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PART I.

tion, where a fair doubt appears, as to the plaintiff's legal CHAPTER XVII right, the court always directs it to be tried, making some provision in the interim, the best that can be, for the benefit of both parties." Elsewhere the same learned judge says, "The principle of granting the injunction in those cases is, that damages do not give adequate relief; and that the sale of copies by the defendant is in each instance not only taking away the profit upon the individual book, which the plaintiff probably would have sold, but may injure him to an incalculable extent, which no inquiry for the purpose of damages can ascertain."(a)

Procedure to

obtain

injunction.

Where plaintiff's

To obtain an injunction, the course of procedure is for the proprietor to file a bill, stating his title to the original work, the nature of the piracy, and the consequent injury. The particular facts are next to be verified by affidavit, and a special motion may then be made to restrain the publication. The whole question may thus be brought before the court; and an injunction will either be granted forthwith, or an issue directed to try the question before a jury.(b)

An injunction will not be granted where the title is in title is doubtful. doubt. Thus, where the plaintiff claimed an injunction as the purchaser, from the composer, of the copyright of certain songs, and the defendant produced affidavits from the composer and one Elliston, from which it appeared that Elliston had a copyright, but whether qualified or absolute was doubtful, Sir John Leach refused to grant an injunction. (c)

In a case decided under the Copyright Act of Anne, an injunction obtained by the plaintiff to restrain the unauthorised publication of a book in which he claimed copyright, was dissolved by Lord Chancellor King, on the ground that the plaintiff had not set out a good title in his bill or affidavit, as it was there stated only that he had purchased or legally acquired the copy, which was not sufficient without saying that he purchased or acquired it "of the author."(d)

Courts of equity used formerly to direct an issue to be tried by a jury in a court of common law in order to determine the plaintiff's title to copyright. But sect. 1 of 25 & 26 Vict. c. 42, now directs that every question of law or fact, cognizable in a court of common law, on the determination of which the title to the relief or remedy sought in a court of equity depends, shall be determined by or before that court, unless (sect. 2) where questions of fact may be more conveniently determined at the assizes or in a court of (a) Hogg v. Kirby (8 Ves. 225).

(b) Maugham, 169.

(c) Lowndes v. Duncombe (2 Cowp. 216). (d) Gilliver v. Snaggs (2 Eq. Cas. Ab. 522; 4 Viner's Abridg. 279).

common law in Westminster or Middlesex, in which cases issues of fact may be directed to be tried as before. (a)

Courts of equity are now also empowered to award damages to the party injured, either in addition to or in substitution for an injunction. (b) The measure of damages in a case of piracy was thus stated by James, V.C., in a recent case: "That the defendant is to account for every copy of his book sold as if it had been a copy of the plaintiff's, and to pay the plaintiff the profit which he would have received from so many additional copies." (c)

PART L.

CHAPTER XVIL

Damages.

tion would be mischievous.

A provisional injunction, if granted, would sometimes be Where injuneproductive of more mischief than that which it was intended to remedy, e.g., if the book whose publication was sought to be restrained were of such a nature that its chief value depended upon its appearing immediately. "There is a great difference" said Lord Eldon, (d) "between works of a permanent and of a transitory nature. The case upon the former may be brought to a hearing. But the effect is very different upon a work of this kind [an East Indian Calendar], perishable; particularly in this instance; consisting of the names of persons continually fluctuating: a work that would be good for nothing in another year."

The difficulty in such cases is forcibly stated and the mode of avoiding it suggested by Lord Cottenham, C., in dealing with the question of an Almanac, alleged to be pirated from another.(e) "The greatest of all objections" said the Lord Chancellor, "is that the court runs the risk of doing the greatest injustice in case its opinion upon the legal right should turn out to be erroneous. Here is a publication which, if not issued this month [December], will lose a great part of its sale for the ensuing year. If you restrain the party from selling immediately, you probably make it impossible for him to sell at all. You take property out of his pocket and give it to nobody. In such a case, if the plaintiff is right, the court has some means at least, of indemnifying him, by making the defendant keep an account; whereas, if the defendant is right and he be restrained, it is utterly impossible to give him compensation for the loss he will have sustained. And the effect of the order in that event will be to commit a great and irremediable injury. Unless, therefore, the court is quite clear as to (a) See Re Hooper (11 W. R. 130).

(b) 21 & 22 Vict. c. 27, s. 2; see per Wood, V.C., Tinsley v. Lacy (11 W. R. 877).

(c) Pike v. Nickolas (20 L. T. N. S. 909; 38 L. J. 529, Ch.). (d) Mathewson v. Stockdale (12 Ves. 275).

() Spottiswoode v. Clarke (2 Phil. 156).

PART L

what are the legal rights of the parties, it is much the safest CHAPTER XVII Course to abstain from exercising its jurisdiction till the legal right has been determined."

Where the work is of such a nature as those just referred to, the Court of Chancery orders the defendant to keep an account of all copies sold, until the title of the plaintiff is ascertained, when the proceeds must be handed over to him. Although an equitable title to the work pirated is suffilegal title should cient to entitle to the assistance of a court of equity, (a) the person who has the legal title should also be made a party to the suit. (b)

Person having

be made a party.

Joint owners may sue.

Joinder of defendants.

Form of injunction.

The author or the proprietor of the copyright in a work may associate with himself any person or persons he pleases in the book of registry at Stationers' Hall, and such persons will have a right to sue jointly with him in equity for an infringement of the copyright. (c)

On the other hand, where there are distinct infringements of copyright by several persons they cannot be joined as defendants in the same suit. Thus, where different booksellers take copies of a spurious edition of a work for sale there is no privity between them, and they must be proceeded against by separate bills. (d)

Where a bill for an injunction prayed that the defendant might be restrained from publishing, selling, or otherwise disposing of a number of a periodical containing a piratical abridgment of a work of fiction, and from copying or imitating in whole or in part that work, Knight Bruce, V.C., granted the injunction as prayed, except as to the words "or imitating" for which he could find no precedent. "I am not satisfied," said his Honour, "that the words would go too far. Certainly, I am not satisfied that any legal or proper act would be restrained by them; but I am struck with the absence of any precedent for the use of those words in any injunction upon a case merely literary; and as I am of opinion, if I rightly understand it, that what is apprehended by the counsel for the plaintiff this court would restrain, I think it more prudent and safe to narrow the present injunction, rather than to leave in it a word apparently new in such cases, and which may be susceptible of an erroneous interpretation."(e)

(a) See Mawman v. Tegg (2 Russ. 385), Pierpoint v. Fowle (2 Wood. & Min. 35), Little v. Gould (2 Blatch. 181); per Abinger, C.B., in Chappell v. Purday (4 Y. & C. 493); per Shadwell, V.C., in Bohn v. Bogue (10 Jur. 420), and Sweet v. Cater (11 Sim. 581).

(b) Colburn v. Duncombe (9 Sim. 151). See Sweet v. Shaw (3 Jur. 217), and Sweet v. Cater (11 Sim. 581).

(c) Stevens v. Wildy (19 L. J. 190, Ch.)

(d) Dilly v. Doig (2 Ves. 486).

(e) Dickens v. Lee (8 Jur. 185).

PART I.

"The largest words," said the Vice-Chancellor, "that the registrar has furnished me with are in a case of Faden V. CHAPTER XVII Stockdale, (a) which are very large indeed." The words of the injunction in that case were: "To restrain the defendant, his servants, agents, and workmen from printing, upon a reduced scale or otherwise, and from publishing or selling any copy or copies of the map of the Island of St. Domingo, compiled, drawn, or engraved by or for the use of the plaintiff, or any other of the like nature or kind, or upon any such or the like plan, until answer or further order."

not be guilty of

cence.

It has been observed that nothing, in general, can call Plaintiff must forth a court of equity into activity but conscience, good laches, or misfaith, and personal diligence, and one of the leading maxims lead by acquiesthat guides its interference is-Vigilantibus non dormientibus æquitas subvenit. (b) If one slumbers over his rights instead of asserting them in proper time, or if one, by his conduct, acquiesces in or encourages the infringement of a right which he afterwards seeks to enforce, equity will not grant him its aid, but leave him to his remedy at law.

A leading case on this subject is Saunders v. Smith (c) in which, without pronouncing any judgment on the legal right of the defendant to publish, with notes annexed, certain legal cases previously published by the plaintiff, the Lord-Chancellor (Cottenham) refused to grant an injunction to stay the publication by the defendant of a second volume of his "Leading Cases " on account of the line of conduct pursued by the plaintiffs. Mr. Smith had published his first volume of "Leading Cases" in 1837, containing some cases taken from the plaintiffs' books, and he stated in the preface his intention to publish a second volume which would carry the work down to the time he wrote. Mr. Smith proceeded with his second volume, and a communication on the subject of taking a share in it was made by his publisher (Mr. Maxwell) to the plaintiff's, and the plaintiffs made no remonstrance until the first part of the second volume was published, when they applied for an injunction to restrain its publication. Lord Cottenham, in refusing the injunction, said: "I do not give any opinion upon the legal question. I am only to decide whether the plaintiffs are entitled, under the circumstances, to the interposition of the court to protect their legal right, when that legal right has not yet been established. But I assume the existence of the legal right, and I say that whatever legal

(a) Reg. Lib. A. 1796, fol. 32*.

(b) See 2 Sp. Eq. Jur. 60, 61; St. Eq. Jur. a 959, a.
(c) 3 My. & Cr. 711.

PART L

right the plaintiffs may have, the circumstances are such as CHAPTER XVIL to make it the duty of a court of equity to withhold its hand, and to abstain from exercising its equitable jurisdiction, at all events until the plaintiffs shall come here with the legal title established. In doing this, I am only doing what Lord Eldon did in Rundell v. Murray, and what is very generally done upon questions of patent right. The court always exercises its discretion whether it shall interfere by injunction before the establishment of the legal right."

The circumstances of the case of Rundell v. Murray,(a) referred to by Lord Eldon, were peculiar. The authoress gave her book to the defendant to publish at his expense on condition of giving her a few copies, and she stated in the book that it was given to the public in the idea that it might be useful, and as " she will receive from it no emolument, so she trusts it will escape without censure." The book proved a success, and the publisher sent her 1501., which she acknowledged by letter to be a free gift. After the period of fourteen years had elapsed from the first publication, the authoress sought to restrain the further publication of the work by the defendant, but Lord Eldon held that she was not entitled to do so. His Lordship said: "There has often been great difficulty about granting injunctions where the plaintiff has previously, by acquiescing, permitted many others to publish the work; where ten have been allowed to publish, the court will not restrain the eleventh. A court of equity frequently refuses an injunction where it acknowledges a right, when the conduct of the party complaining has led to the state of things that occasions the application; and therefore, without saying with whom the right is, whether it is in this lady or whether it is concurrently in both, I think it is a case in which strict law only ought to govern."

In Platt v. Button (b) Lord Eldon said that where permission was given to some persons to publish, and then others copied, it was necessary for the proprietor to bring his action at law before he could come to equity for an injunction.

If any delay occurs in the assertion of the title to a copyright infringed, the delay must be accounted for to the satisfaction of the court, otherwise no assistance will be given.(c)

(a) 1 Jac. 311. See also Southey v. Sherwood (2 Mer. 438), and the American case of Heine v. Appleton (4 Blatch. 125).

(b) Coop. Ch. Cas. 304.

(c) See Baily v. Taylor (1 R. & M. 76; s. c. Tamlyn, 295) Mawman v. Tegg (2 Russ. 385, 393), Lewis v. Chapman (3 Beav. 135), Lewis v. Fullarton (2 Beav. 6), Buxton v. James (5 De G. & Sm. 80, 84), per Wood, V.C., in Tinsley v. Lacy (11 W. R. 877; 32 L. J. 539, Ch.); and the analogous cases as to patents, Bridson v. Benecke (12 Beav. 3); per

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