CHAPTER XI

COMMON LAW

As to works which have been published within the meaning of the Copyright Acts, the common law affords no protection in the nature of copyright, that is to say, as regards the exclusive right of reproduction, the author must rely entirely on the statutes. There is no copyright at common law after the expiration of the period prescribed by statute,[1105] neither is there any greater right during that period than the statute gives.[1106] Common law remedies, however, may be applied when the statute gives a right without a sufficient remedy.[1107] But apart altogether from rights in the nature of copyright, the principles of common law and equity do apply to both published and unpublished works to prevent or to remedy the consequences of fraud or breach of contract.

As to works which have been composed[1108] but have not been published, the common law affords protection to the author against reproduction or interference of any kind.[1109]

The rights and remedies at common law are perpetual, and are neither limited in duration nor as regards the time within which action must be brought, except in so far as the general rules of equity as to acquiescence and delay or the statutes of limitation may be applicable.

=Title: Passing off.=--_No Copyright in Title._--There is no copyright in a title consisting, as a title usually does, of only a few words. Thus _Belgravia_,[1110] _Sporting Life_,[1111] "Splendid Misery,"[1112] _The Licensed Victuallers' Mirror_,[1113] and "The Post Office Directory,"[1114] have all been decided not to be the subject of copyright. In two decisions "The Birthday Scripture Text-Book"[1115] and "Trial and Triumph"[1116] (as the title of a novel) were protected on the ground of copyright in title, but since _Dicks_ v. _Yates_[1117] in which these two decisions were cited, and in so far as they were based on a claim of copyright in title, disapproved, no such claim could be entertained, and the exclusive user of a title will only be protected on the general principles of common law and equity which prevent one man passing off his wares as those of another man. As was pointed out by Jessel, M. R., in _Dicks_ v. _Yates_,[1118] it is conceivable that there might be a title in which there was copyright; for instance, if it was extremely long and elaborate, but since _Dicks_ v. _Yates_ there is no case in the books where a title has been protected on the ground of copyright.

_Whether Protection is based on a Right of Property in the Title._--The great bulk of authority is to the effect that the right to prevent others passing off their literary works under the same or a similar title does depend on a right of property in the title as applied to a particular class of work, which right can only be acquired by user.[1119] This right is regarded as a chattel interest capable of assignment,[1120] and may be a partnership asset.[1121] In _Walter_ v. _Emmott_,[1122] however, Cotton and Bowen, L. JJ., expressed a strong opinion that the right to prevent a deceitful use of title was not founded on a right of property in the title, but on the ground of deceit alone. It is submitted that the plaintiff in an action of this kind need not prove deceit on the part of the defendant, and that the right is strictly a proprietary right which must have been acquired by user before the Court will intervene.

_Knowledge of Existence and Value on part of the Public._--This is necessary before an author or proprietor of a literary or artistic work can acquire a right to the exclusive use of a title in connexion with works of a certain class. It is not sufficient that the title of a proposed book or magazine has been extensively advertised or that it has been registered, even although great expenditure has been incurred in the preparation and advertisement.[1123] Any one, it would seem, can seize the opportunity of another's advertisements and bring out a similar book under the same or a similar title, either before the publication of that other's book or immediately after its publication, and before it became known to the public as an actually existing publication which they have had an opportunity of reading and forming an opinion of on its merits. The sale of a few copies only will not establish a common law right in title.[1124] Not only must the work be well known to the public, but it must also be distinctively known under the title in which a proprietary right is claimed.[1125]

No right can be acquired by attaching an original title to an old work in which the publisher has no proprietary right. In _Talbot_ v. _Judges_[1126] the plaintiffs published a work in which they had no copyright of any kind under a title of their own invention, "The Liberal and Radical Year-Book." The defendant published a similar work, intituled "The Liberal Year-Book." It was held that they were entitled to do so, as the plaintiffs could have no right in the title when the material was in no sense their own.

_Non-user of title_ for a considerable period will leave it open to others to adopt the same title and to acquire a right therein to the exclusion of the original user,[1127] but no representation must be made, express or implied, that the subsequent publication is a continuation of the first. If the proprietor of a magazine incorporates it with another publication, such as the _John Bull_ with the _Britannia_, and intitules the future publication with a joint name such as the _John Bull and Britannia_, he can prevent any taking of the original titles either _simpliciter_ or colourably altered, as, for instance, _The True Britannia_.[1128]

_No Fraud need be Proved._--When the exclusive right to a title has been established, an innocent invasion is equally as actionable as one tainted with fraud or intent to deceive.[1129] It is a question what the public are likely to believe, not what it was intended they should believe.

_Must be Calculated to Deceive._--The question is whether the man of ordinary intelligence is likely to be deceived, and purchase the later publication while intending to purchase the original. It is not sufficient to show that some thoughtless or stupid people have made mistakes and taken the one for the other.[1130] The exclusive right to the use of a title only extends so far as to prevent the whole or any part of the title being used in such a way as to deceive the public, to the injury of the proprietor of the title. Thus a part of the title may be taken and so used in conjunction with other words, that there can be no possibility of confusion, or the whole title may be taken and used for an entirely different class of work, or otherwise put before the public in such a way that mistake is practically impossible. Thus in questions of passing off, besides the similarity of title, the result depends on the peculiar circumstances under which the works are produced: the time and place of publication, appearance, such as similarity in print and binding and price, may all be of vital importance.

_Cases in which an Injunction was Granted._--In _Hogg_ v. _Kirby_[1131] the defendant was interested in the sale and profits of a magazine called _The Wonderful Magazine_. A dispute arose between him and the proprietor of the magazine, and the defendant thereupon published a magazine under the same title, described as _New Series Improved_. This publication was restrained. In _Constable_ v. _Brewster_,[1132] a Scotch case, an interdict was granted on very similar facts. In _Chappell_ v. _Sheard_[1133] the plaintiffs published a song, the words of which were original, but set to an old American air, "Lillie Dale," in which there was no copyright. This song had become popular, and was sung at concerts by a Madame Thillon. The plaintiffs published their song under the title of "'Minnie,' sung by Madame Anna Thillon, written by George Linley," and the cover bore a lithographed drawing of Madame Thillon. The defendants set other words to the same air and published it as "Minnie Dale," sung by Madame Thillon, and their cover also bore a portrait of Madame Thillon. The defendants' song had, in fact, never been sung by Madame Thillon. An injunction was granted. In _Chappell_ v. _Davidson_[1134] the same song was similarly pirated by one intituled "Minnie, dear Minnie," and an injunction was also granted. In _Prowett_ v. _Mortimer_[1135] _The True Britannia_ was restrained as tending to interfere with the sale of the plaintiff's paper, _The John Bull and Britannia_, which had incorporated the plaintiff's previous publication, _The Britannia_. In _Clement_ v. _Maddick_[1136] the plaintiff owned a sporting periodical paper, intituled _Bell's Life_. The defendants were restrained from publishing a similar paper under the title, _Penny Bell's Life_. In both publications the name Bell was entirely pseudonymous. In _Ingram_ v. _Stiff_[1137] the defendant was the proprietor of a weekly paper, _The London Journal_, and assigned all his interest therein to the plaintiff, covenanting not to publish any rival weekly paper. Two years afterwards the defendant published a daily newspaper, _The Daily London Journal_. The Court restrained him from continuing the publication, but their judgment seems to have gone on the ground of breach of covenant. In _Clowes_ v. _Hogg_[1138] the proprietors of _London Society_ were held entitled to an injunction against _English Society_, but this was also on the ground of a covenant between the parties. In _Corns_ v. _Griffiths_[1139] the plaintiff published a weekly newspaper under the title, "_Iron Trade Circular_ (Ryland's)." The defendant had for some considerable time published a weekly report headed "_The Iron Trade_ (Griffith's Weekly Report)," but changed his title to "_The Iron Trade Circular_ (edited by Samuel Griffiths)," and published it in type and form very similar to the plaintiff's newspaper. The defendant's publication was restrained. In _Metzler_ v. _Wood_[1140] the plaintiffs were the publishers of "Henry's Royal Modern Tutor for the Pianoforte." This work had a very large sale. The defendants took an old work, intituled "Jousie's Royal Standard Pianoforte Tutor," which had entirely fallen into disuse, and employed Henry to revise it, and then published it as "Henry's New and Revised Edition of Jousie's Royal Standard Pianoforte Tutor." In both publications the word "Henry's" was published in large letters, and was more conspicuous than any other part of the title. The Court granted an injunction. James, L. J., in his judgment, said:

"The defendants' title-page was calculated to deceive, and I cannot conceive any reasonable theory to explain the defendants taking an obsolete work, getting it revised by Mr. Henry, and putting Henry's name as the prominent and striking distinguishing mark of his work except that he intended to do that which the name was calculated to do, viz., to mislead the public into believing that when they were buying the defendants' work they were buying the plaintiffs'. If it was so calculated to mislead, the case of the plaintiffs is made out."

_Cases where an Injunction was Refused._--In _Spottiswoode_ v. _Clarke_[1141] Lord Cottenham, L. C., refused an interlocutory injunction in a case of two Pictorial Almanacks, where the covers were very similar and could hardly have been so accidentally. In a similar case to-day an injunction would probably have gone. In _Jarrold_ v. _Houlston_[1142] an injunction was refused to the author of "Why and Because," in respect of a similar work intituled "The Reason Why." There was no such similarity or colourable imitation in the title as to support the claim. In _Bradbury_ v. _Beeton_[1143] the proprietors of _Punch_ craved an injunction against _Punch and Judy_. There was, however, no evidence that any one had been misled, and although the papers were similar in size and general appearance, the colour of the paper was slightly different, and the design on the cover was entirely different. Malins, V. C., refused an injunction. In _Kelly_ v. _Byles_[1144] the plaintiff had published numerous directories called "post office" directories. Among them was "The Post Office Directory of the West Riding of Yorkshire." An injunction was refused against the defendant who proposed to issue a directory under the title "Post Office Bradford Directory." The publications in no way resembled one another. The plaintiff claimed that he had acquired an exclusive use to the words "post office" in connection with a directory. It was held that he could have no such exclusive right. In _Dicks_ v. _Yates_[1145] a serial story, entitled "Splendid Misery, or East End and West End, by C. H. Hazlewood," was being published in a magazine called _Every Week_. Another weekly, _The World_, commenced a serial story intituled "Splendid Misery, by the Author of Lady Audley's Secret, Vivian, &c." The two weekly papers were of an entirely different character, and it was held that there was nothing in the publication of the serial story in _The World_ which was calculated to deceive. In _Cowen_ v. _Hulton_[1146] the plaintiff was proprietor of _The Newcastle Weekly Chronicle_ and _The Newcastle Daily Chronicle_. He claimed an exclusive right to the use of the word "Chronicle" in connection with newspapers in Newcastle, and craved an injunction against the sale in Newcastle of _The Sporting Chronicle_. The Court of Appeal, reversing the decision of North, J., refused an injunction. In _Walter_ v. _Emmott_[1147] _The Mail_ was published three days a week at 11 A. M., price twopence. The Court refused an injunction against _The Morning Mail_, price one halfpenny. Both papers were published in London. In _Borthwick_ v. _The Evening Post_[1148] the proprietors of _The Morning Post_ claimed an injunction against _The Evening Post_. The Court was of opinion that there was no probability of injury to _The Morning Post_ since the papers were not competing papers. Bowen, L. J., in his judgment, said:

"He must be an extremely unintelligent person if he thinks that the _Evening Post_, which disclaims all connection with the _Morning Post_, and writes upon different topics and in a different style, is connected with the _Morning Post_. The idea would explode itself before he got half-way through the first page."

The injunction was refused. The commonest form of passing off is by means of a similar title and binding, but any act which induces the public to believe that A's book is the book of B is equally

## actionable, and will be sustained. Thus for A to announce his book as

a continuation of B's book,[1149] or in any other way to so advertise it as to induce the public to believe that it is B's work[1150] is

## actionable.

=Malicious Criticism.=--It would be actionable to publish of an author's work that which was obviously untrue; for instance, that it was an immoral or a libellous work, when no suggestion of immorality or libel could be found in it. Apart from absolute falsehood of this kind there is no limit to the range of criticism;[1151] a man is entitled to form what opinion he pleases of another's work, and to publish these opinions. So long as he confines himself to the work criticised and the author thereof as author, he has very full liberty of saying what he thinks.

It may be actionable to say that a man is the author of a work which is not his. The offence if anything would be defamation of the author.[1152]

=Slander of Title.=--No doubt an action would lie against any one publishing statements in disparagement of the owner's right to a literary or artistic work.[1153] Special damage is of the essence of such an action.

=Author who has parted with Copyright is entitled to protect his Reputation.=--Although a purchaser of copyright may do what he pleases with what he has purchased, he may not mutilate an artistic or literary work and present it to the public in its mutilated form as the work of the original author. The copyright in a law book was purchased by a bookseller. The author refused to edit a third edition, and the bookseller had the necessary alterations made for himself. The third edition was then published without any notice that it was prepared by any one other than the author. It contained numerous errors. In an action by the author against the bookseller, Lord Tenterden, C. J., in summing up, put it to the jury that if they were of opinion that the third edition would be understood by those who bought it to have been prepared by the plaintiff, the plaintiff was entitled to a verdict; but if they were of opinion that persons using reasonable care would think that this third edition was not prepared by the plaintiff, their verdict should be for the defendant. The jury returned a verdict of five pounds for the plaintiff.[1154] The nature of the remedy is really an action for the defamation of the plaintiff's reputation as an author. The Court is slow to grant an interlocutory injunction in such an action. No doubt it would be done in an extreme case, for instance, if the owner of performing rights in a play inserted indecent or scandalous matter without the consent of the author, but the Court prefers to have the legal question as to whether the altered version is injurious to the plaintiff's reputation tried first. In _Cox_ v. _Cox_[1155] the plaintiff had written a legal article for the purpose of insertion in the defendant's book. The defendant revised and shortened the article to a considerable extent, and the plaintiff applied for an injunction in Chancery to restrain the defendant from publishing the article in its mutilated form. Page Wood, V. C., refused an injunction, and, in his judgment, said:

"In respect to what was said about the plaintiff's reputation suffering from having the legal matter supplied by him published in a mutilated and erroneous form, according to Sir J. Clark's case,[1156] the loss of reputation, unless connected with property, was not a ground for coming to this Court, though it might be an ingredient for the Court to consider when there was property."

One might almost infer from this judgment that if the plaintiff had parted with his property no right of action lay for injury to his reputation. It must be observed, however, that this was a claim for an injunction in equity, and the judgment of Lord Tenterden in _Archbold_ v. _Sweet_[1157] was not referred to. That and the subsequent cases make it clear that there is a right of action on the ground of injury to reputation alone, and that in urgent cases the Court will interfere by interlocutory injunction. In _Gilbert_ v. _Boosey_[1158] the owner of a performing right in an opera inserted without the permission of the author two songs, and one of the author's songs was left out. The opera was advertised and performed _simpliciter_ as the plaintiff's opera without any mention of alterations. On an application for an interlocutory injunction, Denman, J., refused to interfere at such an early stage, but he intimated that if the songs had been indecent or such as would obviously damage the plaintiff's reputation, he might have granted an injunction. In _Lee_ v. _Gibbings_[1159] the defendant had acquired the copyright in the plaintiff's "Autobiography of Edward, Lord Herbert of Cherbury." He published a condensed edition, on the title-page of which the plaintiff was stated _simpliciter_ to be the author. The plaintiff alleged that the work was unscholarly and injurious to his reputation, and craved an interim injunction. Kekewich, J., refused the motion. The plaintiff's remedy, he said, was founded on libel by reason of the injury to his reputation. Of late years there had been no such thing as an injunction to restrain a libel (except in the case of a trade libel) on an interlocutory application or before the point had been submitted to a jury. He saw no reason for making an exception in the case before him, and he would express no opinion as to whether there was a libel or not.

The Court would restrain one who published a book falsely representing that it was the work of another.[1160]

=Protection from Breach of Faith or Contract.=--The relationship of parties may give rise to rights and obligations in reference to literary or artistic matter which could not exist as between strangers. Such rights and obligations are supported on the various grounds of express contract, implied contract, and breach of faith. As to express contract there is little difficulty, the ordinary rules of contract will apply. As to implied contract or breach of faith, these are really the same, only common law based its remedy on the former and equity on the latter. It usually arises in the case of a clerk or other employee between whom and the employer a confidential relationship exists. As regards employees, the law stated briefly is this, that during his employment he must do nothing which is contrary to the interests of his employer; he may not in any way assist in the production of literary or artistic work which may compete with the work of his employer. After the termination of his employment, apart from express contract, he is entitled to compete with his late employer, and for that purpose may make use of the general knowledge and information which he acquired in his employment: but he may not for such purpose use any materials such as documents, notes, printing blocks, &c., which he acquired in his capacity of employee and _a fortiori_ if he acquired them surreptitiously.

In _Jovatt_ v. _Winyard_[1161] a veterinary surgeon employed a journeyman for the purpose of selling his medicine. While in such service the journeyman surreptitiously got access to his books of recipes and copied them. It was held that there was a breach of trust, and the journeyman was restrained from selling the medicines or printing or selling printed directions for their use. In _Prince Albert_ v. _Strange_[1162] a workman, who was entrusted by the Prince Consort with certain plates for the purpose of reproducing privately drawings which had from time to time been made by Queen Victoria and the Prince Consort, in breach of the trust reposed in him sold impressions to the defendant, who published a descriptive catalogue of the drawings. Knight Bruce, V. C., granted an injunction against the publication of the catalogue. In _Reuter's Telegram Co._ v. _Byron_[1163] the defendants had for some time acted as agents in Australia of the plaintiff company, sending on and receiving telegraphic messages on their behalf. In the course of this agency they became acquainted with the cypher used by many of the company's customers. On the termination of their employment the defendants started a rival telegram business and sent circulars to the plaintiffs' customers, mentioning that they had their cyphers. On a motion to restrain the defendants from making use of the list of cyphers acquired in the plaintiffs' employment, Jessel, M. R., refused an interim injunction. He said:

"The Court will always restrain a man from publishing or divulging that which has been communicated to him in confidence. But this is a totally different case. The plaintiffs do not here seek to restrain the defendants from publishing anything but from making use of knowledge acquired while the relation of principal and agent subsisted after that relation terminated."

In _Lamb_ v. _Evans_[1164] the defendants had been employed by the plaintiff as canvasser for his trade directory. On the termination of their employment they published a rival directory and made use of blocks and notes which they had acquired in the plaintiff's employment. The Court held that this was an improper use for the defendants to make of materials so acquired. Bowen, L. J., in his judgment, said:

"It is not a question of copyright--that must be kept out of sight altogether--nor is it, on the other hand, a simple question of the absolute property at law in the documents themselves or in the blocks themselves. It is a question of whether the plaintiff, whatever the property in the documents may be or whatever the property in the materials may be, has not sufficient special property in them to entitle him to restrain the use of them against him when they had been obtained for his use by his agents in the course of their employment. That depends entirely, I think, on the terms upon which the employment was constituted, through which the fiduciary relation of principal and agent came into existence."

In commenting on _Reuter's Telegram Co._ v. _Byron_, the same judge said:

"I think if Reuter's case is to be judged by the result, it no doubt is right--and Sir George Jessel was generally right--but I do not think that the propositions reported in the _Law Journal_ as laid down by him can be considered to be sound. It seems to me that as a matter at law or as a matter of equity, the conduct of the defendants in that case cannot be justified to the extent to which the learned judge is made by the report to justify it. If Reuter's case is cited as an authority for the propositions which the Master of the Rolls is there stated to have laid down, I am not prepared to follow it."

In _Merryweather_ v. _Moore_[1165] a clerk while in the employment of a firm of engine-makers had made a table of dimensions of various types of engines. After he had left their employment he was restrained from publishing or communicating the table or its contents to any one. In _Louie_ v. _Smellie_[1166] the plaintiff carried on a business as a process server, the defendant while in his employment secretly made extracts from the plaintiff's register and index of agents and copies of the plaintiff's forms. He was restrained from making use of such extracts in competition with the plaintiff after he had left his employment and set up as a process server on his own account. Lindley, L. J., in his judgment, said:

"As to the law it has been clearly laid down in _Lamb_ v. _Evans_. It is not new law, it is as old as the hills. The good faith that existed between employer and employed rendered it improper for the employed to make use of any information acquired by him during the period of the confidential relationship."

The injunction was granted in these terms:

"An injunction to restrain the defendant, his servants, and agents from making use of any copies or extracts from the plaintiff's register of agents, or index of agents, or any memoranda made or obtained by the defendant when in the plaintiff's employ relating to any person named in these books or either of them."

In _Robb_ v. _Green_,[1167] the defendant having been employed as manager of the plaintiff's business, secretly copied a list of the names and addresses of his customers. On leaving the plaintiff's employment he set up a similar business, but was restrained from making use of the list of his late master's customers. In _Gilbert_ v. _Star Newspaper_[1168] the members of a theatrical company taking part in the rehearsal of a new opera were held to be under an obligation not to disclose any information concerning it until it should be publicly performed, and the Court restrained a critique published in a daily newspaper on the ground that the material for it must have been unlawfully procured.

In these cases it is not only the party who is in breach of contract or confidential relationship that will be restrained. The Court will restrain any one who, knowing how the material has been acquired, makes use of it.[1169] In _Tipping_ v. _Clarke_,[1170] Wigram, V. C., said that if the defendant availed himself surreptitiously of the information which he could not have had except from a person guilty of a breach of contract in communicating it, he could not be permitted to avail himself of such breach of contract. In _Abernethy_ v. _Hutchinson_,[1171] Lord Eldon said:

"How the gentleman who had published the letters came by them he did not know; but whether an action would be maintained against them or not on the footing of implied contract, an injunction undoubtedly might be granted, because if there had been a breach of contract on the part of the pupil who heard these lectures, and if the pupil could not publish for profit, to do so would certainly be what this Court would call a fraud upon a third party."

Thus in _Prince Albert_ v. _Strange_[1172] the defendant obtained the information from the person in whom the plaintiff's confidence was placed, and was on that account restrained. In the _Exchange Telegraph Co._ v. _Central News_[1173] the Court restrained a third party from publishing information which he had obtained by inducing a subscriber to the Telegraph Company to break his contract. If there has been a breach of contract or trust the Court will assume a guilty knowledge in the case of a third person, who, being in possession of the material, cannot give any satisfactory explanation.[1174] If a third party acquire innocently and for value materials or information originally procured in breach of trust or contract, it seems questionable, apart from any absolute right in the plaintiff, such as a right to manuscript, whether he can be restrained from making use of them in any publication. If the original act amounts to fraud or crime, certainly the Court will not protect even an innocent purchaser. "Let the hand receiving it be ever so chaste, if it comes through such a corrupt and polluted channel, the obligation of restitution must follow."[1175] But if the original act amounted to no more than breach of confidence or contract, it may be different, and a purchaser for value and without notice may be excused.[1176] The point must be considered doubtful.[1177] The ground of action on breach of faith or contract may sometimes exist concurrently with a ground of action on copyright, and may be useful if there are any technical difficulties in the plaintiff's way as to copyright.[1178]

=Unpublished Works.=--The author and his assignees have the right of first publication; this right at common law is unaffected by the Copyright Acts, and is a right in perpetuity. The right in literary matter in manuscript is clearly one of property, and is independent of any confidential or contractual relation between the author and those who interfere with his property without authority. "It cannot," said Lord Halsbury in _Caird_ v. _Sime_,[1179] "be denied that in the present state of the law an author has a proprietary right in his unpublished literary productions." An author may choose his own time to publish or may choose never to publish at all, and he may proceed against any one who attempts to publish or otherwise deals without his authority with his unpublished work. This was definitely decided in _Donaldson_ v. _Beckett_[1180] when the question among others was put to the judges: "Whether at common law an author of any book or literary composition had the sole right of first printing or publishing the same for sale; and might bring an action against any person who printed, published, and sold the same without his consent?" Ten out of eleven judges consulted answered that there was such a right, and eight of them that an action lay in cases of infringement. Two of the judges, however, were of opinion that an action lay against an infringer only when the manuscript had been obtained by fraud or violence. Only one judge held that there was no right of first publication. In _Prince Albert_ v. _Strange_[1181] Lord Cottenham, L. C., considered the law as well settled and beyond dispute. He says:

"The property of an author or composer of any work, whether of literature, art, or science, in such work unpublished and kept for his private use or pleasure, cannot be disputed after the many decisions in which the proposition has been affirmed or assumed."

The right of an author to his unpublished work is of a much wider and more exclusive nature than his right to published matter. It probably extends to prohibit any kind of interference whatsoever.[1182] The public have not the right of "fair use" comment and criticism which they have in a published work. In _Prince Albert_ v. _Strange_ Knight Bruce, V. C.,[1183] says:

"A work lawfully published in the popular sense of the term stands in this respect, I conceive, differently from a work which has never been in that situation. The former may be liable to be translated, abridged, analysed, exhibited in morsels, complimented and otherwise treated in a manner that the latter is not."

The reason that private documents of a man should be protected from any interference whatsoever is sufficiently obvious. "A man," says Knight Bruce, V. C., in the same case,[1184] "may employ himself in private in a manner very harmless, but which disclosed to society may destroy the comfort of his life or even his success in it." In _Miller_ v. _Taylor_[1185] Yates, J., expresses the principle of the common law protection:

"Ideas are free. But while the author confines them to his study they are like birds in a cage which none but he can have a right to let fly; for till he thinks proper to emancipate them they are under his own dominion. It is certain every man has a right to keep his own sentiments if he pleases: he has certainly a right to judge whether he will make them public or commit them only to the sight of his friends. In that state the manuscript is in every sense his peculiar property, and no man can take it from him or make any use of it which he has not authorised without being guilty of a violation of his property."

The common law right in manuscript ceases upon "communication to the public" with the consent of the author,[1186] but it may still continue notwithstanding some kind of communication to others. The communication in order to divest the owner of common law right must be an abandonment of his ideas and words to the use of the public at large. Representation on the stage, delivery as a lecture, a gift or loan of the manuscript to a friend do not _ipso facto_ determine the author's right of property.[1187] The questions in cases of alleged unlawful publication of manuscript are usually: What is to be presumed as the reasonable understanding between the author and the persons to whom literary matter in the manuscript is communicated? Are they intended to have the right of making any use they please of it, or do the circumstances raise a presumption that they may only use it for a limited purpose? In _Macklin_ v. _Richardson_[1188] the Court held that although a play had been performed on the stage, that was only a limited publication of it, and therefore the exclusive right to publish remained in the author.[1189] In _Nicols_ v. _Pitman_[1190] a lecture delivered at a Working Men's College from a manuscript previously prepared, was reproduced by the defendant without the plaintiff's consent. Kay, J., granted an injunction. In _Caird_ v. _Sime_[1191] the professor of moral philosophy in Glasgow University delivered a course of lectures in pursuance of his duty as professor. These were published by a bookseller from notes taken by a student. It was strenuously argued that the professorship being a _munus publicum_ and the classes being open to all comers, the delivery of the lectures was really a publication without reserve to the whole world. The House of Lords rejected this argument, and held that the right to publish was reserved, the persons who were present at the lecture not being the general public, but a limited class of the public selected and admitted for the sole and special purpose of receiving individual instruction. Lord Halsbury, L. C., in giving judgment, suggested possible cases where it would be implied from the circumstances that there was publication to the world at large:

"It is intelligible that when a person speaks a speech to which all the world is invited, either expressly or impliedly, to listen, or preaches a sermon[1192] in a church, the doors of which are thrown open to all mankind, the mode and manner of publication negative, as it appears to me, any limitation."[1193]

The same rules apply to communication by delivery of the manuscript or a copy. If I give my manuscript to another to read or for any other limited purpose, he may not exceed the limits of use expressly or impliedly agreed. Publication by printing and circulation among a limited class will not destroy the common law right.[1194]

The common law right in a manuscript may be abandoned by neglect or acquiescence in an adverse use. Thus it was said that Southey had no right to complain when having left his poem "Wat Tyler" in the hands of a publisher for twenty-three years the publisher published it for his own profit.[1195]

A man's right to the exclusive use of his unpublished work does not depend on its value, and it is immaterial whether he did or did not intend to make profit by its publication.[1196] It is also immaterial whether the publication would prove creditable or discreditable, advantageous or disadvantageous.[1197]

The question has been raised whether the Courts would prevent an unauthorised person from publishing manuscript of an immoral nature which the author may have repented of and refused to place before the public.[1198]

Ignorance of the author's right is no defence to an action for interfering with unpublished literary matter. A _bonâ fide_ purchaser for value gets no better title than the original pirate.[1199]

=Speeches and Sermons.=--Literary matter delivered orally from an extempore composition without having been previously reduced to writing, is protected at common law from unauthorised use. The extent of the protection as in the case of delivery from manuscript is defined by the terms of the relationship existing between the speaker and his audience. He may have freely abandoned all exclusive interest in the matter of his address, or he may give them only the right to listen, or he may give them the right of taking notes and using them for their own instruction. It seems to be doubtful, however, whether the right in unwritten speeches is one based on property, or whether it must depend entirely on implied contract between the speaker and his audience. In _Abernethy_ v. _Hutchinson_[1200] Dr. Abernethy delivered surgical lectures to students at St. Bartholomew's Hospital. These lectures had not been previously reduced to writing. Lord Eldon, L. C., granted an injunction against their unauthorised reproduction in the _Lancet_. There was no evidence as to how the defendants got possession of the lectures, but Lord Eldon thought that was immaterial:

"They must have been taken from a pupil or otherwise in such a way as the Court would not permit, and the injunction ought to go on the ground of property, and although there was not sufficient to establish an implied contract as between the plaintiffs and the defendants, yet it must be decided that as the lectures must have been procured in an undue manner from those who were under a contract not to publish for profit, there was sufficient to authorise the Court to say the defendants shall not publish."

In _Nicols_ v. _Pitman_[1201] a case of previously written lectures, Kay, J., reviews the judgment of Lord Eldon in the last cited case:

"Now it is quite true that the learned judge seems at one moment to refer to the ground of property and at another to that of implied contract. But I take his meaning to be this, that when a lecture of this kind is delivered to an audience, especially when the audience is a limited one admitted by tickets, the understanding between the lecturer and the audience is that, whether the lecture has been committed to writing beforehand or not, the audience are quite at liberty to take the fullest notes they like for their own personal purposes, but they are not at liberty having taken those notes to use them afterwards for the purpose of publishing the lecture for profit."

The question of whether the right in an oral speech is property or not might well be of the highest importance in a question between the speaker and a publisher who acquired the matter in entire ignorance of his right. The facts might be such that the Court would not, as they did in _Abernethy_ v. _Hutchinson_,[1202] presume that the material "must have been procured in an undue manner." If there was no such presumption from the facts, it would appear that, apart from a right of property, the speaker must be without remedy unless he has given notice as a lecturer within 5 & 6 Will. IV. c. 65.[1203]

=Letters.=--Private letters are protected from publication as much as any other manuscript. In an early case[1204] it was suggested that there could be no property in business letters or others with no literary merit; but as the idea of literary merit in connection with copyright is now entirely exploded, the _obiter dicta_ in this case may be disregarded. In all letters then there is a literary property in the writer which entitles him or his executors to prohibit any publication without his consent, express or implied.[1205] It is immaterial whether the publication is for the purpose of profit or not.[1206] If a letter is written by one as agent for another the property is in the principal, and the agent cannot restrain him from publishing.[1207] The receiver of a letter has a property in the paper on which it is written[1208] and is entitled to retain possession even against the writer. The receiver may make no use of a letter except such as is implied in the sending or with the consent of the writer.[1209] The receiver may even be restrained from parting with possession or showing the letters to any one.[1210] The receiver is probably entitled to prevent the publication of the letters from copies not in his possession or from the originals which have passed from his possession.[1211]

Although the sender has a right of property in the literary matter in the letters, the receiver may without his consent destroy the letters and so destroy the writer's chance of obtaining benefit from them. The literary property of the writer and the property in the paper of the receiver descend to their respective executors.[1212] The question has been suggested but never answered: What would be the rights of trustees in bankruptcy to publish for the benefit of creditors private letters?[1213] Letters may be published against the will of the writer when published _bonâ fide_ for the purpose of vindication of character.[1214]

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