Page:EB1911 - Volume 07.djvu/137

Rh of the four Scottish Universities, King’s Inns, Dublin, and Sion College) entitled to this privilege under the earlier acts had been deprived thereof by an act passed in 1836, and grants from the treasury, calculated on the annual average value of the books they had received, were ordered to be paid to them as compensation. A book of registry is ordered to be kept at Stationers’ Hall for the registration of copyrights, to be open to inspection on payment of one shilling for every entry which shall be searched for or inspected. And the officer of Stationers’ Hall shall give a certified copy of any entry when required, on payment of five shillings; and such certified copies shall be received in evidence in the courts as prima facie proof of proprietorship or assignment of copyright or licence as therein expressed, and, in the case of dramatic or musical pieces, of the right of representation or performance. False entries shall be punished as misdemeanours. The entry is to record the title of the book, the time of its publication, and the name and place of abode of the publisher and proprietor of copyright. Without making such entry no proprietor can bring an action for infringement of his copyright, but the entry is not otherwise to affect the copyright itself. Any person deeming himself aggrieved by an entry in the registry may complain to one of the superior courts, which will order it to be expunged or varied if necessary. A proprietor may bring an action on the case for infringement of his copyright, and the defendant in such an action must give notice of the objections to the plaintiff’s title on which he means to rely. No person except the proprietor of the copyright is allowed to import into the British dominions for sale or hire any book first composed or written or printed and published in the United Kingdom, and reprinted elsewhere, under penalty of forfeiture and a fine of £10. The proprietor of any encyclopaedia, review, magazine, periodical work, or work published in a series of books or parts, who shall have employed any person to compose the same, or any volumes, parts, essays, articles, or portions thereof, for publication on the terms that the copyright therein shall belong to such proprietor, shall enjoy the term of copyright granted by the act. But the proprietor may not publish separately any article or review without the author’s consent, nor may the author unless he has reserved the right of separate publication. Where neither party has reserved the right they may publish by agreement, but the author at the end of twenty-eight years may publish separately. Proprietors of periodical works shall be entitled to all the benefits of registration under the act, on entering in the registry the title, the date of first publication of the first volume or part, and the names of proprietor and publisher.

The interpretation clause of the act defines a book to be every volume, part, or division of a volume, pamphlet, sheet of letter-press, sheet of music, map, chart, or plan separately published.

5. During the last quarter of the 19th century the question of copyright became continually more prominent, and a considerable extension was given by judicial interpretation to the scope of the act of 1842. “Literary matter of lasting benefit to the world” came to include every publication (not being illegal) which could be described as “literary” or “original,” the criterion as to the latter qualification being, in the last resort, whether (see Trade Auxiliary Co.  v. Middlesborough Association, 1889, 40 Ch.D. 425) the author or compiler has really put his own brain-work into it.

6. The most marked and certain progress has been in the application of the law of copyright to the periodical press, in order to protect within reasonable limits the labour and expenditure of newspapers that obtain for the public the earliest news and arrange it for publication. It is settled law since 1881 (Walter v. Howe, 17 Ch.D. 708, overruling Cox v. Land & Water Journal Co., 1869), that a newspaper is a book within the meaning of the act, and can claim all rights that a book has under the Copyright Act. Thus, leading articles, special articles, and even news items are protected (Walter v. Steinkopff, 1892, 3 Ch. 489; Exchange Telegraph Co. v. Gregory and Co., 1896, 1 Q.B. 147). Current prices of stocks and shares, translations, the compilation of a directory, summaries of legal proceedings, and other similar literary work, so far as the literary form, the labour and money are concerned, are equally protected. In short, the test may now be broadly stated to be, whether labour of the brain and expenditure of money have been given for the production; whilst the old requirement of original matter is very broadly interpreted. The leading case on the subject is Walter v. Lane (decided in the House of Lords, 6th August 1900). The question there raised was, whether or not copyright applied under the act of 1842 in respect of verbatim reports of speeches. Four law lords, viz. Lord Chancellor Halsbury, Lord Davey, Lord James of Hereford and Lord Brampton upheld the claim to copyright in such cases, whilst Lord Robertson was the sole dissentient.

Apart from newspapers, protection has been extended to publications having no literary character; Messrs Maple’s furniture catalogue, and the Stock Exchange prices on the “tape” have been awarded the same protection as directories. The courts have declined to protect works which are mere copies of railway time-tables, or the “tips” of a sporting prophet, or mechanical devices with no independent literary matter, such as patterns for cutting ladies’ sleeves.

7. The publication of lectures without consent of the authors or their assignees is prohibited by the Lecture Copyright Act 1835, which reinforces the common law against publication of “unpublished” matter, and gives a copyright for 28 years. This act, however, excepts from its provisions: (1) lectures of which notice has not been given two days before their delivery to two justices of the peace living within 5 m. to the place of delivery (an impracticable condition), and (2) lectures delivered in universities and other public institutions. Sermons by clergy of the established Church are believed to fall within this exception. The leading cases are Nicols v. Pitman, 1884, 26 Ch.D. 374, and Caird v. Sime, 1887, 12 A.C. 326.

8. The writer of private letters sent to another person may in general restrain their publication. It was urged in some of the cases that the sender had abandoned his property in the letter by the act of sending; but this was denied by Lord Hardwicke (Pope v. Curl in 1741), who held that at most the receiver only might take some kind of joint property in the letter along with the author. Judge Story, in the American case of Folsom v. Marsh, 2 Story (Amer.) 100, states the law as follows: “The author of any letter or letters, and his representatives, whether they are literary letters or letters of business, possess the sole and exclusive copyright therein; and no person, neither those to whom they are addressed, nor other persons, have any right or authority to publish the same upon their own account or for their own benefit.” But there may be special occasions justifying such publication. See also the English case of Macmillan v. Dent (1905).

9. The question of what is an infringement of copyright has been the subject of much discussion. It was decided under the statute of 1709 that a repetition from memory was not a publication so as to be an infringement of copyright. In the case of Reade v. Conquest, 1861, 9 C.B., the same view was taken. The defendant had dramatized the plaintiff’s novel It’s Never too Late to Mend, and the piece was performed at his theatre. This was held to be no breach of copyright; but the circulation of copies of a drama, so taken from a copyright novel, whether gratuitously or for sale, is not allowed. Then again it is often a difficult question to decide whether the alleged piratical copyright does more than make that fair use of the original author’s materials which the law permits. It is not every act of borrowing literary matter from another which is piracy, and the difficulty is to draw the line between what is fair and what is unfair. Lord Eldon put the question thus,—whether the second publication is a legitimate use of the other in the fair exercise of a mental operation deserving the character of an original work. Another test proposed is “whether you find on the part of the defendant an animus furandi—an intention to take for the purpose of saving himself