CHAPTER II

WHAT BOOKS ARE PROTECTED

The following books are protected by statute throughout the British Dominions:[9]

1. Every original book:[10] 2. First published within the British Dominions:[11] 3. [The author of which is a British subject or resident within the British Dominions at the time of first publication:[12]] 4. Which is innocent:[13] 5. And has been registered before action:[14] 6. For 42 years, or the author's life and 7 years, whichever period is the longer.[15]

SECTION I.--WHAT IS AN ORIGINAL BOOK.

=Definition of a Book.=--"Book" is defined by 5 & 6 Vict. c. 45, sec. 2, "to mean and include every volume, part or division of a volume, pamphlet, sheet of letterpress, sheet of music, map, chart, or plan separately published."

As an exhaustive definition this is of little value. It only indicates what the outward visible form of the "book" must be, and gives no indication of the nature or quality of the literary matter which it must contain. Even as a guide to the form it is defective, since it is only a definition by example and not exhaustively descriptive. In the absence of an accurate statutory definition of a "book," the Courts have given a very wide interpretation to the term, and both as to the form and the matter have strained the ordinary dictionary meaning of the word to the uttermost. In the light of the decided cases a "book" might be defined as _original literary matter in such tangible form as readily conveys ideas or information to the mind of a reader_.

=Essential Elements of a Book.=--There are three essential elements which must be found in every book, viz.:

I. A certain physical form. II. Literary matter. III. Originality.

I. _Physical Form._--The form of the book need not necessarily constitute what in common parlance is known as a book or volume. Thus a single sheet of music[16] or a printed leaflet such as an application form[17] are both books within the meaning of the Copyright Acts.

In one case[18] it was held that a newspaper was not a book, but that decision was not followed,[19] and there can now be no doubt that a newspaper comes within the definition of a book as a sheet of letterpress.[20]

The form must be adapted for conveniently conveying to the mind of a reader the intellectual matter which the book contains. It will not be sufficient that it can possibly be used for conveying intellectual matter to the mind, it must be conveniently adapted for that purpose. Thus music in the form of a perforated scroll for use in an æolian or pianola is not a "book,"[21] for although it can be deciphered and read by the eye no one in his senses would use it instead of an ordinary sheet of music. On the other hand literary matter may nevertheless be in "book" form although it requires a special training to decipher it. For instance a story written in shorthand characters is in book form,[22] and no doubt also a story impressed in raised characters for the blind.[23]

The substance on which the literary matter is depicted and the manner of depicting it are probably immaterial; but presumably a "book" must be at least _ejusdem generis_ as an ordinary printed volume or leaflet. It must be "something in the nature of a book."[24] Thus although copies in ordinary manuscript[25] or even engraved on thin slips of ivory would be in "book" form, an epitaph on a tombstone probably would not.

The meaning of the words "separately published" in section 2 is by no means clear. They do not mean that the matter in which copyright is claimed must be issued physically separate from any non-copyright literary matter. In the statute of Anne the words "separately published" are not used in the definition of a book, but it was nevertheless argued that a "book" must be entirely the original work of the author and not bound up with other matter. In _Cary_ v. _Longman_ Lord Kenyon rejected such an argument. In giving judgment he said:

"The courts of justice have long been labouring under an error if an author have no copyright in any part of a work unless he have an exclusive right to the whole book."[26]

Under the statute of Victoria parts of a book bound up with non-copyright matter have frequently been protected; notes to non-copyright works,[27] illustrations to non-copyright works,[28] a small portion of a serial story,[29] a small part of a time table,[30] have all been protected. Clearly therefore a person may have copyright in a book although he has not copyright in every part of it.[31]

_In Johnson_ v. _Newnes_[32] Romer, J., takes the view that "separately" published means clearly distinguishable. He says:

"Now in my opinion if you find in a volume separate parts, and distinguished or perfectly distinguishable from the other parts, and the volume is published, each part that is separate and clearly distinguished in the volume itself is separately published within the meaning of section 2."

If we accept this as correct we exclude the case of a revised edition of an old work, the corrections and additions to which forming the new work are not clearly distinguishable from the old. I am inclined to think that the real explanation and meaning of "separately published" is that it does not apply to "volume, part, or division of a volume" at all, but only to "sheet of letterpress, sheet of music, map, chart, or plan" which are to be protected, even although they are "separately published," _i. e._ not bound up into a volume. It was no doubt inserted as declaratory of the case law under the statute of Anne, which laid down that a single printed sheet was a "book" within the meaning of the Act.

II. _Literary Matter._--No literary merit or great labour is required to be shown. Lord Halsbury, L. C., in _Walter_ v. _Lane_,[33] referring to the verbatim reports of Lord Rosebery's speeches which were the subject-matter of that action, said:

"Although I think in these compositions (_i. e._ the work of the stenographer) there is literary merit and intellectual labour, yet the statute seems to me to require neither--nor originality either in thought or language ... the right in my view is given by the statute to the first producer of a book, whether that book be wise or foolish, accurate or inaccurate, of literary merit, or of no merit whatever."[34]

In many of the cases great stress was laid in argument at the bar on the preamble of the Copyright Act, 5 & 6 Vict. c. 45. The preamble runs as follows:

"Whereas it is expedient to amend the law relating to copyright, and to afford greater encouragement to the production of literary works of lasting benefit to the world...."

From this it is argued that the Act intends to protect only those works which are likely to prove a substantial addition to the world's literature. Jessel, M. R., in his judgment in _Maple_ v. _Junior Army and Navy Stores_,[35] points out the fallacy of this argument:

"The Act does not say that it is expedient to afford greater encouragement to the production of literary works of lasting benefit to the world, and to amend the law of copyright relating thereto, but that it is expedient to amend the law of copyright generally, merely adding the principal reason for doing so. There is therefore nothing in the preamble to cut down the enacting part, even if the enacting part had not been clear."[36]

Road-books,[37] directories,[38] tradesmen's catalogues,[39] mercantile statistics,[40] telegraph codes,[41] time tables,[42] verbatim reports of speeches[43] are all books within the meaning of the Act.

It is quite immaterial for what purpose the matter was composed or published. Personal correspondence,[44] advertisements,[45] and a mining report[46] are all subjects of copyright if published.

There must be some composition or arrangement of words, figures, sentences, or paragraphs which by itself will convey to the mind of the reader some intelligible proposition.[47] There cannot be copyright in a single word,[48] even although it expresses a man's opinion: there is no composition or arrangement. Neither can there be copyright in a pattern sleeve[49] or the face of a barometer,[50] because both are really instruments to be used in conjunction with something else, and although there may be words and sentences on them, by themselves they convey no intelligible proposition to the reader. Probably a drunken scrawl, absolutely unintelligible, would not be protected. A jury having found that such a document was not a literary composition, the Court of Appeal refused to interfere with their verdict.[51]

The illustrations in a book are protected as part of the book,[52] and a number of drawings bound up together without any letterpress would be protected as a book,[53] compliance with the provisions of the artistic Copyright Acts being in such a case unnecessary; but a single drawing or engraving separately issued can only be protected under the artistic Acts.

A map, whether bound in a volume or separately issued, is a book within the meaning of the Literary Copyright Act, and will be protected thereunder.[54]

III. _Originality_ as an essential element of a book means that the composition in the "book" must not have been copied from some other literary composition in "book" form. Originality does not necessarily imply an original composition on the part of the author.[55] Copyright is given not necessarily to the first composer, but to the first producer in "book" form of a literary composition.[56] Thus a book would be an original book if the literary matter contained therein were taken by the author verbatim from the oral utterances of a public speaker,[57] or probably if copied from some ancient monument or mural writing. It would not, however, be original if the author had merely transcribed the literary matter from some public manuscripts, even although difficult of access.[58] Again, originality does not necessarily imply novelty. Another book exactly the same in every respect, word for word, may have been previously published, and yet a later book will be original if derived from common sources, and not copied from the earlier book. Thus two mathematicians may have independently made the same calculations,[59] two travellers may have made a chart of the same island or district,[60] or two reporters may have taken shorthand reports of the same speech.[61] In each case there would be independent copyright,[62] and the later book, even although published ten years after the first, would be original.

Composition may consist in composition in the ordinary sense of piecing together words, figures, sentences, and paragraphs, in order to convey certain intellectual ideas, or it may consist in the arrangement of material, as in the case of directories, lists of statistics, &c. Sometimes part may be copied and part may be original, as in the case of new editions,[63] translations,[64] abridgments,[65] selections from non-copyright authors,[66] precedents of conveyancing, &c.[67] The new matter only is the subject of copyright.

[Sidenote: Road Books.]

=Examples of what are Books.=--Road-books[68] were among the first works in the protection of which by the Courts it was recognised that copyright did not necessarily depend on the evidence of any high mental qualities in the composition. In 1786 an injunction was granted to restrain the piracy of "Paterson's Road-Book."[69] Lord Chancellor Loughborough in his judgment said that a book in order to acquire copyright did not require to be an operation of the mind like the "Essay on Human Understanding." There might be copyright even although the subject-matter lay _in medio_, so that every man with eyes could trace it, and the whole merit of the work depended upon the accuracy of the observation. In 1776 the Court of Session in Scotland protected a "Traveller's Pocket-Book," which contained nothing but a mere list of stages and their distances.[70] The compiler of such a work may arrive at the same, or nearly the same, result as some other compiler working over the same country, but if each has made his own compilation, "counting the milestones for himself,"[71] he will have copyright and can prevent any one else from infringing such copyright.

[Sidenote: Directories.]

Directories[72] soon followed road-books in their claim for protection. Lord Chancellor Erskine in 1806 hesitated somewhat, "thinking it dangerous to carry this doctrine of copyright too far," but ultimately decided that an East India calendar or directory[73] containing the names and appointments on the Indian establishment, obtained with considerable labour and expense from the repositories in India House, was the subject of copyright. This decision was followed by Lord Chancellor Eldon in 1809 in the case of "A Court Calendar."[74] In 1861 a street directory of Birmingham was protected,[75] and in 1866 "Kelly's Post Office London Directory."[76] In this last-mentioned case it was suggested in defence that the various residents had given their names for public use, and that therefore any one could copy them; this contention, however, was rejected, and it was held that the information contained in a directory was similar to that in a road-book or map; it was open to all mankind, but that he who collected and described it was entitled to prevent any one else from taking the results of his labours. In _Morris_ v. _Ashbee_,[77] a trade directory, called "The Business Directory of London," was protected. This work contained the names and occupations of merchants and traders carrying on business in or about London. Those traders who paid the proprietor of the directory one shilling annually were entitled to have their names printed in capital letters, and a further payment entitled them to "extra lines" descriptive of their vocations. The defendants took from this work the names in capital letters and the "extra lines," and contended that they were entitled to do so; but it was held that the payment by the several persons whose names were inserted had not the effect of making the names and descriptions when inserted common property, and that as the plaintiff had incurred the labour and expense of getting the necessary information and arranging it, he was entitled to protection.

[Sidenote: Trade Directory.]

[Sidenote: Sheet of Advertisements.]

In _Lamb_ v. _Evans_[78] the defendants had copied extensively from a trade directory. The directory consisted of a list of tradesmen in various localities. In some cases their names and addresses only were entered, and in others more elaborate advertisements containing descriptions of articles in which the advertiser dealt. The entries in the directory were classified under headings, giving short descriptions of the particular trades; each separate heading was arranged so that the proper catch-words occurred first in alphabetical order, and each heading was repeated in three other languages after the English heading. The Court of Appeal held that although the plaintiffs had no copyright in each individual entry, they had copyright at least in the headings. They were the result of literary labour both as regards the composition of the headings themselves and their collocation and concatenation in the book.[79] Their Lordships were also of opinion, although they said it was unnecessary to decide the question, that there was copyright in the mass of advertisements as collected and arranged. Lindley, L. J., said:

"I do not see myself the difficulty in the publishers having a copyright in a sheet of advertisements. I do see a difficulty in his having a copyright in one advertisement, because, as Mr. Justice Chitty pointed out, that might prevent the advertiser from republishing his advertisements in another paper, which is absurd. But to say that it follows from that that the proprietor, say of the _Times_, has no copyright in a sheet of advertisements so that he cannot restrain anybody from copying that sheet appears to me a very different proposition."[80]

[Sidenote: Catalogues.]

Tradesmen's catalogues, consisting of lists descriptive or otherwise of the articles in which they deal, have been often attacked as being devoid of literary merit. In _Hotten_ v. _Arthur_[81] the plaintiff's copyright in a descriptive catalogue of old books which he had in stock was challenged. This catalogue was not a mere list of the books by name, but contained short notices of the contents and general nature of the various volumes. Page Wood, V. C., found no difficulty in deciding that such a catalogue was the subject of copyright, notwithstanding that the catalogues were for the purpose of advertising the plaintiff's stock-in-trade, and were not themselves offered for sale. In _Cobbett_ v. _Woodward_[82] the doctrine laid down by Page Wood, V. C., received a check. In that case the plaintiff had published a catalogue containing numerous engravings and illustrations of designs and articles of furniture which were sold by his firm. Lord Romilly, M. R., refused to grant an injunction against a rival tradesman who, in a similar publication, appropriated at least fifty of the plaintiff's illustrations, and in his judgment he said:

[Sidenote: Advertisements.]

"But at the last it always comes round to this, that there is no copyright in an advertisement. If you copy the advertisement of another, you do him no wrong, unless in doing so you lead the public to believe that you sell the articles of the person whose advertisement you copy."[83]

The next case in which this question came before the Courts was _Grace_ v. _Newman_.[84] The book infringed was a volume containing lithographic sketches of monumental designs, and a little letterpress. The sole object of the book was to serve as an advertisement in the plaintiff's business of "Cemetery Stone and Marble Mason." Hall, V. C., granted an injunction, evading _Cobbett_ v. _Woodward_[85] and following _Hotten_ v. _Arthur_.[86] In 1882 _Cobbett_ v. _Woodward_[87] was expressly overruled in the Court of Appeal in the case of _Maple & Co._ v. _Junior Army and Navy Stores_.[88] The plaintiffs published an illustrated catalogue consisting almost entirely of engravings of furniture with short descriptions and prices. The catalogue was prepared by selecting articles of furniture which were drawn by artists in their employment and then engraved. The Court of Appeal sustaining the opinion of Hall, V. C., in the Court below, held that the catalogue was the subject of copyright as a book. Jessel, M. R., said:

"The case which has done all the mischief is _Cobbett_ v. _Woodward_.[89]... I think that is not law. I am not aware that the use to which a proprietor puts his book makes any difference in his rights. His copyright gives him the exclusive right of multiplying copies, and he may use them as he pleases. I think, therefore, that _Cobbett_ v. _Woodward_[90] will not bear legal examination."[91]

[Sidenote: Alphabetical Catalogue of Tradesmen's Goods.]

In _Collis_ v. _Cater_[92] North, J., protected a catalogue of medicinal articles which the plaintiff kept for sale. The articles were arranged by their common names in alphabetical order under various headings and sub-headings. The learned judge strongly negatived the contention that a tradesman's catalogue would only be protected when, as in _Hotten_ v. _Arthur_,[93] some amount of skill or literary merit was shown. He said:

"A distinction is made between copyright in a large catalogue by a clever author which gives a great deal of information, and is interesting to persons who read it, and a catalogue like the plaintiffs, which is nothing whatever but a simple list of certain articles described by their common names, which every one is entitled to use with respect to them with the addition of the prices at which they are sold.... In one way or another a man engaged in preparing a catalogue of this sort has incurred labour in its preparation, or it may be expense and trouble in its preparation, and has done it for the advantage of having his own catalogue.... I cannot see any distinction between this and the publication of a directory. It seems to me to be exactly _in pari materia_."

[Sidenote: Telegraph Codes.]

A list of telegraphic code words carefully selected so that, in their transmission by the Morse system of dots and dashes, they would not be liable to be mistaken or misspelt was admitted to be a copyright work in _Ager_ v. _P. & O. Steam Navigation Co._[94] The same book, "The Standard Telegram Code," was again protected in _Ager_ v. _Collingridge_.[95]

[Sidenote: Shipping Statistics.]

[Sidenote: Mineral Statistics.]

Lists of statistics compiled from various sources of information are well recognised as original books. "The Clyde Bill of Entry and Shipping List," containing a compilation of statistics collected from the official records and documents in the Custom houses, was protected in Scotland in 1846[96] and again in 1858.[97] The "Mineral Statistics of the United Kingdom of Great Britain and Ireland" was protected in England in 1867.[98] It consisted of an annual statement of returns in the City of London coal market, showing the quantity of coal imported into London from the various collieries, and was compiled by the clerk and registrar of the coal market from the day-books in the office. Page Wood, V. C., said:

"A great deal of time and labour must have been spent in this compilation, more, indeed, than in the case of a directory or guide, and there can be no doubt that he is entitled to be protected in the fruits of his labour."[99]

[Sidenote: Lists taken from public documents.]

[Sidenote: List of Bills of Sale.]

Compilations made from public documents and records are protected in so far as there is selection or arrangement. A mere verbatim copy of a public document would not be protected.[100] In _Trade Auxiliary Co._ v. _Middlesborough_,[101] "Stubbs' Weekly Gazette" was protected from infringement. The gazette contained a list of bills of sale registered under the Bills of Sale Act and of deeds of arrangement registered under the Deeds of Arrangement Act. The particulars of each bill of sale had been taken from the official records, not merely from the indexes on the official register but from the instruments themselves, for the inspection of each of which a charge of 1s. or 2s. 6d. is made. The same and other similar lists were also protected in _Cate_ v. _Devon_.[102]

[Sidenote: Specifications of Patents.]

In _Wyatt_ v._ Barnard_[103] Lord Chancellor Eldon refused protection to a copy of specifications of patents taken from the patent office. If this decision meant that a selection, arrangement, or abridgment of the specifications in the patent office would not be protected, it cannot be considered sound law.

[Sidenote: List of Foxhounds.]

In _Cox_ v. _Land and Water_[104] Malins, V. C., although he refused to grant an injunction on the grounds of its probable inefficacy, expressed a strong opinion that a list of packs of foxhounds, with the hunting days of each pack and their respective masters and huntsmen, was the subject of property. The information contained in the list was obtained by issuing circulars requesting the masters of the hunt to fill up the required information. The Vice-Chancellor in his judgment said:

"It is clear that in this case the getting of the names of masters of hunts, the number of hounds, the huntsmen and whips, and so forth is information open to all those who seek to obtain it; but it is information they must get at their own expense, as the result of their own labour, and they are not to be entitled to the results of the labours undergone by others."

[Sidenote: Time Tables.]

One of the leading cases in this branch of copyright law is _Leslie_ v. _Young_,[105] a Scotch appeal case. The pursuer's book consisted of a monthly penny railway time table, published in Perth. It was compiled from the various railway companies' time tables. Some of these were taken verbatim and some were abridged by the smaller stations being omitted, and to the whole was added a list of convenient circular tours around Perth compiled by the pursuer. The defender in compiling a rival time table, copied many of these tables and all of the circular tours from the pursuer's book, either literally or with colourable differences only. As regards the time tables the House of Lords sustained the judgment of the Inner House in refusing an interdict. The mere publication, they said, in any

## particular order of the time tables which are to be found in railway

guides and the publications of the different railway companies, could not be claimed as a subject-matter of copyright. In dealing with the abridged time tables Lord Herschell, L. C., said:

"Looking at these tables as a whole, and having regard to the fact that it is admitted that the defender's work is, as regards these tables, not by any means in all respects a copy of the pursuer's work, that it was not denied that there was a certain amount of original work done by them in compiling these tables, and that these are the differences which have been pointed out, I do not think that it can be said that as regards these tables there has been an appropriation by the defender of the pursuer's work such as to entitle the pursuer to complain and to obtain the interdict which he claims. The real truth is that although it is not to be disputed that there may be copyright in a compilation or abstract involving independent labour, yet when you come to such a subject-matter as that with which we are dealing, it ought to be clearly established that, looking at these tables as a whole, there has been a substantial appropriation by the one party of the independent labour of the other before any proceeding on the ground of copyright can be justified."

As regards the circular tours the House of Lords reversed the judgment of the Court of Session and granted an interdict. The Lord Chancellor said:

"It appears to me the only part of the work which can be said to indicate any considerable amount of independent labour and be entitled to be regarded as an original work.... It seems to me that this was a compilation containing an abridgment of information of a very useful character, and such as was likely to be taken advantage of by those who were travelling in the neighbourhood of Perth."

[Sidenote: Tables of Calculation.]

Mathematical calculations are undoubtedly subjects of copyright. In _Baily_ v. _Taylor_[106] Sir John Leach, M. R., evidently assumed that they were, although in that case he refused an injunction on the grounds that a very small part had been copied, that what was copied could have been calculated again in a few hours, and that there was unreasonable delay in bringing the action. In _M'Neill_ v. _Williams_[107] protection was sought for "Comprehensive Tables for the Calculation of Earthwork as connected with Railways," &c. Knight Bruce, V. C., refused an interim injunction, but he did not suggest that the calculations were not the subject of copyright.

[Sidenote: Forms and Precedents.]

[Sidenote: Conveyancing Precedents.]

Forms and Precedents and similar works are made and published for the very purpose that they should be bought and used in business or other transactions. To this extent copying is of course no infringement, but they will be protected from any copying other than that which is impliedly permitted by their publication. In _Webb_ v. _Rose_[108] precedents of conveyancing were stolen from a barrister's chambers and printed against his will. The Court had not the least hesitation in restraining the defendant from printing and publishing them. In the Scotch case of _Alexander_ v. _Mackenzie_[109] the claim of "Styles and Precedents of Conveyancing" to protection under the Copyright Acts was recognised by the Inner House. The forms in question were drawn up from general directions contained in the "Heritable Securities and Infeftments Acts," and it was contended that, as all who followed these directions must arrive at almost identically the same result, there could be no copyright in a precedent so produced. The Court was unanimously of opinion that although such work did not require the exercise of original or creative genius, yet it implied industry and knowledge, and was undoubtedly the subject of copyright.

[Sidenote: Application Form.]

In _Southern_ v. _Bailes_[110] a form of application by intending students to a "Lessons by Correspondence Department" was protected by Chitty, J. The learned judge granted an injunction against copying the plaintiff's form, but thought it would be dangerous to extend the injunction in such a matter to colourable imitations, as there was a great deal in the form any one could have put together for himself.

[Sidenote: Selections and Extracts from Non-copyright Works.]

[Sidenote: Collection of Cookery Recipes.]

[Sidenote: Topographical Dictionary.]

[Sidenote: Child's A B C.]

[Sidenote: "Guide to Science."]

It was very early recognised that the skill and labour of selecting and arranging extracts from previously published books was sufficient to entitle the compiler to copyright in the new work thereby produced.[111] Copyright can thus be obtained without the composition of a single sentence. There is composition, but the composition is of new arrangement and not of new matter. In _Rundell_ v. _Murray_[112] Lord Chancellor Eldon expressed his opinion that a collection of cookery recipes would have entitled the plaintiff who collected them to copyright, even if she had merely embodied and arranged them in a book. If, however, she had only collected them and handed them over to the publishers, he did not think that would give her copyright. In _Lewis_ v. _Fullarton_[113] "The Topographical Dictionary of England," which consisted partly of compilations and selections from former works, was recognised as being the subject of copyright. In _Lennie_ v. _Pillans_[114] the Court of Session in Scotland were of opinion that "The Child's A B C," consisting in a great degree of extracts from and repetition of previous publications by other authors, was entitled to protection on account of the original arrangement, selection, abridgment, or amplification of such borrowed materials. In _Jarrold_ v. _Houlston_[115] Page Wood, V. C., granted an injunction against the piracy of Dr. Brewer's "Guide to Science." The book was intended for the instruction of tiros in science, and was composed largely from previous works, aided by notes taken from time to time of popular ideas concerning various scientific phenomena. The Vice-Chancellor said:

"That an author has a copyright in a work of this description is beyond all doubt. If any one by pains and labour collects and reduces into the form of a systematic course of instruction those questions which he may find ordinary persons asking in reference to the common phenomena of life, with answers to these questions and explanations of these phenomena, whether such explanations and answers are furnished by his own recollection of his former general reading or out of works consulted by him for the express purpose, the reduction of questions so collected, with such answers under certain heads and in a scientific form, is amply sufficient to constitute an original work of which the copyright will be protected."

[Sidenote: French Dictionary.]

The same judge, in _Spiers_ v. _Brown_,[116] in considering an alleged infringement of "Spiers' School Dictionary," said:

"In a large part of his work Dr. Spiers could have no copyright as to words and expressions, though he might have it as to new words introduced or new acceptations, or as to the order and arrangement by which he improved the particular work he had in hand."

[Sidenote: Selections of Poetry.]

In an Indian case Palgrave's "Golden Treasury of Songs and Lyrics" was protected. It consisted in a selection and arrangement of poems and fragments of poems from the non-copyright works of many poets. The defendant took the selected portions, rearranged them, and made a few additions. His book was condemned as an infringement.[117]

[Sidenote: Abridgments.]

Lawfully made abridgments are protected on account of the judgment which the abridger must exercise in order to do his work well.[118]

[Sidenote: Translations.]

Lawfully made translations are also protected as if they were original works.[119] The protection will only extend to the work of the translator. A translator by translating a non-copyright work acquires no exclusive right to translate. Others may do the same from the original non-copyright source.

[Sidenote: Adaptations.]

An author is entitled to copyright by reason of lawful adaptation of a book from one form to another; thus, if he dramatizes a novel, or by material alteration and rearrangement produces a new version of an old play.[120] The adaptation of music, for instance an opera score for the pianoforte,[121] or the rearrangement of an old tune,[122] is the subject of copyright.

[Sidenote: New Editions and Notes.]

New editions either of copyright or non-copyright works are protected as original books, but only to the extent to which they consist of original material in the way of notes to, or substantial revision and alteration of the old text. Lord Chancellor Hardwicke[123] granted an injunction against the piracy of a new edition of Milton's "Paradise Lost" containing original notes by Dr. Newton. In _Cary_ v. _Longman_[124] new material added to an old road-book was protected. In _Murray_ v. _Bogue_[125] in the case of a subsequent edition of a guide-book, Kindersley, V. C., said:

"If a man prints a second edition, not being a mere reprint of the first edition, but containing considerable and material alterations and additions, _quoad_ those, it is a new work."[126]

In _Cadell_ v. _Anderson_[127] the Court of Session in Scotland held that the pursuers had the sole right of printing and reprinting "Blackstone's Commentaries;" and as regards those editions in which there were corrections and continuations, their term of copyright began to run afresh with respect to such new material. In _Black_ v. _Murray & Son_[128] the notes in Lockhart's edition of Scott's "Border Minstrelsy" were protected, the copyright in the original edition of the "Border Minstrelsy" having expired. Lord President Inglis, in the course of a long and elaborate judgment, said:

"Questions of great nicety and difficulty may arise as to how far a new edition of a work is a proper subject of copyright at all; but that must always depend upon circumstances. A new edition of a book may be a mere reprint of an old edition, and plainly that would not entitle the author to a new term of copyright running from the date of the new edition. On the other hand, the new edition of a book may be so enlarged and improved as to constitute in reality a new work, and that just as clearly will entitle the author to a copyright running from the date of the new edition.... That there may be copyright in the notes, even when the book is not under the protection of copyright, is quite a fixed principle in the law, and most desirably so. There is no doubt that the compilation of good notes to a standard work is a task worthy of the highest literary talents and reputation.... Of the 200 notes the defender's counsel tells us that 15 only consist of original matter, while the remaining 185 are quotations from other books and authors. Now this seemed to be considered to be a sort of disparagement of the value of the notes, in which I cannot at all agree.... The quotations are, in many places, most apposite, and highly illustrative of the text, and exceedingly interesting to the reader, and certainly the selection and application of such quotations from other books may exercise as high literary faculties as the composition of original matter."

If a new edition is a mere reprint of what has been published in "book" form before, it is obvious that no new or independent copyright can be claimed in it.[129] So also if there are only slight corrections, verbal alterations, and the like. Lord Mackenzie, in the Scotch case of _Hedderwick_ v. _Griffin_,[130] said:

"I doubt very much if there can be right of literary property in the exclusion from an edition of the works of any author of articles not truly written or published by that author, or in the correction of accidental errors, or in the mere order and titles of articles which seem to be all, or nearly all, that can be claimed by the pursuers in this case."[131]

The publication of an old work with an index not previously published would undoubtedly be copyright as to the index.[132]

In _Black_ v. _Murray_[133] Lord Deas was of opinion that the alteration of a single word in a poem was sufficient to give a new edition an independent copyright, inasmuch as the alteration was very important and entirely altered the meaning of the line in which it was used. The other judges, however, did not altogether concur in Lord Deas' opinion; and it would seem that his lordship stretched the law as to new editions too far.

[Sidenote: Reports.]

[Sidenote: Law Reports.]

The question whether a verbatim report of oral proceedings is a "book" within the meaning of the Copyright Acts was long a moot question. That there might be copyright in law reports and similar matter, in so far as they consisted of a summary of the proceedings in the author's own language, was early recognised. In _Butterworth_ v. _Robinson_[134] the "Term Reports"; in _Sweet_ v. _Shaw_,[135] Meeson and Welsby's reports, and others; and in _Sweet_ v. _Maughan_[136] the reports in the "Jurist" were protected; but it does not appear in the reports of these cases whether any copyright was claimed in the verbatim reports of the judgment of the Court. In _Saunders_ v. _Smith_[137] Lord Cottenham, L. C., refused an injunction against "Smith's Leading Cases" on equitable grounds, but said he would not decide the legal question as to whether that publication infringed the copyright in the "Term Reports" and others. In _Sweet_ v. _Benning_[138] the defendants published a "Monthly Digest" into which were copied numerous head notes of cases taken bodily from the "Jurist." The Court held that these head notes were copyright, and that the defendant's work was an infringement.

"The head note or the side or marginal note of a report is a thing upon which much skill and exercise of thought are required to express in clear and concise language the principle of law to be deduced from the decision to which it is prefixed, or the facts and circumstances which bring the case in hand within some principle or rule of law or of practice."[139]

[Sidenote: Verbatim Reports.]

So far, therefore, as appears from the reports of these cases our Courts had only recognised copyright in the matter of reports to the extent to which that matter was the composition of the author, only, in short, when it was a description in his own language of what had taken place. The American Courts had held[140] that there was no copyright in the verbatim report of a judgment of the Court, but their decisions were based to a large extent on the ground of public policy. The judgments of the Court, they said, were published to the whole of the people of the United States, and no individual could acquire a monopoly with respect to them. _Walter_ v. _Lane_[141] has to a large extent cleared up the doubtful state of our law as regards reports, but it cannot be said that it has done so entirely. _Walter_ v. _Lane_[142] decides that a reporter can have copyright in a verbatim report of the oral utterances of another from whom he derives no title. In that case certain reporters of the _Times_ were present at various meetings at which Lord Rosebery made speeches. These speeches were taken down in shorthand and appeared in the _Times_ the following morning, reproducing as nearly as possible verbatim the words which Lord Rosebery had spoken. Lane, a publisher, subsequently published a book entitled "Appreciations and Addresses: Lord Rosebery," and purporting to be a collection of some of Lord Rosebery's speeches. Five of the speeches in this book were taken from the reports in the _Times_, as was admitted by the defendant, substantially verbatim. The House of Lords reversing the judgment of the Court of Appeal and restoring the judgment of North, J., held that the reports in the _Times_ were copyright, and that the reporters' assignees, the proprietors of the _Times_, were the owners of the copyright. Lord Chancellor Halsbury in his judgment said:

"My Lords, I should very much regret it if I were compelled to come to the conclusion that the state of the law permitted one man to make profit and to appropriate to himself the labour, skill, and capital of another. And it is not denied that in this case the defendant seeks to appropriate to himself what has been produced by the skill, labour, and capital of others. In the view I take of this case I think the law is strong enough to restrain what to my mind would be a grievous injustice.... The speeches and the sheets of letterpress in which they were contained were books first published in this country; and I confess, upon looking at the definition and the right conferred, I am wholly unable to discern why they are not protected by the statute from being pirated by unauthorised persons. The sole ground, as I understand the judgment of the Court of Appeal, is that in their judgment the producer of a written speech, unless he is the original speaker, cannot be an 'author' within the meaning of the Act. My Lords, it seems to me that this argument is based upon too narrow and misleading a use of the word 'author.'... The producer of this written composition is, to my mind, the person who is the author of the book within the meaning of the statute.... I do not find the word 'original' in the statute, or any word which imparts it as a condition precedent, or makes originality of thought or idea necessary to the right."[143]

We must be careful not to carry the doctrine of _Walter_ v. _Lane_[144] further than the actual decision warrants. It should be noticed, for instance, that the essence of the case is that the reporter was entitled to copyright, because it was he who first reduced to "book" form the literary composition contained in Lord Rosebery's speeches. If, therefore, Lord Rosebery had, before delivering his speeches, done as some statesmen and many clergymen do, _i. e._, reduced them to writing, the reporter would probably not have had copyright, since his report would then have been a mere copy of the speaker's original manuscript, a very different thing from being the first manuscript.[145] Again, it must be noticed that Lord Rosebery claimed no proprietary right in his speeches. It was admitted by counsel that he had freely abandoned his words to the world so that any one might make of them what use he pleased. Lord Rosebery might have secured a right in his own speeches if he had cared to do so. He might have delivered them to a limited audience[146] under an implied contract that those who heard his speeches should make no other use of them except by listening to them and benefiting by the entertainment and general information conveyed. Possibly he might also have secured a statutory copyright in them as lectures by giving notice in writing two days before delivering the same to two justices living within four miles of the place of delivery.[147] If in either of these ways Lord Rosebery had secured a proprietary right for himself it is doubtful whether a reporter unauthorised by him could have acquired copyright in his report. The report would have been an infringement of Lord Rosebery's rights, but the reporter might nevertheless be held to have a copyright against the rest of the world. It should also be noticed in connexion with this case that it was expressly stated by the judges in the House of Lords that any number of reporters could make a report of the same speech, and each would have a separate copyright. In _Walter_ v. _Lane_[148] the defendant admitted that he took his book from the _Times'_ report. It is obvious, however, that if a speech were reported in, say, six newspapers, any one could reprint it, and by careful correction of the parts in which the reports varied baffle any one of the newspaper proprietors in an attempt to prove that the speech was taken from his newspaper. Another question with regard to verbatim reports, which is not necessarily covered by _Walter_ v. _Lane_,[149] is in reference to verbatim reports of judgments in the Courts. Will the American doctrine be adopted that it is against public policy that there should be any monopoly in them?[150]

[Sidenote: Mechanical Devices.]

[Sidenote: Cricket Scoring Card.]

The law of copyright does not protect anything in the nature of a mechanical device, except in so far as apart from any mechanical application it conveys ideas or information to the person reading it. In _Page_ v. _Wisden_[151] it was claimed by the plaintiff that he had literary copyright in a cricket-scoring card, the only novelty in which was a line along which could be indicated "Runs at the fall of each wicket." Malins, V. C., held that such a thing was not a book within the Act, and characterised it as absurd to contend that a particular mode of ruling a book constituted an object for a copyright.[152]

[Sidenote: Shadow Trick.]

[Sidenote: Barometer Face.]

In _Cable_ v. _Mark_,[153] Bacon, V. C., refused to protect under the Literary Act "The Christograph--the Christian's Puzzle: suitable for all sects and denominations." This consisted of an envelope on which the above title was inscribed. Inside the envelope was a card perforated in such a way that when held up in a strong light it threw upon the wall a shadow which was supposed to represent the picture "Ecce Homo." The Vice-Chancellor in his judgment described it as a mere child's trick and nothing else. The face of a barometer was held by Chitty, J., in _Davis_ v. _Comitti_[154] not to be a book. It consisted of a circular card on which were printed various words such as "set fair," "high winds," &c., and on which the hands of the barometer moved. The learned judge said:

"Separated from the instrument it was not intended to have and has no use or meaning whatever. Regarded as a card apart from the instrument it not only foretells nothing, but tells nothing. By reading the printed matter on the card alone, no intelligible proposition is arrived at."

[Sidenote: Sleeve Chart.]

Protection was claimed in _Hollinrake_ v. _Truswell_[155] for a cardboard pattern sleeve called the "Cosmopolitan Sleeve Chart." It consisted of a piece of cardboard cut to suitable shape and size and marked with figures and directions, such as "measure round the thick part of the arm," and it was intended to be used for the purpose of measuring and cutting out sleeves. The Court of Appeal reversed the judgment of Wright, J., and dismissed the action. Lord Herschell said:

"The object of the Copyright Act was to prevent any one publishing a copy of the particular form of expression in which an author conveyed ideas or information to the world. These may be retained by any one, although the book, map, or chart which embodied them has passed out of his possession. If he were to commit to memory the contents of the book or the information disclosed by the map or chart, he would be as much in possession of the author's ideas or information as if the book, map, or chart were physically in his hands. But this is not the case with the words or figures upon the sleeve chart. They are intended to be used, and can only be used in connection with that upon which they are inscribed.... I think it clear, therefore, that what the plaintiff has sought to protect under the Act for the protection of literary productions is not a literary production, but an apparatus for the use of which certain words and figures must necessarily be inscribed upon it."[156]

[Sidenote: Railway Ticket.]

In a Canadian case a railway ticket containing the names of stations on the line and dates so arranged that when punched it indicated where the holder was entitled to travel, was refused protection. It was said that without the application of the conductor's punch, the ticket was senseless and meaningless.[157]

[Sidenote: Scroll for Mechanical Instrument and Directions thereon.]

In _Boosey_ v. _Whight_[158] it was held that a sheet of music was not infringed by a perforated scroll for use in a mechanical instrument; and further, that the directions in the printed music, _e. g. pp., crescendo_, were not the subject of copyright apart from the printed sheet, and therefore might be taken and used in conjunction with the perforated scroll. It seems to follow that neither the perforated scroll nor the directions thereon would constitute a "book" within the meaning of the Act.

[Sidenote: Sporting Tips.]

_Chilton's Special Guide_ published weekly sporting information. Among other matter it contained their sporting prophet's "tips" for the big races in the ensuing week. This was contained in a list, thus:

ONE HORSE SELECTIONS.

_Tuesday_ Keelson. _Wednesday_ Priestholm. _Thursday_ Coelus. _Friday_ Dromonby.

The Progress Printing and Publishing Company published daily at the various race meetings racing sheets with the day's "tips" from various sporting papers, thus:

THE SPECIALS, ONE HORSE TRIALS.

_The Jockey_ Rusina _Racing World_ Keelson _Gale's_ Keelson _Chilton_ Keelson. _Grant's Opinion_ Juda. _Turf Marvel_ Kenney.

The Court of Appeal held[159] that there could be no copyright in the individual selections for each day, but suggested that there might be copyright in the list of selections for the week, and that it would be an infringement to take it bodily. Lindley, L. J., in giving judgment, said:

"Unless you find the one horse selection and that block which is headed by the title 'One Horse Selections' in the shape in which the plaintiff has published it, I doubt whether you can bring it within literary composition at all. Perhaps the whole of that might be called literary composition; but there is no literary composition in the word 'Priestholm.'"[160]

[Sidenote: Illustrations.]

[Sidenote: To Non-copyright Letterpress.]

Engravings, prints, designs, or other reproductions of artistic matter will be protected under the law of literary copyright either when published in the form of a volume or when published in connexion and together with letterpress. By this means compliance with the stringent requirements of the Acts relating to artistic copyright is avoided. The first case where an illustration was held to be part of a book, and therefore protected under 5 & 6 Vict. c. 45, was _Bogue_ v. _Houlston_.[161]. The plaintiff published some old non-copyright tales, including "Reynard the Fox," and illustrated them with original drawings of animals. These woodcuts were pirated by the defendants, and used as illustrations in their serial publication, "The Story-Book for Young People, by Aunt Mary." The plaintiff did not claim copyright in any letterpress.[162] The defendants maintained that the woodcuts not having been published so as to comply with the provisions of the Engravings Acts, could not be protected from piracy. It was held, however, that they were part of a book. Parker, V. C., in giving judgment, quoted the definition of a book from the Act 5 & 6 Vict. c. 45, and continued:

"This definition does not extend to prints or designs separately published, but only to the prints and designs forming part of a book, and the book is not less a book because it contains prints or designs or other illustrations of the letterpress. This Act vested in the proprietor of such book duly registered the right to sue in respect of any invasion or infringement of the copyright of his book. It appears to me that a book must include every part of the book; it must include every print, design, or engraving which forms part of the book as well as the letterpress therein which is another part of it."[163]

[Sidenote: No Letterpress.]

[Sidenote: Christmas Card.]

[Sidenote: Plate issued separately.]

In _Maple & Co_. v. _Junior Army and Navy Stores_,[164] the engravings in an illustrated catalogue, containing almost no letterpress, were protected under 5 & 6 Vict. c. 45. "There may be such things," said Jessel, M. R., "as picture-books for those who cannot read letterpress."[165] In _Hildesheimer & Faulkner_ v. _Dunn & Co._,[166] protection was claimed for a Christmas card cut out and painted in the form of a lady's hand. It opened out book-wise, and inside were delineated the lines of life according to the rules of palmistry, and on one side there was an original verse. This work was registered both under 5 & 6 Vict. c. 45 as a book and 25 & 26 Vict. c. 68 as a painting. Kekewich, J., in granting an injunction against a piracy, said he would not decide whether the work was a picture or a book, but as it was well registered under both Acts, an action lay. In _Comyns_ v. _Hyde_,[167] a coloured plate representing an Orpington cock was issued with the weekly number of a serial publication called _The Feathered World_. The plate was not in any way physically connected with the rest of the publication, but it was illustrative of an article in the journal, and a copy was given to every purchaser. Stirling, J., held that it must be protected as part of the book. If a plate or picture has been previously published in separate form, without complying with the provisions of the Engravings Acts, it will not subsequently receive protection by reason of its incorporation into a volume.[168] In _Strong_ v. _Worskett_[169] a magazine was before publication advertised by means of illustrated posters. The same illustration as appeared on the posters was afterwards reproduced in the magazine. It was held that it could not be protected as part of the magazine. The result of these decisions appears to be that an artistic work will be protected under the Literary Copyright Act, 1842, if it is bound up with other artistic works in the form of a volume, or if it is published in connexion with letterpress. The picture on a Christmas card on which there are also verses, would, it is submitted, be protected as a book, and, it would seem, whether or not the verses were copyright, and whether or not (but this is more doubtful) the picture was in any way illustrative of the verses. It is also submitted that an engraving published in a magazine without any relation to the letterpress, except that of physical connexion, would be protected as part of the book; but an engraving or print which had neither any relation to the letterpress nor physical connexion would probably not be protected even although issued gratis with every copy of the magazine.

It need hardly be said that anonymous works are entitled to copyright. The publication of a work without the author's name is not to be construed as an abandonment of the literary property.[170]

[Sidenote: Maps.]

Maps, charts, and plans are expressly included in the definition of a "book." If incorporated in a volume they will be protected with the rest of the volume under its general title; if published separately they will be protected as "books" by themselves. The meaning of "maps," &c., will be literally construed; but it must be something which in itself conveys information to the person studying it. Davey, L. J., in speaking of maps, said:[171]

"I agree ... that a 'map' is not confined to what is popularly known as a map--viz. a geographical map; and that a 'chart' is not confined to what is popularly called a chart--viz. a map of a portion of the seas showing the rocks, soundings, and such-like information for the use of navigators.... There may, no doubt, be an anatomical and physiological plan showing the structure and distribution of the muscles and bones of the human arm, or any other part of the human frame, which would be protected by the Copyright Act."

[Sidenote: Music.]

The exclusive right of making copies of original music is expressly protected by the Act of 5 & 6 Vict. c. 45 under the definition of a book. Under the statute of Anne it was protected by case law, "book" being held to include a volume or sheet of music.[172]

SECTION II.--PUBLICATION.

Publication divests the author or proprietor of an unpublished work of his common law rights therein. After publication his right to protection depends solely upon the statute. Publication must be looked at from two points of view--divestitive, _i. e._ as taking away the author's common law right; and investitive, _i. e._ as clothing him with the statutory right.

=Divestitive Publication.=--If a literary work is communicated to the public without restriction, the common law right of the author terminates. This may be done orally or by written or printed manuscript. Either kind of communication, however, may be so limited as not to amount to a publication. A drama or musical work is not published by being publicly performed in a theatre or concert room,[173] since the communication is limited to those who have paid their price for admission, and they are admitted under an implied contract that they will not make any use of what they hear except for their own entertainment and instruction. The same applies to lectures delivered at a University[174] or by a private lecturer.[175] The question as to when a public speaker or preacher publishes the speech or sermon which he delivers is one of extreme difficulty, and depends on the relation of the speaker to his audience.[176] If a literary composition is orally communicated in a place to which all have admission as of right, or to which all are admitted without distinction, and where there are no circumstances from which a contractual relationship between the speaker and his audience can be inferred, the matter so communicated will be abandoned to the public to make what use of it they please. Similarly communication by means of manuscript or print may be limited or unlimited. Private distribution of copies of a book is not publication, because the essence of publication is that the matter must be available to all comers and not only to a class;[177] but the issue of a book to subscribers only would be publication if the subscription list was open to the public at large, and even although the number of copies available was very small. In one case[178] the words of a song were held to be published by being printed on a music-hall programme and distributed in the streets as an advertisement. Exhibition in a public place without distribution of copies would undoubtedly be divestitive publication. Divestitive publication must be with the consent of the proprietor; an unlicensed publication would merely be an infringement of his rights.

=Investitive Publication.=--Publication vests the statutory right of copyright, but a publication which divests the common law right does not necessarily invest the statutory right. An investitive publication is of necessity also a divestitive publication, but not _vice versâ_. The principal distinction is that an investitive publication must be a publication of a book, while a divestitive publication is a publication of the literary composition which is or may be contained in a book. Thus the delivery of a lecture does not vest copyright, although under certain circumstances it may divest the common law right. The book itself must be given to the public, and not merely the contents, in order to secure copyright. It has been suggested that a book will not be published within the meaning of the Copyright Act unless it is also printed. There is certainly some colour for this suggestion. The Act 5 & 6 Vict. c. 45 gives protection to all books which are "published" without any express restriction to printed books. It seems to be assumed, however, throughout the Act that a book when published must necessarily be in print. For instance, section 6 requires "That a printed copy ... shall be delivered at the British Museum." In section 11 again, where provision is made for registration, it is not contemplated that a book in which there is copyright could be in manuscript, although the section makes express provision for the registration of manuscript dramatic and musical pieces, in respect of performing right. There is no authority on this point. In _White_ v. _Geroch_[179] it was said that publication of a musical piece in manuscript vested the statutory copyright; but this was under the statute of Anne, which seems expressly to contemplate publication in manuscript which 5 & 6 Vict. certainly does not. In _Boucicault_ v. _Chatterton_[180] James, L. J., says: "a book is published by being printed and issued to the public;" but this was said only in illustration of the point he was then making, viz. that publication does not necessarily mean the same thing in dealing with copyright as it does in dealing with performing right. On the whole, although the point is extremely doubtful, I am of opinion that printing is not required. Suppose an illuminated hand-made book, fifty copies put on the market, is that to be denied copyright? If it is, the result seems to be that it is unprotected from piracy, since the common law right terminates with unconditional publication. Another point on publication has been raised but not decided, viz.: Must there be a distribution of copies to the public, or will it be sufficient if one or more copies are made accessible to the public; for instance, by deposit of a copy at the British Museum or in other public libraries. Sir James Stephen, in his Digest appended to the "Report of the Copyright Commission, 1878," Art. 4, says: "publication ... means in reference to books, publication for sale;" and James, L. J., as cited above, suggests that there must be an "issuing to the public." On the other hand, the disjunctive use of the terms "published" and "offered for sale " in section 6 of 5 & 6 Vict. c. 45 is rather in favour of the view that there can be investitive publication without "offering for sale." Analogy from other branches of the law is unreliable; the exhibition of a picture in a public gallery is publication of the picture,[181] but that is the only way in which a picture can be published. On the whole, I think that if the public have free and unrestricted access to a book there will be publication, even although they may not be able to procure copies for themselves. Something might depend on the rules of a library where the book was deposited.

There is a common practice among publishers to accept as proof of first publication a receipt given on the sale of a single copy of the book. No doubt this is _primâ facie_ proof of publication, but the sale of a single copy does not necessarily imply publication, and it would be open to any one disputing the date of the publication to say that the sale was collusive, and that the book was not at that time, as it must be in order to constitute publication, offered to the public. It would be sufficient publication for the publisher to place copies, or even one copy of the book, in his window for sale. The record in his books should be sufficient evidence of the date if it is disputed.

In a case[182] under the statute of Anne it was held that publication must be by or on behalf of the proprietor, or at least with the view of conferring copyright upon him. The publication in that case was made by an oral assignee to whom the author had purported to convey the exclusive right of publication in the United Kingdom. It was held that the assignee had no copyright because there was no written assignment, and that the author did not acquire copyright because the publication was not on his behalf. The result seems to be that the copyright was lost. If the principle is sound, which is extremely doubtful, it might be applied to the case of first publication by a licensee, unless it could be implied from the contract between the licensor and licensee that the licensee was not acting entirely on his own behalf, but also on behalf of his licensor to secure copyright.

=First Publication within the British Dominions.=--Under the Act of 5 & 6 Vict. c. 45, it was held essential that first publication should be within the United Kingdom;[183] but since the International Act of 1886[184] first publication anywhere within the British dominions will equally secure copyright. If a book is published simultaneously within and without the dominions it is sufficient.[185] Publication a day later than publication abroad would probably lose the copyright; but if on the same day, even although an hour or two later, it would be deemed simultaneous. If a serial story in a periodical is being published simultaneously, say here and in the United States, some parts may have lost their copyright by too hasty publication in America, but this would not deprive the whole serial of copyright if the other parts were "first published" within the British dominions.[186] The date on the title-page of an American book has been held not to be conclusive evidence of the time of publication in the United States.[187] It is quite immaterial where the manuscript is written;[188] and probably equally immaterial where the book is printed. It has been suggested, however, that under 5 & 6 Vict. c. 45, printing within the United Kingdom was necessary, and that now since the "International Copyright Act, 1886," printing within the British dominions is a condition precedent to protection. I do not think the suggestion is of any weight. It is founded on two _obiter dicta_--one of Lord St. Leonards in _Jefferys_ v. _Boosey_,[189] and the other of Bayley, J., in _Clementi_ v. _Walker_.[190]

If a book is first published outside the British dominions there will be no copyright[191] in it except under the International Statutes.[192] Section 19 of 7 & 8 Vict. has been held to apply to publication in all foreign countries, and not only to those with which an international convention is in existence;[193] and it has been further held to apply to the works of a British subject as well as to those of a foreigner.[194]

If a dramatic or musical work is first performed abroad before publication as a book, although that may destroy the performing right within the British dominions, it probably will not affect the author's right to acquire copyright by first publication here in "book" form. It may be said that "first published" in 7 & 8 Vict. c. 12, sec. 19, has been held to include "first performed."[195] That decision, however, dealt only with a question of performing right. In _Boosey_ v. _Davidson_[196] there was first performance abroad, and it was held that copyright was obtained here by first publication; but there was no argument on section 19.

SECTION III.--AUTHOR'S NATIONALITY.

It must still be considered doubtful whether or not the author of a book must be a British subject, or at least resident within the British dominions at the time of publication. This point is the subject of a considerable body of case law under the statute of Anne; but there has been no definite and authoritative decision under the statute of Victoria. The question was first seriously argued in the case of _D'Almaine_ v. _Boosey_,[197] when it was decided in the Court of Exchequer that the work of a foreigner would be entitled to protection if first published in England by an English assignee. The next case was _Bentley_ v. _Foster_,[198] before Shadwell, V. C., who decided that the foreigner himself could acquire a copyright by first publication in this country. After that there is a series of confused and conflicting cases,[199] terminating with the decision of _Jefferys_ v. _Boosey_[200] in the House of Lords. The plaintiff in that case was the English assignee of the unpublished work of a non-resident foreigner. The first publication was in England. The judges were consulted, and of these six were in favour of the plaintiff's right and four against it. The House of Lords, however, were unanimous against the plaintiff's right. They decided that the work of a non-resident foreigner could not acquire copyright in this country.

Lord Cranworth, L. C., said:

"The statute (8 Anne) must be construed as referring to British authors only. _Primâ facie_ the legislature of this country must be taken to make laws for its own subjects exclusively, and where, as in the statute now under consideration, an exclusive privilege is given to a particular class at the expense of the rest of her Majesty's subjects, the object of giving that privilege must be taken to have been a national object and the privileged class to be confined to a portion of that community for the general advantage of which the enactment is made. When I say that the legislature must _primâ facie_ be taken to legislate only for its own subjects, I must be taken to include under the word 'subjects' all persons who are within the Queen's dominions, and who thus owe to her a temporary allegiance. I do not doubt but that a foreigner resident here, and composing and publishing a book here, is an author within the meaning of the statute: he is within its words and spirit. I go further: I think that if a foreigner having composed but not having published a work abroad were to come to this country, and the week or day after his arrival were to print and publish it here, he would be within the protection of the statute."

_Jefferys_ v. _Boosey_[201] then definitely decided that under the statute of Anne a foreigner, unless at the time of publication he was resident within the jurisdiction of the crown, could not be an author within the meaning of the Act, and therefore neither he nor his assigns before or after publication could acquire copyright. It would seem to follow that the construction of 5 & 6 Vict. c. 45 would lead to a similar decision. This, however, has been doubted in the House of Lords in the case of _Routledge_ v. _Low_.[202] The actual decision in that case went no further than holding that a foreign author who was resident for a few days in Canada expressly for the purpose of acquiring copyright while her book was published in London was an author within the Act, a proposition which had not been disputed in _Jefferys_ v. _Boosey_.[203] Their Lordships, however, discussed the wider issue whether even temporary residence was necessary. Lord Cairns, L. C., and Lord Westbury were of opinion that it was not. Lord Cairns, after pointing out that _Jefferys_ v. _Boosey_[204] was a decision under the Act of Anne, said:

"It was impossible not to see that the _ratio decidendi_ in that case proceeded mainly, if not exclusively, on the wording of the preamble of the statute of Anne, and on a consideration of the general character and scope of the legislation of Great Britain at that period. The present statute had repealed that Act, and professed to aim at affording greater encouragement to the production of literary works of lasting benefit to the world. And accepting this decision of the House as to the construction of the statute of Anne, it is, I think, impossible not to see that the present statute would be incompatible with a policy so narrow as that expressed in the statute of Anne."[205]

Lords Cranworth and Chelmsford agreed that temporary residence within the dominions was sufficient to give a foreigner the right to acquire copyright as a British author, and therefore concurred in the judgment of the House. They, however, differed strongly from the view that a non-resident foreigner could be an author within the Act. Lord Cranworth said:

"I have no hesitation in concurring with my noble and learned friend in thinking that the decree below was right. I find it difficult to concur with him in the opinion that the present statute extends its protection to all foreigners wherever they may be resident without saying that the case of _Jefferys_ v. _Boosey_[206] is not good law--a conclusion at which I should be very unwilling to come as to any case decided in this House, more especially as to one so elaborately considered as that of _Jefferys_ v. _Boosey_.[207] That case, as my noble friend has pointed out, was decided not on the construction of the Act of 5 & 6 Vict. c. 45, but on the statute of Queen Anne; but I own I do not as at present advised see any difference between the two statutes so far as relates to the subject of the residence of foreign authors."

_Routledge_ v. _Low_[208] is followed as to its actual decision in _Low_ v. _Ward_;[209] but as to the rights of a non-resident foreign author the law remains, as left by _Routledge_ v. _Low_,[210] truly in a most unsatisfactory state. It is difficult to escape from the conclusion, however willingly one would, that there is really no distinction between the application of the statute of Anne and that of Victoria, and that, therefore, a case arising on this point under the Act of Victoria is governed by _Jefferys_ v. _Boosey_,[211] a decision which, if erroneous, was not so for want of deliberate research and consideration. The general opinion, however, seems to be that Lords Cairns and Westbury were right and Lords Cranworth and Chelmsford wrong. This view is adopted by Stephen, J., in his digest.[212] Mr. Scrutton is of the same opinion, and cites the Naturalisation Act and the proviso that copyright is personal property.[213] Mr. Chamier does the same.[214] It is respectfully submitted that the provisions of the Naturalisation Act and the indisputable fact that a foreigner wherever resident can acquire a British copyright are entirely beside the mark, and do not in the least help one to decide whether the legislature is to be presumed to have applied the Act of 5 & 6 Vict. to the works of foreign authors. The decision that the work of a non-resident foreign author will not be protected is in no way contrary to the provision of the Naturalisation Act that an alien friend may acquire and hold personal property in the same way in all respects as a British subject. The logical conclusion from that provision is that an alien friend as well as a British subject may acquire British copyright wherever it exists; but it does not necessarily follow that British copyright exists in the work of a foreign author, and that either an alien friend or a British subject can acquire it. After the passing of the Chace Act (1891) in the United States, the law officers of the Crown in England were consulted by the American law officers, and they advised that an American author could acquire copyright in his work by simultaneous publication in this country and America, even although he was not at any time resident within the British dominions. Consequently on that advice the President of the United States proclaimed Great Britain as one of the countries which gave by their law reciprocal rights to American authors; and English authors are thereby entitled to acquire copyright in the United States. It would certainly be most unsatisfactory if the law of England were now to be declared contrary to the advice then given by our law officers, but it cannot be said that this should influence our Courts if their decision on the point was called for.

SECTION IV.--IMMORAL WORKS.

Profane,[215] indecent,[216] seditious,[217] and libellous[218] books will not be protected. Neither will those which are a fraud upon the public.[219] For instance, a book published as translated from the German of Sturm, which was entirely untrue and induced purchasers to buy it, was refused protection.[220] _Quære_ whether a piratical book would be protected in so far as it was original. Probably it would.[221] If a book is not wholly mischievous, but only in part, it will probably be protected except as to that part;[222] and if a book is subsequently published purged of its immoral matter or fraudulent nature it would be protected.[223] If an action is brought in respect of a mischievous publication the practice of the Court is to dismiss the action without costs.[224] In one case[225] Mathew, J., would not take cognisance of immorality _mero motu_, and when it was not pleaded by the defendant he gave the plaintiff his remedy. Notwithstanding this, there can be no doubt that the Court may refuse to interfere even when both parties are willing to waive the question of immorality. The Court cannot be compelled to sit to take an account between public malefactors.

SECTION V.--REGISTRATION.

=Before Action.=--Before an owner of copyright sues for infringement his book must be registered at Stationers' Hall.[226] The omission to register does not affect the copyright in a book, but it is a condition precedent to the right to sue in respect of the infringement thereof.[227] At one time it was thought that registration was only a condition precedent to an action for the particular remedies given by the statute, and that whether registration was effected or not the common law right of action for damages lay.[228] This, however, is not law. Registration is a condition precedent to any right of action for infringement of copyright. If an action is brought without proper registration, that action must fail; but a correct entry may then be made and a fresh action commenced.[229]

No registration is necessary to maintain an action for the infringement of performing rights in a book which is a dramatic or musical work.[230]

Registration need not be made before infringement: it may be effected at any time before the writ is issued.[231] In one case it was held a good registration when entry was made on the same day, but a few hours before the issue of the writ.[232] In _Hole_ v. _Bradbury_,[233] Fry, J., held that registration after infringement did not entitle the plaintiff to delivery up of copies for his own use under the 23rd section of the Act of 1842, but that under its general jurisdiction the Court had power to order delivery up for destruction. In _Isaacs_ v. _Fiddemann_,[234] Jessel, M. R., thought that even although infringement was before registration the plaintiff was entitled to have delivery up for his own benefit, and that the 23rd section applied to such a case. Which is the correct view it is difficult to say. The argument of Fry, J., in support of his view is elaborate and appears sound, whereas Jessel, M. R., seems to have gone more on the ground of convenience.

Registration must be effected after the publication of the book.[235] In several cases an attempt has been made to secure a monopoly in a title by registration before the book was published or even written.[236] Such registration is entirely inoperative to secure a monopoly in the title or the right to sue in respect of the copyright in the book when published. Registration does not give the plaintiff any right (except perhaps as to delivery of copies) which he would not equally have had without registration.[237] All registration does is to perfect the right and give a title to sue on it.

It must be remembered that it is the book which is to be registered and not the copyright. It is common but erroneous to talk of "registering copyright." The distinction was pointed out in _Trade Auxiliary_ v. _Middlesborough_.[238] The three several proprietors of three periodicals had employed and paid a contributor under section 18 on the terms that the matter contributed should belong to these three proprietors. The matter appeared in each of the three newspapers and each registered his own newspaper in his own name. It was argued that the registration was bad, since they should have been registered as joint proprietors, but the Court of Appeal held that the registration was good, since each had registered his "book," and section 19 was literally complied with.

A newspaper is a sheet of letterpress within the Act and must be registered.[239] In one case[240] Malins, V. C., protected a newspaper which was not registered, but that case has been expressly overruled[241] and is clearly unsound. No registration is necessary other than that required by the Act of 1842. In _Cate_ v. _Devon_[242] it was contended that a newspaper would not be protected unless it had been registered under the Newspaper Libel Act, 1881. This contention was held erroneous, and registration under the Act of 1842 was alone required. Similarly it is not a good defence to an action for infringement that the publisher's name and address is not printed on the first or last page of a book as required by 2 & 3 Vict. c. 12.[243]

=The Requisite Entry.=--Registration is made in the Book of Registry which the Act enacts[244] shall be kept at the Hall of the Stationers' Company. The fee for registration is five shillings. The Book of Registry must at all convenient times be open to the inspection of any person on payment of one shilling for every entry searched for or inspected. This, however, does not entitle any one to make a copy of an entry; but any one may demand a certified copy of an entry from the keeper of the Registry on payment of five shillings.

The proprietor of the copyright must register in the Book of Registry:[245]

i. The title. ii. The time of first publication. iii. The name and place of abode of the publisher. iv. The name and place of abode of the proprietor.

In the case of an encyclopædia, review, magazine, periodical work, or other work published in a series of books or parts, the publisher must register:[246]

i. The title. ii. The time of first publication of the first part. iii. The name and place of abode of the proprietor. iv. The name and place of abode of the publisher if different from the proprietor.

_The Actual Title._--This must be registered: a description of the book will not be sufficient, even although accurate. Thus in _Harris_ v. _Smart_[247] the plaintiffs' book was intituled "Illustrated Catalogue and Price List," and they registered it as "Illustrated Book of Shop-fittings." The Court of Appeal, reversing the decision of Mathew and Grantham, JJ., held that the objection to the registration was fatal. When there is a clear and distinct title, that title they held must be registered. It might be different if a book had no title; perhaps such a book could not be registered at all; but probably a description of the book, stating that it had no title, would be sufficient.[248] In _Collingridge_ v. _Emmott_[249] the plaintiff's newspaper was intituled "Warehousemen and Drapers' Trade Journal and Review of the Textile Fabric Manufacturers"; but it was registered as "Warehousemen and Drapers' Trade Journal: Failures and Arrangements." Kay, J., thought that the discrepancy was fatal to the registration.

It has been questioned whether in the case of a volume, a considerable part of which, being old matter, is not entitled to copyright, and which is published under one comprehensive title, there must not be some indication on the book itself or on the register that the owner does not claim copyright in the whole work. The point has never been definitely decided. It has been held that one who adapts new words and music to an old air and describes himself proprietor of the whole composition is entitled to protection;[250] but the question raised in these cases was whether the author was entitled to copyright at all unless he could show that the whole was original. It should always be remembered in questions of this kind that the purpose of registration is not, as has frequently been suggested in argument, to notify to an intending copyist what he may copy and what he may not. In _Cate_ v. _Devon_[251] the plaintiffs had published a "Commercial Compendium," containing lists of bankruptcies and bills of sale. They reprinted several copies of it under another title, viz. "The London Association for the Protection of Trade," and it was issued "privately and confidentially" to that association. The defendants copied matter from the latter issue and pleaded that it was unregistered, and therefore that they were entitled to copy it. North, J., held that the act of the defendants was an infringement of copyright in the "Commercial Compendium," which was registered under that title. In his judgment he said:

"It is not intended that there should always be complete registration of the publication in which there is copyright in order that persons may know what they may legitimately copy and what they cannot copy. The Act itself contains provisions which make that clear. It is well known that registration is only necessary as a condition precedent to suing, and the almost universal practice on the part of large publishers notoriously is that they do not register until just on the eve of taking some proceeding. Then they take care to register their copyright and sue upon it. I think, therefore, that the contention that the defendants have not been warned by registration of the title under which the document appears is one which cannot be entertained."[252]

_The Time of First Publication._--This must be exactly entered to the day of the month. In _Low_ v. _Routledge_[253] an entry of "23rd May 1864" was held to be bad when the actual publication was on the 25th of May 1864.[254] Under the International Copyright Act, 1844, an entry of the year only was held to be fatal,[255] and under the Copyright Act of 1842 it has been held in two cases that an entry of the month only is bad.[256] When a subsequent edition of a book is published, in so far as it is a reprint of the first edition, it will not be protected unless the first edition and the date of the first publication thereof is entered on the register;[257] in so far as it consists of new matter there must be an entry bearing the date of the publication of the edition in which such new matter was first published;[258] but the previous editions and the date of their respective publications do not require to be entered in order to protect the new matter,[259] and subsequent editions do not require to be entered in order to protect old matter.[260] Where a book has been revised and altered as each new edition has come out, every edition should be entered separately in the register, with the date of the publication of such edition. When a story, or article, or serial story, or a series of articles is published in a magazine or other periodical, the proprietor of the magazine need only register the first number of the magazine and the date of the publication thereof in order to entitle him to sue.[261] If, however, the action is at the instance of the author of a contribution to a collective work against third parties, the proper registration would be of the story or article only with the date of the first publication in the collective work of such story or article, or if serial, of the first part thereof.[262] Against the proprietor, for publishing separately without permission, the author does not require to be registered, as the right sued on is not one of copyright but presumably of implied contract.[263] If the owner of the periodical has acquired the entire copyright in a story or article, he can sue on a registration either of the first number of the magazine or of the first part of the story or article.[264]

_The Name and Place of Abode of the Publisher._--The publisher to be entered is the first publisher of the book.[265] No subsequent publisher, unless of a revised edition, need be entered on the register.[266] If the publishers are a firm it is sufficient to enter their firm name, such as _Newby & Co._; the individual names of the members of the firm need not be entered.[267] A publisher's ordinary place of business describes sufficiently his "place of abode": his private residential address need not be entered.[268]

_The Name and Place of Abode of the Proprietor._--The proprietor to be entered is the proprietor at the time of registration, and it is unnecessary to trace his title from the first proprietor.[269] The joinder of the unregistered proprietor as co-plaintiff with a person who has been erroneously registered, or who, being rightly registered, is no longer proprietor, will not render an action for infringement of copyright maintainable.[270] It is not sufficient to register a mere agent or nominee of the proprietor.[271] The registered proprietor, however, if legal owner, may sue as trustee for the equitable owner of the copyright.[272] If the plaintiff in an action is the assignee of a former proprietor already registered, either the assignment must have been by entry in the register, or the assignment, if made otherwise, must be entered. In every case the plaintiff, either as proprietor at the date of registration or as his assignee, must appear on the face of the register.[273] It is probably not necessary to register every mesne assignment from the proprietor originally registered to the plaintiff.[274] When the original proprietor is registered, and the assignee from him is subsequently registered, it is necessary that both entries should be correct, in order to entitle the assignee to sue.[275] If the proprietor has no fixed abode in the United Kingdom, an address in the United Kingdom through which he can be conveniently communicated with will probably be a sufficient compliance with the statute.[276]

If there is an error in any of the particulars required to be entered in the register it is fatal to the success of an action, even although caused by neglect or carelessness on the part of one of the officials at Stationers' Hall.[277] If the necessary particulars are entered it is immaterial that superfluous matter is also entered.[278]

=Certificate of Registration.=--The officer appointed by the Stationers' Company for the purposes of registration under the Copyright Acts must, whenever reasonably required, give a copy of any entry in the Book of Registry, certified under his hand and impressed with the stamp of the Stationers' Company, to any person on payment of five shillings, and such copies are to be received in evidence in all Courts, and are _primâ facie_ proof of the proprietorship or assignment of copyright or licence, but subject to be rebutted by other evidence.[279] Registration does not, however, give a title against the whole world except the true owner.[280]

=False Entries.=--If any person wilfully makes or causes to be made any false entry in the Registry Book of the Stationers' Company, or wilfully produces in evidence any paper falsely purporting to be a copy of any entry in such book, he will be guilty of an indictable misdemeanour.[281]

=Rectification of Register.=--If any person "deems himself aggrieved" by any entry in the Registry Book, he may apply by motion to the King's Bench Division for an order that such entry may be expunged or varied.[282] An order to expunge will not be made at the trial of an action:[283] it must be applied for by motion in accordance with section 14, unless, perhaps, it is specifically claimed in the statement of claim in the action. There is probably no appeal from an order to expunge.[284] If a wrong entry has been made in the Book of Registry, the proprietor of the copyright in the book so erroneously entered is, even although he has by mistake made the wrong entry himself, a person aggrieved within the meaning of the statute, and can apply to the Court for an order to vary such entry.[285] An order to expunge or vary will not be made without definite proof that the existing entry is erroneous, and that the proposed entry in lieu thereof is correct.[286] By the words "deem himself aggrieved" the legislature did not mean that any person who said he was aggrieved could apply: the applicant must show to the Court that he has a right to consider himself aggrieved.[287] When the copyright in a book is in dispute either party claiming the right is a party aggrieved.[288] If a non-copyright book is entered on the register, probably any one who wished to copy it would be a party aggrieved;[289] but it is not open to any one to make application to the Court on the ground of technical flaws in a registration.[290] The applicant, unless he claims the copyright, must be able to show a substantial defect on the merits of the registered proprietor's title.[291]

When once an entry on the register has been struck out, the Court has probably no power to restore it.[292]

SECTION VI.--DELIVERY OF COPIES TO LIBRARIES.

Copies of all books first published in the United Kingdom after 1842 must be delivered to the undermentioned libraries by the publisher. In default the respective librarians may recover from the publisher:[293]

i. The value of the copy which ought to have been delivered. ii. A sum not exceeding £5. iii. Solicitor and client costs.

The proceedings may either be summary by way of conviction before two Justices of the Peace in the county or place where the publisher making default resides, or by action in any Court of Record in the United Kingdom.[294]

The following copies are to be delivered:

I. _To the British Museum_:[295]

One of the best copies published (complete with maps and prints) of

i. Every book first published. ii. Every subsequent edition of a book, unless (_a_) it contains no additions or alterations, and (_b_) some preceding edition has been delivered:

Within one calendar month after publication or offering for sale in London.

Within three calendar months after publication or offering for sale elsewhere in the United Kingdom.

The copy must be delivered between 10 A. M. and 4 P. M. on any day except Sunday, Ash Wednesday, Good Friday, and Christmas Day.[296]

The officer of the Museum appointed to receive these copies is required to give a receipt in writing.[297]

II. _To each of the following Libraries_,[298] _or to Stationers' Hall for their use_:

The Bodleian Library at Oxford. The Public Library at Cambridge. The Library of the Faculty of Advocates at Edinburgh. The Library of Trinity College at Dublin.

One copy of those copies of which the largest number is printed for sale, and in the like condition of

i. Every book first published. ii. Every subsequent edition of a book, unless (_a_) it contains no alterations or additions.

Within one month after demand.

Provided that within twelve months after publication demand has been made to the publishers under the hand of the officer of the Company of Stationers or other person authorised thereto by the respective libraries.

The officer at Stationers' Hall and librarians of the several libraries are required to give a receipt in writing when a copy of a

## book is delivered to them.

The clauses as to delivery of copies are to be considered as being strictly penal. In _The British Museum_ v. _Payne_,[299] under the similar provisions in 54 Geo. III. c. 156, it was held that when a book was published in parts, a single part was not demandable. The Court refused to consider the question when, if ever, the complete book would be demandable.

It will be noticed that neither the copyright nor the right to sue is affected by non-delivery of these copies. The only consequence of omission to do so is a penalty on the publisher.

The right of the various bodies to delivery of a copy applies to all books published within the United Kingdom and not only to those entered at Stationers' Hall.[300]

SECTION VII.--DURATION OF PROTECTION.

Protection dates from first publication.

_Generally._--The period of protection is for the natural life of the author and for seven years after his death, or for forty-two years from the date of publication, whichever period shall be longer.[301]

_Posthumous Works_ are protected for forty-two years from the date of publication.[302]

_Encyclopædias_ are protected for the life of the proprietor and seven years (by 5 & 6 Vict. c. 45, sec. 18, the proprietor of a collective work enjoys the same rights as if he were the actual author thereof), or for forty-two years from the date of publication, whichever period shall be the longer.[303]

_Reviews_, _Magazines_, _and other periodical works of a like nature_[304] have two separate copyrights, viz.:

i. The proprietor's copyright in the publication, as a whole, for his life and seven years, or forty-two years from first publication. ii. The contributor's copyright in his separate contribution as a separate work, beginning twenty-eight years after publication of the collective work, or on separate publication, if such should by agreement take place within the twenty-eight years, and lasting for his life and seven years, or forty-two years from first publication in the collective work.

_New Editions._[305]--As to each edition, the copyright runs from the date of publication thereof, in so far as the matter therein is then first published.

_Joint Works._--Although there is no statutory provision, they are probably protected for the life of the surviving author and seven years, or for forty-two years from first publication.[306]

SECTION VIII.--COPYRIGHT IN LECTURES.

There is no lecturing right, _i. e._ no exclusive statutory right to deliver a lecture in public. The only Act applying to lectures is 5 & 6 Will. IV. c. 65, which, under pain of penalties, prohibits printing or publishing, or knowingly selling lectures, which at the time of delivery have not been published in book form, without leave of the author thereof, or of the person to whom the author thereof has sold or otherwise conveyed the same. The remedy is action in the High Court for: (i) Forfeiture of copies. (ii) One penny per copy; half to the Crown and half to informer. A condition precedent of protection under this Act is the giving of notice in writing to two justices living within five miles from the place where such lecture or lectures are delivered, two days at least before delivering the same. The Act has fallen into entire desuetude, partly, no doubt, on account of this somewhat troublesome stipulation as to notice, but principally because a lecturer has, in fact, full protection at common law, if, as is usually the case, he can make out an implied contract between himself and his audience that the delivery of the lecture is for purposes of instruction only, and that those present are entitled to make no other use of it whatsoever.[307] His remedy at common law will be for damages and injunction. Of course he cannot sue for penalties, unless he has brought himself within the Act.

The Lectures Act does not apply so as to protect any lecture or lectures delivered in any university, or public school or college, or on any public foundation, or by any individual in virtue of, or according to, any gift, endowment, or foundation.[308] The law relating to such lectures is declared to be the same as if the Lectures Act had not been passed. The result of this proviso is that these special kinds of lectures are nearly always protected at common law by implied contract in the same way as other lectures.[309]

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