A Treatise Upon the Law of Copyright in the United Kingdom and the Dominions of the Crown,
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Title: A Treatise Upon the Law of Copyright in the United Kingdom and the Dominions of the Crown,
Author: Evan James MacGillivray
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*** START OF THE PROJECT GUTENBERG EBOOK A TREATISE UPON THE LAW OF COPYRIGHT IN THE UNITED KINGDOM AND THE DOMINIONS OF THE CROWN, ***
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[Transcriber's Note:
Bold text delimited with equal signs, italics delimited with
underscores.]
A TREATISE UPON
THE LAW OF COPYRIGHT
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
By E. J. MACGILLIVRAY, LL. B. (CANTAB.)
OF THE INNER TEMPLE, BARRISTER-AT-LAW
MEMBER OF THE FACULTY OF ADVOCATES IN SCOTLAND
LONDON
JOHN MURRAY, ALBEMARLE STREET
TO
THOMAS EDWARD SCRUTTON, ESQ., K. C.
IN GRATITUDE FOR
MUCH INSTRUCTION AND KINDNESS
PREFACE
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._
CONTENTS
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 Works 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
TABLE OF CASES
_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.), 37, 38, 219,
Ch., 209 222, =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 1884 26 Ch. D., 637 =20=, 102, 118
Navigation Co.
Alexander _v._ Mackenzie 1847 9 D., 748 =23=, =101=, 104
Allen _v._ Lyon 1884 5 Ont. Rep., 615 118
Anglo-Canadian _v._ 1889 17 Ont. Rep., 239 191
Suckling
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._ 1861 4 L. T. (N. S.), 494 90
Day
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 1835 1 Bing., N. C., 633 93
Baschet _v. London_ -- [1900], 1 Ch., 73 46, 152, 174,
_Illustrated Standard_ 179, 180, 201
Baskett _v._ Cunningham 1762 1 Wm. Black, 370 59, 60
Baskett _v._ University of 1758 2 Burr., 661 59
Cambridge
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 1898 14 T. L. R., 550 179, 183
Exhibitions
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 1888 37 Ch. D., 449 88, 207, 209,
Post_ 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 1897 45 W. R., 476 183, 184
Society
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._ 1812 16 East, 317 56, 86
Bryer
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., 16, 27, 113,
283 164
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 -- [1895], 2 Ch., 29 14, =33=
Printing Co.
Church _v._ Linton 1894 25 Ont. Rep., 131 19, 24, 33
Clark _v._ Bell 1804 Mor. Dic. Literary 92
Property, App. 9
Clark _v._ Bishop 1872 25 L. T. (N. S.), =47=, 120, =124=,
908 133, 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 31
Trade Mark Cases, 53
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 1865 11 Jur. (N. S.), 540 48, 208
_v._ Saunders
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._ -- [1897], 2 Ch., 48 37, =219=
Central News
Exchange Telegraph _v._ -- [1896], 1 Q. B., 147 37, 219
Gregory
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 -- [1895], 2 Q. B., 429 =124=, 126, 131
Winter Gardens
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.), 157, 182
306
Garland _v._ Gemmill 1887 Canada, 14 S. C. R., 16, 106, 108,
321 256
Gee _v._ Pritchard 1818 2 Swanst., 402 225, 226
Geissendorfer _v._ 1896 13 T. L. R., 91 170
Mendelssohn
Gibson _v._ Carruthers 1841 8 M. and W., 321 227
Gilbert _v._ Boosey 1889 _The Law Times_, =214=
Sept. 28, 1889
Gilbert _v._ 1894 11 T. L. R., 4 =218=
_Star_ Newspaper
Gillett _v._ Mawman 1808 1 Taunt., 140 230, 231
Goubard _v._ Wallace 1877 36 L. T. (N. S.), 47
704
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._ 1899 [1899], 1 I. R., 386 180
_Irish Independent_
Grierson _v._ Jackson 1794 Irish T. R., 304 59
Griffin _v._ Kingston 1889 17 Ont. Rep., 660 =33=
Griffith _v._ Tower -- [1897], 1 Ch., 21 227
Publishing Company
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., 32
272
Hanfstaengl _v._ American -- [1895], 1 Q. B., 347 198, =199=
Tobacco
Hanfstaengl _v._ Baines -- [1895], A. C., 20 182, 184
Hanfstaengl _v._ Empire -- [1894], 2 Ch., 1 167, 182
Palace
Hanfstaengl _v._ Empire -- [1894], 3 Ch., 109 182, 184, 196
Palace
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._ 1848 16 Sim., 190 70, 73
Griffin
Hildesheimer & Faulkner 1891 64 L. T. (N. S.), 452 =35=, 53, 74,
_v._ Dunn 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, 286, 218,
221
Jefferys _v._ Kyle 1856 18 D., 906 76
Johnson, _in re_ 1902 19 Pat. Des. and 31
Trade Mark Cases, 56
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. 86,99
Cas., 197
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._ -- [1901], 1 Ch., 374 16, =85=, 95,
Gavin & Lloyds 140
Kenrick _v._ Lawrence 1890 25 Q. B. D., 99 168, 174, 175
Kenrick _v._ Danube 1891 39 W. R., 473 14, 37
Collieries
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.), 78
572
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._ 1888 38 Ch. D., 139 207, 208
Bingham
Liverpool _v._ Commercial -- [1897], 2 Q. B., 1 53, 78, 82, 96
Press
London Printing _v._ Cox -- [1891], 3 Ch., 291 52, 78, 118,
172, 176,
185
London Stereoscopic _v._ 1888 5 T. L. R., 169 183
Kelly
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 1883 10 R., 801 46
Foundry
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., 19 116
Bomb., 557
Macmillan _v._ Suresh 1890 Ind. L. R., 17 =25=, 47, 51,
Chunder Deb Calc., 951 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 1882 21 Ch. D., 369 13, 14, =19=,
and Navy Stores =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.), 47, 121, 134,
418 135, 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._ -- [1895], 2 Ch., 531 174, 175, 176
_Mirror of Life_
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 -- [1895], 1 Ch., 534 193
_v._ Harris
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., 14 116
Bomb., 586
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.), 225
139
Ollendorff _v._ Black 1850 4 De G. and Sm., 209 42
Osborne _v._ Donaldson 1765 2 Eden, 327 6
Oxford and Cambridge _v._ 1899 43 Sol. J., 570 102, 113
Gill
Oxford and Cambridge _v._ 1802 6 Ves., 689 59
Richardson
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., 95
Eq., 159
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.), 11, 67, 206,
157 229
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 1858 4 K. and J., 727 86
_v._ Bauwen
Priestley's Case -- 2 Mer., 437 46
Primrose Press _v._ 1886 2 T. L. R., 404 48
Knowles
Prince Albert _v._ Strange 1849 2 De G. and Sm., 37, 90, 117,
652 152, 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.), 46, 102, 139
479
Reade _v._ Lacy 1861 1 J. and H., 524 101, 102
Reeve _v._ Gibson -- [1891], 1 Q. B., 144, 156
652
Reg _v._ Closs 1857 6 W. R., 109 180
Reichardt _v._ Sapte -- [1893], 2 Q. B., =128=, 139
308
Reid _v._ Maxwell 1886 2 T. L. R., 790 41
Reuter's Telegram Co. 1874 43 L. J. Ch., 661 =216=
_v._ Byron
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., 90, 229
158
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._ Briant 1849 8 C. B., 836 140
Russell _v._ Smith 1848 12 Q. B., 217 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.), 120
762
Schlesinger _v._ Turner 1890 63 L. T. (N. S.), 120
764
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.), 112
775
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.), =25=, 101, 116
16
Spottiswoode _v._ Clarke 1846 2 Phillips, 154 211
Stannard _v._ Harrison 1871 24 L. T. (N. S.), 62, 90, 148,
570 153
Stannard _v._ Lee 1871 L. R., 6 Ch., 346 15, 47, 148,
149
Stevens _v._ Benning 1855 6 De G. M. and G., 83, 227
223
Stevens _v._ Bradbury 1854 1 K. and J., 168 81
Stevens _v._ Brett 1864 10 L. T. (N. S.), 94
231
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._ 1887 4 T. L. R., 130 71
Jackson
Trade Auxiliary _v._ 1889 40 Ch. D., 425 11, =21=,
Middlesborough =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., 82, 177
363
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., 104
127
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
CASES DECIDED IN THE UNITED STATES
AMBERG File _v._ Shea 1897 53 U. S. App., 449 =242=
American Trotting _v._ 1895 70 Fed. Rep., 237 239, 267
Gocher
Aronson _v._ 1886 28 Fed. Rep., 75 240, 241, 263,
Fleckenstein 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 1893 57 Fed. Rep., 979 239
County
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._ 1884 19 Fed. Rep., 758 251
Butler
Child _v._ 1901 110 Fed. Rep., 527 290
_New York Times_
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._ 1899 94 Fed. Rep., 152 271, =291=
United Correspondence
Schools
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., 264, 296, 299
220
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., 259
195
Dielman _v._ White 1900 102 Fed. Rep., 892 271
Doan _v._ American Book 1901 105 Fed. Rep., 772 298
Co.
Dodd _v._ Smith 1891 144 Pa., 340 298
D'Ole _v._ Kansas City 1899 94 Fed. Rep., 840 262
Star Co.
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._ 1877 97 U. S. Rep., 126 289
Pavement Co.
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., 263, 299
471
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_ 1892 Cited, U. S., 594 =256=
_v. New York Press_
Isaacs _v._ Daly 1875 39 N. Y., 511 244, 245
JACKSON _v._ Walkie 1886 29 Fed. Rep., 15 255
Jewellers' Mercantile 1898 155 N. Y., 241 251, =260=, 261,
Agency _v._ Jewellers' 262, 263, 296
Publishing Co.
Jewellers' Mercantile 1896 84 Hun., 12 251, 260
Agency _v._ Jewellers'
Publishing Co.
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. 299
408
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, 273, 269,
271, 277, 279,
280, 284, 285,
289, 293
List Publishing Co. _v._ 1887 30 Fed. Rep., 772 281, 282
Keller
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
MACKAYE _v._ Mallory 1882 12 Fed. Rep., 328 273
McDonald _v._ Hearst 1899 95 Fed. Rep., 656 292
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 1891 47 Fed. Rep., 411 297, 298
Co.
Merriam _v._ Holloway 1890 43 Fed. Rep., 450 297
Merriam _v._ Texas 1892 49 Fed. Rep, 944 298
Siftings
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. 1896 76 Fed. Rep., 961 240, 271, 272,
282
_v._ Refo
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, 300
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._ 1896 73 Fed. Rep., 196 262, 270, 271,
Munroe 274 300
Pulte _v._ Derby 1852 5 M'L., 328 260, 273
REED _v._ Carusi 1845 72 Fed. Cas., No. 241, 290
11, 642; 8 L. R.,
411
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. 246, 267
(Am.), 614 262, 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 1894 64 Fed. Rep., 270 296
Association _v._ Howard
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. 262
(N. Y.), 349
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
PART I
THE LAW OF COPYRIGHT IN THE UNITED KINGDOM AND THE DOMINIONS OF THE
CROWN.
CHAPTER I
INTRODUCTORY
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]
[Sidenote: The Royal Prerogative.]
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.
[Sidenote: The Company of Stationers.]
[Sidenote: The Star Chamber.]
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.
[Sidenote: The germ of Copyright.]
[Sidenote: Licences.]
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."
[Sidenote: The Long Parliament.]
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.
[Sidenote: Licensing Statute.]
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.
[Sidenote: 8 Anne, c. 19. The beginning of Statutory Copyright.]
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.
[Sidenote: 41 Geo. III., ch. 107.]
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.
[Sidenote: 54 Geo. III., ch. 156.]
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.
[Sidenote: Copyright at Common Law.]
[Sidenote: Injunctions in Chancery.]
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]
[Sidenote: _Tonson_ v. _Collins_.]
[Sidenote: A collusive action.]
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.
[Sidenote: _Osborne_ v. _Donaldson_.]
[Sidenote: _Millar_ v. _Taylor_.]
[Sidenote: _Donaldson_ v. _Beckett_.]
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:
[Sidenote: Opinions of the judges.]
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.
[Sidenote: Decision of the House of Lords.]
[Sidenote: Defeat of the Authors' booksellers.]
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.
[Sidenote: Relief for the Universities.]
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.
[Sidenote: 5 & 6 Vict. c. 45.]
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.
[Sidenote: Engravings.]
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.
[Sidenote: Sculpture.]
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.
[Sidenote: Dramatic Work.]
[Sidenote: Musical Work.]
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.
[Sidenote: Lectures.]
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.
[Sidenote: Paintings, Drawings, and Photographs.]
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."
[Sidenote: International Acts.]
[Sidenote: The Berne Convention.]
[Sidenote: The Paris Convention.]
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.
[Sidenote: Colonial Acts.]
There are several statutes dealing with the colonies dating from 1847.
CHAPTER II
WHAT BOOKS ARE PROTECTED
The following books are protected by statute throughout the
British Dominions:[9]
1. Every original book:[10]
2. First published within the British Dominions:[11]
3. [The author of which is a British subject or resident within
the British Dominions at the time of first publication:[12]]
4. Which is innocent:[13]
5. And has been registered before action:[14]
6. For 42 years, or the author's life and 7 years, whichever
period is the longer.[15]
SECTION I.--WHAT IS AN ORIGINAL BOOK.
=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. A certain physical form.
II. Literary matter.
III. Originality.
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.
[Sidenote: Road Books.]
=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.
[Sidenote: Directories.]
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.
[Sidenote: Trade Directory.]
[Sidenote: Sheet of Advertisements.]
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]
[Sidenote: Catalogues.]
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:
[Sidenote: Advertisements.]
"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]
[Sidenote: Alphabetical Catalogue of Tradesmen's Goods.]
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_."
[Sidenote: Telegraph Codes.]
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]
[Sidenote: Shipping Statistics.]
[Sidenote: Mineral Statistics.]
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]
[Sidenote: Lists taken from public documents.]
[Sidenote: List of Bills of Sale.]
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]
[Sidenote: Specifications of Patents.]
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.
[Sidenote: List of Foxhounds.]
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."
[Sidenote: Time Tables.]
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."
[Sidenote: Tables of Calculation.]
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.
[Sidenote: Forms and Precedents.]
[Sidenote: Conveyancing Precedents.]
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.
[Sidenote: Application Form.]
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.
[Sidenote: Selections and Extracts from Non-copyright Works.]
[Sidenote: Collection of Cookery Recipes.]
[Sidenote: Topographical Dictionary.]
[Sidenote: Child's A B C.]
[Sidenote: "Guide to Science."]
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."
[Sidenote: French Dictionary.]
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."
[Sidenote: Selections of Poetry.]
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]
[Sidenote: Abridgments.]
Lawfully made abridgments are protected on account of the judgment
which the abridger must exercise in order to do his work well.[118]
[Sidenote: Translations.]
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.
[Sidenote: Adaptations.]
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.
[Sidenote: New Editions and Notes.]
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.
[Sidenote: Reports.]
[Sidenote: Law Reports.]
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]
[Sidenote: Verbatim Reports.]
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]
[Sidenote: Mechanical Devices.]
[Sidenote: Cricket Scoring Card.]
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]
[Sidenote: Shadow Trick.]
[Sidenote: Barometer Face.]
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."
[Sidenote: Sleeve Chart.]
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]
[Sidenote: Railway Ticket.]
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]
[Sidenote: Scroll for Mechanical Instrument and Directions thereon.]
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.
[Sidenote: Sporting Tips.]
_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_ Coelus.
_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]
[Sidenote: Illustrations.]
[Sidenote: To Non-copyright Letterpress.]
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]
[Sidenote: No Letterpress.]
[Sidenote: Christmas Card.]
[Sidenote: Plate issued separately.]
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]
[Sidenote: Maps.]
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."
[Sidenote: Music.]
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]
SECTION II.--PUBLICATION.
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.
SECTION III.--AUTHOR'S NATIONALITY.
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.
SECTION IV.--IMMORAL WORKS.
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.
SECTION V.--REGISTRATION.
=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]
i. The title.
ii. The time of first publication.
iii. The name and place of abode of the publisher.
iv. The name and place of abode of the proprietor.
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]
i. The title.
ii. The time of first publication of the first part.
iii. The name and place of abode of the proprietor.
iv. The name and place of abode of the publisher if
different from the proprietor.
_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]
SECTION VI.--DELIVERY OF COPIES TO LIBRARIES.
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]
i. The value of the copy which ought to have been delivered.
ii. A sum not exceeding £5.
iii. Solicitor and client costs.
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 there
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