Page:The copyright act, 1911, annotated.djvu/99

 Civil Remedies.

��quently dealing with the work, such as publishers and printers, even although they have acted without any know- ledge that the work which they published or printed was reproduced or copied from the copyright work. On the other hand, it is conceived that if the actual author of the infringement knew, or had reasonable ground for sus- pecting, that copyright subsisted in the work which he has copied, the publisher or printer cannot take refuge as an innocent infringer under the clause merely because he was unaware that the author had in fact copied from the copyright work. In short, in the application of this section to the case of defendants other than the actual author of the infringement, it must be assumed that the}" knew that the work was copied from the copyright work, and they can only set up this section in defence to a claim for damages if upon that assumption they can show that they were not aware, and had no reasonable ground for suspecting that copyright subsisted in the copyright work.

Similarly, where tlio actual author of an infringing work has infringed the copyright work by copying from it indirectly through the medium of a third work, it is submitted that the mere fact that he was ignorant that he was copying from the copyright work is not enough to entitle him to plead this section. For the purpose of this section it must be assumed that he knew he was copying from the copyright work, and he can only set up this section in defence if upon that assumption it can be said that he was not aware and had no reasonable ground for suspecting that copyright subsisted in the Avork.

It has already been submitted that this section A\dll not protect a defendant from proceedings taken under sect. 7 for delivery up of copies or damages for con- version. Such proceedings would not be brought to recover damages in respect of an infringement of copy- right, but in respect of the unla^v-ful detention of the plaintiff's property.

��Question of indirect copying by innocent author.

��Question whether this section appUes to proceedings under sect. 8

��Existing law. — Ignorance of the existence of copyright, or of the plaintiff's title, affords no defence to an action for infringe- ment. It is no defence to show that the copying was indirect through a third publication without knowledge that the matter taken was part of the plaintiff's work («), or that the defendant

{u) Murray v. £offite (1852), 1 Drew. 3o3 : Seadev. Lnroi (1S61), 1 J. & H. 524 ; Reade v. Conquest (1862), 11 C. B. N. S. 479 ; Cfr v Un-nn, S;c.

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