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 [219] 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 [220] 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 [221] 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 [222] 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]
[223]
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 [224] 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][225] 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 [226] 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][227]
CHAPTER XII
PUBLISHING AND PRINTING AGREEMENTS
Publishers' Agreements.—These agreements are governed by the law of contract, and only incidentally involve questions of copyright. The contract between an author and his publisher is a personal one and cannot be assigned; each party is presumed to have relied on the personal skill or reputation of the other.[1215] Thus it was held that a half profit agreement could not be assigned by a publisher's firm to a firm which had succeeded to their business but which contained none of the partners of the original firm.[1216] The same principle has been applied in the case of a limited company carrying on a publishing business.[1217] A publishing agreement ought to provide for an assignment of the publisher's rights and obligations to the person or persons who may succeed to the business. Unless otherwise agreed, the death or bankruptcy of a publisher will terminate a publishing agreement.[1218] Similarly if an author had not performed his part of an agreement, viz. to write and revise the manuscript, his death[1219] or bankruptcy[1220] would terminate his obligations in that respect. The publisher could not insist on the author's representatives completing the work, nor could they if they completed the work insist on the publisher publishing.[1221]
An agreement to write a book or an article cannot be enforced by specific performance.[1222] The only remedy for breach is an action for damages,[1223] or, if the author has agreed not to [228] write on a particular subject for any one else, that may be enforced by an injunction.[1224] An agreement to assign a copyright may be enforced by specific performance,[1225] and probably also an agreement to furnish an unpublished manuscript already completed. An undertaking to write a book on a particular subject is not fulfilled by furnishing a translation of a foreign work on that subject.[1226] If A agrees with B to write an article for a certain publication or series of publications, and if before the article can be published the publication or series has been discontinued, A is not bound to deliver his article for publication in another form; but he is entitled to a quantum meruit for the work he has done.[1227]
If an author has entered into a royalty agreement with a publisher he is not, apart from express agreement, under any obligation not to publish the work through another publisher before the first edition has been sold out.[1228] An author should therefore be bound not to publish elsewhere so long as the publisher is willing and ready to publish, and if this is done the publisher may restrain the author or another publisher who publishes with notice of his agreement.[1229] In a half profit agreement where nothing was said as to future editions, it was thought that the contract might probably be determined by either party on the expiry of each edition and before any expense had been incurred in respect of a future edition; but until that was done the publisher had the exclusive right to publish and recoup himself for his outlay and earn profits.[1230]
It is not illegal as being in restraint of trade for an author to contract to write only for a single publisher or theatrical manager,[1231] nor for a publisher to contract not to publish a particular class of work.[1232] If an editor engages to give his whole time to a publication, he will be restrained from engaging in or advertising [229] any rival work.[1233] Unless there is an express stipulation an author will not be prevented under a publishing agreement from writing and publishing other books on the same subject provided they do not reproduce in whole or in part the former book.[1234] If there is an express stipulation against publishing similar works, both the author and his publisher would be restrained from doing so.[1235] Apart from express agreement a publisher is probably free to publish any other rival work he pleases, even although it may seriously affect the sale of the former book.[1236]
In the absence of express stipulation, the publisher under a half profit agreement has been held entitled to fix the selling price, choose the embellishments, and generally control the publication.[1237]
In a publishing agreement it should always be expressly stated who is to hold the copyright. It has been held that where no mention of the copyright was made a half profit agreement did not import a transfer of the copyright to the publisher.[1238] In editorial agreements as to newspapers or magazines similar careful provision should be made as to who is to own the copyright and the goodwill in the name, otherwise difficult questions may arise.[1239]
Where the author of a novel sold the copyright therein to the owners of a periodical, reserving to himself the right to publish in "volume form," it was held that under this agreement he was entitled to publish the work in weekly parts, which when completed could be bound into a volume.[1240]
An indemnity given by an author to a publisher against proceedings for libel is void if the publisher knew or ought to have known that the matter was libellous.[1241] The publisher, however,[230] would be entitled to rely on such an indemnity if he acted innocently. The same principle would apply to proceedings for infringement of copyright.
A publishing agreement may be made orally unless, which will seldom happen, it cannot be performed within a year from the making thereof, in which case there must be a written memorandum of the terms to satisfy the Statute of Frauds.[1242]
The agreement, if in writing, must be stamped with the usual sixpenny agreement stamp. If it contains a conveyance of a copyright it will probably have to be stamped with ad valorem duty under section 53 of the Stamp Act.[1243] If the work is unpublished at the time of the agreement the whole interest in the manuscript can be conveyed by delivery; in the case of a published work the copyright could be conveyed by entry on the register, so that in neither case need there be a conveyance in the agreement, and the stamp duty can thus be avoided. If a copyright is conveyed by entry on the register, the Copyright Act expressly exempts the conveyance from duty.[1244]
Printers' Agreements.—A printer has a lien on the books printed by him for his printing charges.[1245] He has no lien on stereotype plates for the amount of the bill for printing from them.[1246] If the printer does not print his name and address on a book as required by Act of Parliament[1247] he will not be entitled to recover his printing charges.[1248] An order to print a certain number of copies of a book must as a rule be treated as an entire order, and no payment will fall due until the whole are complete and ready for delivery, so that if when half finished they are destroyed by fire he will not be entitled to recover for the work done.[1249] A printer does not insure the manuscript when [231] in his possession,[1250] but is only liable for loss occasioned by his negligence.
A printer cannot maintain an action in respect of his charges for printing an immoral or seditious work, knowing it to be such.[1251] If while a book is being printed by him he discovers that it contains libellous, seditious, or immoral matter, he would be entitled to discontinue the printing and sue for the work already done.[1252]
ADDENDUM
Musical Copyright, Summary Remedies.—A Bill has passed both
Houses of Parliament and awaits the Royal Assent whereby, after October
1902, owners of copyright in music may proceed in a Court of summary
jurisdiction against persons dealing in pirated music. Piratical copies
which are being hawked or offered for sale may be seized by a constable
without warrant and brought before the Court, which, on proof, may order
the copies to be forfeited or destroyed, and inflict a penalty not exceeding
twenty pounds on any one offender in respect of the same transaction.
This Act will not apply outside the United Kingdom.
[232]
[233]
PART II
THE LAW OF COPYRIGHT IN THE UNITED STATES
[234]
[235]
CHAPTER I
INTRODUCTORY
The law of copyright in the United States, especially in relation to literary work, is daily becoming of more interest to the owners of copyright in this country. Since the Act of Congress, 1891, commonly known as the Chace Act, those who are neither citizens of nor resident in the United States can acquire a copyright therein if copies of their books are printed from type set up in the United States and if their books are duly recorded there before publication either within or outside the United States. There is thus created for English authors a property which may be of considerable value if before publishing here they incur the trouble and expense of printing and recording their books in America.
Apart from this commercial interest which English authors and publishers have in a knowledge of American copyright law, there is the further interest to English lawyers in the large body of analogous case law to which the American statutes have given rise. These statutes were originally founded on our own statute of Anne, and, although the difference between the Acts now in force in the two countries is very wide in many respects, a great deal remains the same in substance, and the decisions of the American Courts afford us valuable precedents. These cases, however, must not be cited in our Courts at random, as has too frequently been done. In citing from the American reports, it is essential to compare the statutory provisions in America with the statutory provisions in this country, and ascertain whether the decisions are really applicable or not. It is for this reason that I have thought it expedient to keep the American law and the English law entirely separate. The practice of citing American cases promiscuously throughout a treatise on English Copyright Law I have found to be confusing and misleading. [236]
CHAPTER II
WHAT WORKS ARE ENTITLED TO COPYRIGHT
In order to acquire copyright in the United States the work must fulfil the following conditions:
Section I.—An Original Literary or Artistic Work.
In the United States literary and artistic works are treated similarly under the same series of statutes. The works protected are enumerated in section 4952 of the Revised Statutes as amended by the Act of March 3, 1891 (The Chace Act). The protection extends to any book, map, chart, dramatic or musical composition, engraving, cut, print, or photograph or negative thereof, and to any painting, drawing, chromo, statue, statuary, and to models or designs intended to be perfected as works of the fine arts.
In considering whether a work is within the protection of the Copyright Acts, not only must the enacting words of the statutes be considered, but also, and perhaps principally, the scope of the provision in the Constitution, which grants power to Congress to secure the protection of authors and artists.[1256] The language of the Act must be read in connection with the Constitutional provision and be so construed as to promote the [237] object and conform to the purpose expressed therein. The power given to Congress by the Constitution is a power "to promote the progress of science and useful arts by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries." In consideration of this restricted power the earlier decisions[1257] construed the Acts of Congress as including only those works which showed a certain degree of intellectual labour in the arts or sciences. In Clayton v. Stone[1258] protection was refused to a daily price current or review of the markets issued in a newspaper. Thompson, J., in giving judgment, said:
"The Act was passed in execution of the power given by Congress, and the object therefore was the promotion of science; and it would certainly be a pretty extraordinary view of the sciences to consider a daily or weekly publication of the state of the market as falling within any class of them. They are of a more fixed, permanent, and durable character. The term science cannot with any propriety be applied to a work of so fluctuating and fugitive a form as that of a newspaper or price current, the subject-matter of which is daily changing, and is of mere temporary use.... The title of the Act of Congress is for the encouragement of learning, and was not intended for the encouragement of mere industry unconnected with learning and the sciences."
This high standard of intellectual requirement was not, however, strictly maintained. In Brightley v. Littleton[1259] a blank form of application for a licence to sell liquor at retail, drawn in pursuance of the statutes in that behalf, was protected, and it was said that, although the matter claiming copyright must be original and possess some possible utility, "the originality may be of the lowest order and the utility barely perceptible." In Ladd v. Oxnard[1260] the English cases of Lamb v. Evans[1261] and Leslie v. Young[1262] were cited with approval, and the Court agreed that "the quality and grade of original work required by the Courts under the Copyright Statutes are very moderate." Until the case of Mott v. Clow,[1263] the tendency seems to have been to follow [238] the English judges to their extreme view, as expressed by Lord Halsbury in Walter v. Lane,[1264] i. e. "that the copyright law requires neither literary merit nor intellectual labour nor originality either in thought or in language." The Court, however, in Mott v. Clow[1265] refused to follow the English decisions. After reviewing the American, and particularly the earlier American decisions, they say:
"The result of these decisions would seem to place this construction upon the Constitutional provisions under consideration that only such writings and discoveries are included which are the result of intellectual labour; that the term writings may be liberally construed to include designs for engravings and prints that are original and are founded in the creative powers of the mind, the fruits of intellectual labour; that prints upon a single sheet might be considered a book if it otherwise met the spirit of the constitutional provision; and that to be entitled to a copyright, the article must have, by and of itself, some value as a composition, at least to the extent of serving some purpose other than a mere advertisement or designation of the subject to which it is attached."
The "book" before the Court was a catalogue in the form of a bound volume, containing illustrations of household wares offered for sale, and giving the dimensions and price of each. The Court referred to Maple v. Junior Army and Navy Stores[1266] where a similar catalogue in England was protected.
"It is to be observed in this case that it was ruled largely upon the language of the Act of Parliament (5 & 6 Vict. c. 45).... It is to be here remarked that the Parliament of Great Britain, unlike the Congress of the United States, is unlimited in power, and with the construction and effect placed upon the preamble of the Act by the Court, there would seem to be little escape from the conclusion at which the Court arrived. In this country under the Constitution the power lodged with the Congress is not unlimited, but is restricted to the promotion of the progress of science and useful arts. The ruling of the English Court is therefore not pertinent except as it illustrates the subject."
The Court cited with approval Baker v. Selden,[1267] which had expressly approved Cobbett v. Woodward,[1268] an English case overruled in Maple v. Junior Army and Navy Stores;[1269] they further cited and approved the judgment of Thompson, J., in [239] Clayton v. Stone,[1270] quoted above. The judgment concludes with the following paragraph:
"It is possibly not beyond comprehension that pictures of slop-sinks, wash-bowls, and bath-tubs, with or without letterpress statement of dimensions and prices, though intended mainly for advertisement, may in localities where such conveniences are not in common use, be the means of instruction and of advancement in knowledge of the arts, and, when they are the products of original intellectual thought, may possibly come within the scope of the Constitutional provision. It is enough for the present purpose to say that, in our judgment, the Congress has not seen fit to enact a law which can reasonably be given so broad a construction."