Page:The copyright act, 1911, annotated.djvu/86

 74

��Copyright Act, 1911.

��6(1).

��At the trial.

��Probabilitv of damage.

��Form of injunction.

��Future numbers of periodical.

��matter of judicial discretion, and therefore where the judge of first instance has granted or refused the injunc- tion, the Court of Appeal will not readily reverse his de- cision (I). An interim injunction is only granted on the undertaking by the plaintiff to compensate the defendant if on the trial of the action it is held that no injunction ought to have been granted (m).

An injunction, although refused on motion, may be granted at the trial of the action if an infringement i& proved. Delay or acquiescence is not a defence to a claim for a perpetual injunction at the hearing (w).

An injunction may be granted without any proof of actual damage (o), but there must be probability of damage (p).

The Court does not wait until it can ascertain distinctl}- what parts have been pirated, but will grant an injunction in general terms restraining the defendant, his servants,, agents or workmen from further printing, publishing, selling, or otherwise disposing of any copy or copies of the defendant's book containing any passage or passages copied, taken, or colourably altered from the plaintiff's book {q) . If it appears that the piratical part of the defendant's book can be distinguished from that which is innocent, this will be done in the injunction (r).

In one case where there had been a systematic infringe- ment of a periodical. North, J., declined to grant an in- junction as to the future numbers on the ground that the copyright in them had not yet come into being (.s). In anotlier case, hoAvever, Kekewich, J., granted an injunc-

��{l) Cooper V. Whittmqhmn (1880), 15 Ch. D. 501 ; Werner v. Encyclopedia Britaroiica (1905), 134 Fed. Rep. 831.

(in) Chappell v. Davidson (1856), 8 De G. M. & G. 1 ; Xovello v. Jamrs (1854), 24 L.J. Ch. 111.

(m) Hogg v. Scott (1874), L. R. 18 Eq. 444 ; Morris v. Ashbee (1868), L. R. 7 Eq. 34 ; Johnston v. Wyatt (1863), 2 De G. J. & S. 25.

(o) Campbell V. Scott (1842), 11 Sim. 31 ; Tmsleg v. Lacy (1863), 1 H. & M. 747.

{p) Borthwick V. Evening Post (1888), 37 Ch. D. 449, 462.

(<?) Lewis V. FuUarton (1839), 2 Beav. 6 ; Kelly v. Morris (1866), L. R. 1 Eq. 697 ; Mawman v. Tegg (1826), 2 Russ. 385.

(r) Jarrold v. Hoiilston (1857), 3 K, & J. 70S ; Lamb v. Erans, [1892] 3 Ch. 462.

(«) Catex. Devon, dfr. Xeivspnper Co. (1889), 40 Ch. D. 500, 507; Trade Auxiliary v. Middlesboroiigh (1887), 40 Ch. D. 425.

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