copyright, and two dollars for every copy found in his possession, either printed or printing, published, imported, or exposed to sale, contrary to the intent of the Act; one moiety of the penalty to be to the use of Her Majesty, the other to the legal owner of the copyright, to be recovered in any court of competent jurisdiction: (sect. 13.)

In painting, drawing, or sculpture;

Whoever, within the term limited, and after the recording of any painting, drawing, statuary, or sculpture, reproduces in any manner, or causes to be reproduced, made, or sold, in whole or part, copies of those works of art without the consent of the proprietor or proprietors, is to forfeit the plate or plates on which such reproduction has been made, and also every sheet thereof so copied, printed, or photographed, to the proprietor of the copyright, and also two dollars for every sheet of the same reproduction so published or exposed to sale, contrary to the intent of the Act, the penalty to be divisible and recoverable as in the case of piracy of books: (sect. 11.)

If any person, within the time limited, and after the record- In prints, maps, ing of any print, cut or engraving, map, chart, musical com- charts, musical position, or photograph, according to the provisions of the compositions, or Act, engraves, etches, or works, sells or copies, or causes to be photographs. engraved, etched, or copied, made or sold, either in the whole, or by varying, adding to, or diminishing the main design, with intent to evade the law, or prints or imports for sale, or causes to be printed or imported for sale, any such map, chart, &c., or any parts thereof, without the consent of the proprietor of the copyright, first obtained as aforesaid, or knowing the same to be so printed or imported without such consent, publishes, sells or exposes to sale, or in any manner disposes of any such map, chart, &c., without such consent, he is to forfeit the plate or plates on which such map, chart, &c., has been copied, and also every sheet thereof, so copied or printed, to the proprietor of the copyright, and also two dollars for every sheet of such map, musical composition, &c., found in his possession, printed or published or exposed to sale, contrary to the true intent and meaning of the Act; the penalty to be divisible and recoverable as in the preceding cases: (sect. 12.) If any person prints or publishes any MS. whatever in Damages for Canada, or, the same having been printed or published else- infringement of where, offers it or causes it to be offered for sale in Canada, with- copyright. out the consent of the author or legal proprietor first obtained, such author or proprietor being resident in Canada, or being a British subject resident in Great Britain or Ireland, such person is to be liable to the author or proprietor for all damages occasioned by such injury, to be recovered in any court of competent jurisdiction: (sect. 16.)

If any person prints, publishes, or reproduces any book, map, Penalty for chart, musical composition, print, cut, or engraving, or other falsely pretendwork of art, or photograph, and, not having legally acquired ing to have copythe copyright thereof, inserts therein, or impresses thereon,

right.

that it has been entered according to the Act, or words to that effect, he is to incur a penalty not exceeding 60 dollars, to be divisible and recoverable as in preceding cases: (sect. 17.)

actions.

All proceedings for the recovery of penalties under the Act Limitation of must be commenced within two years from the cause of action arising: (sect. 18.)

The Act repeals former Copyright Acts, saving in respect of Repeal of former unexpired terms thereunder: (sects. 19, 20.)

Acts.

PAGE 165, before line 19, add: But a receipt for money on account, given by the writer of a play to the person for whom he writes it on commission, does not amount to an assignment: (Levy v. Rutley, L. T. June 3, 1871, p. 85; Weekly Notes, June 3, 1871, p. 122; Notes of Cases, June 9, 1871, p. 127). PAGE 265, second marginal note, for "stamped" read "stamp."

PAGE 267, lines 23, 24, for "property " read "penalty."

PAGE 323, line 15, for "Charles" read "James."

PAGE 353, line 18, for "and" read “or."

PAGE 379, note (d), for "Clements" read "Clement."
PAGE 412, note (j), line 1, for "Herle " read "Kerle."
PAGE 413, note (a), line 8, for "Stewart" read "Stuart."
PAGE 428, line 7, for " Dixon " read "Dickson."

PAGE 465, line 6, for "came" read "come."

แ

PAGE 488, marginal note, and lines 18, 25, and 42, for Creevy" read "Creevey."

PAGE 506, before line 40, add: In the case of Reg. v. Stanger (L. Rep. 6 Q. B. 352; 40 L. J. 96, Q. B.) affidavits stating that a copy of the newspaper in which the libel appeared had been purchased from a salesman in the office of the newspaper, and that by a footnote to the newspaper the defendant was stated to be the printer and publisher of it, and that deponent believed him to be so, were held not to disclose legal evidence of publication entitling to a rule for a criminal information. In the same case the court doubted whether recourse could be had to the affidavits of the defendant used in showing cause against the rule nisi, in order to supply the defects in those for the prosecution. PAGE 508, note (a), for "Rex" read “Reg."

PAGE 515, note (b), for "Reg." read “Rex.”

THE LAW

RELATING TO

Works of Literature and Art.

PART I.-LAW OF COPYRIGHT.

CHAPTER I.

LITERARY PROPERTY.

THE foundation of Literary property is the same as that of all I other property. "La propriété," says Bentham, (a) “n'est qu'une base d'attente; l'attente de retirer certains avantages de la chose qu'on dit posséder en conséquence des rapports où l'on est déjà placé vis-à-vis d'elle;" and this expectation of advantages to be derived is altogether the I work of law. In the right of property are two elements involved, first, the power of using indefinitely the subject of the right, or of applying it to uses or purposes which are not positively and exactly circumscribed; and, secondly, a power of excluding others from using the same subject. (b) These are the advantages which the possessor of literary as well as other property enjoys, and which the law of the land secures to him. The sole right of originally giving to the world the results of his mental labours, and the power to hinder the infringement by others of his property therein, are guaranteed to every British subject by law, so far as law can accomplish that object; for the mental experiences of all of us have so much in common, the thoughts of most men resemble each other to so large an extent, that to determine and guard specific property in ideas merely-ideas which have not embodied themselves in a material form-is a task which no law makers

!

(a) "Traités de Legislation," par Dumont, p. 95.
(b) Austin Jur. iii. 19.

B

PART I. CHAPTER I.

not pretending to omniscience could undertake to perform.
Hence our law takes no cognisance of any claims to the
ownership of ideas which have not found a material
clothing, and refuses to preserve the most original of men
from the annoyance of having published abroad, either by
writing or by word of mouth, his most original ideas,
which have been communicated to another in the course of
conversation. The original ideas of a man on any subject,
though they exist not out of relation to his mind, in one
sense really belong as entirely to him as if they were
reduced by him to writing, and hence it might be thought
that he ought to be enabled to assert an equal claim
to them in the one case as in the other. But the prac-
tical impossibility referred to, of dealing by means of legal
proof with the former case, has rendered necessary the
distinction which the law makes between the two. The in-
tangible and incorporeal products of his mind, so long as
they remain in that condition, are beyond the protection of
law; when reduced into any material form, which can be
produced in a court of justice, or be identified by proofs of
a satisfactory kind, the author's right to them (called copy-
right) becomes enforceable by law. (a) And that right is
twofold: first, he has a right to them, and a property in
them whilst the materials embodying them remain unpub-
lished in his possession; and, secondly, after they are pub-
lished he has a statutory exclusive property in them limited
in point of duration. (b) This obvious division of the subject
will be followed in dealing with the copyright belonging to
individuals, and we shall treat separately of the property in
unpublished works, or copyright before publication, and in
published works, or copyright after publication.
doing so, however, it will be advisable to determine the
answers to two other questions, namely: first, in what works
this right of property exists? and secondly, what class of
persons are entitled to claim and enjoy the right? With
these we shall now proceed to deal in order.

·

Before

(a) "It is a well-known and established maxim (which, I apprehend, holds as true now as it did 2000 years ago) that nothing can be the object of property which has not a corporeal substance':" (Yates, J., in Millar v. Taylor, 4 Burr. 2361.) (b) " Copyright is not of a simple but a complex nature, involving two conditions, one of publication and the other of exclusion. An author claims the right of multiplying the copies of his work, and of thus securing to himself present reputation and distant fame; and he also claims the advantage of excluding by statute law, other persons from multiplying copies of the same work :" (Arguendo in Prince Albert v. Strange, 2 De G. & Sm. 674.)

PART I

CHAPTER II.

CHAPTER II.

IN WHAT WORKS COPYRIGHT EXISTS.

works.

COPYRIGHT may exist with regard to every original composi- Enumeration of tion or work of literature, science, or art, which is innocent in its nature, including every volume, part or division of a volume, map, chart, or plan separately published (5 & 6 Vict. c. 45, s. 2), lectures (5 & 6 Will. 4, c. 65), engravings (8 Geo.2, c. 13; 7 Geo. 3, c. 38; 17 Geo. 3, c. 57), lithographs (15 & 16 Vict. c. 12, s. 14), paintings, drawings, and photographs (25 & 26 Vict. c. 68).

innocent.

If the work be not innocent in its nature, there is no right Work must be of property in it which the law will enforce or protect. In what respect, then, may a work not be innocent? The test of the innocence of a work, where the Court of Chancery is asked to interfere, laid down by Lord Eldon in the case of Southey v. Sherwood, (a) is the possibility of making it the foundation of a successful action at law. "If this publication is an innocent one," said his lordship, "I apprehend that I am authorised by decided cases to say that, whether the author did or did not intend to make a profit by its publication, he has a right to an injunction to prevent any other person from publishing it. If, on the other hand, this is not an innocent publication, in such a sense as that an action would not lie in case of its having been published by the author and subsequently pirated, I apprehend that this Court will not grant an injunction." And the same judge observes, "If the doctrine of Lord Chief Justice Eyre (b) is right, and I think it is, that publications may be of such a nature that the author can maintain no action at law, it is not the business of this court, even upon the submission in the answer [as to one edition of the book in question which the defendants acknowledged that they had pirated] to decree either an injunction or an account of the profits of works of such a nature that the author can maintain no action at law for the invasion of that which he calls his property, but which the policy of the law will not permit him to consider his property." (c) And again, "This court interferes by injunction; but not in cases where an action cannot be maintained." (d)

Now it is a fundamental principle of our common law that no action can be maintained on any contract, express or implied, parol or under seal, which is in direct violation of

(a) 2 Meriv. 437.

(e) Southey v. Sherwood (ubi supra). (d) Laurence v. Smith (Jac. 472).

(b) See next page.