Frederick George Afflalo.

The Literary year book online

. (page 39 of 83)
Online LibraryFrederick George AfflaloThe Literary year book → online text (page 39 of 83)
Font size
QR-code for this ebook


publisher or proprietor of the periodicsd work need not
be in writing, nor is an express agreement tlMit the copy-
right shall belong to the latter necessary.

It was laid down many years ago that, where the pro-
prietors of a periodical employ a person to write an article,
or a series of articles or reports, expressly for publication
therein, it is necessarily implied that the copjoiffht of the
articles so written for such periodical, and paid for by the



Digitized



byGoogk



PART II.] LAW AND LETTERS 373

proprietors and publishers thereof, is the property of such
tnotM-ietors and publishers. (By the Court of Common
Pleas in Sweei v. Benning^ where the periodical was a
weekly paper called the Jurist^ which principally con-
sisted ol law reports.) The principle of that case was
recently approved by the House of Lords and applied to
articles contributed to an encydopsedia of sport in Laurence
and BuUen v. Aflalo and Cook, and it is conceived that if
an anthor who has been paid for his work claims separate
cop3night in cwitributions to any of the different kinds
of publications mentioned above, he will, in the absence of
an express agreement reserving his rig^t, have great diffi-
culty in negativing an implied agreement that the copy-
right should belong to the proprietor or puUisher. But
the question is one of fact as well as law, and will always
depend upon the particular circumstances of each case.

If an author specially reserve the right of separate
publication of any contributed work, he will then be
entitled to the copyright in it when published separately
at any time, but without prejudice to the right of the pro-
prietor or publisher to copyright in the production of
which it formed part.

Whether a proprietary work is published in serial form
or otherwise, employment of the author by the proprietor
to compose the work, the composition of the work by the
author under such employment on the terms that the
copyright shall belong to the proprietor, and payment for
the work by the proprietor, are conditions precedent to
the vesting of the copyright therein in the proprietor. In
the recent case of Ward, Lock and Co,, Limited, v. John
Long, in the Chancery Division, these requisites were
mudi discussed in rather peculiar circumstances.

It appeared that the author submitted through his
agent a synopsis of a story to the plaintiffs, and an agree-
ment by letters in December, 1904, was come to by which
the plamtifis agreed to purchase the copyright in volume
form of the story, which was to consist of 80,000 words,
for the sum of £200, of which ^160 was subsequently paid.
But when the words of the story came to ht counted it
was fotind to consist of not more than about 70,000. That
being so, tUe plaintiffs refused to pay the remaining f^^Ot



Digitized



byGoogk



374 THE LITERARY YEAR-BOOK [part ii.

the balance of the purchase-money. Whereupon the
author treated the contract as void, and sold the volume
rights of the story to the defendant. The plaintiffs, who
were duly registered as proprietors of copyright, claimed
to be the owners of the complete copyright in the book.
The main defence was that the plaintiffs, as publishers,
employed the author to compose the story and that the
purchase price of £200 had not been paid.

The Judge was so impressed with the importance and
difl&culty of the case that he adjourned it fcM: further
argument. He thought that an agreement to assign
cop3^ght, if in writing, might be an assignment of copy*
right. The difficulty was to say whether it was in itself
necessarily an assignment. Section 18 of the Act of 1842
contemplated the emplo3mient of some author. What
was the meaning of "emplosmient "? There was no
authority on the point. Some meaning must be given
to it, and it must be distinguished from assignment. It
seemed quite possible to regard the contract in the case as
an emplo5nnent. Could an agreement to assign something
not in existence be an " employment " ? That was the great
difficulty of the section as regarded this case. But the
judge subsequently decided that the agreement was a good
assignment of copyright, and the fact that the plaintiffs
had employed the author to compose the book did not
bring the case within Section 18. He pointed out, however,
that Section 18, though it seemed at first sight only to
apply to periodicals, said " any book," and might apply
to a single volume where the parties so intended.

Conditions for Acquiring Copyright

The book must be published —

1. In the United Kingdom.

2. The book must not have been previously published.

It may be published contemporaneously — tf.g., in
the United States.

Territorial Extent

The right extends to the United Kingdom and to every
part of the British dominions.



Digitized



byGoogk



PART 11.] LAW AND LETTERS 375

Pr&SHUaUon to Libraries

One complete copy of every edition of every book
published (unless a new edition is a mere reissue without
change) must be delivered gratuitously by the publisher
(i) to the British Museum without demand ; and on de-
mand in writing to (2) the Bodleian Library, Oxford;
(3) the Cambridge University Library ; (4) the Advocates'
Library, Edinburgh ; and (5) the Library of Trinity College,
Dublin. Default exposes the publisher to a £5 penalty.

Registration of Books

The law provides for the keeping at Stationers* Hall of
a register wherein may be registered the proprietorship in
the copyright of books and assignments thereof and
licences affecting such copyright, and for inspection by
the public, and the issue of stamped and certified copies
of entries which can be given in evidence, and will be
primd facie proof of the proprietorship or assignment of
cops^ight or licence ; ana, in order to protect his right,
the owner of tiie copyright must register in the prescribed
fonn (fee five shillings).

No proceedings can be taken before registration, but
after registration all infringements may be sued for, whether
they took place before or after registration, unless the
action is barred by time.

As regards encyclopaedias and periodicals or serial pro-
ductions (including newspapers), the date of prublication
of the first volume, number, or part must be registered.

Assigntnent of Right

A registered owner may assign his interest, or any portion
of his interest, by entry on the register. An assignment
made otherwise must be in writing.*

A recent case of Jude v. Reid may be mentioned as a
warning to parties to have it dear on the face of the docu-
ment whether an assignment is intended or not. Under
the agreement there the author, Mr. Jude, gave Mr.
Newsam, managing director of the defendants, who were
publishers, " the sole and exclusive right " to print and



Digitized



byGoogk



376 THE LITERARY YEAR-BOOK [part ii,

publish the work on three conditions. The first was not
inconsistent with an assignment of the copyright ; the
second was also consistent with an assignment, but was
equally consistent with there being no assignment ; and
the third was to supply Jude with such copies as he might
require. Now, was that a mere publisher and author
agreement, or was it an assignment ? The conclusion
was that the words pointed to an author and publisher
agreement.

InfringemetUs of Copyright

These are committed —

I. By pubUcation in the United Kingdom of an un-
authorised edition, or importation for sale of f<»reign
reprints, of a copyright work — f.^., literary piracy*

z. By the illegitimate appropriation of another's literary
labour — i.^., literary larceny.

Remedies for Infringement
The statute law gives an action for damage^ for —

1. Unlawful printinff.

2. Importing unlawfully printed books for sale or hire.

3. Knowingly selling, or pubhshing, or exposing for sale
or hire, or possessing for sale or hire, unlawfully printed or
imported bo<^s.

It also provides for the seizure of unlawfully imported
books by the Customs, and for offenders beii^ fined upon
conviction.

It gives the propertjr in pirated copies to the ir^iistered
prophetCH: of the copyright.

He may also sue for an injunction to restrain infringe-
ment of his copyright.

Limitations of Actions

Any such actions as "above must be brought within
twelve months after the offence.

Other Remedies

The common law treats sale of a work under the name
and title of another man or another man's work, so as to
deceive the pubUc, as a frauds and the offender is ]x^\^



Digitized



byGoogk



PART ii.l LAW AND LETTERS 377

to an action, and may be restrained by injunction. There
is no special period of limitation of such action.

Infringement and Fair Use

Fair use may be made even of copyright works of other
authors in the composition or compilation of new books,
but the new work must be substantially the result of
independent labour and research. Thus the text for a
new edition of old MSS. in the British Museum must not
be copied from an existing copyright edition, but from the
MSS. {Parry v. Moring, the case of the Letters of Dorothy
Osborne). Dramatization of novels is not an infringe-
ment of copyright, but copies of the words of the play may
infringe the copyright in the novel {Warne v. Seebohm^
the case of "Little Lord Fauntleroy"), and the law requires
a copy of every play produced to be sent to the Lord Cham-
berlain. An abridgement may or may not be an infringe-
ment of copyright, according to the use made of the original
work.

Immoral Books

There is no copyright in matter which is —

1. Immoral.

2. Irreligious.

3. Seditious or libellous.

4. Fraudulent — i.e., professing to be what it is not in
such a manner as to be a fraud upon purchasers.

II. Copyright in Dramatic Pieces

This copyright comprises two separate rights, the first
deaiLog with copjnight in the author's work as written
matter, and the second with the copyright in such work
as represented on the stage or otherwise to the public.

(a) Right of Publication in Print

The law is the same as that of copyright in books {ante^
q.v.).

(J) Right of Public Performance

The exclusive right of public performance of dramatic
pieces, sometimes called playright, endures for forty-two
years from the first pubUc representation, or for the life



Digitized



byGoogk



378 THE LITERARY YEAR-BOOK [part ii.

of the author and seven years after his death, whichever
is the longer. Such representation must be given in the
United Kingdom;

Registration

Proprietorship may be registered at Stationers' Hall, but
registration is not necessary in order to take proceedings
for infringement, this registration being permissive only,
and not compulsory.

It seems that the effect of registerinff a statement in-
correct in material particulars is merely to vitiate the
registration, and prevent its being accepted as pritnA
facie evidence of title (Hardacre v. Armstrong).

Assignment or License

Writing of the author or his agent is necessary. An
assignment of copyright in the printed book does not
transfer the right of performance, unless such assignment
is registered with a statement of the intention to do so,
or unless the right is clearly conveyed by an unregistered
assignment.

Remedies for Infringement

Every unauthorized representation of a dramatic piece
exposes the offender to a statutory penalty of forty shillings
or full damages, and to an action for an injunction to
restrain the infringement of right.

Limitation of Actions

All actions or proceedings must be brought within twelve
months after the offence.



III. Copyright in Musical Compositions

This copyright is analogous to the copyright in dramatic
pieces, and in like manner comprises —

1. Right of publication in print.

2. Right of public performance.



Digitized



byGoogk



PART II,] LAW AND LETTERS 379

I; Righi of Publication in Print

The law is the same as that of copyright in books
{antCj qx.)^ except in the following particulars: It has
been decided that perforated music sheets for use in a
mechanical piano or organ are not copies of music, and
copj^ht gives no protection against the reproduction
of music in this manner (Boosey v. Whigkt^ music for an
^olian organ).

In addition to the same remedies for infringement of
copyright as in the case of books, in the case of music
under the statute 2 Edward VIL, c. 15, a constable was
empowered, by order of a magistrate or on the written
request of the owner of the copyright, to seize pirated
copies, and the magistrate may order their destruction or
delivery up. Technical diflftculties as to appl3dng this
statute arose — ^mainly owing to the decision of the Divi-
sional Court that a summons must be first served on the
hawker or other offender {ex parte Francis), An Act with
more stringent provisions received the Royal Assent in
August, 1906, by which " every person who prints, repro-
duces, or sells, or exposes, offers, or has in his possession
for sale any pirated copies of music, or has in his possession
plates for reproducing pirated copies of music, shall (unless
he proves that he acted innocently) be guilty of an offence "
punishable simunarily, and he will be liable to be fined
£5, and on a second or subsequent conviction to be im-
prisoned or fined j^io. It is also enacted that any con-
stable may take into custody without warrant any person
who sells, exposes, offers, or has in his possession for sale
any pirated copies of any such music as may be specified
in a writing addressed to the chief of police, and signed
by the apparent owner of the copyright or his agent,
requesting the arrest, at the risk of such owner, of all
ofienders against the Act. And a search warrant may be
granted in the case of suspected premises.

2. Right of Public Performance

The law is the same as that of playright (see ante)^
except in the following particulars : A note of the reser-
vation of the right of pubUc performance must be printed



Digitized



byGoogk



38o THE LITERARY YEAR-BOOK [part ii.

on the title-page of every copy of a musical compo-
sition, in order to preserve the exclusive right of public
performance.

Instead of the penalty of forty shillings for evay un-
authorized performance, the penalty and the costs are in
the discretion of the coiurt.

IV. Copyright in Lectures

(a) By the Lectures Copyright Act, 1835, the author or
his assign has the sole right of printing and publishing a
lecture, notwithstanding delivery. This copyright endures
for the longer of the two period^ of twenty-eight years
and the life of the author.

Conditions for Acquiring Copyright

Notice in writing of the intended lecture must be given
to two justices two days before deUvering it. The statute
does not apply to a lecture deUvered in a University or
pubUc school or college, or on any public foundation, or
under any gift or endowment.

Remedies for Infringement

Action under the statute for penalties and forfeiture for
unlawful printing, and for knowingly selling or publishing,
or exposing for sale, unlawfully printed lectures.

(6) By the Copyright Act, 1842, a lectiwe will be pro-
tected as a " book " (see ante) if it is &st published in print.

PiMicaUon

Delivery of a lecture for the instruction or amusement
of a particular audience is not true publication, so as to
make it public property; it is only "private publication,"
and the author retains bis right in it as unpublished matter.

V. Copyright in Engravings and the Like

This copyright endures for twenty-eight years from the
first publishing. The subject-matter includes any print
invented or designed, graved, etched, or worked in mezzo-
tints or chiaroscuro, or lithographed by the author, or



Digitized



byGoogk



PART 11.] LAW AND LETTERS 381

reproduced at his instance by any of such methods from
the author's work, design, or invention, or from any
picture, dniwing, model, or sculpture;

Conditions for Acquiring CopyrigU

The print must be engraved in Great Britain, but the
en^aver need not be British.

The day of first pubUcation, with the name of the pro-
prietor, must be engraved on each plate, and printed on
every print.

No registration is required.

Licensed Reproductions

The written consent of the proprietor, attested by two
witnesses, is necessary.

Remedies for Infringement

Action for damages in respect of cop3dng and selling
without the proper consent, or printing, reprinting, or
importing for sale, any copyright print, or knowmgly
publishing or exposing for sale unlawfully printed copies,
or causing others to do any of these things.

Action for Penalties. — ^Five shillings for every print in
the offender's possession, and forfeiture of the plate and
all prints.

Action for injunction to restrain infringement.

Limitation of Actions

The penalty must be sued for within six months after
the offence, and three months after discovering it, and is
recoverable by summary proceedings.

VL Copyright in Paintings, Drawings, and Photo-
graphs — ^FiNE Arts Copyright

This cop3ncight endures for the life of the artist, and
seven years after his death.

The subject-matter includes original paintings and draw<
iogs and the designs of such, and original photographs and
the negatives.



Digitized



byGoogk



382 THE LITERARY YEAR-BOOK [part ii.

Conditions for Acquiring Copyright

The author must be a British subject or resident within
the British dominions.

If any such work is (i) sold, or (2) executed " for or on
behalf of any other person for a good or a valuable con-
sideration," the author will not retain the copyright,
unless it be expressly reserved to him by agreement in
writing, but the copyright will belong in the first case to
the purchaser, and m the second case to the person for
whom the work was executed, with this qualification in
the case of a purchaser — ^that an agreement in writing
that he shall have the cop5night is necessary.

Accordingly, where a photograph is taken at the request
of the sitter upon the terms that the sitter will pay for
taking it, or in circumstances which raise an implied
promise on his part to pay, the copyright in the photo-
graph belongs to the sitter, though the negative remains
the property of the photographer (Boucas v. Cooke, the
boy preacher's case).

It has been recently held that photographers who were
at their own request allowed by the proprietor of a school
to take photographs of the school at their own risk, on the
chance of selling copies to the proprietor, must be deemed
to have taken the photographs for or on behalf of the pro-
prietor "for a good consideration," and that the copy-
right therefore belonged to him {Stackemann v. Pahn).

Territorial Extent

This copyright extends to the whole of the United
Kingdom, but not to any part of the British dominions
outside {Graves v. Gorrie, unhcensed reproduction in
Canada of copies of an English copyright picture).

Registration

The Fine Arts Copyright Act, 1862, provides for the
keeping of a register at Stationers' Hall, and prescribes
registration of the proprietor of the copyright and other
particulars. The provisions as to inspection, etc., are the
same as for the register of books (ante, q.v,). No action



Digitized



byGoogk



PART II.] LAW AND LETTERS 383

will lie for any infringement or offence committed before
registration.

Assignment of RigU

Assignments and licenses must be in writing. Assign-
ments have to be registered.

Remedies for Infringement

Action for penalties — ^up to jf 10 for every offence, with
forfeiture of piratical copies and negatives — ^in respect of
repeating or copying for sale, hire, or exhibition and
distribution, or knowingly importing, selling, publishing
unlawful copies, or causing any such thing to be done.

Action for damages, with forfeiture of piratical copies,
in respect of the same matters.

Action for injunction to restrain future infringements.
Penalties and forfeitures may be enforced by action or
siunmarily.

Limitation of Actions

There is no special limitation.



VIL Copyright in Sculptures

This copyright endures for fourteen years from the first

{mtting forth or publishing the sculpture, with a further
ourteen ye^is if the sculptor shall be Uving at the end
of that time. The subject-matter includes new and
original sculptures, models, copies, or casts.

Condition for Acquiring Copyright

Name of proprietor, with the date, must be put on before
publication.

Transfer of Right

A deed, signed by the proprietor and attested by two
witnesses, is required.

Remedies for Infringement
Action for damages, and for injunction to
future infringements. jopyright

jj, musical,

Digitized by LjOOQ iC



384 THE LITERARY YEAR-BOOK [part ii.

Limitation of Actions

Actions must be brought within six months after the
c^ence.

We now pass to

COLONIAL COPYRIGHT

The law is contained in the following statutes :

10 & II Vict., c. 95^rhe Colonial Copyright Act, 1847,
sometimes called the Foreign Reprints Act.
38 & 39 Vict., c. 53— The Canada Copyright Act, 1875.
49 & 50 Vict., c. 33 — International Copyright Act, 1886.

Admission of Foreign Reprints

By the first-named Act the provisions of the Imperial
legislation against the importation and sale of foreign
reprints of English copyright books may be suspended by
Order in Council in colonies which malce legislative pro-
visions for protecting the rights of British authors. It
appears that nineteen colonies obtained the benefit of this
Act, but so far as the protection of British writers is
concerned, the Act has proved a failure, the stuns remitted
from the colonies for their benefit being insignificant. In-
deed, the Government of Canada and the Cape of Good
Hoi)e have ceased to collect the royalty on imported
foreign reprints, and are now, it is conceived, excluded
from the benefit of the Act«

Canadian Law

The Canada Copyright Act, 1875, gives Imperial sanction
to the provisions of an Act of the Canadian Parliament
putting the law of copyright in Canada on an independent
basis, but prohibits tiie importation of Canadian reprints
of English copjrright books.

The Canadian Act enables the author of a literary or
artistic work domiciled in Canada, or in any part of the
registrar possessions, or being a citizen of any country,
particulai^ international copyright treaty with the United
same as forfo obtain copyright in Canada for twenty-eight



Digitized



byGoogk



PART n.] LAW AND LETTERS 385

years, by publication or republication in Canada under
certain specified conditions.

This copyright is in addition to, and concurrent with,
copyright under the British statute of 1842, the rights
under which are not interfered with by the ImperiaJ and
Canadian Acts of 1875. The latter Act is now replaced
and substantially re-enacted by the revised statutes of
Canada, 1886, cap. 62, cited in Canada as ' the Copy-
right Act.' Next came an abortive Act of the Canadian
Parliament in 1889, requiring publication or republication
in Canada as a condition of copyright. This Act is a dead-
letter, because it has never been proclaimed by the
Governor-General, and was not to come into force until
so proclaimed. Finally, a more moderate step in the same
direction was taken in 1900 by the Canadian Copyright
Act, 1900, which provides that, when the owner of the
cop}^]ght in a work first published in some part of the
Empire other than Canada has lawfuUv granted a license
to reproduce it in Canada, then, notwithstanding anything
in ' the Copyright Act,' the Minister of Agrici3ture may
prohibit the importation into Canada of any copies printed
elsewhere, and the Act directs the seizure and forfeiture
of all books imported in contravention of the Act, and
imposes a penalty for unlawful importation. The inten-
tion, of coinrse, is to stop the importation into Canada of
copies of the English edition of a book, and so to give the
grantee in Canada of the author's Canadian rights a
monopoly of the Canadian market. It has been suggested
that the Act of 1900 is in conflict with the British law
of copyright, in that it derogates from the right to sell
copies throughout the Empire, and its validity has been
questioned by text-writers. See Dr. Briggs's Law of
Iniernaiional Cofyyright, p. 615.

This work, which was published in 1906, may be wel-
comed as a valuable addition to the contributions of
English text -writers to the exposition of the law of inter-
national copyright.

Australian Law

The Commonwealth of Australia passed a Copyright
Act for Australia in 1905. It deals with literary, musical.



Online LibraryFrederick George AfflaloThe Literary year book → online text (page 39 of 83)