Εικόνες σελίδας
PDF
Ηλεκτρ. έκδοση

PART III.

Time and mode

is fixed upon each edition. Then it might happen that some copies would remain unsold. Mr. Bentley first agrees to account with the author for all copies at the trade price; but then, as that might be too hard upon the publisher, who has had all the expense of bringing out the work, it is agreed that, if any copies remain unsold, he is to have liberty, as regards that edition, to dispose of the unsold copies at a lower price. That is the obvious meaning of this clause, and it has no reference to the general question of fixing or not fixing the price."

On the same principle, the publisher is, in such a case, of publication. the proper person to fix the time and mode of publication. (a)

Agreement for division of profits after payment of expenses.

Power to deter

mine agreement.

An agreement between an author and a publisher that the latter should publish, at his own risk and expense, a work belonging to the former, on the terms of an equal division of the profits after all expenses had been paid, may be regarded in the double light of a licence and a partnership-a licence for the publication of the work, and then a joint adventure between the author and publisher in the copies so to be published. (b) The publisher cannot be considered in such a case as merely the agent of the author, as a mere agent never embarks in the risk of the undertaking.(c)

When it is sought to put an end to such a joint adventure, a difficulty may sometimes arise in the choice of the time for making the requisite application. If the author seeks to determine the contract, and to prevent the publication of any subsequent edition by the publisher, he must take steps for the purpose before any expense is incurred by the publisher in respect to such subsequent edition. the publisher has incurred expense of this nature, he has a right to be recouped it, and to have the benefit of all the profit, the hope of obtaining which induced him to incur such expenditure. (d) But where expense has not been incurred by the publisher in respect to a subsequent edition, the author has a right to determine the joint undertaking, and to prevent the further publication of his work by the publisher, even though the publisher has stereotyped the work previously to the publication of the last published edition. (e)

In determining the point last referred to, Lord Hatherley

(a) Reade v. Bentley (4 K. & J. 665).

Stevens v. Benning (6 D. M. & G. 231); Reade v. Bentley (4 K. & J. 663).

(c) 4 K. & J. 662.

(d) 3 K. & J. 279.

(e) 4 K. & J. 656.

stated the difficulties that beset the question, and the grounds on which his decision rested. On the one hand it might be said on behalf of the publisher that he had given to the undertaking the benefit of his talents and position as a publisher, and had incurred expenses in bringing out the first edition, in the expectation of being recouped the cost of the first by the sale of the second and subsequent editions; and that to hold the author entitled, at his own instance, to determine the agreement when the first edition had been published, would be to enable him by an arbitrary and unreasonable exercise of that power to deprive the publisher of all his profits. On the other hand, it may be urged on the part of the author that, unless he has the power of determining the agreement, the consequence would be that he may be under an obligation to the publisher during the whole of the publisher's life, while the publisher will be under no reciprocal obligation to him. The publisher could compel the author to abstain from publishing a single copy of the work so long as he expressed his readiness to continue publishing, while the author has no reciprocal power: he could never compel the publisher to publish more than a single edition of the work. Further, the publisher, in the bona fide exercise of his discretion as to the fitting time and mode of publication, might decline indefinitely to publish, but without resigning his contract; while the author might, at the same time, be of a contrary opinion, and yet for months or even years might be kept in suspense and prevented from publishing on his own account, until his publisher should be of opinion that the time had come for the revival of the public interest in the work. His Lordship considered the position of the author, under such circumstances, to be one of so great hardship and difficulty, that unless it were clearly shown to have been contemplated by both parties to the agreement, it should not be forced upon him. (a)

Where the agreement between author and publisher states that after payment of the expenses of publication, &c., "the profits remaining of every edition that should be printed of the work are to be divided into two equal parts," one moiety to go to the author and the other to the publisher, this points out certain definite times for the adjustment of the accounts, and at which the author becomes entitled to terminate his agreement with the publisher. (b)

PART IIL

"edition."

By stereotyping the work the publisher does not deprive Meaning of the author of this right. It was objected in Reade v. Bentley, (a) 4 K. & J. 664-666.

T

(b) Ib.

PART III.

that when a work has once been stereotyped the term
"edition" is no longer applicable; that when a work is
published in what is called "thousands," twenty thousand
or thirty thousand being circulated, each thousand could
not properly be called an edition. To this Lord Hatherley
replied: "I apprehend that not merely in point of ety-
mology, but having regard to what actually takes place in
the publication of any work, an 'edition' of a work is the
putting of it forth before the public, and if this be done in
batches at successive periods, each successive batch is a
new edition; and the question whether the individual copies
have been printed by means of movable type or by stereo-
type does not seem to me to be material. If movable
type is used, the type having been broken up, the new
edition is prepared by setting up the type afresh, printing
afresh, and repeating all the other necessary steps to obtain
a new circulation of the work. In that case the contem-
plated break between the two editions is more complete,
because, until the type is again set up, nothing further can
be done. But I apprehend it makes no substantial differ-
ence, as regards the meaning of the term 'edition,' whether
the new thousand' have been printed by a re-setting of
movable type, or by stereotype, or whether they have been
printed at the same time with the former thousand or
subsequently. A new
A new edition' is published whenever,
having in his storehouse a certain number of copies, the
publisher issues a fresh batch of them to the public. This,
according to the practice of the trade is done, as is well
known, periodically, and if, after printing 20,000 copies,
a publisher should think it expedient for the purpose of
keeping up the price of the work, to issue them in batches
of a thousand at a time, keeping the rest under lock and
key, each successive issue would be a new edition in every
sense of the word."(a)

It was held by the Scotch Court of Session that a reprint of part of a book, to replace copies destroyed by an accidental fire, in the hands of the publisher, was not an edition entitling the editor of the work to insist on superintending the issue and receiving remuneration in pursuance of a contract by which he was to "superintend any other edition or editions of the work which should be thereafter published, for doing which he should receive" a certain remuneration. (b)

(a) 4 K. & J. 667.

(b) Blackwood v. Brewster (23 Scotch Sess. Cas. 2nd ser. 142, December 7th, 1860).

of limited

period of

Where the copyright in a work for a limited period is PART III. 1, the purchaser may continue to sell after the expiration Selling copies hat period copies printed before its expiration, unless after expiration a case of actual fraud.(a) In a case where the copyright for four years in a book copyright. s sold to a publishing firm, a motion for an injunction to train the selling of copies, four years after the expiration the term, was refused. It was suggested that the effect permitting the sale might be to destroy altogether the hor's copyright, as the purchaser of the copyright for a ited period might during that period print off copies ough to last for all time. To this Wood, V.C. replied: A nice question might arise as to the number of copies. which an edition might consist; but a publisher was not cely to incur the useless expense of printing copies enough exhaust the demand for all time, and have them lying on his hands unprofitably. Besides this, even if the effect a sale for four years might operate in this way to deprive e author of all copyright in his work, the answer was, at he had not guarded himself against such a contingency. a manifest case of fraud upon the author were established, e court would know how to deal with it; but nothing of e sort was shown. The defendants had acted quite bonâ de, and were making a perfectly legitimate use of their ontract." (b)

assignable.

Where there is a mere licence to publish, and not an Mere license not ssignment of the copyright, the contract is of a personal ature on both sides, and the benefit of it is not assignable y either party without the consent of the other. (c)

Where a contract in writing was entered into between an uthor and a firm of publishers, whereby the former agreed o give unto the latter "the exclusive right to print and publish an edition of one thousand copies of a work to be vritten" by the author; in consideration whereof the publishers agreed "to print and publish an edition above mentioned (one thousand copies) at their own cost and expense, and pay the author the sum of fifteen cents each for all and every copy sold ;" it being further agreed that if the publishers "find a second edition called for, the said author should revise and correct a copy of the first edition ready for the press, which the said publishers agree to have stereotyped at their own cost, having the exclusive use and control of the plates, printing as many copies as they can (a) Howitt v. Hall (10 W. R. 381; 6 L. T. N.S. 348). (b) Ib. (e) Stevens v. Benning (6 De G. M. & G. 223). See Pulte v. Derby (5 M'Lean, 335).

[blocks in formation]

sell, paying to the said author the sum of twenty cents for
each and every copy sold; settlement to be made semi-
annually from the day of publication, on their note at four
months from the date of settlement;" and the publishers,
with the author's knowledge and acquiescence, had them-
selves recorded as proprietors of the copyright, it was held,
in America, that they had the legal title to the copyright in
them, but only for the purposes of the contract.
"The
right," said the courts, "covers their interest, and protects
it so long as they shall be engaged in the publication and
sale of the work. Beyond this, they are not considered as
having the right. They cannot transfer it. They have no
power to assign the copyright, nor to publish the work except
upon the terms of the contract. In this respect the parties
are bound to each other, and the contract, it is considered,
covers the entire printing and publishing of the work." (a)

The first edition of the work in this case having been exhausted, the publishers stereotyped the corrected manuscript of the second edition, but printed only 1500 copies of the first impression, and when these were sold 2000 more copies were published, being called in the title page the third edition. The author then revised a third edition, caused it to be stereotyped and printed, and took out a copyright in his own name, and filed a bill for an injunction to prevent the publishers from further printing, publishing, or selling their third edition, as contrary to his wishes and desires, and in fraud of his rights. The court held that the publishers were not limited under the contract to the number of copies which they might strike off at the first impression of the second edition, but might print any number they could sell, as they should be wanted during the existence of the copyright; and that the author had no right to print an edition for himself and take out a copyright, so long as the publishers complied with the contract. (b)

The court also held that though the publishers could not transfer their copyright to a third party, they might sell him the plates and authorise him to publish, still accounting to the author, pursuant to the contract. It was further held that the publishers were bound to keep the market supplied, and could not refuse to print if they could sell. (c)

A writer agreed with a publisher to edit a translation of Montaigne, adding notes and a biographical sketch of the author, for a particular sum, which was to be increased by other sums as further editions should be published. It was intended that the publisher should have the sole right of (a) Pulte v. Derby (5 M'Lean, 328, 335).

(b) Ib.

(c) lb.

1

« ΠροηγούμενηΣυνέχεια »