any letter or letters addressed to them, upon such occasions
as require or justify the publication or public use of them;
but this right is strictly limited to such occasions. (a) Thus,
a person may justifiably use and publish in a suit at law
or in equity such letter or letters as are necessary and
proper to establish his right to maintain the suit, or defend
the same. So, if he be aspersed or misrepresented by
the writer, or accused of improper conduct in a public
manner, he may publish such parts of such letter or letters,
but no more, as may
be necessary to vindicate his
character and reputation, or free him from unjust obloquy
and reproach. If he attempt to publish such letter or
letters on other occasions, not justifiable, a court of equity
will prevent the publication by an injunction, as a breach of
private confidence or contract, or of the rights of the author,
and a fortiori if he attempt to publish them for profit; for
then it is not a mere breach of confidence or contract, but it
is a violation of the exclusive copyright of the writer. In
short the person to whom letters are addressed, has but a
limited right or special property (if I may so call it) in such
letters, as a trustee or bailee for particular purposes, either
of information or protection, or of support of his own rights
and character. The general property, and the general rights
incident to property, belong to the writer, whether the
letters are literary compositions, or familiar letters, or details
of facts, or letters of business. The general property in
the manuscripts remains in the writer and his representatives
as well as the general copyright. A fortiori, third persons
standing in no privity with either party are not entitled to
pablish them, to subserve their own private purposes of
interest, or curiosity, or passion."

PART I.

CHAPTER II.

The right of an oral lecturer, before the Stat. 5 & 6 Will. 4, Lectures c. 65, to restrain the publication for profit of lectures delivered by him stood on a somewhat peculiar footing. In the year 1824, Mr. Abernethy, the distinguished surgeon, delivered a series of lectures on the principles and practice of surgery to the medical students of St. Bartholomew's Hospital. The Lancet newspaper proceeded to publish these lectures; and, besides publishing some, it contained an announcement that the remaining lectures would also be published as they were delivered. A bill was filed by Mr. Abernethy against the proprietors of the Lancet to restrain the publication. (b) It was contended on behalf of the defendants that no man could have any right of property in (e) See 2 Swans. 415, 419, and Palin v. Gathercole (1 Coll. 565). (b) Abernethy v. Hutchinson (1 H. & T. 39 ; 3 L. J. 209, Ch.)

PART I.

ideas and language not reduced into writing; and it was CHAPTER II acknowledged by Mr. Abernethy, that although a good deal of the materials for his lectures had been reduced by him to writing, yet at the time of delivering the lectures he did not read or refer to any writing before him, but that he delivered them orally. As the written notes were not produced, the Lord Chancellor (Eldon), when the case first came before him, refused to grant an injunction grounded on an infringement of the plaintiff's copyright, because no case had determined that there was such copyright in unpublished productions not reduced into writing. The case was postponed to enable Mr. Abernethy to produce his manuscripts if he wished to do so. The manuscripts were not produced, and Lord Eldon, treating the lectures as orally delivered, refused to grant an injunction on the ground of a right of property in sentiments and language not deposited on paper; though he did grant the injunction on another ground, namely, the existence of an implied contract between the lecturer and his hearers that the latter would make use of the lectures only for their own information, and not publish for profit that which they had not the right of selling. The Lord Chancellor is reported to have stated that where the lecture was orally delivered, it was difficult to say that an injunction could be granted upon the same principle upon which literary composition was protected; because the court must be satisfied that the publication complained of was an invasion of the written work, and this could only be done by comparing the composition with the piracy. But it did not follow that because the information communicated by the lecturer was not committed to writing but orally delivered, it was therefore within the power of the person who heard it to publish it. On the contrary, he was clearly of opinion that whatever else might be done with it, the lecture could not be published for profit. He had no doubt whatever that an action would lie against a pupil who published these lectures; and whether an action would or would not lie against a third person obtaining the lectures from a pupil, an injunction undoubtedly might be granted; because if there had been a breach of contract on the part of the pupil who heard the lectures, and if the pupil could not publish for profit, to do so would be regarded by the court as a fraud in a third party. (a)

5 & 6 Will. 4, c. 65.

But now a distinct property in lectures delivered is given to the lecturer by Stat. 5 & 6 Will. 4, c. 65. After (a) 3 L. J. 219, Ch.

way,

PART I.

stating that printers, publishers, and other persons have frequently taken the liberty of printing and publishing CHAPTER II. lectures delivered upon divers subjects without the consent of the authors of such lectures, sect. 1 enacts, "that from and after the first day of September, one thousand eight hundred and thirty-five, the author of any lecture or lectures, or the person to whom he hath sold or otherwise conveyed the copy (a) thereof, in order to deliver the same in any school, seminary, institution, or other place, or for any other purpose, shall have the sole right and liberty of printing and publishing such lecture or lectures; and that if any person shall, by taking down the same in shorthand or otherwise in writing, or in any other obtain or make a copy of such lecture or lectures, and shall print or lithograph or otherwise copy and publish the same, or cause the same to be printed, lithographed, or otherwise copied and published, without leave of the author thereof, or of the person to whom the author thereof hath sold or otherwise conveyed the same, and every person who, knowing the same to have been printed or copied and pubEshed without such consent, shall sell, publish, or expose to sale, or cause to be sold, published, or exposed to sale, any such lecture or lectures, shall forfeit such printed or otherwise copied lecture or lectures, or parts thereof, together with one penny for every sheet thereof which shall be found in his custody, either printed, lithographed, or copied, or printing, lithographing, or copying, published or exposed to sale, contrary to the true intent and meaning of this Act, moiety thereof to His Majesty, his heirs or succesFors, and the other moiety thereof to any person who shall sue for the same, to be recovered in any of His Majesty's Courts of Record in Westminster, by action of debt."

the one

Sect. 2 enacts, "that any printer or publisher of any newspaper who shall, without such leave as aforesaid, print and publish in such newspaper any lecture or lectures, shall be deemed and taken to be a person printing and publishing without leave within the provisions of this Act, and liable to the aforesaid forfeitures and penalties in respect of such printing and publishing."

(a) I use the word 'copy,'" said Lord Mansfield, in Millar v.
Taylor (4 Burr. 2396), "in the technical sense in which that name or
has been used for ages, to signify an incorporeal right to the
printing and publishing of somewhat intellectual communicated
y letters."
"The copy of a book," said Aston, J., in the same
(b. 2346), "seems to have been not familiarly only, but legally
as a technical expression of the author's sole right of printing and
that work." See also per Willes, J. (Ib. 2311).

Hishing

PART I.

CHAPTER II.

Exceptions to copyright in lectures.

Prints.

Paintings, draw

And sect. 3 provides, "that no person allowed for certain fee and reward, or otherwise to attend and be present at any lecture delivered in any place, shall be deemed and taken to be licensed or to have leave to print, copy, and publish such lectures only because of having leave to attend such lecture or lectures.

Sect. 4 makes an exception in the case of lectures published with leave of the authors or their assignees, and of which the statutory term of copyright had expired, and also in the case of lectures published before the passing of the Act (9th September, 1835).

Sect. 5 makes a further exception. It enacts "that nothing in the Act shall extend to any lecture or lectures, or the printing, copying, or publishing any lecture or lectures, or parts thereof, of the delivering of which notice in writing shall not have been given to the justices living within five miles from the place where such lecture or lectures shall be delivered two days at the least before delivering the same, or to any lecture or lectures delivered in any university or public school or college, or on any public foundation, or by any individual in virtue of or according to any gift, endowment, or foundation, and that the law relating thereto shall remain the same as if this Act had not been passed."

There is also a copyright in prints, which will be dealt with in a subsequent chapter; but no copyright, as before stated, exists in prints of a libellous, obscene, or immoral character. (a)

A copyright in paintings, drawings, and photographs is ing and photo- conferred by 25 & 26 Vict. c. 68. This will also be treated of in a subsequent chapter.

graphs.

Newspapers.

On the question whether copyright exists in the case of newspapers, see the chapter on newspapers, post.

CHAPTER III.

WHO MAY POSSESS COPYRIGHT.

LEAVING out of consideration at present the question of international copyright, there is no doubt that every person (whether he be a foreigner or a British subject) who owes allegiance, either natural and perpetual or temporary, to the (a) Vide ante, p. 11.

PART L.

sovereign of this country, is capable of possessing the copyright in any innocent work which he publishes in this country CHAPTER IIL during the time that he owes such allegiance.

A natural born British subject before the Naturalization Act of last year (33 Vict. c. 14) was held to carry his allegiance with him throughout the world, and no change. of circumstance, time, or place could free him from it. (a) An English author, therefore, might reside abroad, and yet have his right as an English author upon publication here. Residence abroad could not release him from his natural allegiance, and therefore he carried with him also the natural rights of a subject of England wherever he went. (b) Besides this natural and perpetual allegiance, our law also recognizes a local or temporary allegiance which is due from every alien or stranger born for so long a time as he continues within the sovereign's dominion and protection, (c) and which he ceases to owe as soon as he transfers himself from this kingdom to another. (d) An alien friend temporarily residing here and consequently owing a temporary allegiance, is entitled to copyright in any work which he publishes here whilst so temporarily residing, however short his period of residence may be. But if the alien does not reside in the British dominions at the time of publishing his work here, is he entitled to copyright in it? (e) The answer to be given is not free from doubt.

since over-ruled.

In Cocks v. Purday (f) the Court of Common Pleas, follow- Cocks v. Purday, ing out the general principle that an alien may acquire personal rights and maintain personal actions in respect of injuries done to him, though he cannot maintain real actions, held that a foreigner resident abroad could acquire the copyright in a work first published by him as author or as author's assignee in this country though residing abroad at the time that the work was first published here. (g) And in support of this opinion the following considerations were urged, that by the 5 & 6 Vict. c. 45, copyright is to be deemed personal property, and to be transmissible by

(a) See Calvin's Case (7 Rep. 6 b.).

() Vide judgment of Lord St. Leonards in Jeffreys v. Boosey (4 H. L. Ca. 977). The Naturalization Act of 33 Vict. c. 14, enables natural born British subjects under certain circumstances to free themselves from their allegiance (ss. 4, 6) and to resume it again (s. 8).

(e) Calvin's Case, ubi supra.

(d) 2 Steph. Black. 418. (e) See the judgments in Jeffreys v. Boosey, ubi supra.

(f) 5 C. B. 860.

(2)See also in connection with this opinion D'Almaine v. Boosey Y. & C. 288), and Bentley v. Foster (10 Sim. 329), and the opinion of Bayley, J., in Clementi v. Walker (2 B. & Cr. 861).