A TREATISE UPON
THE LAW OF COPYRIGHT

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[ii]
[iii]

A TREATISE UPON
THE LAW OF COPYRIGHT
IN THE UNITED KINGDOM AND THE DOMINIONS
OF THE CROWN, AND IN THE UNITED
STATES OF AMERICA

CONTAINING A FULL APPENDIX OF ALL ACTS OF PARLIAMENT
INTERNATIONAL CONVENTIONS, ORDERS IN COUNCIL
TREASURY MINUTE AND ACTS OF CONGRESS
NOW IN FORCE

By E. J. MACGILLIVRAY, LL. B. (Cantab.)
OF THE INNER TEMPLE, BARRISTER-AT-LAW
MEMBER OF THE FACULTY OF ADVOCATES IN SCOTLAND

LONDON
JOHN MURRAY, ALBEMARLE STREET
1902

[iv],

[v]

TO

THOMAS EDWARD SCRUTTON, Esq., K. C.

IN GRATITUDE FOR
MUCH INSTRUCTION AND KINDNESS

[vi]
[vii]

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PREFACE

The foundations of this work were laid by my endeavours to understand what is perhaps the most complicated and obscure series of statutes in the statute book. In working from time to time at the Law of Copyright I found great want of a text-book which should be exhaustive of the case law, and at the same time contain a concise and clearly arranged epitome of the statutory provisions. This want I have tried to supply for myself in the present compilation, and it is now published in the hope that it may prove useful to others. The present law is bad both in substance and form, but it is the more essential that those who have anything to do with literary or artistic property should comprehend it in so far as it is comprehensible. There are probably more pitfalls for the unwary in dealing with Copyright than with any other branch of the law.

We have for some time been on the eve of a general codification and amendment of the Law of Copyright. It is, however, an eve of long and indefinite duration. It is now twenty-eight years since the Royal Commission on Copyright was appointed, and still nothing has been done to ameliorate the lamentable condition in which the Commissioners then found the law. Dissensions among those who are interested in Copyright, failure to come to a satisfactory arrangement with the colonies, and want of time at the disposal of the legislature are mainly responsible for this delay. In the meantime it is well that all those who are interested in Copyright should make themselves conversant [viii] with the law as it now is, so that when the time for legislation does at last come the result may be the more satisfactory.

I have added to this work Part II., dealing with Copyright in the United States, and I hope it may prove useful not only to English but to American lawyers and publishers.

I have to acknowledge much assistance in the preparation of this work and many invaluable suggestions from my friends, Mr. Langridge, of the Middle Temple, and Mr. Mackinnon, of the Inner Temple.

E. J. MACGILLIVRAY.

3 Temple Gardens,
June 1902.

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CONTENTS

PAGE Table of English, Scotch, Irish, Indian, and Colonial Cases xix Table of Cases in the United States xxxi PART I THE LAW OF COPYRIGHT IN THE UNITED KINGDOM AND THE DOMINIONS OF THE CROWN CHAPTER I INTRODUCTORY 3 CHAPTER II WHAT BOOKS ARE PROTECTED Sec. 1. What is an Original Book 10 Definition of a Book 10 Essential Elements of a Book 11 Physical Form 11 Literary Matter 13 Originality 15 Examples of what are Books 16 Sec. 2. Publication 36 Divestitive Publication 37 Investitive Publication 38 First Publication within the British Dominions 40 Sec. 3. Author's Nationality 42 Sec. 4. Immoral Works 46 Sec. 5. Registration

href="@public@vhost@g@gutenberg@html@files@43945@[email protected]#Page_46" class="pginternal" tag="{http://www.w3.org/1999/xhtml}a">46 Before Action 46 The Requisite Entry 49 The Actual Title 49 The Time of First Publication 51 The Name and Place of Abode of the Publisher 52 The Name and Place of Abode of the Proprietor 52 Certificate of Registration 53 False Entries 54 Rectification of Register 54[x] Sec. 6. Delivery of Copies to Libraries 55 Sec. 7. Duration of Protection 56 Sec. 8. Copyright in Lectures 57 CHAPTER III THE OWNER OF THE COPYRIGHT IN BOOKS Sec. 1. The Crown 59 Sec. 2. The Universities 61 Sec. 3. The Author 62 Sec. 4. The Employer 66 Under Section 18 66 Scope of Section 67 Under such Employment 68 On Terms that Copyright shall belong to such Proprietor 68 Joint Employers 71 Payment 71 Author's Separate Rights 72 Employer's Rights where Section 18 does not apply 73 Sec. 5. The Assignee 74 Before Publication 74 After Publication 77 Partial Assignment 80 Assignment distinguished from Licence 81 Sec. 6. The Licensee 82 Sec. 7. The Executors or Administrators 83 Sec. 8. The Trustee in Bankruptcy 83 CHAPTER IV INFRINGEMENT OF COPYRIGHT IN BOOKS Sec. 1. Prohibited

Acts, and Remedies 84 Causing to be Printed 85 Damages 86 Account of Profits 86 Injunction 86 Delivery up of Copies 89 Customs Act 91 Every Offence 91 Limitation of Action 91 Pleading 92 Evidence 94 Discovery 94 Mode of Trial 94 Costs 95 Sec. 2. What is a Piratical Copy 96 What is a Copy 97 A Substantial Part must be Taken 97[xi] No Animus Furandi need be Proved 100 Taking not necessarily for Profit 101 Copying may be Indirect and Unintentional 102 Custom of Trade 102 Fair Use 103 No one can Monopolize a Field of Labour 103 No Infringement to take Facts 104 No Infringement to take the General Scheme of another's Work 105 Every Author must do his own work 105 Work with a Different Object 109 Extract for purpose of Criticism 111 Improvement or Addition of New Matter no Excuse 112 Dramatization of a Novel 114 Abridgments 114 Translations 116 Licence 118 Abandonment 119 Acquiescence and Delay 119 Provision against the Suppression of Books

href="@public@vhost@g@gutenberg@html@files@43945@[email protected]#Page_119" class="pginternal" tag="{http://www.w3.org/1999/xhtml}a">119 CHAPTER V PERFORMING RIGHTS Sec. 1. Nature of Performing Right 120 Sec. 2. Performing Right at Common Law 121 Sec. 3. What is a Dramatic Work 123 Sec. 4. What Dramatic Works are Protected, and Duration of Protection 126 Sec. 5. What is a Musical Composition 130 Sec. 6. What Musical Works are Protected, and Duration of Protection 130 Sec. 7. Registration of Performing Rights 131 Musical Compositions 133 Sec. 8. Assignment of Performing Rights 134 Sec. 9. Infringement of Dramatic Performing Rights 135 Public Performance 135 Substantial Part 138 Causing to be Represented 139 Knowledge 142 Innocent Agents 142 Licence 142 Sec. 10. Infringement of Musical Performing Rights 142 Substantial Part 142 Public Performance 143 Causing to be Represented 143 Sec. 11. Remedies for Infringement of Dramatic Performing Rights 144 Sec. 12. Remedies for Infringement of Musical Performing Rights 145[xii] CHAPTER VI COPYRIGHT IN ENGRAVINGS Sec. 1. What Works are Protected 146 What is an Original Engraving 146 Originality 147 Maps, Charts, and Plans 148 Engravings in a Book 149 Must the Engraving be made within the British Dominions 150 The Engraving must be First Published within the British Dominions 150 Date of First Publication and Proprietor's Name 151 Name of Proprietor

class="pginternal" tag="{http://www.w3.org/1999/xhtml}a">151 Immoral Works 152 Duration of Protection 152 Sec. 2. The Owner of the Copyright 152 The Engraver 152 The Employer 153 The Assignee 154 Sec. 3. Infringement of the Copyright 155 Prohibited Acts and Remedies 155 Guilty Knowledge 156 Limitation of Action 156 Costs 156 Copying for Private Use 156 What is a Piratical Copy 156 Licence a Defence 159 CHAPTER VII COPYRIGHT IN SCULPTURE Sec. 1. What Works are Protected 161 What is an Original Sculpture 161 The Sculpture must be First Published within the British Dominions 162 Publication 162 Author's Nationality 162 Proprietor's Name and Date 162 Proprietor's Name 163 Date 163 Immoral Works 163 Duration of Protection 163 Sec. 2. The Owner of the Copyright 164 The Artist 164 The Employer 164 The Assignee 164[xiii] Sec. 3. Infringement of the Copyright 164 Prohibited Acts and Remedies 164 Guilty Knowledge 165 Limitation of Action 165 Copying for Private Use 165 What is a Piratical Copy 165 CHAPTER

VIII COPYRIGHT IN PAINTINGS, DRAWINGS, AND PHOTOGRAPHS Sec. 1. What Works are Protected 167 Every Original Painting, Drawing, and Photograph 167 Originality 167 Artistic Merit 168 Publication Outside the British Dominions 168 Published 169 Nationality or Residence of Artist 170 Registration 171 The Requisite Entry 171 Name 173 Place of Abode 173 Short Description 173 Immoral W 174 Duration of Protection 174 Sec. 2. The Owner of the Copyright 174 The "Author" 174 The Employer 175 The Assignee 176 Sec. 3. Infringement 177 Prohibited Acts and Remedies 177 Cause or Procure 178 Innocent Agent 179 Unlawful Copy 179 Separate Offence 179 Copying for Private Use 180 Action on Breach of Contract 180 Fraudulent Acts 180 Limitation of Action 181 Evidence 181 What is a Piratical Copy 181 No Monopoly 181 What is a Copy 181 General Idea may be Taken 182 Material Part 183 Indirect Taking 184 Guilty Knowledge

href="@public@vhost@g@gutenberg@html@files@43945@[email protected]#Page_184" class="pginternal" tag="{http://www.w3.org/1999/xhtml}a">184 Replicas 184 Licence a Defence 184[xiv] CHAPTER IX COLONIAL COPYRIGHT Books 186 Artistic Works 191 CHAPTER X INTERNATIONAL COPYRIGHT Works Produced in His Majesty's Dominions 193 Works Produced in Foreign Countries with which this Country has no Treaty 193 Works Produced in Foreign Countries with which this Country has a Treaty 193 What Foreign Works are entitled to Protection 195 Produced 195 Character of Work 196 Unpublished Works 196 Special Provisions 197 Works Produced in Foreign Countries before 6th December 1887 197 Formalities Required in case of Foreign Work 198 Who are Entitled to Sue in respect of a Foreign Work 200 Evidence of Title 200 Protection afforded to Foreign Works 200 Works Published before 6th December 1887 202 Translating Right 203 Articles in Newspapers and Periodicals 204 Photographic Works 204 Performing Right in Dramatic or Dramatic Musical Works 204 Express Provision as to particular kind of Infringement 205 CHAPTER XI COMMON LAW Title—Passing off 206 No Copyright in Title. 206 Whether Protection is based on a Right of Property in Title 207 Knowledge of Existence and Value on the part of the Public 208 Non-user of Title 208 No Fraud need be Proved 209 Must be Calculated to Deceive 209 Cases in which an Injunction Granted 209 Cases where Injunction Refused

tag="{http://www.w3.org/1999/xhtml}a">211 Malicious Criticism 213 Slander of Title 213[xv] Author who has parted with Copyright is entitled to Protect his Reputation 213 Protection from Breach of Faith or Contract 215 Unpublished Works 220 Speeches and Sermons 223 Letters 225 CHAPTER XII PUBLISHING AND PRINTING AGREEMENTS Publishers' Agreements 227 Printers' Agreements 230 PART II THE LAW OF COPYRIGHT IN THE UNITED STATES CHAPTER I INTRODUCTORY 235 CHAPTER II WHAT WORKS ARE ENTITLED TO COPYRIGHT Sec. 1. An Original Literary or Artistic Work 236 Sec. 2. Nationality of the Author 247 Sec. 3. Necessary Formalities 250 Conditions Precedent 251 Delivery of Title 251 Delivery of Description 253 Delivery of Copies 253 Printing in the United States 254 Retrospective Provision 254 Notice of Copyright 255 Publication 260 Sec. 4. Immoral Works 266 Sec. 5. Duration of Copyright 267 CHAPTER III WHO IS THE OWNER OF THE COPYRIGHT Sec. 1. The Author 269 Sec. 2. The Employer 271 Sec. 3. The State 272 Sec. 4. The Assignee 272[xvi] CHAPTER IV INFRINGEMENT OF COPYRIGHT Sec. 1. What is a Piratical Copy 276 Copying may be Indirect 277 The Intention need not be Bad 277 Proof of Copying

tag="{http://www.w3.org/1999/xhtml}a">277 No Monopoly in the Subject-Matter 278 Taking a Substantial Part 279 Fair Use 281 Improvement no Excuse 283 Different Object 283 Extract for Review 284 Abridgments 284 Translations 286 Dramatic Performing Right 286 Musical Rights 287 Sec. 2. Prohibited Acts and Remedies 287 Account of Profits 289 Damages 290 Penalties 290 Forfeiture 290 Injunction 291 Who is Liable 291 Limitation of Action 292 Acquiescence 292 Pleading 293 Penalties for affixing False Notice 293 Importing Books Printed outside the United States 294 CHAPTER V COMMON LAW RIGHTS Sec. 1. Published Work 296 Passing Off 296 Sec. 2. Unpublished Work 298 APPENDIX BRITISH STATUTES The Engraving Copyright Act, 1734 303 The Engraving Copyright Act, 1766 305 The Copyright Act, 1775 (Universities) 307 The Prints Copyright Act, 1777 310 The Sculpture Copyright Act, 1814 311[xvii] The Dramatic Copyright Act, 1833 313 The Lectures Copyright Act, 1835 315 The Prints and Engravings Copyright Act, 1836 316

The Copyright Act, 1836 (Compensation to Libraries) 317 The Copyright Act, 1842 317 The International Copyright Act, 1844 329 The Colonial Copyright Act, 1847 337 Copyright in Designs Act, 1850, secs. 6 and 7 (Sculpture) 338 The International Copyright Act, 1852 339 The Fine Arts Copyright Act, 1862 343 The International Copyright Act, 1875 348 The Canada Copyright Act, 1875 349 The Customs Laws Consolidation Act, 1876 350 The Copyright (Musical Compositions) Act, 1882 351 The International Copyright Act, 1886 353 The Copyright (Musical Compositions) Act, 1888 360 The Revenue Act, 1889 361 INTERNATIONAL CONVENTIONS The Berne Convention, 1886 361 Order in Council, 1887 370 The Additional Act of Paris, 1896 373 Order in Council, 1898 376 TREASURY MINUTE Government Publications Treasury Minute, 1887 377 AMERICAN STATUTES Revised Statutes, 1874 379 Act of Congress, June 18, 1874 384 ""August 1, 1882 384 ""October 1, 1890 385 ""March 3, 1891 385 ""March 3, 1893 389 ""March 2, 1895 390 ""January 6, 1897 390 ""March 3, 1897 391[xviii]

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