Page:The copyright act, 1911, annotated.djvu/95

 Civil Remedies. . 83

are " infringing copies," this section enables a plaintiff § 7. to recover the gross proceeds of the sales of infringements instead of only actual damages or net profits. It also- entitles the plaintiff to delivery up of copies for his own use, and not merely for cancellation or destruction.

The definition section of the Act provides that, " 'In- Meaning of fringing,' when applied to a copy of a work in which ""^nngiDg copyright subsists, means any copy, including any colour- ^°P^®®' able imitation, made or imj^orted in contravention of the prto visions of this Act." Two questions of the utmost importance arise : (1) what is the scope of the word ^'copy"; is it conterminous with the word "infringe- ment," or has it a narrower meaning? and (2) what ■"copies" are to be deemed "infringing copies"?

As to the scope of the word " copy," it seems to be clear Copy, that any reproduction of any part of a work in any material form is not necessarily a copy. "Copy" will include the copy of a substantial part of a work in- fringed, and will also include a colourable imitation of the whole, or any part of a work infringed. It is sub- mitted, however, that, where copyright is infringed by a derivative work of an entirely different order from the original work, the infringing work is not a copy or colourable imitation so as to come within the provisions of this section. The following derivative works are, it is submitted, not copies or colourable imitations of the works from which they ^re derived (fc): —

A reproduction in the flat of works executed in three dimensions, such as works of sculpture and architecture.

A reproduction in three dimensions of works executed in the flat.

A reproduction of a literary, dramatic, or musical work on a record or perforated roll designed for its acoustic representation.

A reproduction of a literary or dramatic work in the form of a cinematograph film.

On the other hand, it is submitted that the following iierivative works, being works of the same order or class

��(/i) Vide ante, pp. 14, 15.

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