Stiff	1859	5 Jur. (N. S.), 947	210
Isaacs v. Fiddemann	1880	49 L. J. Ch., 412	47, 90
Jarrold v. Heywood	1870	18 W. R., 279	98
Jarrold v. Houlston	1857	3 K. and J., 708	24, 88, 94, 100, 101, 105, 106, 113, 211
Jefferys v. Baldwin	1753	Amb., 164	146
Jefferys v. Boosey	1854	4 H. L. C., 815	15, 36, 37, 40, 41, 42, 43, 44, 76, 77, 79, 80, 119, 164, 206, 218, 221
Jefferys v. Kyle	1856	18 D., 906	76
Johnson, in re	1902	19 Pat. Des. and Trade Mark Cases, 56	31
Johnson v. Egan	1880	24 Sol. J., 572	229
Johnson v. Newnes	—	[1894], 3 Ch., 663	12, 52, 70, 72
Johnson v. Wyatt	1863	2 De G. J. and S.	88
Jovatt v. Winyard	1820	1 Jac. and W., 394	216
Kelly v. Byles	1879	40 L. T. (N. S.), 623	207, 211
Kelly v. Hodge	1873	29 L. T. (N. S.), 387	90
Kelly v. Hooper	1841	1 Y. and C. Ch. Cas., 197	86, 99
Kelly v. Hutton	1868	L. R., 3 Ch, 703	207, 229
Kelly v. Morris	1866	L. R., 1 Eq., 697	16, 17, 88, 101, 105, 106, 107, 108, 109, 113
Kelly v. Wyman	1869	17 W. R., 399	94
Kelly's Directories v. Gavin & Lloyds	—	[1901], 1 Ch., 374	16, 85, 95, 140
Kenrick v. Lawrence	1890	25 Q. B. D., 99	168, 174, 175
Kenrick v. Danube Collieries	1891	39 W. R., 473	14, 37
King v. Reed	1804	8 Ves., 223	23
Kyle v. Jefferys	1859	3 Macq., 611	77, 78
Lacy v. Rhys	1864	4 B. and S., 873	47, 133, 134, 135
Lacy v. Toole	1867	15 L. T. (N. S.), 572	78
Lamb v. Evans	—	[1893], 1 Ch., 218	12, 17, 67, 69, 104, 105, 217, 237
""	—	[1892], 3 Ch, 462	88
Latour v. Bland	1818	2 Stark, 382	78, 83, 119
Lauri v. Renad	—	[1892], 3 Ch., 402	65, 79, 198, 203
Lawrence v. Smith	1822	Jac., 471	46
Leader v. Purday	1849	7 C. B, 4	26, 50, 78, 93, 130,
Leader v. Strange	1849	2 C. and K., 1010	84
Lee v. Gibbings	1892	8 T. L. R., 773	215
Lee v. Simpson	1847	3 C B., 871	102, 123, 136, 142
Lennie v. Pillans	1843	5 D., 416	24, 98, 105
Leslie v. Young	—	[1894], A. C., 335	12, 22, 98, 113, 237
Levi v. Champion	1887	3 T. L. R., 286	175
Levy v. Rutley	1871	L. R., 6 C. P., 523	64, 78
Lewis v. Chapman	1840	3 Beav., 133	87
Lewis v. Fullarton	1839	2 Beav., 6	24, 88, 89, 106, 107
Leyland v. Stewart	1876	4 Ch. D., 419	77, 134
Licensed Victuallers v. Bingham	1888	38 Ch. D., 139	207, 208
Liverpool v. Commercial Press	—	[1897], 2 Q. B., 1	53, 78, 82, 96
London Printing v. Cox	—	[1891], 3 Ch., 291	52, 78, 118, 172, 176, 185
London Stereoscopic v. Kelly	1888	5 T. L. R., 169	183
Longman v. Winchester	1809	16 Ves., 269	16, 17, 24, 104, 105, 109
Louie v. Smellie	1895	11 T. L. R, 515	217
Lover v. Davidson	1856	1 C. B. (N. S.), 182	26, 41, 50, 53, 78, 130
Low v. Routledge	1864	L. R, 1 Ch., 42	47, 51, 53
Low v. Ward	1868	L. R, 6 Eq., 415	12, 44
Lucas v. Cooke	1880	13 Ch. D., 872	53, 80, 176
Lucas v. Williams	—	[1892], 2 Q. B., 113	181
Lyon v. Knowles	1863	3 B. and S., 556	140
Lytton v. Devey	1884	52 L T. (N. S.), 121	225, 226
MacFarlane v. Oak Foundry	1883	10 R., 801	46
Mack v. Petter	1872	L. R., 14 Eq., 431	207
Macklin v. Richardson	1770	Amb., 694	37, 120, 121, 222
Mackmurdo v. Smith	1798	7 T. R., 518	151
Maclean v. Moody	1858	20 D., 1154	20, 62, 76
Macmillan v. Shamsal	1894	Ind. L. R., 19 Bomb., 557	116
Macmillan v. Suresh Chunder Deb	1890	Ind. L. R., 17 Calc.,	25, 47, 51, 52, 77, 92
Macneill v. Williams	1847	11 Jur., 344	23, 87
Manners v. Blair	1828	3 Bligh (N. S.), 391	59
Maple v. Junior Army and Navy Stores	1882	21 Ch. D., 369	13, 14, 19, 26, 34, 51, 69, 87, 95, 97, 149, 238
Marchant v. Evans	1818	2 Moore, 14	230
Marsh v. Conquest	1864	17 C. B. (N. S.), 418	47, 121, 134, 135, 140
Marshall v. Broadhurst	1831	1 Tyrw., 348	227
Marshall v. Petty	1900	17 T. L. R., 501	34, 78, 154, 160
Martin, in re	1884	10 Vict. L. R., 196	54
Martin v. Wright	1833	6 Sim., 297	113, 155, 156, 158, 213
Marzials v. Gibbons	1874	L. R., 9 Ch., 518	24, 65
Mason v. Murray	—	Cited, 1 East, 360	26
Mathieson v. Harrod	1868	L. R., 7 Eq., 270	51
Matthewson v. Stockdale	1806	12 Ves., 270	15, 16, 104, 105, 109
Mavor v. Pyne	1825	3 Bing., 285	230
Mawman v. Gillett	1809	2 Taunt., 325	231
Mawman v. Tegg	1826	2 Russ., 385	83, 86, 88, 94, 99, 104, 105, 111
Maxwell v. Hogg	1867	L. R., 2 Ch., 307	14, 51, 207, 208
Maxwell v. Somerton	1874	22 W. R., 313	95, 102
Mayall v. Higbey	1862	1 H. and C., 148	180, 223
Mayhew v. Maxwell	1860	1 J. and H., 312	52, 72, 73
Melville v. Mirror of Life	—	[1895], 2 Ch., 531	174, 175, 176
Merryweather v. Moore	—	[1892], 2 Ch., 518	217
Metzler v. Wood	1878	8 Ch. D., 606	46, 95, 211
Millar v. Taylor	1769	4 Burr., 2303	6, 7, 37, 42, 59, 115, 117, 119, 206, 220, 221
Moffat & Paige v. Gill	1902	C. A., April 25	25, 26, 109
Monaghan v. Taylor	1886	2 T. L. R., 685	141
Moore v. Clarke	1842	9 M. and W., 692	157, 183
Morang v. Publishers	1900	32 Out. Rep., 393	53, 78, 188
Morison v. Moat	1851	9 Hare, 241	219
Morocco Bound Syndicate v. Harris	—	[1895], 1 Ch., 534	193
Morris v. Ashbee	1868	L. R., 7 Eq., 34	16, 17, 18, 87, 105, 107, 108, 119
Morris v. Colman	1812	18 Ves., 437	228
Morris v. Kelly	1820	1 Jac. and W., 481	79, 121
Morris v. Wright	1870	L. R., 5 Ch., 279	16, 108, 109
Morton v. Copeland	1855	16 C. B., 517	78, 118, 143
Motte v. Falkner	1735	4 Burr., 2326	6
Moul v. Groenings	—	[1891], 2 Q. B., 443	202, 203
Muddock v. Blackwood	—	[1898], 1 Ch., 58	84, 86, 92
Munshi v. Mirza	1890	Ind. L. R., 14 Bomb., 586	116
Murray v. Benbow	1822	Jac., 474 n	46
Murray v. Bogue	1852	1 Drew, 353	26, 51, 99, 102, 117
Murray v. Elliston	1822	5 B. and A., 804	114, 115, 121
Murray v. Heath	1831	1 B. and A., 804	159, 180
Murray v. MacFarquhar	1785	Mor. Dic., 8309	110
Neale v. Harmer	1897	13 T. L. R., 209	99
Newman v. Pinto	1887	57 L. T. (N. S.), 31	46
Newton v. Cowie	1827	4 Bing., 234	34, 148, 151, 152, 157
Nicholls v. Parker	1901	17 T. L. R., 482	180, 185
Nicol v. Stockdale	1785	3 Swanst., 687	59
Nicols v. Pitman	1884	26 Ch. D., 374	11, 37, 38, 97, 110, 118, 222, 224
Nottage v. Jackson	1883	11 Q. B. D., 627	52, 57, 62, 65, 171, 174
Novello v. Sudlow	1852	12 C. B., 177	86, 97, 102
Novello v. James	1854	24 L. J. Ch., 111	87
Oliver v. Oliver	1861	11 C. B. (N. S.), 139	225
Ollendorff v. Black	1850	4 De G. and Sm., 209	42
Osborne v. Donaldson	1765	2 Eden, 327	6
Oxford and Cambridge v. Gill	1899	43 Sol. J., 570	102, 113
Oxford and Cambridge v. Richardson	1802	6 Ves., 689	59
Page v. Townsend	1832	5 Sim., 395	150
Page v. Wisden	1869	20 L. T., 435	31, 51, 96
Palin v. Gathercole	1844	1 Coll., 565	225, 226
Parsons v. Chapman	1831	5 C. and P., 33	140, 141
Paton v. Duncan	1828	3 C. and P., 336	228
Perceval v. Phipps	1813	2 V. and B., 19	225, 226
Petty v. Taylor	—	[1897], 1 Ch., 465	52, 63, 171, 176
Piddington v. Philip	1893	14 N. S. W. Rep., Eq., 159	95
Pike v. Nicholas	1869	L. R., 5 Ch., 251	86, 95, 98, 104, 105, 108
Pitman v. Hine	1884	1 T. L. R.	119
Pitt Pitts v. George	—	[1896], 2 Ch., 866	201
Planché v. Braham	1837	4 Bing. N. C., 17	138
Planché v. Colburn	1831	5 C. and P., 58	228
Platt v. Button	1815	19 Ves., 447	87, 119
Platt v. Walter	1867	17 L. T. (N. S.), 157	11, 67, 206, 229
Pollard v. Photo Co.	1888	4 Ch. D., 345	172, 180, 220
Pope v. Curl	1741	2 Atk., 342	220, 225
Poplett v. Stockdale	1825	Ry. and M., 337	231
Poulton, ex parte	1884	53 L. J. Q. B., 320	54
Powell v. Head	1879	12 Ch. D., 686	65, 79, 142
Power v. Walker	1814	4 Camp., 8	76, 77, 134, 164
Price's Patent Candles v. Bauwen	1858	4 K. and J., 727	86
Priestley's Case	—	2 Mer., 437	46
Primrose Press v. Knowles	1886	2 T. L. R., 404	48
Prince Albert v. Strange	1849	2 De G. and Sm., 652	37, 90, 117, 152, 172, 216, 219, 220, 221, 223
Prowett v. Mortimer	1856	2 Jur. (N. S.), 414	48, 209, 210
Queensberry v. Shebbeare	1758	2 Eden, 329	79, 220
Reade v. Bentley	1857	3 K. and J., 271	81, 227, 228, 229
""	—	4 K. and J., 656
Reade v. Conquest	1861	9 C. B. (N. S.), 755	114, 120, 123, 206
""	1862	11 C. B. (N. S.), 479	46, 102, 139
Reade v. Lacy	1861	1 J. and H., 524	101, 102
Reeve v. Gibson	—	[1891], 1 Q. B., 652	144, 156
Reg v. Closs	1857	6 W. R., 109	180
Reichardt v. Sapte	—	[1893], 2 Q. B., 308	128, 139
Reid v. Maxwell	1886	2 T. L. R., 790	41
Reuter's Telegram Co. v. Byron	1874	43 L. J. Ch., 661	216
Richardson v. Gilbert	1851	1 Sim. (N. S.), 336	71
Rippon v. Norton	1839	2 Beav., 63	81
Robb v. Green	1895	2 Q. B., 315	218
Roberts v. Bignell	1887	3 T. L. R., 552	124, 142
Robinson v. Wilkins	1805	8 Ves., 224 n	87
Rock v. Lazarus	1872	L. R., 15 Eq., 104	52, 102, 152
Rooney v. Kelly	1861	14 Ir. C. L. R., 158	90, 229
Routledge v. Low	1868	L. R., 3 H. L, 100	40, 43, 44, 56
Roworth v. Wilkes	1807	1 Camp., 94	34, 47, 97, 100, 110, 112, 151, 158
Rundell v. Murray	1821	Jac., 311	24, 87, 119, 164, 267
Russell v. Brianty	1849y	8 C. B., 836y	140
Russell v. Smithy	1848y	12 Q. B., 217y	47, 123, 125, 126, 131. 133, 134, 136, 137, 140
Saunders v. Smith	1838	3 My. and C., 711	28, 87, 111, 119
Saunders v. Will	—	[1892], 2 Q. B.,	18 144
Sayre v. Moore	1785	1 East, 361 n	104, 112
Schauer v. Field	—	[1893], 1 Ch., 35	203
Schlesinger v. Bedford	1890	63 L. T. (N. S.), 762	120
Schlesinger v. Turner	1890	63 L. T. (N. S.), 764	120
Schove v. Schmincké	1886	33 Ch. D., 546	48, 208
Scott v. Stanford	1867	L. R., 3 Eq., 718	20, 62, 99, 101, 107, 113
Seeley v. Fisher	1841	11 Sim., 581	213
Shackell v. Rosier	1836	2 Bing., N. C., 634	229
Shelley v. Bethell	1883	12 Q. B. D., 11	136
Shepherd v. Conquest	1856	17 C. B., 427	64, 67, 77, 80, 134
Sims v. Marryat	1851	17 Q. B., 281	79
Smiles v. Belford	1876	1 Tupp. App., 436	189
Smith v. Chatto	1874	31 L. T. (N. S.), 775	112
Smith v. Johnson	1863	4 Gif., 632	72
Southern v. Bailes	1894	38 Sol. J., 681	11, 24
Southey v. Sherwood	1817	2 Meriv., 435	87, 119, 223
Spiers v. Brown	1858	31 L. T. (O. S.), 16	25, 101, 116
Spottiswoode v. Clarke	1846	2 Phillips, 154	211
Stannard v. Harrison	1871	24 L. T. (N. S.), 570	62, 90, 148, 153
Stannard v. Lee	1871	L. R., 6 Ch., 346	15, 47, 148, 149
Stevens v. Benning	1855	6 De G. M. and G.,223	83, 227
Stevens v. Bradbury	1854	1 K. and J., 168	81
Stevens v. Brett	1864	10 L. T. (N. S.), 231	94
Stevens v. Wildy	1850	19 L. J. Ch., 190	78
Stewart v. Black	1846	9 D., 1026	92
Stiff v. Cassell	1856	2 Jur. (N. S.), 348	228
Stockdale v. Onwhyn	1826	5 B. and C., 173	46
Storace v. Longman	1788	2 Camp., 262	11, 75
Strahan v. Graham	1867	16 L. T. (N. S.), 87	79, 118
Strong v. Worskett	1896	12 T. L. R., 532	35
Stubbs v. Howard	1895	11 T. L. R., 507	68
Sweet v. Benning	1855	16 C. B., 459	12, 28, 69, 73, 93, 97, 111
Sweet v. Cater	1841	11 Sim., 572	79, 80, 82, 83
Sweet v. Lee	1841	3 Man. and G., 452	230
Sweet v. Maughan	1840	11 Sim., 51	28, 86, 94
Sweet v. Shaw	1839	3 Jur., 217	28, 76, 79, 111
Talbot v. Judges	1887	3 T. L. R., 398	48, 208
Taylor v. Bayne	1776	Mor. Dic., 8308	16
Taylor v. Neville	1878	26 W. R., 299	80, 82
Taylor v. Pillow	1869	L. R., 7 Eq., 418	79
Thomas v. Turner	1886	33 Ch. D., 292	27, 51
Thombleson v. Black	1837	1 Jur., 198	79, 228
Thompson v. Stanhope	1774	Amb., 737	225, 226
Thompson v. Symonds	1792	5 T. R., 41	151, 152, 154
Tinsley v. Lacey	1863	1 H. and M., 747	88, 98, 114, 116, 120, 123
Tipping v. Clarke	1843	2 Hare, 383	218
Tonson v. Collins	1760	1 W. Bl., 301	6, 206
Tonson v. Walker	1752	3 Swanst., 672	6, 12, 26, 115, 221
Toole v. Young	1874	L. R., 9 Q. B., 523	114, 120, 122, 123, 126
Trade Auxiliary v. Jackson	1887	4 T. L. R., 130	71
Trade Auxiliary v. Middlesboroug	1889	40 Ch. D., 425	11, 21, 48, 52, 67, 69, 71, 72, 80, 82, 89, 99, 100
Tree v. Bowkett	1895	74 L. T. (N. S.),77	26, 64, 78, 80, 82
Troitzsch v. Rees	1887	3 T. L. R., 773	176
Trusler v. Murray	1789	1 East, 363 n
Tuck v. Canton	1882	51 L. j. Q. B., 363	82, 177
Tuck v. Continental	1887	3 T. L. R., 826	172
Tuck v. Priester	1887	19 Q. B. D., 629	172, 179, 180, 220
Turner v. Robinson	1860	10 Ir. Ch. R., 510	37, 39, 162, 169, 172, 184
""	1860	10 Ir. Ch. R., 121	162, 169, 172, 184
Walcot v. Walker	1802	7 Ves., 1	46
Walford v. Johnston	1846	20 D., 1160	20
Walker, ex parte	1869	See Graves
Wall v. Taylor	1883	11 Q. B. D., 102	95, 124, 131, 136, 143
Wallerstein v. Herbert	1867	16 L. T., 453	63
Walter v. Emmott	1885	54 L. J. Ch., 1059	207, 212
Walter v. Howe	1881	17 Ch. D., 708	11, 48, 70
Walter v. Lane	—	[1900], A. C, 539	13, 15, 29, 30, 31, 37, 62, 65, 109, 139, 238
Walter v. Steinkopff	—	[1892], 3 Ch., 489	95, 103
Walthoe v. Walker	1736	4 Burr., 2326	6
Ward v. Beeton	1874	L. R., 19 Eq., 207	46, 207, 213, 229
Warne v. Lawrence	1886	34 W. R., 452	47
Warne v. Routledge	1874	L. R., 18 Eq., 497	83, 228
Warne v. Seebohm	1888	39 Ch. D., 73	90, 97, 113, 114, 120, 123
Webb v. Rose	1732	Amb., 694	23, 220
Weekes v. Williamson	1886	12 Vict. L. R., 483	104
Weldon v. Dicks	1878	10 Ch. D., 247	52, 53, 92, 119, 207
West v. Francis	1822	5 B. and A., 737	152, 156, 157, 172, 183, 184
White v. Geroch	1819	2 B. and A., 298	11, 12, 36, 38, 97
Whittingham v. Wooler	1817	2 Swanst., 428	112
Whitwood v. Hardman	—	[1891], 2 Ch., 416	227
Wilkins v. Aikin	1810	17 Ves., 422	104, 105, 109, 112
Willis v. Curtois	1838	1 Beav., 189	83
Wilson v. Lake	1895	1 Vict., L. R.,Eq., 127	104
Wood v. Boosey	1868	L. R., 3 Q. B., 223	113, 134
""	1867	L. R., 2 Q. B., 340	26, 51, 78, 130
Wood v. Chart	1870	L. R., 10 Eq., 193	203, 204
Wooderson v. Tuck	1887	4 T. L. R., 57	174, 175
Wright v. Goodlake	1865	3 H. and C, 540	94
Wright v. Tallis	1845	1 C. B., 893	46
Wyatt v. Barnard	1814	3 V. and B., 77	15, 21, 25, 102, 117
Young Duchess, in re	1891	8 T. L. R., 41	54

---

Amberg File v. Shea	1897	53 U. S. App., 449	242
American Trotting v. Gocher	1895	70 Fed. Rep., 237	239, 267
Aronson v. Fleckenstein	1886	28 Fed. Rep., 75	240, 241, 263, 270, 275, 297
Atwill v. Ferrett	1846	2 Blatchf., 39	270, 271, 290
Backers v. Gould	1849	7 How., 798	290
Baker v. Selden	1879	101 U. S. Rep., 99	237, 238, 239, 242
Baker v. Taylor	1848	2 Blatchf., 82	251, 257, 261, 262
Banks v. M'Divitt	1875	13 Blatchf., 163	241, 258, 278, 281, 282
Banks v. Manchester	1888	128 U. S. Rep., 244	241, 251, 272, 296
Bartlett v. Crittenden	1847	4 M'Lean, 301	262, 263, 299
Belford v. Scribner	1892	144 U. S. Rep., 488	253, 289, 291
Bennett v. Boston	1900	101 Fed Rep., 445	288
Bennett v. Carr	1899	96 Fed. Rep., 213	253
Binns v. Woodruff	1821	4 Wash. C. Ct., 48	245
Black v. Allen	1890	42 Fed. Rep., 618	260, 262, 273, 291
""	1893	56 Fed. Rep., 764	241, 244, 252, 253, 270, 271, 274, 292
Black v. Ehrich	1891	44 Fed. Rep., 793	298
Bleistein v. Donaldson	1899	98 Fed. Rep., 608	246
Blume v. Spear	1887	30 Fed. Rep., 629	253, 281
Blunt v. Patten	1828	2 Paine, 397	262, 278
Bolles v. Outing	1899	175 U. S. Rep., 262	245, 256, 257
""	—	77 Fed. Rep., 966	290
Boucicault v. Fox	1862	5 Blatchf., 87	241, 263, 271, 296
Boucicault v. Hart	1875	13 Blatchf., 47	251, 260, 263, 296
Boucicault v. Wood	1867	2 Biss., 34	249, 260, 264, 293, 296
Brady v. Daly	1899	175 U. S. Rep., 148	287, 292
""	1897	83 Fed. Rep., 1007	277, 280
Brightley v. Littleton	1888	37 Fed. Rep., 103	236, 237, 239, 241, 242, 243, 283
Broder v. Zeno	1898	88 Fed. Rep., 74	266, 281
Bullinger v. MacKay	1879	15 Blatchf., 550	236, 239, 243, 270, 278, 283
Burnell v. Chown	1895	69 Fed. Rep., 993	282
Burrow-Giles v. Sarony	1884	111 U. S. Rep., 53	245, 256, 270
Callaghan v. Myers	1888	128 U. S. Rep., 617	240, 251, 253, 257, 267, 273, 289
Carlisle v. Colusa County	1893	57 Fed. Rep., 979	239
Carte v. Bailey	1874	64 Maine, 458	270, 273, 274, 299
Carte v. Duff	1885	25 Fed. Rep., 183	279, 287, 296
Carte v. Evans	1886	27 Fed. Rep., 861	241, 251, 252, 273, 274
Carte v. Ford	1883	15 Fed. Rep., 439	296
Chapman v. Ferry	1883	18 Fed. Rep., 539	251, 253
""	1882	12 Fed. Rep., 693	289, 290
Chase v. Sanborne	1874	4 Cliff., 306	241, 251
Chicago Music v. Butler	1884	19 Fed. Rep., 758	251
Child v. New York Times	1901	110 Fed. Rep., 527	290
Chils v. Gronland	1890	41 Fed. Rep., 145	239, 282
Clayton v. Stone	1828	2 Paine, 382	236, 237, 239, 242
Clemens v. Belford	1883	14 Fed. Rep., 728	297
Coffeen v. Brunton	1849	4 M'Lean, 516	243, 246
Collender v. Griffith	1878	11 Blatchf., 212	246
Colliery Engineer Co. v. United Correspondence Schools	1899	94 Fed. Rep., 152	271, 291
Connecticut v. Gould	1888	34 Fed. Rep., 319	240
Corbett v. Purday	1897	80 Fed. Rep., 901	244
Courier v. Donaldson	1900	104 Fed. Rep., 993	246
Cowen v. Banks	1862	24 How. Pr., 72	240, 267
Crowe v. Aiken	1870	2 Biss., 208	263, 264, 299
Daly v. Brady	1889	39 Fed. Rep., 265	252, 290
""	1895	69 Fed. Rep., 285	292
Daly v. Palmer	1868	6 Blatchf., 256	281, 286, 291
Daly v. Walrath	1899	40 App. Div. N. Y., 220	264, 296, 299
Daly v. Webster	1892	1 U. S. App., 573	240, 252, 281, 287
Davidson v. Wheelock	1886	27 Fed. Rep., 61	241
Davies v. Vories	—	42 S. W., 707	274
Dewight v. Appleton	1842	1 N. Y. Leg. Obs., 195	259
Dielman v. White	1900	102 Fed. Rep., 892	271
Doan v. American Book Co.	1901	105 Fed. Rep., 772	298
Dodd v. Smith	1891	144 Pa., 340	298
D'Ole v. Kansas City Star Co.	1899	94 Fed. Rep., 840	262
Donnelley v. Ivers	1882	20 Blatchf., 381	252
Drummond v. Altemus	1894	60 Fed. Rep., 338	297, 298
Drury v. Ewing	1862	1 Bond., 541	242, 283
Egbert v. Greenberg	1900	100 Fed. Rep., 447	239, 267
Ehret v. Pierce	1880	18 Blatchf., 302	245, 246, 282
Elizabeth v. Pavement Co.	1877	97 U. S. Rep., 126	289
Emerson v. Davis	1845	3 Story, 768	241, 243, 278, 279, 281
Estes v. Leslie	1886	27 Fed. Rep., 22	297
Estes v. Williams	1884	21 Fed. Rep., 189	296, 297
Ewer v. Coxe	1824	4 Wash. C. C., 487	251, 296
Falk v. Brett	1891	48 Fed. Rep., 678	245
Falk v. Curtis	1901	107 Fed. Rep., 126	290, 291
""	1900	100 Fed. Rep., 77	290
""	1900	98 Fed. Rep., 989	290
Falk v. Donaldson	1893	57 Fed. Rep., 32	245, 253, 276, 280, 281, 283
Falk v. Gast	1893	54 Fed. Rep., 890	259, 262, 289
""	1891	48 Fed. Rep., 262	245, 251, 259
Falk v. Heffron	1893	56 Fed. Rep., 299	290
Falk v. Howell	1888	37 Fed. Rep., 202	276, 281, 283
Falk v. Schumacher	1891	48 Fed. Rep., 222	255, 293
Farmer v. Culvert	1872	5 Am. L. T. R., 168	280, 282
Farmer v. Elstner	1888	33 Fed. Rep., 494	279, 289
Fishel v. Lueckel	1892	53 Fed. Rep., 499	276, 277, 280, 291
Folsom v. Marsh	1841	2 Story, 100	243, 277, 279, 280, 284
French v. Kreling	1894	63 Fed. Rep., 621	262
French v. Maguire	1878	55 How. (N. Y.) Pr., 471	263, 299
Gilmore v. Anderson	1890	42 Fed. Rep., 267	289
""	1889	38 Fed. Rep., 846	274, 278, 283
Goldmark v. Kreling	1888	35 Fed. Rep., 661	281
""	1885	25 Fed. Rep., 349	299
Gottsberger v. Aldine	1887	33 Fed. Rep., 381	261
Gould v. Banks	1832	8 Wend., 562	240, 274
Gray v. Russell	1839	1 Story, 11	240, 241, 243, 270, 278, 279, 284
Greene v. Bishop	1858	1 Cliff., 186	243, 269, 279
Harper v. Holman	1897	84 Fed. Rep., 224	291, 296
Harper v. Shoppell	1886	23 Blatchf., 431	276
Hefel v. Whitely	1893	54 Fed. Rep., 179	256
Hegemen v. Springer	1901	110 Fed. Rep., 374	290
Heine v. Appleton	1853	4 Blatchf. C. C., 12	240, 269, 271, 272, 293
Henderson v. Tompkins	1894	60 Fed. Rep., 758	240
Higgins v. Keuffel	1891	140 U. S. Rep., 428	246
Hill v. Epley	1858	31 Penn., 331	293
Hoertel v. Raphael Tuck	1899	94 Fed. Rep., 844	294
Holmes v. Donohue	1896	77 Fed. Rep., 179	263
Holmes v. Hurst	1898	174 U. S. Rep., 82	263, 296
Howell v. Miller	1898	91 Fed. Rep., 129	241, 280, 282
Hubbard v. Thompson	1882	14 Fed. Rep., 689	291
Illustrated American v. New York Press	1892	Cited, U. S., 594	256
Isaacs v. Daly	1875	39 N. Y., 511	244, 245
Jackson v. Walkie	1886	29 Fed. Rep., 15	255
Jewellers' Mercantile Agency v. Jewellers' Publishing Co.	1898	155 N. Y., 241	251, 260, 261, 262, 263, 296
Jewellers' Mercantile Agency v. Jewellers' Publishing Co.	1896	84 Hun., 12	251, 260
Johnson v. Donaldson	1880	3 Fed. Rep., 22	243, 278, 290
Johnson v. Klopsch	1890	88 Fed. Rep., 692	293
Jollie v. Jacques	1850	1 Blatchf., 618	241, 244, 251, 281
Jones v. Thoms	1843	1 N. Y. Leg. Obs. 408	299
Keene v. Clarke	1867	5 Rob. (NY.), 38	263, 293
Keene v. Kimball	1860	16 Gray, 549	263, 266, 299
Keene v. Wheatley	1860	4 Phil. (Pa.), 157	262, 263, 274, 284
Kennedy v. McTammany	1888	33 Fed. Rep., 584	276
Kiernan v. Manhattan	1876	50 How. Pr., 194	262
Kipling v. Fenno	1900	106 Fed. Rep., 692	298
Koppel v. Downing	—	24 Wash. L. R., 342	269
Ladd v. Oxnard	1896	75 Fed. Rep., 703	237, 239, 260, 261, 263, 277, 283
Larrowe v. O'Loughlin	1898	88 Fed. Rep., 896	263
Lawrence v. Dana	1869	4 Cliff, 1	241, 242, 251, 258, 269, 271, 273, 277, 279, 280, 284, 285, 289, 293
List Publishing Co. v. Keller	1887	30 Fed. Rep., 772	281, 282
Little v. Gould	1851	2 Blatchf., 165	269, 271, 272, 273, 274, 291
Little v. Hall	1855	18 How., 165	240, 299
Littleton v. Oliver	1894	62 Fed. Rep., 597	254
McDonald v. Hearst	1899	95 Fed. Rep., 656	292
MacKaye v. Mallory	1882	12 Fed. Rep., 328	273
M'Lean v. Flemming	1877	96 U. S. Rep., 245	277, 296
Maloney v. Foote	1900	101 Fed. Rep., 264	277
Martinetti v. Maguire	1867	1 Abb. U. S., 356	266
Mead v. West	1896	80 Fed. Rep., 380	241, 278, 281, 282, 283
Menendez v. Holt	1888	128 U. S. Rep., 514	293
Merrell v. Tice	1881	104 U. S. Rep., 557	251, 253, 296
Merriam v. Famous Shoe Co.	1891	47 Fed. Rep., 411	297, 298
Merriam v. Holloway	1890	43 Fed. Rep., 450	297
Merriam v. Texas Siftings	1892	49 Fed. Rep, 944	298
Mifflin v. Dutton	1901	107 Fed. Rep., 708	256, 263
Millet v. Snowden	1848	1 West L. J., 240	277
Morrison v. Pettibone	1897	87 Fed. Rep., 330	276, 277, 280
Mott v. Clow	1897	53 U. S. App., 461	237, 238, 239, 242, 246
Munro v. Smith	1890	42 Fed. Rep., 266	282
Mutual Advertising Co. v. Refo	1896	76 Fed. Rep., 961	240, 271, 272, 282
Nash v. Lathrop	1886	142 Mass., 29	240
Oertel v. Wood	1870	40 How. Pr., 10	299
Oertel v. Jacoby	1872	44 How., 179	299
Osgood v. Allen	1872	1 Holmes, 185	244
Osgood v. Aloe	1897	83 Fed. Rep., 470	251, 253, 256, 260
Paige v. Banks	1871	7 Blatchf., 152	268
Palmer v. De Witt	1872	47 N. Y., 532	263, 264, 296, 299, 30
Parker v. Hulme	1849	1 West L. J., 240	277
Parkinson v. Lascelle	1875	3 Sawyer, 330	251
Parton v. Prang	1872	3 Cliff, 537	273, 296, 299, 300
Perris v. Hexamer	1878	99 V. S. Rep., 674	280
Pierce v. Werckmeister.	1896	72 Fed. Rep., 57	259, 263
Pierpont v. Fowle	1846	2 Wood, and Min., 23	267, 271
Press Publishing Co. v. Munroe	1896	73 Fed. Rep., 196	262, 270, 271, 274, 300
Pulte v. Derby	1852	5 M'L., 328	260, 273
Reed v. Carusi	1845	72 Fed. Cas., No. 11,642; 8 L. R., 411	241, 290
Reed v. Holliday	1884	19 Fed. Rep., 325	277, 279, 291
Rees v. Peltzer	1874	75 Ill., 475	263, 296, 299
Richardson v. Miller	1877	3 L. and Eq. Rep. (Am.), 614	246, 262, 267, 294
Rigney v. Dalton	1896	77 Fed. Rep., 176
Rigney v. Raphael Tuck	1896	77 Fed. Rep., 173	294
Roberts v. Myers	1860	13 L. R. Mass., 398	244, 270
Rogers v. Jewett	1858	12 L. R., 339	291
Rosenbach v. Dreyfuss	1880	2 Fed. Rep., 217	247, 294
Ross v. Raphael Tuck	1898	91 Fed. Rep., 128	294
Sanborn v. Dakin	1889	39 Fed. Rep., 266	280, 282
Sarony v. Ehrich	1886	28 Fed. Rep., 79	291
Schreiber v. Thornton	1883	17 Fed. Rep., 603	245
Schumacher v. Wogram	1888	35 Fed. Rep., 210	246, 257
Schumacher v. Schwencke	1885	25 Fed. Rep., 466	271, 272
""	—	23 Blatchf., 373	246
""	1887	30 Fed. Rep., 690	277
Scoville v. Toland	1848	6 West Law, J., 84	243
Scribner v. Allen & Co.	1892	49 Fed. Rep., 854	251, 256, 293
Serrana v. Jefferson	1888	33 Fed. Rep., 347	282
Shook v. Daly	1875	49 How. Pr., 366	266
Shook v. Rankin	1875	6 Biss., 477	241, 263
Snow v. Laird	1900	98 Fed. Rep., 813	242, 245
Snow v. Mast	1895	65 Fed. Rep., 995	257
Social Register Association v. Howard	1894	64 Fed. Rep., 270	296
Springer v. Falk	1894	20 U. S. App., 296	259, 276, 280, 283, 290, 292
Stephens v. Cady	1852	14 How., 528	273, 275
Stevens v. Gladding	1854	17 How., 447	273, 275, 289
Story v. Holcombe	1847	4 M'L., 306	277, 279, 283, 284, 285
Stowe v. Thomas	1853	2 Wall. Jr., 547	284, 286
Struve v. Schwedler	1857	4 Blatchf., 23	251
Stuart v. Smith	1895	68 Fed. Rep., 189	291
Taft v. Stephens	1889	39 Fed. Rep., 781	294
Taylor v. Gilman	1885	24 Fed. Rep., 632	288, 290, 292
Thomas v. Lennox	1883	14 Fed. Rep., 849	241, 263, 279
Thompson v. Hubbard	1888	131 U. S. Rep., 123	251,259
Thornton v. Schreiber	1887	124 U. S. Rep., 612	290
""	—	8 Sup. Ct., 618	288, 290, 292
Tompkins v. Halleck	1882	133 Mass., 32	263, 299
Trow v. Boyd	1899	97 Fed. Rep., 586	291, 292
Wall v. Gordon	1872	12 Abb. Pr. N. S. (N. Y.), 349	262
Webb v. Powers	1847	2 Woodb. and M., 497	273, 277, 282, 283
Werckmeister v. Springer	1894	63 Fed. Rep., 808	256, 263, 273, 274
West v. Lawyers	1896	51 U. S. App., 216	240, 251, 278
""	1894	64 Fed. Rep., 360	282, 289, 296
Wheaton v. Peters	1834	8 Pet., 591	237, 240, 251, 268, 296, 299
Wheeler v. Cobbey	1895	70 Fed. Rep., 487	292
Williams v. Smythe	1901	110 Fed. Rep., 961	291
Wood v. Abbott	1866	5 Blatchf. C. C., 325	245
Yuengling v. Schile	1882	12 Fed. Rep., 97	246, 247, 248, 269, 273

---

---

The history of copyright has been exhaustively dealt with by Mr. Copinger, Mr. Scrutton, and Mr. Drone in their respective treatises on copyright law. I feel that I can add nothing useful to this branch of the subject, and as a detailed account of the evolution of the law of literary and artistic property is of little value to the practitioner except as academic knowledge, I propose merely to pass briefly in review the various epochs through which the author and his publisher have passed in their struggle to obtain from the public what they consider to be the just and adequate remuneration for their labours. For a complete historical introduction to the law of copyright I cannot do better than refer to Mr. Birrell's delightful lectures.[1]

The first record which we have of any monopoly in the reproduction of literary work is in the exercise of the alleged prerogative of the Crown to control the printing-press. No book whatsoever was allowed to be printed without a licence or grant of monopoly from the Crown. One of the principal objects in the exercise of this prerogative was the prevention of the dissemination of religious doctrines contrary to the accepted faith.

Henry VIII. created the Company of Stationers to supervise and control the publication of books. This company made various rules and regulations as to the printing of books, and from them licences could be obtained by an author to print his copy. The Stationers' Company was first incorporated in the reign of Philip and Mary in 1556. The Crown enforced its prerogative and the rules of the Stationers' Company by means of the Court of Star Chamber, which from time to time passed various decrees, and punished offenders by fine and imprisonment.

By this means the Crown until 1640 exercised an unlimited jurisdiction over the press. In this there was no recognition of a right of property in the author of a work, but merely an enforcement of the royal prerogative to control the press. Incidentally, however, a kind of property sprang up, since the Stationers' Company in granting licences recognised the right of the author or his assignee to his copy. Licences were granted to those who showed that they had a right in the manuscript, and all others were prohibited from infringing the monopoly. An entry in the records of the Stationers' Company in 1562, for instance, enacts "That if it be found any other has a right to any of the copies, then the licence touching such of the copies so belonging to another shall be void."

When the Star Chamber was abolished in 1640 the two Houses made an ordinance prohibiting printing unless the book was first licensed and entered in the register of the Stationers' Company, and further prohibiting printing without the consent of the owner.

At the Restoration a licensing statute[2] was passed similarly prohibiting printing without licence and without the consent of the owner. The statute finally expired in 1694.

On the expiry of the licensing statute, authors and publishers thought that all protection for literary work was gone, and made strenuous efforts for new legislation. Bills were brought into Parliament in 1703 and 1706, and finally in 1709 the copyright statute of Anne became law.

The Act of Anne created for the first time a statutory property in books. The author of any book and his assignee or assigns were given the sole liberty of printing and reprinting such book for the term of fourteen years from publication "and no longer," and if at the end of that period the author was still living, then such right returned to the author for another term of fourteen years. The Act provided that an offender should forfeit pirated copies and sheets to the proprietor of the copyright, who was enjoined to "forthwith damask and make waste paper of them." The Act further imposed a penalty of one penny for every sheet found in the offender's possession, one half of the penalties to go to the Crown and the other half to any person who should sue for the same. The Act made registration in the Register Book of the Company of Stationers before publication a condition precedent to an action for the infringement of any book. A provision was made in this Act for an adjustment of the price of books by complaint to the Archbishop of Canterbury, the Lord Chancellor and others, if booksellers or printers set too high a price upon their publications. Provision was also made for the delivery of nine copies at the warehouse of the Stationers' Company for the use of various libraries.

The Act of Anne was amended in some particulars in 1801 by 41 Geo. III. c. 107. This Act gave the proprietor of the copyright an action of damages against an offender as well as providing forfeiture and penalties.

The Act of Anne was again amended in 1814 by 54 Geo. III. c. 156. This latter statute extended the period of copyright to twenty-eight years certain, and the residue of the author's life thereafter.

After the passing of the statute of Anne those booksellers who were in the habit of purchasing and publishing authors' manuscripts were not satisfied with the limited protection accorded to them by that Act. They discovered, by the aid no doubt of legal advice, that a further protection might be secured by setting up a common law right of literary property which would ensure not merely a paltry term of twenty-eight years, but a perpetual monopoly. The result of this discovery led to half a century of litigation between the authors' booksellers and those other smaller booksellers who contended that they might without licence print those books in which the statutory copyright had expired. At first the authors' men were successful, and from 1735 there is a series of cases in Chancery in which a common law right in published books was undoubtedly recognised and a preliminary injunction granted, notwithstanding that the period of protection given by 8 Anne, c. 19, had expired.[3]

These injunctions appear to have been acquiesced in, and the cases did not proceed to hearing. In 1760, in the case of Tonson v. Collins,[4] the great question of common law right was argued at law before Lord Mansfield, C. J. The action was in respect of the Spectator, the statutory copyright in which had expired. It was twice argued before Lord Mansfield, who then ordered that it should stand over for further argument before all the twelve judges. No judgment was ever given in the case. Before it could be argued before the whole Court, information reached the judges that the action was collusive, brought for the purpose of obtaining a precedent to support the contention of the authors' men. The Court refused to proceed further with the cause.

It was not long, however, until the question was again raised. In 1765 Messrs. Osborne & Millar, assignees of the copyright in Thomson's "Seasons," filed their Bills in Chancery against Donaldson, an Edinburgh bookseller, who had, without their authority, reprinted the book after the statutory copyright had expired.[5] A preliminary injunction was obtained, but subsequently dissolved. Lord Chancellor Northington said it was a point of so much difficulty and consequence that he should not determine it at the hearing, but should send it to law for the opinion of the judges. The question therefore again came to law, and, in Millar v. Taylor,[6] was argued at great length before Lord Mansfield and Justices Aston, Willis and Yates. The authors' men were victorious. The Court decided (Yates, J., dissenting) that there was copyright at common law, and that the period of protection thereunder was not cut down by the statute of Anne. This great victory, however, afforded but a short-lived triumph to literary men. In 1774, in Donaldson v. Beckett,[7] the matter came before the House of Lords on appeal from an order in Chancery, with the result that the decision in Millar v. Taylor[8] was overruled. In this case all the judges were consulted. Eleven consulted judges gave their opinion. The questions put to the judges, and the answers given by them, are as follows:

1. Whether at common law an author of any book or literary composition had the sole right of first printing and publishing the same for sale, and might bring an action against any person who printed, published, and sold the same without his consent?

Eight answered		Yes.
One answered		No.
Two answered		That an action would only lie if the MS. were taken by fraud or violence.

2. If the author had such right originally did the law take it away upon his printing or publishing such book or literary composition, and might any person afterward reprint and sell for his own benefit such book or literary composition against the will of the author?

Seven answered	No.
Four answered	Yes.

3. If such action would have lain at common law, is it taken away by the statute of 8th Anne? And is an author by the said statute precluded from every remedy except on the foundation of the said statute and on the terms and conditions prescribed thereby?

Six answered	Yes.
Five answered	No.

4. Whether the author of any literary composition and his assigns had the sole right of printing and publishing the same in perpetuity by the common law?

Seven answered	Yes.
Four answered	No.

5. Whether this right is in any way impeached or taken away by the statute of 8th Anne?

Six answered	Yes.
Five answered	No.

The House of Lords on a division, which included several lay members of the House, decided by 22 to 11 against the contention that the common law right survived the statute of Anne and was unrestricted by it. So the authors and their champions the booksellers were finally defeated, and had to remain satisfied with the term of protection afforded to them by statute.

The Universities obtained from Parliament statutory relief against the decision in Donaldson v. Beckett. In 1775, the Act of 15 Geo. III. c. 53 was passed giving them a perpetual copyright in all books which might be bequeathed to them. This right they still retain.

In 1842 the present literary Copyright Act was passed and the statute of Anne and the two amending statutes of Geo. III. repealed. The principal reform is the extension of the term of protection to a period of forty-two years certain, or for the author's life and seven years if that should prove longer. Perhaps the other most important change (it cannot decently be called a reform) is the reduction of registration at Stationers' Hall to a mere useless and troublesome technicality. Instead of being as formerly a condition precedent to protection, and therefore a useful index from which one could ascertain whether a book was copyright or not, it is now made merely a condition precedent to action, and registration can be effected the same day as that on which a writ is issued.

Meanwhile the engravers as well as the authors had been working for the proper protection of their art. In 1734 they first obtained a statute which, together with the amending statutes passed in 1766, 1776, and 1836 respectively, still contains the law of copyright in engravings, prints, etchings, and similar productions.

In 1798 the sculptors obtained an Act. This was repealed by another Act obtained in 1813. This latter Act still contains the whole law as to copyright in sculpture.

In 1833 authors of dramatic work obtained from Parliament an exclusive right to perform their plays whether published or unpublished. By the Literary Copyright Act, 1842, the provisions of that Act are made applicable to performing rights in dramatic work, and performing rights are still regulated by both these Acts, which together contain the law on this subject. The Literary Copyright Act, 1842, also applied the provisions of both these Acts to performing rights in musical compositions hitherto unprotected in this respect. As regards musical composition, the law is amended by two subsequent Acts which must be read with the two older Acts.

In 1835 an Act was passed for the protection of copyright in lectures. This Act, although still in force, has become a dead letter since the requisite notice to two Justices of the Peace is troublesome, and lectures receive full protection from copying by common law and under the Literary Copyright Act, 1842. The Lectures Act never purported to give anything in the nature of a performing or lecturing right, but merely a protection from unauthorised reproduction in print.

The artists were the last to obtain protection for their work. It was not until 1862 that an Act was passed giving statutory protection to paintings, drawings, and photographs. This Act contains the present law on the "Fine Arts."

From 1844 onwards there is a series of Acts known as the International Copyright Acts which extend the protection of the copyright law to works published in certain foreign countries. The last and principal international copyright Act is the International Copyright Act, 1886. That Act was passed in view of the Berne Convention of 1887 which was then in contemplation. The Berne Convention is an international copyright agreement whereby those states which are signatory to it agree that, subject to its terms, a work first published in any one of those states shall have copyright in all the others. The Berne Convention is now amended by the Paris Convention, 1898, and read together they form the present international agreement.

There are several statutes dealing with the colonies dating from 1847.

---

The following books are protected by statute throughout the British Dominions:[9]

Definition of a Book.—"Book" is defined by 5 & 6 Vict. c. 45, sec. 2, "to mean and include every volume, part or division of a volume, pamphlet, sheet of letterpress, sheet of music, map, chart, or plan separately published."

As an exhaustive definition this is of little value. It only indicates what the outward visible form of the "book" must be, and gives no indication of the nature or quality of the literary matter which it must contain. Even as a guide to the form it is defective, since it is only a definition by example and not exhaustively descriptive. In the absence of an accurate statutory definition of a "book," the Courts have given a very wide interpretation to the term, and both as to the form and the matter have strained the ordinary dictionary meaning of the word to the uttermost. In the light of the decided cases a "book" might be defined as original literary matter in such tangible form as readily conveys ideas or information to the mind of a reader.

Essential Elements of a Book.—There are three essential elements which must be found in every book, viz.:

I. Physical Form.—The form of the book need not necessarily constitute what in common parlance is known as a book or volume. Thus a single sheet of music[16] or a printed leaflet such as an application form[17] are both books within the meaning of the Copyright Acts.

In one case[18] it was held that a newspaper was not a book, but that decision was not followed,[19] and there can now be no doubt that a newspaper comes within the definition of a book as a sheet of letterpress.[20]

The form must be adapted for conveniently conveying to the mind of a reader the intellectual matter which the book contains. It will not be sufficient that it can possibly be used for conveying intellectual matter to the mind, it must be conveniently adapted for that purpose. Thus music in the form of a perforated scroll for use in an æolian or pianola is not a "book,"[21] for although it can be deciphered and read by the eye no one in his senses would use it instead of an ordinary sheet of music. On the other hand literary matter may nevertheless be in "book" form although it requires a special training to decipher it. For instance a story written in shorthand characters is in book form,[22] and no doubt also a story impressed in raised characters for the blind.[23]

The substance on which the literary matter is depicted and the manner of depicting it are probably immaterial; but presumably a "book" must be at least ejusdem generis as an ordinary printed volume or leaflet. It must be "something in the nature of a book."[24] Thus although copies in ordinary manuscript[25] or even engraved on thin slips of ivory would be in "book" form, an epitaph on a tombstone probably would not.

The meaning of the words "separately published" in section 2 is by no means clear. They do not mean that the matter in which copyright is claimed must be issued physically separate from any non-copyright literary matter. In the statute of Anne the words "separately published" are not used in the definition of a book, but it was nevertheless argued that a "book" must be entirely the original work of the author and not bound up with other matter. In Cary v. Longman Lord Kenyon rejected such an argument. In giving judgment he said:

"The courts of justice have long been labouring under an error if an author have no copyright in any part of a work unless he have an exclusive right to the whole book."[26]

Under the statute of Victoria parts of a book bound up with non-copyright matter have frequently been protected; notes to non-copyright works,[27] illustrations to non-copyright works,[28] a small portion of a serial story,[29] a small part of a time table,[30] have all been protected. Clearly therefore a person may have copyright in a book although he has not copyright in every part of it.[31]

In Johnson v. Newnes[32] Romer, J., takes the view that "separately" published means clearly distinguishable. He says:

"Now in my opinion if you find in a volume separate parts, and distinguished or perfectly distinguishable from the other parts, and the volume is published, each part that is separate and clearly distinguished in the volume itself is separately published within the meaning of section 2."

If we accept this as correct we exclude the case of a revised edition of an old work, the corrections and additions to which forming the new work are not clearly distinguishable from the old. I am inclined to think that the real explanation and meaning of "separately published" is that it does not apply to "volume, part, or division of a volume" at all, but only to "sheet of letterpress, sheet of music, map, chart, or plan" which are to be protected, even although they are "separately published," i. e. not bound up into a volume. It was no doubt inserted as declaratory of the case law under the statute of Anne, which laid down that a single printed sheet was a "book" within the meaning of the Act.

II. Literary Matter.—No literary merit or great labour is required to be shown. Lord Halsbury, L. C., in Walter v. Lane,[33] referring to the verbatim reports of Lord Rosebery's speeches which were the subject-matter of that action, said:

"Although I think in these compositions (i. e. the work of the stenographer) there is literary merit and intellectual labour, yet the statute seems to me to require neither—nor originality either in thought or language ... the right in my view is given by the statute to the first producer of a book, whether that book be wise or foolish, accurate or inaccurate, of literary merit, or of no merit whatever."[34]

In many of the cases great stress was laid in argument at the bar on the preamble of the Copyright Act, 5 & 6 Vict. c. 45. The preamble runs as follows:

"Whereas it is expedient to amend the law relating to copyright, and to afford greater encouragement to the production of literary works of lasting benefit to the world...."

From this it is argued that the Act intends to protect only those works which are likely to prove a substantial addition to the world's literature. Jessel, M. R., in his judgment in Maple v. Junior Army and Navy Stores,[35] points out the fallacy of this argument:

"The Act does not say that it is expedient to afford greater encouragement to the production of literary works of lasting benefit to the world, and to amend the law of copyright relating thereto, but that it is expedient to amend the law of copyright generally, merely adding the principal reason for doing so. There is therefore nothing in the preamble to cut down the enacting part, even if the enacting part had not been clear."[36]

Road-books,[37] directories,[38] tradesmen's catalogues,[39] mercantile statistics,[40] telegraph codes,[41] time tables,[42] verbatim reports of speeches[43] are all books within the meaning of the Act.

It is quite immaterial for what purpose the matter was composed or published. Personal correspondence,[44] advertisements,[45] and a mining report[46] are all subjects of copyright if published.

There must be some composition or arrangement of words, figures, sentences, or paragraphs which by itself will convey to the mind of the reader some intelligible proposition.[47] There cannot be copyright in a single word,[48] even although it expresses a man's opinion: there is no composition or arrangement. Neither can there be copyright in a pattern sleeve[49] or the face of a barometer,[50] because both are really instruments to be used in conjunction with something else, and although there may be words and sentences on them, by themselves they convey no intelligible proposition to the reader. Probably a drunken scrawl, absolutely unintelligible, would not be protected. A jury having found that such a document was not a literary composition, the Court of Appeal refused to interfere with their verdict.[51]

The illustrations in a book are protected as part of the book,[52] and a number of drawings bound up together without any letterpress would be protected as a book,[53] compliance with the provisions of the artistic Copyright Acts being in such a case unnecessary; but a single drawing or engraving separately issued can only be protected under the artistic Acts.

A map, whether bound in a volume or separately issued, is a book within the meaning of the Literary Copyright Act, and will be protected thereunder.[54]

III. Originality as an essential element of a book means that the composition in the "book" must not have been copied from some other literary composition in "book" form. Originality does not necessarily imply an original composition on the part of the author.[55] Copyright is given not necessarily to the first composer, but to the first producer in "book" form of a literary composition.[56] Thus a book would be an original book if the literary matter contained therein were taken by the author verbatim from the oral utterances of a public speaker,[57] or probably if copied from some ancient monument or mural writing. It would not, however, be original if the author had merely transcribed the literary matter from some public manuscripts, even although difficult of access.[58] Again, originality does not necessarily imply novelty. Another book exactly the same in every respect, word for word, may have been previously published, and yet a later book will be original if derived from common sources, and not copied from the earlier book. Thus two mathematicians may have independently made the same calculations,[59] two travellers may have made a chart of the same island or district,[60] or two reporters may have taken shorthand reports of the same speech.[61] In each case there would be independent copyright,[62] and the later book, even although published ten years after the first, would be original.

Composition may consist in composition in the ordinary sense of piecing together words, figures, sentences, and paragraphs, in order to convey certain intellectual ideas, or it may consist in the arrangement of material, as in the case of directories, lists of statistics, &c. Sometimes part may be copied and part may be original, as in the case of new editions,[63] translations,[64] abridgments,[65] selections from non-copyright authors,[66] precedents of conveyancing, &c.[67] The new matter only is the subject of copyright.

Examples of what are Books.—Road-books[68] were among the first works in the protection of which by the Courts it was recognised that copyright did not necessarily depend on the evidence of any high mental qualities in the composition. In 1786 an injunction was granted to restrain the piracy of "Paterson's Road-Book."[69] Lord Chancellor Loughborough in his judgment said that a book in order to acquire copyright did not require to be an operation of the mind like the "Essay on Human Understanding." There might be copyright even although the subject-matter lay in medio, so that every man with eyes could trace it, and the whole merit of the work depended upon the accuracy of the observation. In 1776 the Court of Session in Scotland protected a "Traveller's Pocket-Book," which contained nothing but a mere list of stages and their distances.[70] The compiler of such a work may arrive at the same, or nearly the same, result as some other compiler working over the same country, but if each has made his own compilation, "counting the milestones for himself,"[71] he will have copyright and can prevent any one else from infringing such copyright.

Directories[72] soon followed road-books in their claim for protection. Lord Chancellor Erskine in 1806 hesitated somewhat, "thinking it dangerous to carry this doctrine of copyright too far," but ultimately decided that an East India calendar or directory[73] containing the names and appointments on the Indian establishment, obtained with considerable labour and expense from the repositories in India House, was the subject of copyright. This decision was followed by Lord Chancellor Eldon in 1809 in the case of "A Court Calendar."[74] In 1861 a street directory of Birmingham was protected,[75] and in 1866 "Kelly's Post Office London Directory."[76] In this last-mentioned case it was suggested in defence that the various residents had given their names for public use, and that therefore any one could copy them; this contention, however, was rejected, and it was held that the information contained in a directory was similar to that in a road-book or map; it was open to all mankind, but that he who collected and described it was entitled to prevent any one else from taking the results of his labours. In Morris v. Ashbee,[77] a trade directory, called "The Business Directory of London," was protected. This work contained the names and occupations of merchants and traders carrying on business in or about London. Those traders who paid the proprietor of the directory one shilling annually were entitled to have their names printed in capital letters, and a further payment entitled them to "extra lines" descriptive of their vocations. The defendants took from this work the names in capital letters and the "extra lines," and contended that they were entitled to do so; but it was held that the payment by the several persons whose names were inserted had not the effect of making the names and descriptions when inserted common property, and that as the plaintiff had incurred the labour and expense of getting the necessary information and arranging it, he was entitled to protection.

In Lamb v. Evans[78] the defendants had copied extensively from a trade directory. The directory consisted of a list of tradesmen in various localities. In some cases their names and addresses only were entered, and in others more elaborate advertisements containing descriptions of articles in which the advertiser dealt. The entries in the directory were classified under headings, giving short descriptions of the particular trades; each separate heading was arranged so that the proper catch-words occurred first in alphabetical order, and each heading was repeated in three other languages after the English heading. The Court of Appeal held that although the plaintiffs had no copyright in each individual entry, they had copyright at least in the headings. They were the result of literary labour both as regards the composition of the headings themselves and their collocation and concatenation in the book.[79] Their Lordships were also of opinion, although they said it was unnecessary to decide the question, that there was copyright in the mass of advertisements as collected and arranged. Lindley, L. J., said:

"I do not see myself the difficulty in the publishers having a copyright in a sheet of advertisements. I do see a difficulty in his having a copyright in one advertisement, because, as Mr. Justice Chitty pointed out, that might prevent the advertiser from republishing his advertisements in another paper, which is absurd. But to say that it follows from that that the proprietor, say of the Times, has no copyright in a sheet of advertisements so that he cannot restrain anybody from copying that sheet appears to me a very different proposition."[80]

Tradesmen's catalogues, consisting of lists descriptive or otherwise of the articles in which they deal, have been often attacked as being devoid of literary merit. In Hotten v. Arthur[81] the plaintiff's copyright in a descriptive catalogue of old books which he had in stock was challenged. This catalogue was not a mere list of the books by name, but contained short notices of the contents and general nature of the various volumes. Page Wood, V. C., found no difficulty in deciding that such a catalogue was the subject of copyright, notwithstanding that the catalogues were for the purpose of advertising the plaintiff's stock-in-trade, and were not themselves offered for sale. In Cobbett v. Woodward[82] the doctrine laid down by Page Wood, V. C., received a check. In that case the plaintiff had published a catalogue containing numerous engravings and illustrations of designs and articles of furniture which were sold by his firm. Lord Romilly, M. R., refused to grant an injunction against a rival tradesman who, in a similar publication, appropriated at least fifty of the plaintiff's illustrations, and in his judgment he said:

"But at the last it always comes round to this, that there is no copyright in an advertisement. If you copy the advertisement of another, you do him no wrong, unless in doing so you lead the public to believe that you sell the articles of the person whose advertisement you copy."[83]

The next case in which this question came before the Courts was Grace v. Newman.[84] The book infringed was a volume containing lithographic sketches of monumental designs, and a little letterpress. The sole object of the book was to serve as an advertisement in the plaintiff's business of "Cemetery Stone and Marble Mason." Hall, V. C., granted an injunction, evading Cobbett v. Woodward[85] and following Hotten v. Arthur.[86] In 1882 Cobbett v. Woodward[87] was expressly overruled in the Court of Appeal in the case of Maple & Co. v. Junior Army and Navy Stores.[88] The plaintiffs published an illustrated catalogue consisting almost entirely of engravings of furniture with short descriptions and prices. The catalogue was prepared by selecting articles of furniture which were drawn by artists in their employment and then engraved. The Court of Appeal sustaining the opinion of Hall, V. C., in the Court below, held that the catalogue was the subject of copyright as a book. Jessel, M. R., said:

"The case which has done all the mischief is Cobbett v. Woodward.[89]... I think that is not law. I am not aware that the use to which a proprietor puts his book makes any difference in his rights. His copyright gives him the exclusive right of multiplying copies, and he may use them as he pleases. I think, therefore, that Cobbett v. Woodward[90] will not bear legal examination."[91]

In Collis v. Cater[92] North, J., protected a catalogue of medicinal articles which the plaintiff kept for sale. The articles were arranged by their common names in alphabetical order under various headings and sub-headings. The learned judge strongly negatived the contention that a tradesman's catalogue would only be protected when, as in Hotten v. Arthur,[93] some amount of skill or literary merit was shown. He said:

"A distinction is made between copyright in a large catalogue by a clever author which gives a great deal of information, and is interesting to persons who read it, and a catalogue like the plaintiffs, which is nothing whatever but a simple list of certain articles described by their common names, which every one is entitled to use with respect to them with the addition of the prices at which they are sold.... In one way or another a man engaged in preparing a catalogue of this sort has incurred labour in its preparation, or it may be expense and trouble in its preparation, and has done it for the advantage of having his own catalogue.... I cannot see any distinction between this and the publication of a directory. It seems to me to be exactly in pari materia."

A list of telegraphic code words carefully selected so that, in their transmission by the Morse system of dots and dashes, they would not be liable to be mistaken or misspelt was admitted to be a copyright work in Ager v. P. & O. Steam Navigation Co.[94] The same book, "The Standard Telegram Code," was again protected in Ager v. Collingridge.[95]

Lists of statistics compiled from various sources of information are well recognised as original books. "The Clyde Bill of Entry and Shipping List," containing a compilation of statistics collected from the official records and documents in the Custom houses, was protected in Scotland in 1846[96] and again in 1858.[97] The "Mineral Statistics of the United Kingdom of Great Britain and Ireland" was protected in England in 1867.[98] It consisted of an annual statement of returns in the City of London coal market, showing the quantity of coal imported into London from the various collieries, and was compiled by the clerk and registrar of the coal market from the day-books in the office. Page Wood, V. C., said:

"A great deal of time and labour must have been spent in this compilation, more, indeed, than in the case of a directory or guide, and there can be no doubt that he is entitled to be protected in the fruits of his labour."[99]

Compilations made from public documents and records are protected in so far as there is selection or arrangement. A mere verbatim copy of a public document would not be protected.[100] In Trade Auxiliary Co. v. Middlesborough,[101] "Stubbs' Weekly Gazette" was protected from infringement. The gazette contained a list of bills of sale registered under the Bills of Sale Act and of deeds of arrangement registered under the Deeds of Arrangement Act. The particulars of each bill of sale had been taken from the official records, not merely from the indexes on the official register but from the instruments themselves, for the inspection of each of which a charge of 1s. or 2s. 6d. is made. The same and other similar lists were also protected in Cate v. Devon.[102]

In Wyatt v. Barnard[103] Lord Chancellor Eldon refused protection to a copy of specifications of patents taken from the patent office. If this decision meant that a selection, arrangement, or abridgment of the specifications in the patent office would not be protected, it cannot be considered sound law.

In Cox v. Land and Water[104] Malins, V. C., although he refused to grant an injunction on the grounds of its probable inefficacy, expressed a strong opinion that a list of packs of foxhounds, with the hunting days of each pack and their respective masters and huntsmen, was the subject of property. The information contained in the list was obtained by issuing circulars requesting the masters of the hunt to fill up the required information. The Vice-Chancellor in his judgment said:

"It is clear that in this case the getting of the names of masters of hunts, the number of hounds, the huntsmen and whips, and so forth is information open to all those who seek to obtain it; but it is information they must get at their own expense, as the result of their own labour, and they are not to be entitled to the results of the labours undergone by others."

One of the leading cases in this branch of copyright law is Leslie v. Young,[105] a Scotch appeal case. The pursuer's book consisted of a monthly penny railway time table, published in Perth. It was compiled from the various railway companies' time tables. Some of these were taken verbatim and some were abridged by the smaller stations being omitted, and to the whole was added a list of convenient circular tours around Perth compiled by the pursuer. The defender in compiling a rival time table, copied many of these tables and all of the circular tours from the pursuer's book, either literally or with colourable differences only. As regards the time tables the House of Lords sustained the judgment of the Inner House in refusing an interdict. The mere publication, they said, in any particular order of the time tables which are to be found in railway guides and the publications of the different railway companies, could not be claimed as a subject-matter of copyright. In dealing with the abridged time tables Lord Herschell, L. C., said:

"Looking at these tables as a whole, and having regard to the fact that it is admitted that the defender's work is, as regards these tables, not by any means in all respects a copy of the pursuer's work, that it was not denied that there was a certain amount of original work done by them in compiling these tables, and that these are the differences which have been pointed out, I do not think that it can be said that as regards these tables there has been an appropriation by the defender of the pursuer's work such as to entitle the pursuer to complain and to obtain the interdict which he claims. The real truth is that although it is not to be disputed that there may be copyright in a compilation or abstract involving independent labour, yet when you come to such a subject-matter as that with which we are dealing, it ought to be clearly established that, looking at these tables as a whole, there has been a substantial appropriation by the one party of the independent labour of the other before any proceeding on the ground of copyright can be justified."

As regards the circular tours the House of Lords reversed the judgment of the Court of Session and granted an interdict. The Lord Chancellor said:

"It appears to me the only part of the work which can be said to indicate any considerable amount of independent labour and be entitled to be regarded as an original work.... It seems to me that this was a compilation containing an abridgment of information of a very useful character, and such as was likely to be taken advantage of by those who were travelling in the neighbourhood of Perth."

Mathematical calculations are undoubtedly subjects of copyright. In Baily v. Taylor[106] Sir John Leach, M. R., evidently assumed that they were, although in that case he refused an injunction on the grounds that a very small part had been copied, that what was copied could have been calculated again in a few hours, and that there was unreasonable delay in bringing the action. In M'Neill v. Williams[107] protection was sought for "Comprehensive Tables for the Calculation of Earthwork as connected with Railways," &c. Knight Bruce, V. C., refused an interim injunction, but he did not suggest that the calculations were not the subject of copyright.

Forms and Precedents and similar works are made and published for the very purpose that they should be bought and used in business or other transactions. To this extent copying is of course no infringement, but they will be protected from any copying other than that which is impliedly permitted by their publication. In Webb v. Rose[108] precedents of conveyancing were stolen from a barrister's chambers and printed against his will. The Court had not the least hesitation in restraining the defendant from printing and publishing them. In the Scotch case of Alexander v. Mackenzie[109] the claim of "Styles and Precedents of Conveyancing" to protection under the Copyright Acts was recognised by the Inner House. The forms in question were drawn up from general directions contained in the "Heritable Securities and Infeftments Acts," and it was contended that, as all who followed these directions must arrive at almost identically the same result, there could be no copyright in a precedent so produced. The Court was unanimously of opinion that although such work did not require the exercise of original or creative genius, yet it implied industry and knowledge, and was undoubtedly the subject of copyright.

In Southern v. Bailes[110] a form of application by intending students to a "Lessons by Correspondence Department" was protected by Chitty, J. The learned judge granted an injunction against copying the plaintiff's form, but thought it would be dangerous to extend the injunction in such a matter to colourable imitations, as there was a great deal in the form any one could have put together for himself.

It was very early recognised that the skill and labour of selecting and arranging extracts from previously published books was sufficient to entitle the compiler to copyright in the new work thereby produced.[111] Copyright can thus be obtained without the composition of a single sentence. There is composition, but the composition is of new arrangement and not of new matter. In Rundell v. Murray[112] Lord Chancellor Eldon expressed his opinion that a collection of cookery recipes would have entitled the plaintiff who collected them to copyright, even if she had merely embodied and arranged them in a book. If, however, she had only collected them and handed them over to the publishers, he did not think that would give her copyright. In Lewis v. Fullarton[113] "The Topographical Dictionary of England," which consisted partly of compilations and selections from former works, was recognised as being the subject of copyright. In Lennie v. Pillans[114] the Court of Session in Scotland were of opinion that "The Child's A B C," consisting in a great degree of extracts from and repetition of previous publications by other authors, was entitled to protection on account of the original arrangement, selection, abridgment, or amplification of such borrowed materials. In Jarrold v. Houlston[115] Page Wood, V. C., granted an injunction against the piracy of Dr. Brewer's "Guide to Science." The book was intended for the instruction of tiros in science, and was composed largely from previous works, aided by notes taken from time to time of popular ideas concerning various scientific phenomena. The Vice-Chancellor said:

"That an author has a copyright in a work of this description is beyond all doubt. If any one by pains and labour collects and reduces into the form of a systematic course of instruction those questions which he may find ordinary persons asking in reference to the common phenomena of life, with answers to these questions and explanations of these phenomena, whether such explanations and answers are furnished by his own recollection of his former general reading or out of works consulted by him for the express purpose, the reduction of questions so collected, with such answers under certain heads and in a scientific form, is amply sufficient to constitute an original work of which the copyright will be protected."

The same judge, in Spiers v. Brown,[116] in considering an alleged infringement of "Spiers' School Dictionary," said:

"In a large part of his work Dr. Spiers could have no copyright as to words and expressions, though he might have it as to new words introduced or new acceptations, or as to the order and arrangement by which he improved the particular work he had in hand."

In an Indian case Palgrave's "Golden Treasury of Songs and Lyrics" was protected. It consisted in a selection and arrangement of poems and fragments of poems from the non-copyright works of many poets. The defendant took the selected portions, rearranged them, and made a few additions. His book was condemned as an infringement.[117]

Lawfully made abridgments are protected on account of the judgment which the abridger must exercise in order to do his work well.[118]

Lawfully made translations are also protected as if they were original works.[119] The protection will only extend to the work of the translator. A translator by translating a non-copyright work acquires no exclusive right to translate. Others may do the same from the original non-copyright source.

An author is entitled to copyright by reason of lawful adaptation of a book from one form to another; thus, if he dramatizes a novel, or by material alteration and rearrangement produces a new version of an old play.[120] The adaptation of music, for instance an opera score for the pianoforte,[121] or the rearrangement of an old tune,[122] is the subject of copyright.

New editions either of copyright or non-copyright works are protected as original books, but only to the extent to which they consist of original material in the way of notes to, or substantial revision and alteration of the old text. Lord Chancellor Hardwicke[123] granted an injunction against the piracy of a new edition of Milton's "Paradise Lost" containing original notes by Dr. Newton. In Cary v. Longman[124] new material added to an old road-book was protected. In Murray v. Bogue[125] in the case of a subsequent edition of a guide-book, Kindersley, V. C., said:

"If a man prints a second edition, not being a mere reprint of the first edition, but containing considerable and material alterations and additions, quoad those, it is a new work."[126]

In Cadell v. Anderson[127] the Court of Session in Scotland held that the pursuers had the sole right of printing and reprinting "Blackstone's Commentaries;" and as regards those editions in which there were corrections and continuations, their term of copyright began to run afresh with respect to such new material. In Black v. Murray & Son[128] the notes in Lockhart's edition of Scott's "Border Minstrelsy" were protected, the copyright in the original edition of the "Border Minstrelsy" having expired. Lord President Inglis, in the course of a long and elaborate judgment, said:

"Questions of great nicety and difficulty may arise as to how far a new edition of a work is a proper subject of copyright at all; but that must always depend upon circumstances. A new edition of a book may be a mere reprint of an old edition, and plainly that would not entitle the author to a new term of copyright running from the date of the new edition. On the other hand, the new edition of a book may be so enlarged and improved as to constitute in reality a new work, and that just as clearly will entitle the author to a copyright running from the date of the new edition.... That there may be copyright in the notes, even when the book is not under the protection of copyright, is quite a fixed principle in the law, and most desirably so. There is no doubt that the compilation of good notes to a standard work is a task worthy of the highest literary talents and reputation.... Of the 200 notes the defender's counsel tells us that 15 only consist of original matter, while the remaining 185 are quotations from other books and authors. Now this seemed to be considered to be a sort of disparagement of the value of the notes, in which I cannot at all agree.... The quotations are, in many places, most apposite, and highly illustrative of the text, and exceedingly interesting to the reader, and certainly the selection and application of such quotations from other books may exercise as high literary faculties as the composition of original matter."

If a new edition is a mere reprint of what has been published in "book" form before, it is obvious that no new or independent copyright can be claimed in it.[129] So also if there are only slight corrections, verbal alterations, and the like. Lord Mackenzie, in the Scotch case of Hedderwick v. Griffin,[130] said:

"I doubt very much if there can be right of literary property in the exclusion from an edition of the works of any author of articles not truly written or published by that author, or in the correction of accidental errors, or in the mere order and titles of articles which seem to be all, or nearly all, that can be claimed by the pursuers in this case."[131]

The publication of an old work with an index not previously published would undoubtedly be copyright as to the index.[132]

In Black v. Murray[133] Lord Deas was of opinion that the alteration of a single word in a poem was sufficient to give a new edition an independent copyright, inasmuch as the alteration was very important and entirely altered the meaning of the line in which it was used. The other judges, however, did not altogether concur in Lord Deas' opinion; and it would seem that his lordship stretched the law as to new editions too far.

The question whether a verbatim report of oral proceedings is a "book" within the meaning of the Copyright Acts was long a moot question. That there might be copyright in law reports and similar matter, in so far as they consisted of a summary of the proceedings in the author's own language, was early recognised. In Butterworth v. Robinson[134] the "Term Reports"; in Sweet v. Shaw,[135] Meeson and Welsby's reports, and others; and in Sweet v. Maughan[136] the reports in the "Jurist" were protected; but it does not appear in the reports of these cases whether any copyright was claimed in the verbatim reports of the judgment of the Court. In Saunders v. Smith[137] Lord Cottenham, L. C., refused an injunction against "Smith's Leading Cases" on equitable grounds, but said he would not decide the legal question as to whether that publication infringed the copyright in the "Term Reports" and others. In Sweet v. Benning[138] the defendants published a "Monthly Digest" into which were copied numerous head notes of cases taken bodily from the "Jurist." The Court held that these head notes were copyright, and that the defendant's work was an infringement.

"The head note or the side or marginal note of a report is a thing upon which much skill and exercise of thought are required to express in clear and concise language the principle of law to be deduced from the decision to which it is prefixed, or the facts and circumstances which bring the case in hand within some principle or rule of law or of practice."[139]

So far, therefore, as appears from the reports of these cases our Courts had only recognised copyright in the matter of reports to the extent to which that matter was the composition of the author, only, in short, when it was a description in his own language of what had taken place. The American Courts had held[140] that there was no copyright in the verbatim report of a judgment of the Court, but their decisions were based to a large extent on the ground of public policy. The judgments of the Court, they said, were published to the whole of the people of the United States, and no individual could acquire a monopoly with respect to them. Walter v. Lane[141] has to a large extent cleared up the doubtful state of our law as regards reports, but it cannot be said that it has done so entirely. Walter v. Lane[142] decides that a reporter can have copyright in a verbatim report of the oral utterances of another from whom he derives no title. In that case certain reporters of the Times were present at various meetings at which Lord Rosebery made speeches. These speeches were taken down in shorthand and appeared in the Times the following morning, reproducing as nearly as possible verbatim the words which Lord Rosebery had spoken. Lane, a publisher, subsequently published a book entitled "Appreciations and Addresses: Lord Rosebery," and purporting to be a collection of some of Lord Rosebery's speeches. Five of the speeches in this book were taken from the reports in the Times, as was admitted by the defendant, substantially verbatim. The House of Lords reversing the judgment of the Court of Appeal and restoring the judgment of North, J., held that the reports in the Times were copyright, and that the reporters' assignees, the proprietors of the Times, were the owners of the copyright. Lord Chancellor Halsbury in his judgment said:

"My Lords, I should very much regret it if I were compelled to come to the conclusion that the state of the law permitted one man to make profit and to appropriate to himself the labour, skill, and capital of another. And it is not denied that in this case the defendant seeks to appropriate to himself what has been produced by the skill, labour, and capital of others. In the view I take of this case I think the law is strong enough to restrain what to my mind would be a grievous injustice.... The speeches and the sheets of letterpress in which they were contained were books first published in this country; and I confess, upon looking at the definition and the right conferred, I am wholly unable to discern why they are not protected by the statute from being pirated by unauthorised persons. The sole ground, as I understand the judgment of the Court of Appeal, is that in their judgment the producer of a written speech, unless he is the original speaker, cannot be an 'author' within the meaning of the Act. My Lords, it seems to me that this argument is based upon too narrow and misleading a use of the word 'author.'... The producer of this written composition is, to my mind, the person who is the author of the book within the meaning of the statute.... I do not find the word 'original' in the statute, or any word which imparts it as a condition precedent, or makes originality of thought or idea necessary to the right."[143]

We must be careful not to carry the doctrine of Walter v. Lane[144] further than the actual decision warrants. It should be noticed, for instance, that the essence of the case is that the reporter was entitled to copyright, because it was he who first reduced to "book" form the literary composition contained in Lord Rosebery's speeches. If, therefore, Lord Rosebery had, before delivering his speeches, done as some statesmen and many clergymen do, i. e., reduced them to writing, the reporter would probably not have had copyright, since his report would then have been a mere copy of the speaker's original manuscript, a very different thing from being the first manuscript.[145] Again, it must be noticed that Lord Rosebery claimed no proprietary right in his speeches. It was admitted by counsel that he had freely abandoned his words to the world so that any one might make of them what use he pleased. Lord Rosebery might have secured a right in his own speeches if he had cared to do so. He might have delivered them to a limited audience[146] under an implied contract that those who heard his speeches should make no other use of them except by listening to them and benefiting by the entertainment and general information conveyed. Possibly he might also have secured a statutory copyright in them as lectures by giving notice in writing two days before delivering the same to two justices living within four miles of the place of delivery.[147] If in either of these ways Lord Rosebery had secured a proprietary right for himself it is doubtful whether a reporter unauthorised by him could have acquired copyright in his report. The report would have been an infringement of Lord Rosebery's rights, but the reporter might nevertheless be held to have a copyright against the rest of the world. It should also be noticed in connexion with this case that it was expressly stated by the judges in the House of Lords that any number of reporters could make a report of the same speech, and each would have a separate copyright. In Walter v. Lane[148] the defendant admitted that he took his book from the Times' report. It is obvious, however, that if a speech were reported in, say, six newspapers, any one could reprint it, and by careful correction of the parts in which the reports varied baffle any one of the newspaper proprietors in an attempt to prove that the speech was taken from his newspaper. Another question with regard to verbatim reports, which is not necessarily covered by Walter v. Lane,[149] is in reference to verbatim reports of judgments in the Courts. Will the American doctrine be adopted that it is against public policy that there should be any monopoly in them?[150]

The law of copyright does not protect anything in the nature of a mechanical device, except in so far as apart from any mechanical application it conveys ideas or information to the person reading it. In Page v. Wisden[151] it was claimed by the plaintiff that he had literary copyright in a cricket-scoring card, the only novelty in which was a line along which could be indicated "Runs at the fall of each wicket." Malins, V. C., held that such a thing was not a book within the Act, and characterised it as absurd to contend that a particular mode of ruling a book constituted an object for a copyright.[152]

In Cable v. Mark,[153] Bacon, V. C., refused to protect under the Literary Act "The Christograph—the Christian's Puzzle: suitable for all sects and denominations." This consisted of an envelope on which the above title was inscribed. Inside the envelope was a card perforated in such a way that when held up in a strong light it threw upon the wall a shadow which was supposed to represent the picture "Ecce Homo." The Vice-Chancellor in his judgment described it as a mere child's trick and nothing else. The face of a barometer was held by Chitty, J., in Davis v. Comitti[154] not to be a book. It consisted of a circular card on which were printed various words such as "set fair," "high winds," &c., and on which the hands of the barometer moved. The learned judge said:

"Separated from the instrument it was not intended to have and has no use or meaning whatever. Regarded as a card apart from the instrument it not only foretells nothing, but tells nothing. By reading the printed matter on the card alone, no intelligible proposition is arrived at."

Protection was claimed in Hollinrake v. Truswell[155] for a cardboard pattern sleeve called the "Cosmopolitan Sleeve Chart." It consisted of a piece of cardboard cut to suitable shape and size and marked with figures and directions, such as "measure round the thick part of the arm," and it was intended to be used for the purpose of measuring and cutting out sleeves. The Court of Appeal reversed the judgment of Wright, J., and dismissed the action. Lord Herschell said:

"The object of the Copyright Act was to prevent any one publishing a copy of the particular form of expression in which an author conveyed ideas or information to the world. These may be retained by any one, although the book, map, or chart which embodied them has passed out of his possession. If he were to commit to memory the contents of the book or the information disclosed by the map or chart, he would be as much in possession of the author's ideas or information as if the book, map, or chart were physically in his hands. But this is not the case with the words or figures upon the sleeve chart. They are intended to be used, and can only be used in connection with that upon which they are inscribed.... I think it clear, therefore, that what the plaintiff has sought to protect under the Act for the protection of literary productions is not a literary production, but an apparatus for the use of which certain words and figures must necessarily be inscribed upon it."[156]

In a Canadian case a railway ticket containing the names of stations on the line and dates so arranged that when punched it indicated where the holder was entitled to travel, was refused protection. It was said that without the application of the conductor's punch, the ticket was senseless and meaningless.[157]

In Boosey v. Whight[158] it was held that a sheet of music was not infringed by a perforated scroll for use in a mechanical instrument; and further, that the directions in the printed music, e. g. pp., crescendo, were not the subject of copyright apart from the printed sheet, and therefore might be taken and used in conjunction with the perforated scroll. It seems to follow that neither the perforated scroll nor the directions thereon would constitute a "book" within the meaning of the Act.

Chilton's Special Guide published weekly sporting information. Among other matter it contained their sporting prophet's "tips" for the big races in the ensuing week. This was contained in a list, thus:

One Horse Selections.
Tuesday		Keelson.
Wednesday		Priestholm.
Thursday		Cœlus.
Friday		Dromonby.

The Progress Printing and Publishing Company published daily at the various race meetings racing sheets with the day's "tips" from various sporting papers, thus:

The Specials, One Horse Trials.
The Jockey		Rusina
Racing World		Keelson
Gale's		Keelson
Chilton		Keelson.
Grant's Opinion		Juda.
Turf Marvel		Kenney.

The Court of Appeal held[159] that there could be no copyright in the individual selections for each day, but suggested that there might be copyright in the list of selections for the week, and that it would be an infringement to take it bodily. Lindley, L. J., in giving judgment, said:

"Unless you find the one horse selection and that block which is headed by the title 'One Horse Selections' in the shape in which the plaintiff has published it, I doubt whether you can bring it within literary composition at all. Perhaps the whole of that might be called literary composition; but there is no literary composition in the word 'Priestholm.'"[160]

Engravings, prints, designs, or other reproductions of artistic matter will be protected under the law of literary copyright either when published in the form of a volume or when published in connexion and together with letterpress. By this means compliance with the stringent requirements of the Acts relating to artistic copyright is avoided. The first case where an illustration was held to be part of a book, and therefore protected under 5 & 6 Vict. c. 45, was Bogue v. Houlston.[161]. The plaintiff published some old non-copyright tales, including "Reynard the Fox," and illustrated them with original drawings of animals. These woodcuts were pirated by the defendants, and used as illustrations in their serial publication, "The Story-Book for Young People, by Aunt Mary." The plaintiff did not claim copyright in any letterpress.[162] The defendants maintained that the woodcuts not having been published so as to comply with the provisions of the Engravings Acts, could not be protected from piracy. It was held, however, that they were part of a book. Parker, V. C., in giving judgment, quoted the definition of a book from the Act 5 & 6 Vict. c. 45, and continued:

"This definition does not extend to prints or designs separately published, but only to the prints and designs forming part of a book, and the book is not less a book because it contains prints or designs or other illustrations of the letterpress. This Act vested in the proprietor of such book duly registered the right to sue in respect of any invasion or infringement of the copyright of his book. It appears to me that a book must include every part of the book; it must include every print, design, or engraving which forms part of the book as well as the letterpress therein which is another part of it."[163]

In Maple & Co. v. Junior Army and Navy Stores,[164] the engravings in an illustrated catalogue, containing almost no letterpress, were protected under 5 & 6 Vict. c. 45. "There may be such things," said Jessel, M. R., "as picture-books for those who cannot read letterpress."[165] In Hildesheimer & Faulkner v. Dunn & Co.,[166] protection was claimed for a Christmas card cut out and painted in the form of a lady's hand. It opened out book-wise, and inside were delineated the lines of life according to the rules of palmistry, and on one side there was an original verse. This work was registered both under 5 & 6 Vict. c. 45 as a book and 25 & 26 Vict. c. 68 as a painting. Kekewich, J., in granting an injunction against a piracy, said he would not decide whether the work was a picture or a book, but as it was well registered under both Acts, an action lay. In Comyns v. Hyde,[167] a coloured plate representing an Orpington cock was issued with the weekly number of a serial publication called The Feathered World. The plate was not in any way physically connected with the rest of the publication, but it was illustrative of an article in the journal, and a copy was given to every purchaser. Stirling, J., held that it must be protected as part of the book. If a plate or picture has been previously published in separate form, without complying with the provisions of the Engravings Acts, it will not subsequently receive protection by reason of its incorporation into a volume.[168] In Strong v. Worskett[169] a magazine was before publication advertised by means of illustrated posters. The same illustration as appeared on the posters was afterwards reproduced in the magazine. It was held that it could not be protected as part of the magazine. The result of these decisions appears to be that an artistic work will be protected under the Literary Copyright Act, 1842, if it is bound up with other artistic works in the form of a volume, or if it is published in connexion with letterpress. The picture on a Christmas card on which there are also verses, would, it is submitted, be protected as a book, and, it would seem, whether or not the verses were copyright, and whether or not (but this is more doubtful) the picture was in any way illustrative of the verses. It is also submitted that an engraving published in a magazine without any relation to the letterpress, except that of physical connexion, would be protected as part of the book; but an engraving or print which had neither any relation to the letterpress nor physical connexion would probably not be protected even although issued gratis with every copy of the magazine.

It need hardly be said that anonymous works are entitled to copyright. The publication of a work without the author's name is not to be construed as an abandonment of the literary property.[170]

Maps, charts, and plans are expressly included in the definition of a "book." If incorporated in a volume they will be protected with the rest of the volume under its general title; if published separately they will be protected as "books" by themselves. The meaning of "maps," &c., will be literally construed; but it must be something which in itself conveys information to the person studying it. Davey, L. J., in speaking of maps, said[171]:—

"I agree ... that a 'map' is not confined to what is popularly known as a map—viz. a geographical map; and that a 'chart' is not confined to what is popularly called a chart—viz. a map of a portion of the seas showing the rocks, soundings, and such-like information for the use of navigators.... There may, no doubt, be an anatomical and physiological plan showing the structure and distribution of the muscles and bones of the human arm, or any other part of the human frame, which would be protected by the Copyright Act."

The exclusive right of making copies of original music is expressly protected by the Act of 5 & 6 Vict. c. 45 under the definition of a book. Under the statute of Anne it was protected by case law, "book" being held to include a volume or sheet of music.[172]

Publication divests the author or proprietor of an unpublished work of his common law rights therein. After publication his right to protection depends solely upon the statute. Publication must be looked at from two points of view—divestitive, i. e. as taking away the author's common law right; and investitive, i. e. as clothing him with the statutory right.

Divestitive Publication.—If a literary work is communicated to the public without restriction, the common law right of the author terminates. This may be done orally or by written or printed manuscript. Either kind of communication, however, may be so limited as not to amount to a publication. A drama or musical work is not published by being publicly performed in a theatre or concert room,[173] since the communication is limited to those who have paid their price for admission, and they are admitted under an implied contract that they will not make any use of what they hear except for their own entertainment and instruction. The same applies to lectures delivered at a University[174] or by a private lecturer.[175] The question as to when a public speaker or preacher publishes the speech or sermon which he delivers is one of extreme difficulty, and depends on the relation of the speaker to his audience.[176] If a literary composition is orally communicated in a place to which all have admission as of right, or to which all are admitted without distinction, and where there are no circumstances from which a contractual relationship between the speaker and his audience can be inferred, the matter so communicated will be abandoned to the public to make what use of it they please. Similarly communication by means of manuscript or print may be limited or unlimited. Private distribution of copies of a book is not publication, because the essence of publication is that the matter must be available to all comers and not only to a class;[177] but the issue of a book to subscribers only would be publication if the subscription list was open to the public at large, and even although the number of copies available was very small. In one case[178] the words of a song were held to be published by being printed on a music-hall programme and distributed in the streets as an advertisement. Exhibition in a public place without distribution of copies would undoubtedly be divestitive publication. Divestitive publication must be with the consent of the proprietor; an unlicensed publication would merely be an infringement of his rights.

Investitive Publication.—Publication vests the statutory right of copyright, but a publication which divests the common law right does not necessarily invest the statutory right. An investitive publication is of necessity also a divestitive publication, but not vice versâ. The principal distinction is that an investitive publication must be a publication of a book, while a divestitive publication is a publication of the literary composition which is or may be contained in a book. Thus the delivery of a lecture does not vest copyright, although under certain circumstances it may divest the common law right. The book itself must be given to the public, and not merely the contents, in order to secure copyright. It has been suggested that a book will not be published within the meaning of the Copyright Act unless it is also printed. There is certainly some colour for this suggestion. The Act 5 & 6 Vict. c. 45 gives protection to all books which are "published" without any express restriction to printed books. It seems to be assumed, however, throughout the Act that a book when published must necessarily be in print. For instance, section 6 requires "That a printed copy ... shall be delivered at the British Museum." In section 11 again, where provision is made for registration, it is not contemplated that a book in which there is copyright could be in manuscript, although the section makes express provision for the registration of manuscript dramatic and musical pieces, in respect of performing right. There is no authority on this point. In White v. Geroch[179] it was said that publication of a musical piece in manuscript vested the statutory copyright; but this was under the statute of Anne, which seems expressly to contemplate publication in manuscript which 5 & 6 Vict. certainly does not. In Boucicault v. Chatterton[180] James, L. J., says: "a book is published by being printed and issued to the public;" but this was said only in illustration of the point he was then making, viz. that publication does not necessarily mean the same thing in dealing with copyright as it does in dealing with performing right. On the whole, although the point is extremely doubtful, I am of opinion that printing is not required. Suppose an illuminated hand-made book, fifty copies put on the market, is that to be denied copyright? If it is, the result seems to be that it is unprotected from piracy, since the common law right terminates with unconditional publication. Another point on publication has been raised but not decided, viz.: Must there be a distribution of copies to the public, or will it be sufficient if one or more copies are made accessible to the public; for instance, by deposit of a copy at the British Museum or in other public libraries. Sir James Stephen, in his Digest appended to the "Report of the Copyright Commission, 1878," Art. 4, says: "publication ... means in reference to books, publication for sale;" and James, L. J., as cited above, suggests that there must be an "issuing to the public." On the other hand, the disjunctive use of the terms "published" and "offered for sale " in section 6 of 5 & 6 Vict. c. 45 is rather in favour of the view that there can be investitive publication without "offering for sale." Analogy from other branches of the law is unreliable; the exhibition of a picture in a public gallery is publication of the picture,[181] but that is the only way in which a picture can be published. On the whole, I think that if the public have free and unrestricted access to a book there will be publication, even although they may not be able to procure copies for themselves. Something might depend on the rules of a library where the book was deposited.

There is a common practice among publishers to accept as proof of first publication a receipt given on the sale of a single copy of the book. No doubt this is primâ facie proof of publication, but the sale of a single copy does not necessarily imply publication, and it would be open to any one disputing the date of the publication to say that the sale was collusive, and that the book was not at that time, as it must be in order to constitute publication, offered to the public. It would be sufficient publication for the publisher to place copies, or even one copy of the book, in his window for sale. The record in his books should be sufficient evidence of the date if it is disputed.

In a case[182] under the statute of Anne it was held that publication must be by or on behalf of the proprietor, or at least with the view of conferring copyright upon him. The publication in that case was made by an oral assignee to whom the author had purported to convey the exclusive right of publication in the United Kingdom. It was held that the assignee had no copyright because there was no written assignment, and that the author did not acquire copyright because the publication was not on his behalf. The result seems to be that the copyright was lost. If the principle is sound, which is extremely doubtful, it might be applied to the case of first publication by a licensee, unless it could be implied from the contract between the licensor and licensee that the licensee was not acting entirely on his own behalf, but also on behalf of his licensor to secure copyright.

First Publication within the British Dominions.—Under the Act of 5 & 6 Vict. c. 45, it was held essential that first publication should be within the United Kingdom;[183] but since the International Act of 1886[184] first publication anywhere within the British dominions will equally secure copyright. If a book is published simultaneously within and without the dominions it is sufficient.[185] Publication a day later than publication abroad would probably lose the copyright; but if on the same day, even although an hour or two later, it would be deemed simultaneous. If a serial story in a periodical is being published simultaneously, say here and in the United States, some parts may have lost their copyright by too hasty publication in America, but this would not deprive the whole serial of copyright if the other parts were "first published" within the British dominions.[186] The date on the title-page of an American book has been held not to be conclusive evidence of the time of publication in the United States.[187] It is quite immaterial where the manuscript is written;[188] and probably equally immaterial where the book is printed. It has been suggested, however, that under 5 & 6 Vict. c. 45, printing within the United Kingdom was necessary, and that now since the "International Copyright Act, 1886," printing within the British dominions is a condition precedent to protection. I do not think the suggestion is of any weight. It is founded on two obiter dicta—one of Lord St. Leonards in Jefferys v. Boosey,[189] and the other of Bayley, J., in Clementi v. Walker.[190]

If a book is first published outside the British dominions there will be no copyright[191] in it except under the International Statutes.[192] Section 19 of 7 & 8 Vict. has been held to apply to publication in all foreign countries, and not only to those with which an international convention is in existence;[193] and it has been further held to apply to the works of a British subject as well as to those of a foreigner.[194]

If a dramatic or musical work is first performed abroad before publication as a book, although that may destroy the performing right within the British dominions, it probably will not affect the author's right to acquire copyright by first publication here in "book" form. It may be said that "first published" in 7 & 8 Vict. c. 12, sec. 19, has been held to include "first performed."[195] That decision, however, dealt only with a question of performing right. In Boosey v. Davidson[196] there was first performance abroad, and it was held that copyright was obtained here by first publication; but there was no argument on section 19.

It must still be considered doubtful whether or not the author of a book must be a British subject, or at least resident within the British dominions at the time of publication. This point is the subject of a considerable body of case law under the statute of Anne; but there has been no definite and authoritative decision under the statute of Victoria. The question was first seriously argued in the case of D'Almaine v. Boosey,[197] when it was decided in the Court of Exchequer that the work of a foreigner would be entitled to protection if first published in England by an English assignee. The next case was Bentley v. Foster,[198] before Shadwell, V. C., who decided that the foreigner himself could acquire a copyright by first publication in this country. After that there is a series of confused and conflicting cases,[199] terminating with the decision of Jefferys v. Boosey[200] in the House of Lords. The plaintiff in that case was the English assignee of the unpublished work of a non-resident foreigner. The first publication was in England. The judges were consulted, and of these six were in favour of the plaintiff's right and four against it. The House of Lords, however, were unanimous against the plaintiff's right. They decided that the work of a non-resident foreigner could not acquire copyright in this country.

Lord Cranworth, L. C., said:

"The statute (8 Anne) must be construed as referring to British authors only. Primâ facie the legislature of this country must be taken to make laws for its own subjects exclusively, and where, as in the statute now under consideration, an exclusive privilege is given to a particular class at the expense of the rest of her Majesty's subjects, the object of giving that privilege must be taken to have been a national object and the privileged class to be confined to a portion of that community for the general advantage of which the enactment is made. When I say that the legislature must primâ facie be taken to legislate only for its own subjects, I must be taken to include under the word 'subjects' all persons who are within the Queen's dominions, and who thus owe to her a temporary allegiance. I do not doubt but that a foreigner resident here, and composing and publishing a book here, is an author within the meaning of the statute: he is within its words and spirit. I go further: I think that if a foreigner having composed but not having published a work abroad were to come to this country, and the week or day after his arrival were to print and publish it here, he would be within the protection of the statute."

Jefferys v. Boosey[201] then definitely decided that under the statute of Anne a foreigner, unless at the time of publication he was resident within the jurisdiction of the crown, could not be an author within the meaning of the Act, and therefore neither he nor his assigns before or after publication could acquire copyright. It would seem to follow that the construction of 5 & 6 Vict. c. 45 would lead to a similar decision. This, however, has been doubted in the House of Lords in the case of Routledge v. Low.[202] The actual decision in that case went no further than holding that a foreign author who was resident for a few days in Canada expressly for the purpose of acquiring copyright while her book was published in London was an author within the Act, a proposition which had not been disputed in Jefferys v. Boosey.[203] Their Lordships, however, discussed the wider issue whether even temporary residence was necessary. Lord Cairns, L. C., and Lord Westbury were of opinion that it was not. Lord Cairns, after pointing out that Jefferys v. Boosey[204] was a decision under the Act of Anne, said:

"It was impossible not to see that the ratio decidendi in that case proceeded mainly, if not exclusively, on the wording of the preamble of the statute of Anne, and on a consideration of the general character and scope of the legislation of Great Britain at that period. The present statute had repealed that Act, and professed to aim at affording greater encouragement to the production of literary works of lasting benefit to the world. And accepting this decision of the House as to the construction of the statute of Anne, it is, I think, impossible not to see that the present statute would be incompatible with a policy so narrow as that expressed in the statute of Anne."[205]

Lords Cranworth and Chelmsford agreed that temporary residence within the dominions was sufficient to give a foreigner the right to acquire copyright as a British author, and therefore concurred in the judgment of the House. They, however, differed strongly from the view that a non-resident foreigner could be an author within the Act. Lord Cranworth said:

"I have no hesitation in concurring with my noble and learned friend in thinking that the decree below was right. I find it difficult to concur with him in the opinion that the present statute extends its protection to all foreigners wherever they may be resident without saying that the case of Jefferys v. Boosey[206] is not good law—a conclusion at which I should be very unwilling to come as to any case decided in this House, more especially as to one so elaborately considered as that of Jefferys v. Boosey.[207] That case, as my noble friend has pointed out, was decided not on the construction of the Act of 5 & 6 Vict. c. 45, but on the statute of Queen Anne; but I own I do not as at present advised see any difference between the two statutes so far as relates to the subject of the residence of foreign authors."

Routledge v. Low[208] is followed as to its actual decision in Low v. Ward;[209] but as to the rights of a non-resident foreign author the law remains, as left by Routledge v. Low,[210] truly in a most unsatisfactory state. It is difficult to escape from the conclusion, however willingly one would, that there is really no distinction between the application of the statute of Anne and that of Victoria, and that, therefore, a case arising on this point under the Act of Victoria is governed by Jefferys v. Boosey,[211] a decision which, if erroneous, was not so for want of deliberate research and consideration. The general opinion, however, seems to be that Lords Cairns and Westbury were right and Lords Cranworth and Chelmsford wrong. This view is adopted by Stephen, J., in his digest.[212] Mr. Scrutton is of the same opinion, and cites the Naturalisation Act and the proviso that copyright is personal property.[213] Mr. Chamier does the same.[214] It is respectfully submitted that the provisions of the Naturalisation Act and the indisputable fact that a foreigner wherever resident can acquire a British copyright are entirely beside the mark, and do not in the least help one to decide whether the legislature is to be presumed to have applied the Act of 5 & 6 Vict. to the works of foreign authors. The decision that the work of a non-resident foreign author will not be protected is in no way contrary to the provision of the Naturalisation Act that an alien friend may acquire and hold personal property in the same way in all respects as a British subject. The logical conclusion from that provision is that an alien friend as well as a British subject may acquire British copyright wherever it exists; but it does not necessarily follow that British copyright exists in the work of a foreign author, and that either an alien friend or a British subject can acquire it. After the passing of the Chace Act (1891) in the United States, the law officers of the Crown in England were consulted by the American law officers, and they advised that an American author could acquire copyright in his work by simultaneous publication in this country and America, even although he was not at any time resident within the British dominions. Consequently on that advice the President of the United States proclaimed Great Britain as one of the countries which gave by their law reciprocal rights to American authors; and English authors are thereby entitled to acquire copyright in the United States. It would certainly be most unsatisfactory if the law of England were now to be declared contrary to the advice then given by our law officers, but it cannot be said that this should influence our Courts if their decision on the point was called for.

Profane,[215] indecent,[216] seditious,[217] and libellous[218] books will not be protected. Neither will those which are a fraud upon the public.[219] For instance, a book published as translated from the German of Sturm, which was entirely untrue and induced purchasers to buy it, was refused protection.[220] Quære whether a piratical book would be protected in so far as it was original. Probably it would.[221] If a book is not wholly mischievous, but only in part, it will probably be protected except as to that part;[222] and if a book is subsequently published purged of its immoral matter or fraudulent nature it would be protected.[223] If an action is brought in respect of a mischievous publication the practice of the Court is to dismiss the action without costs.[224] In one case[225] Mathew, J., would not take cognisance of immorality mero motu, and when it was not pleaded by the defendant he gave the plaintiff his remedy. Notwithstanding this, there can be no doubt that the Court may refuse to interfere even when both parties are willing to waive the question of immorality. The Court cannot be compelled to sit to take an account between public malefactors.

Before Action.—Before an owner of copyright sues for infringement his book must be registered at Stationers' Hall.[226] The omission to register does not affect the copyright in a book, but it is a condition precedent to the right to sue in respect of the infringement thereof.[227] At one time it was thought that registration was only a condition precedent to an action for the particular remedies given by the statute, and that whether registration was effected or not the common law right of action for damages lay.[228] This, however, is not law. Registration is a condition precedent to any right of action for infringement of copyright. If an action is brought without proper registration, that action must fail; but a correct entry may then be made and a fresh action commenced.[229]

No registration is necessary to maintain an action for the infringement of performing rights in a book which is a dramatic or musical work.[230]

Registration need not be made before infringement: it may be effected at any time before the writ is issued.[231] In one case it was held a good registration when entry was made on the same day, but a few hours before the issue of the writ.[232] In Hole v. Bradbury,[233] Fry, J., held that registration after infringement did not entitle the plaintiff to delivery up of copies for his own use under the 23rd section of the Act of 1842, but that under its general jurisdiction the Court had power to order delivery up for destruction. In Isaacs v. Fiddemann,[234] Jessel, M. R., thought that even although infringement was before registration the plaintiff was entitled to have delivery up for his own benefit, and that the 23rd section applied to such a case. Which is the correct view it is difficult to say. The argument of Fry, J., in support of his view is elaborate and appears sound, whereas Jessel, M. R., seems to have gone more on the ground of convenience.

Registration must be effected after the publication of the book.[235] In several cases an attempt has been made to secure a monopoly in a title by registration before the book was published or even written.[236] Such registration is entirely inoperative to secure a monopoly in the title or the right to sue in respect of the copyright in the book when published. Registration does not give the plaintiff any right (except perhaps as to delivery of copies) which he would not equally have had without registration.[237] All registration does is to perfect the right and give a title to sue on it.

It must be remembered that it is the book which is to be registered and not the copyright. It is common but erroneous to talk of "registering copyright." The distinction was pointed out in Trade Auxiliary v. Middlesborough.[238] The three several proprietors of three periodicals had employed and paid a contributor under section 18 on the terms that the matter contributed should belong to these three proprietors. The matter appeared in each of the three newspapers and each registered his own newspaper in his own name. It was argued that the registration was bad, since they should have been registered as joint proprietors, but the Court of Appeal held that the registration was good, since each had registered his "book," and section 19 was literally complied with.

A newspaper is a sheet of letterpress within the Act and must be registered.[239] In one case[240] Malins, V. C., protected a newspaper which was not registered, but that case has been expressly overruled[241] and is clearly unsound. No registration is necessary other than that required by the Act of 1842. In Cate v. Devon[242] it was contended that a newspaper would not be protected unless it had been registered under the Newspaper Libel Act, 1881. This contention was held erroneous, and registration under the Act of 1842 was alone required. Similarly it is not a good defence to an action for infringement that the publisher's name and address is not printed on the first or last page of a book as required by 2 & 3 Vict. c. 12.[243]

The Requisite Entry.—Registration is made in the Book of Registry which the Act enacts[244] shall be kept at the Hall of the Stationers' Company. The fee for registration is five shillings. The Book of Registry must at all convenient times be open to the inspection of any person on payment of one shilling for every entry searched for or inspected. This, however, does not entitle any one to make a copy of an entry; but any one may demand a certified copy of an entry from the keeper of the Registry on payment of five shillings.

The proprietor of the copyright must register in the Book of Registry:[245]

In the case of an encyclopædia, review, magazine, periodical work, or other work published in a series of books or parts, the publisher must register:[246]

The Actual Title.—This must be registered: a description of the book will not be sufficient, even although accurate. Thus in Harris v. Smart[247] the plaintiffs' book was intituled "Illustrated Catalogue and Price List," and they registered it as "Illustrated Book of Shop-fittings." The Court of Appeal, reversing the decision of Mathew and Grantham, JJ., held that the objection to the registration was fatal. When there is a clear and distinct title, that title they held must be registered. It might be different if a book had no title; perhaps such a book could not be registered at all; but probably a description of the book, stating that it had no title, would be sufficient.[248] In Collingridge v. Emmott[249] the plaintiff's newspaper was intituled "Warehousemen and Drapers' Trade Journal and Review of the Textile Fabric Manufacturers"; but it was registered as "Warehousemen and Drapers' Trade Journal: Failures and Arrangements." Kay, J., thought that the discrepancy was fatal to the registration.

It has been questioned whether in the case of a volume, a considerable part of which, being old matter, is not entitled to copyright, and which is published under one comprehensive title, there must not be some indication on the book itself or on the register that the owner does not claim copyright in the whole work. The point has never been definitely decided. It has been held that one who adapts new words and music to an old air and describes himself proprietor of the whole composition is entitled to protection;[250] but the question raised in these cases was whether the author was entitled to copyright at all unless he could show that the whole was original. It should always be remembered in questions of this kind that the purpose of registration is not, as has frequently been suggested in argument, to notify to an intending copyist what he may copy and what he may not. In Cate v. Devon[251] the plaintiffs had published a "Commercial Compendium," containing lists of bankruptcies and bills of sale. They reprinted several copies of it under another title, viz. "The London Association for the Protection of Trade," and it was issued "privately and confidentially" to that association. The defendants copied matter from the latter issue and pleaded that it was unregistered, and therefore that they were entitled to copy it. North, J., held that the act of the defendants was an infringement of copyright in the "Commercial Compendium," which was registered under that title. In his judgment he said:

"It is not intended that there should always be complete registration of the publication in which there is copyright in order that persons may know what they may legitimately copy and what they cannot copy. The Act itself contains provisions which make that clear. It is well known that registration is only necessary as a condition precedent to suing, and the almost universal practice on the part of large publishers notoriously is that they do not register until just on the eve of taking some proceeding. Then they take care to register their copyright and sue upon it. I think, therefore, that the contention that the defendants have not been warned by registration of the title under which the document appears is one which cannot be entertained."[252]

The Time of First Publication.—This must be exactly entered to the day of the month. In Low v. Routledge[253] an entry of "23rd May 1864" was held to be bad when the actual publication was on the 25th of May 1864.[254] Under the International Copyright Act, 1844, an entry of the year only was held to be fatal,[255] and under the Copyright Act of 1842 it has been held in two cases that an entry of the month only is bad.[256] When a subsequent edition of a book is published, in so far as it is a reprint of the first edition, it will not be protected unless the first edition and the date of the first publication thereof is entered on the register;[257] in so far as it consists of new matter there must be an entry bearing the date of the publication of the edition in which such new matter was first published;[258] but the previous editions and the date of their respective publications do not require to be entered in order to protect the new matter,[259] and subsequent editions do not require to be entered in order to protect old matter.[260] Where a book has been revised and altered as each new edition has come out, every edition should be entered separately in the register, with the date of the publication of such edition. When a story, or article, or serial story, or a series of articles is published in a magazine or other periodical, the proprietor of the magazine need only register the first number of the magazine and the date of the publication thereof in order to entitle him to sue.[261] If, however, the action is at the instance of the author of a contribution to a collective work against third parties, the proper registration would be of the story or article only with the date of the first publication in the collective work of such story or article, or if serial, of the first part thereof.[262] Against the proprietor, for publishing separately without permission, the author does not require to be registered, as the right sued on is not one of copyright but presumably of implied contract.[263] If the owner of the periodical has acquired the entire copyright in a story or article, he can sue on a registration either of the first number of the magazine or of the first part of the story or article.[264]

The Name and Place of Abode of the Publisher.—The publisher to be entered is the first publisher of the book.[265] No subsequent publisher, unless of a revised edition, need be entered on the register.[266] If the publishers are a firm it is sufficient to enter their firm name, such as Newby & Co.; the individual names of the members of the firm need not be entered.[267] A publisher's ordinary place of business describes sufficiently his "place of abode": his private residential address need not be entered.[268]

The Name and Place of Abode of the Proprietor.—The proprietor to be entered is the proprietor at the time of registration, and it is unnecessary to trace his title from the first proprietor.[269] The joinder of the unregistered proprietor as co-plaintiff with a person who has been erroneously registered, or who, being rightly registered, is no longer proprietor, will not render an action for infringement of copyright maintainable.[270] It is not sufficient to register a mere agent or nominee of the proprietor.[271] The registered proprietor, however, if legal owner, may sue as trustee for the equitable owner of the copyright.[272] If the plaintiff in an action is the assignee of a former proprietor already registered, either the assignment must have been by entry in the register, or the assignment, if made otherwise, must be entered. In every case the plaintiff, either as proprietor at the date of registration or as his assignee, must appear on the face of the register.[273] It is probably not necessary to register every mesne assignment from the proprietor originally registered to the plaintiff.[274] When the original proprietor is registered, and the assignee from him is subsequently registered, it is necessary that both entries should be correct, in order to entitle the assignee to sue.[275] If the proprietor has no fixed abode in the United Kingdom, an address in the United Kingdom through which he can be conveniently communicated with will probably be a sufficient compliance with the statute.[276]

If there is an error in any of the particulars required to be entered in the register it is fatal to the success of an action, even although caused by neglect or carelessness on the part of one of the officials at Stationers' Hall.[277] If the necessary particulars are entered it is immaterial that superfluous matter is also entered.[278]

Certificate of Registration.—The officer appointed by the Stationers' Company for the purposes of registration under the Copyright Acts must, whenever reasonably required, give a copy of any entry in the Book of Registry, certified under his hand and impressed with the stamp of the Stationers' Company, to any person on payment of five shillings, and such copies are to be received in evidence in all Courts, and are primâ facie proof of the proprietorship or assignment of copyright or licence, but subject to be rebutted by other evidence.[279] Registration does not, however, give a title against the whole world except the true owner.[280]

False Entries.—If any person wilfully makes or causes to be made any false entry in the Registry Book of the Stationers' Company, or wilfully produces in evidence any paper falsely purporting to be a copy of any entry in such book, he will be guilty of an indictable misdemeanour.[281]

Rectification of Register.—If any person "deems himself aggrieved" by any entry in the Registry Book, he may apply by motion to the King's Bench Division for an order that such entry may be expunged or varied.[282] An order to expunge will not be made at the trial of an action:[283] it must be applied for by motion in accordance with section 14, unless, perhaps, it is specifically claimed in the statement of claim in the action. There is probably no appeal from an order to expunge.[284] If a wrong entry has been made in the Book of Registry, the proprietor of the copyright in the book so erroneously entered is, even although he has by mistake made the wrong entry himself, a person aggrieved within the meaning of the statute, and can apply to the Court for an order to vary such entry.[285] An order to expunge or vary will not be made without definite proof that the existing entry is erroneous, and that the proposed entry in lieu thereof is correct.[286] By the words "deem himself aggrieved" the legislature did not mean that any person who said he was aggrieved could apply: the applicant must show to the Court that he has a right to consider himself aggrieved.[287] When the copyright in a book is in dispute either party claiming the right is a party aggrieved.[288] If a non-copyright book is entered on the register, probably any one who wished to copy it would be a party aggrieved;[289] but it is not open to any one to make application to the Court on the ground of technical flaws in a registration.[290] The applicant, unless he claims the copyright, must be able to show a substantial defect on the merits of the registered proprietor's title.[291]

When once an entry on the register has been struck out, the Court has probably no power to restore it.[292]

Copies of all books first published in the United Kingdom after 1842 must be delivered to the undermentioned libraries by the publisher. In default the respective librarians may recover from the publisher:[293]

The proceedings may either be summary by way of conviction before two Justices of the Peace in the county or place where the publisher making default resides, or by action in any Court of Record in the United Kingdom.[294]

The following copies are to be delivered:

I. To the British Museum:[295]

One of the best copies published (complete with maps and prints) of

i. Every book first published. ii. Every subsequent edition of a book, unless (a) it contains no additions or alterations, and (b) some preceding edition has been delivered:

Within one calendar month after publication or offering for sale in London.

Within three calendar months after publication or offering for sale elsewhere in the United Kingdom.

The copy must be delivered between 10 A. M. and 4 P. M. on any day except Sunday, Ash Wednesday, Good Friday, and Christmas Day.[296]

The officer of the Museum appointed to receive these copies is required to give a receipt in writing.[297]

II. To each of the following Libraries,[298] or to Stationers' Hall for their use:

The Bodleian Library at Oxford. The Public Library at Cambridge. The Library of the Faculty of Advocates at Edinburgh. The Library of Trinity College at Dublin.

One copy of those copies of which the largest number is printed for sale, and in the like condition of

i. Every book first published. ii. Every subsequent edition of a book, unless (a) it contains no alterations or additions.

Within one month after demand.

Provided that within twelve months after publication demand has been made to the publishers under the hand of the officer of the Company of Stationers or other person authorised thereto by the respective libraries.

The officer at Stationers' Hall and librarians of the several libraries are required to give a receipt in writing when a copy of a book is delivered to them.

The clauses as to delivery of copies are to be considered as being strictly penal. In The British Museum v. Payne,[299] under the similar provisions in 54 Geo. III. c. 156, it was held that when a book was published in parts, a single part was not demandable. The Court refused to consider the question when, if ever, the complete book would be demandable.

It will be noticed that neither the copyright nor the right to sue is affected by non-delivery of these copies. The only consequence of omission to do so is a penalty on the publisher.

The right of the various bodies to delivery of a copy applies to all books published within the United Kingdom and not only to those entered at Stationers' Hall.[300]

Protection dates from first publication.

Generally.—The period of protection is for the natural life of the author and for seven years after his death, or for forty-two years from the date of publication, whichever period shall be longer.[301]

Posthumous Works are protected for forty-two years from the date of publication.[302]

Encyclopædias are protected for the life of the proprietor and seven years (by 5 & 6 Vict. c. 45, sec. 18, the proprietor of a collective work enjoys the same rights as if he were the actual author thereof), or for forty-two years from the date of publication, whichever period shall be the longer.[303]

Reviews, Magazines, and other periodical works of a like nature[304] have two separate copyrights, viz.:

New Editions.[305]—As to each edition, the copyright runs from the date of publication thereof, in so far as the matter therein is then first published.

Joint Works.—Although there is no statutory provision, they are probably protected for the life of the surviving author and seven years, or for forty-two years from first publication.[306]

There is no lecturing right, i. e. no exclusive statutory right to deliver a lecture in public. The only Act applying to lectures is 5 & 6 Will. IV. c. 65, which, under pain of penalties, prohibits printing or publishing, or knowingly selling lectures, which at the time of delivery have not been published in book form, without leave of the author thereof, or of the person to whom the author thereof has sold or otherwise conveyed the same. The remedy is action in the High Court for: (i) Forfeiture of copies. (ii) One penny per copy; half to the Crown and half to informer. A condition precedent of protection under this Act is the giving of notice in writing to two justices living within five miles from the place where such lecture or lectures are delivered, two days at least before delivering the same. The Act has fallen into entire desuetude, partly, no doubt, on account of this somewhat troublesome stipulation as to notice, but principally because a lecturer has, in fact, full protection at common law, if, as is usually the case, he can make out an implied contract between himself and his audience that the delivery of the lecture is for purposes of instruction only, and that those present are entitled to make no other use of it whatsoever.[307] His remedy at common law will be for damages and injunction. Of course he cannot sue for penalties, unless he has brought himself within the Act.

The Lectures Act does not apply so as to protect any lecture or lectures delivered in any university, or public school or college, or on any public foundation, or by any individual in virtue of, or according to, any gift, endowment, or foundation.[308] The law relating to such lectures is declared to be the same as if the Lectures Act had not been passed. The result of this proviso is that these special kinds of lectures are nearly always protected at common law by implied contract in the same way as other lectures.[309]

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