CHAPTER III

THE OWNER OF THE COPYRIGHT IN BOOKS

SECTION I.--THE CROWN.

When the Crown ceased to have the complete control which it originally exercised over the printing-press, it still claimed to retain, as its prerogative, the exclusive right of printing such works as it considered its own peculiar property.[310] These included the authorised translation of the Bible, the Common Prayer Book, Acts of Parliament[311] and Proclamations,[312] Latin Grammars and Year Books. Law books, such as "Rolle's Abridgment," and reports collected by the judges were also claimed by the Crown on the ground that the laws were the King's Laws. Classical books, almanacs and the like, were claimed by the Crown as _bona nullius_ and things derelict. As regards those books which the Crown claimed as its own property, it granted licences and patents. The Stationers' Company, the King's printers, the Universities, and from time to time various individuals received grants of authority to print such works.

Many of the claims, for instance, to almanacs, law reports, Latin grammars, have for long been abandoned. The patentees of the Crown, however, still claim a prerogative copyright in--

1. The Authorised English Translation of the Bible.[313] 2. The Book of Common Prayer.[314]

The Universities of Oxford and Cambridge and the King's printers have each the right to print the Bible and the Prayer Book.

No objection has ever been taken on behalf of the Crown or her patentees to the printing of the Bible with notes, and this is in practice constantly done without authority. The notes, however, must be substantial and not merely illusory.[315]

In 1887 the Treasury published a Minute[316] in which the claims of the Crown to the exclusive right of publishing Government publications are set out. The Minute was published in the _London Gazette_.

The following publications are declared to be free from restriction of any kind, and any person may therefore publish them with or without notes:

1. Reports of Select Committees of the Two Houses of Parliament, or of Royal Commissions. 2. Papers required by Statute to be laid before Parliament, _e. g._ Orders in Council, Rules made by Government Departments, Accounts, Reports of Government Inspectors. 3. Papers laid before Parliament by Command, e. g. Treaties, Diplomatic Correspondence, Reports from Consuls and Secretaries of Legation, Reports of Inquiries into Explosions or Accidents, and other Special Reports made to Government Departments. 4. Acts of Parliament. 5. Official books, _e. g._ King's Regulations for the Army or Navy.

In the following works the Government claims to retain the copyright:

1. Literary or quasi-literary works, _e. g._ the Reports of the _Challenger_ Expedition, the Rolls Publications, the State Trials, the "Board of Trade Journal." 2. Charts and Ordnance Maps.

The ancient prerogative claimed by the Crown was a perpetual copyright. The Crown is not mentioned in the Copyright Act, and it is open to doubt whether it could enforce a perpetual copyright in works compiled by its servants, or whether it could only claim the term of copyright granted by the Copyright Act.

SECTION II.--THE UNIVERSITIES.

By an Act of George III.[317] provision is made for the vesting of copyrights in perpetuity in the Universities of Oxford and Cambridge, the Scottish Universities and the Colleges of Eton, Westminster, and Winchester. These privileges were obtained in consequence of the decision in _Donaldson_ v. _Beckett_[318] in the House of Lords to the effect that there was no perpetual copyright.

Perpetual Copyright under the Universities' Act attaches to those books which are "bequeathed or otherwise given" to one of the Universities or Colleges. A work such as The Revised Version of the Bible, which was compiled under the direction and at the expense of the two Universities, will probably not have perpetual copyright under the Act since it is neither bequeathed nor given. The same would apply to copyrights purchased by a university or college.

The book in which University privilege is claimed must be registered within two months after the time when the bequest or gift of the copyright comes to the knowledge of the Vice-Chancellor of the University or head of the college, as the case may be.

The remedy against unauthorised printing or importing or knowingly selling, publishing, or exposing for sale any book in which there is University copyright is an action in the High Court for--

(_a_) Forfeiture for destruction.

(_b_) One penny for every sheet found in the custody of the infringer, half to go to the Crown and half to the informer.

The perpetual privilege granted by the Act only subsists so long as the book is printed only within the respective Universities or Colleges, and for their sole benefit and advantage. This does not debar them from selling the copyright, but if sold it will only subsist for the term granted to authors by the Copyright Act, 1842.

_Quære_ if some of Jowett's works, for instance, were printed in the United States in order to acquire American copyright, whether that would destroy the perpetual copyright by reason of copies being printed outside the University.

SECTION III.--THE AUTHOR.

Copyright in every book published in the lifetime of the author thereof "shall be the property of such author and his assigns."[319] Copyright therefore in the first instance ordinarily vests in the author. The word author is not defined in the Act, and from time to time difficult questions have arisen as to who is the author of a particular book within the meaning of the Act. Difficulties have generally arisen from the fact that two or more people have been engaged in the production of a book. The rule appears to be that, if the literary matter is composed by those who make the manuscript,[320] the author is the man from whom emanates the general conception and design, and that although much of the detail may have been the work of subordinate brains and hands, he is the author of the entirety, and may sue for any infringement of it. Thus in _Scott_ v. _Stanford_,[321] where the plaintiff compiled and published periodically statistical returns of the London coal market, Page Wood, V. C., in giving judgment, said that it appeared to him quite immaterial whether the plaintiff had been assisted in the compilation by his own clerks or by those of the Corporation. In _Barfield_ v. _Nicholson_[322] a case under the statute of Anne, Leach, V. C., said that he was of opinion that under the statute the one who formed the plan and embarked on the speculation of a work, and employed various persons to compose different parts of it adapted to their own peculiar acquirements, was the author and proprietor of the work, if not within the literal expression, at least within the equitable meaning of the statute of Anne. In _Hatton_ v. _Kean_[323] the defendant had arranged certain of Shakespeare's plays with adjuncts of scenery, music, dancing, &c., and employed artists and authors to aid him in carrying his design into effect; amongst others, the plaintiff was employed to compose and arrange the orchestral accompaniments. The Court of Common Pleas held that the defendant was the author of the entire production. Erle, C. J., said:

"I am of opinion that the music so composed by the direction and under the superintendence of the defendant, and as part of the general plan of the spectacle, must, as between him and the plaintiff, become the property of the defendant, and that consequently the defendant has violated no right of the plaintiff in causing it to be represented in the manner alleged."[324]

In _Wallerstein_ v. _Herbert_,[325] where the facts were similar to those in _Hatton_ v. _Kean_,[326] that case was approved by the Court of Queen's Bench. Cockburn, C. J., said:

"Looking at the nature of this composition, it is clear that it became a part and parcel of the drama, and was not an independent composition."

These decisions seem equally applicable to books which are not dramatic compositions, but _quære_ whether _Hatton_ v. _Kean_[327] did not go too far. It seems a strange thing to say that the arranger of a play becomes the author of, _inter alia_, the musical accompaniment of which, perhaps, he could not have composed a single bar. Would, for instance, the author of a book be also the author of illustrations which he had procured another to draw for him? Kekewich, J., in _Petty_ v. _Taylor_, thought not.[328]

The mere suggestion of a subject or idea which is then entirely designed and executed by another does not constitute the originator of the idea an author, even although the actual composer is his employee.[329] In _Shepherd_ v. _Conquest_[330] the plaintiffs, proprietors of a theatre, employed a "stock author" who, on payment of a weekly salary and travelling expenses, composed plays for them. Under this employment the author composed "Old Joe and Young Joe," a dramatic piece, which he handed over to the plaintiffs, and which was produced by them at their theatre. There was no contract or assignment in writing, but there was an oral understanding that the plaintiffs should have the sole right of representing the piece in London. It was held in the Court of Common Pleas that the plaintiffs had acquired no title under the Dramatic Copyright Act, 3 & 4 Will. IV. c. 15, by reason of which they could sue an infringement of the performing right.[331] Jervis, C. J., delivered the judgment of the Court:

"We do not think it necessary in the present case to express any opinion whether, under any circumstances, the copyright in a literary work or the right of representation can become vested _ab initio_ in an employer other than the person who has actually composed or adapted a literary work. It is enough to say in the present case that no such effect can be produced when the employer merely suggests the subject, and has no share in the design or execution of the work. It appears to us an abuse of terms to say that in such a case the employer is the author of a work to which his mind has not contributed an idea."

There may be joint authorship of a book. To constitute joint authorship the work must be produced by joint labour in prosecution of a preconceived joint design. In _Levy_ v. _Rutley_[332] A wrote a play, to which subsequently B added a scene, and made a few alterations and additions in other parts of the piece. It was held that there was not joint authorship. Byles, J., said:

"If the piece had been originally written by A and B jointly in prosecution of a preconcerted joint design, the two might have been said to be the co-authors of the whole play, notwithstanding that different portions were respectively the sole productions of either."

And Keating, J., said:

"I entirely agree with my brother Byles that though it may not be necessary that each should contribute the same amount of labour, there must be a joint labouring in furtherance of a common design."

_Quære_ whether co-authors are joint owners with the right of survivorship. In _Marzials_ v. _Gibbons_[333] it was suggested that they were, but see the decisions where co-assignees are held to be owners in common, or part owners without the right of survivorship.[334] _Quære_ also whether each co-author, as is the case with each co-assignee,[335] is entitled to sue in respect of an invasion without the concurrence of the other co-author or co-authors.

Until _Walter_ v. _Lane_[336] was decided in the House of Lords, it was a prevalent opinion that the author must be he who actually designs and by himself or through others composes the literary matter contained in the book. That case, however, demonstrates that the author is the first producer of literary matter in "book" form, _i. e._ in some permanent form from which it can be copied by the printer's compositor, usually, but not necessarily, manuscript. As a rule such person is also the composer of the literary matter contained in the book, but this is not a necessary attribute of the character of author. In _Walter_ v. _Lane_[337] Lord Rosebery had delivered without reserve of any kind certain public speeches. They were delivered orally, not having been previously committed to writing. On the various occasions when they were delivered reporters from the _Times_ were present, and they took down the speeches verbatim. From these reports they were transcribed into long hand, and published in the _Times_. Mr. Lane, a publisher, took these speeches from the columns of the _Times_, and without any authority from the proprietors thereof, published them in a volume entitled "Appreciations and Addresses, by Lord Rosebery." In this action at the instance of the proprietors of the _Times_ for the infringement of the copyright in their reports, it was finally held in the House of Lords, firstly, that as these reports contained literary matter published for the first time in "book" form, they were the subject of copyright, and secondly, that the reporters were the authors within the meaning of the Act, since they first reduced the literary matter orally delivered by Lord Rosebery to "book" form.

SECTION IV.--THE EMPLOYER.

=Under Section 18.=--An employer is _ab initio_ entitled to the copyright when he employs an author within the meaning of and subject to the conditions imposed by section 18. Section 18[338] enacts that--

"When any publisher or other person shall before or at the time of the passing of the Act have projected, conducted, and carried on, or shall hereafter project, conduct, and carry on, or be the proprietor of any encyclopædia, review, magazine, periodical work, or work published in a series of books or parts, or any book whatsoever, and shall have employed or shall employ any persons to compose the same in any volumes, parts, essays, articles, or portions thereof for publication in or as part of the same, and such works, volumes, parts, essays, articles, or portions, shall have been or shall hereafter be composed under such employment on the terms that the copyright therein shall belong to such proprietor, projector, publisher, or conductor, and paid for by such proprietor, projector, publisher, or conductor, the copyright in every such encyclopædia, review, magazine, periodical work, and work published in a series of books or parts, and every volume, part, essay, article, and portion so composed and paid for shall be the property of such proprietor, projector, publisher, or other conductor, who shall enjoy the same rights as if he were the actual author thereof, and shall have such term of copyright therein as is given to the authors of books by this Act; except only that in the case of essays, articles, or portions forming part of and first published in reviews, magazines, and other periodical works of a like nature, after the term of twenty-eight years from the first publication thereof respectively, the right of publishing the same in a separate form shall revert to the author for the remainder of the term given by this Act: provided always that during the term of twenty-eight years the said proprietor shall not publish any such essay, article, or portion separately or singly without the consent previously obtained of the author thereof or his assigns: provided also that nothing herein contained shall alter or affect the right of any person who shall have been or who shall be so employed as aforesaid to publish any such his composition in a separate form, who by any contract, express or implied, may have reserved or may hereafter reserve to himself such right; but every author reserving, retaining, or having such right, shall be entitled to the copyright in such composition when published in a separate form, according to this Act, without prejudice to the right of such proprietor, projector, publisher, or conductor, as aforesaid."

The nature of a proprietor's rights in the articles contributed to his periodical under section 18 is well summarised by Chitty, J., as follows:

"This 18th section when fairly examined comes to this: the author of a literary work is the proprietor of the copyright under the general sections of the Act. If it is unpublished matter, probably the better term is to say that his right is to prevent any one else from publishing. If it is published matter, then his right is a true copyright, and it is to prevent anybody else from multiplying copies, and that right is vested in him.... Then comes this 18th section, the short effect of which is to transfer for a limited period a portion of the copyright to the proprietor of the periodical for whom the article has been composed; it being a condition that there shall not only be a composition of the article on the terms that it shall belong to the proprietor or publisher, but also that the sum agreed to be paid has been paid."[339]

_Scope of Section._--In some of the earlier cases it seems to be suggested that section 18 applies only to works of a periodical nature.[340] But this gives no meaning to the words "or any book whatsoever," which surely could not be construed as including only books _ejusdem generis_ as periodicals. The first part of the section appears to include all books if produced under the conditions as to employment and payment there enacted.[341] The judgment in _Shepherd_ v. _Conquest_[342] suggests that in the opinion of the Court in that case section 18 did not apply when the performing right in a play was claimed by the proprietors of a theatre, the play having been produced by a "stock author" in their employment. It is difficult to see why section 18 should not be equally applicable to the performing right as to the copyright. Section 20 of 5 & 6 Vict. c. 45 provides that--

"The provisions hereinbefore enacted in respect of the property of such copyright and of registering the same shall apply to the liberty of representing or performing any dramatic piece or musical composition as if the same were herein expressly re-enacted and applied thereto, save and except that the first public representation or performance of any dramatic piece or musical composition shall be deemed equivalent in the construction of this Act to the first publication of any book."

_Under such Employment._--The author must be "employed" and the work must be composed "under such employment." It appears therefore that a work or part of a work would not come within this 18th section unless actually executed in the course of the author's employment by the proprietor. In other words, there must be antecedent employment.[343] A contribution voluntarily sent to a magazine would not, even although accepted and paid for on the terms that the copyright should belong to the proprietors, come under the provisions of section 18. It is submitted that it would become the sole property of the proprietor of the magazine for all purposes without any reservation of the right of separate publication to the author.[344]

If A employs B, who in his turn employs C, the copyright will vest in A if B acted as a mere agent for A. Thus in _Stubbs_ v. _Howard_,[345] Stubbs employed the Mercantile Press to obtain the necessary information for their Gazette, and the Mercantile Press employed P. to collect and compile. It was held that the copyright vested _ab initio_ in Stubbs under section 18. But if A employs and pays B to do certain literary work, and B, of his own authority, employs and pays C, D, and E to do certain portions of it, it is doubtful whether the copyright in these portions will vest in A under section 18. The author has been neither employed nor paid by the proprietor of the work since B acted not as an agent for him, but as an independent contractor.[346] The operation of section 18 seems to be exhausted in the first employment.

"_On the terms that the copyright therein shall belong to such proprietor._"--The terms may be implied from the nature of the employment and the circumstances under which the work is composed. In _Sweet_ v. _Benning_[347] various members of the bar had furnished reports of cases to the plaintiffs, the proprietors of the _Jurist_. The reporters selected what cases they thought fit to report and were paid for their work. The arrangements were entirely oral, and nothing seems to have been said about copyright. The Court of Common Pleas held that the proprietors of the _Jurist_ became the owners of the copyright under the 18th section. Maule, J., in support of his opinion said:

"When a man employs another to write an article or to do anything else for him, unless there is something in the surrounding circumstances or in the course of dealing between the parties to require a different construction, in the absence of a special agreement to the contrary, it is to be understood that the writing or other thing is produced upon the terms that the copyright therein shall belong to the employer."

In _Trade Auxiliary_ v. _Middlesborough_[348] the proprietors of _Stubbs' Weekly Gazette_ and two other weekly papers jointly employed on salary two men to examine the official records and extract the particulars of bills of sale and deeds of arrangement registered in accordance with the Acts. The information so obtained was published in the weekly papers. It was held that the proprietors of the respective papers became owners of the copyright under section 18. In _Lamb_ v. _Evans_[349] the plaintiff employed and paid several persons in canvassing for advertisements and arranging them under appropriate headings in a Trades Directory. Lindley, L. J., in giving judgment, said he thought that--

"The burthen of proof was on the plaintiff to show that the headings were composed upon the terms that the copyright therein should belong to him; but the statute does not say anything about the kind of evidence which is to be adduced for the purpose of proving that an article has been composed on these terms.... If there is no express agreement the question is, what is the inference to be drawn from the circumstances of the case. In drawing the inference regard must be had to the nature of the articles which are here merely the headings to groups of advertisements with translations, and the view expressed by Mr. Justice Maule in _Sweet_ v. _Benning_[350] may be very safely acted upon, viz. that _primâ facie_ at all events you will infer, in the absence of evidence to the contrary, from the fact of employment and payment that one of the terms was that the copyright should belong to the employer. That is not a necessary inference; but in a case of this sort, where any other inference would be unbusinesslike, I should not hesitate myself to draw that inference."

Bowen, L. J., in the same case, says:

"From where are you to collect the terms? You may collect them from what passed between the parties, that is to say between the plaintiff and the persons whom he employed, but you may also collect them from the nature of the business itself, and it seems to me to be impossible as a matter of business to suppose that these headings were composed and furnished to the plaintiff upon any other terms than that he was to have the copyright in them, because otherwise those who composed them having furnished them to the plaintiff might themselves have published them and defeated his object."

On the other hand in _Walter_ v. _Howe_,[351] Jessel, M. R., held that the _Times_ could not sue in respect of a biography of Lord Beaconsfield which had appeared in their columns. There was evidence that the author had been paid for his literary services, but there was apparently no evidence as to whether he had been "employed" "on the terms that the copyright should belong" to the plaintiff. Notice that in this case no antecedent employment whatsoever is shown. In _Johnson_ v. _Newnes_[352] a series of stories were contributed to the _Weekly Dispatch_ under an arrangement between the proprietor and the author. The author was not on the permanent staff of the _Weekly Dispatch_. He was paid by the proprietors for his contributions, the arrangement being that the author should have the right of separately publishing the stories, provided such separate publication did not take place until after all the stories had appeared in the _Weekly Dispatch_. In an action by the author against an infringer, Romer, J., in giving judgment for the plaintiff, said that he had come to the conclusion that although the plaintiff was paid he was not paid on the terms that the copyright in the stories should belong to the proprietors of the journal. The author had therefore not parted with the copyright and was the proper plaintiff.[353]

In _Aflalo_ v. _Lawrence_[354] the defendants published a work called "The Encyclopædia of Sport." A, one of the plaintiffs, agreed with the defendants that he would edit the work. He was to receive £500 for his services, and to write without further remuneration 7000 words of special articles. He was entitled to pursue his literary work in so far as it did not interfere with the performance of his duties. A contributed an article to the encyclopædia under this agreement. A, by the request of the defendants, procured C, the other plaintiff, to write certain articles for the encyclopædia at the rate of £2 per thousand words. The articles of both plaintiffs were published in the encyclopædia. Joyce, J., held that the contributions of neither plaintiff came within section 18, since there was nothing to show that they were contributed on the terms that the copyright therein should belong to the defendants. The defendants were therefore not entitled to publish the plaintiff's articles in any other form than as part of the encyclopædia. In view of the earlier authorities I think this decision is extremely doubtful.

_Joint Employers._--As has been seen above in the case of _Trade Auxiliary_ v. _Middlesborough_,[355] two or more proprietors of several periodicals may jointly employ an author so as to acquire the copyright under this section. Each has a separate copyright in his respective paper, and, although the matter contributed to the several papers is the same, may sue without joining the other proprietors. Each is "a transferee by virtue of section 18 of a limited portion of the copyright in that particular composition."[356]

_Payment._--Not only must there be employment for reward, but payment is a condition precedent. If payment is not proved the section will not operate to transfer the copyright from the author.[357] Payment must be made before the commencement of an action.[358] It has been suggested that it must be made before piracy, and this appears a sound view since there is no copyright in the proprietor until payment, and an infringement before copyright is assigned is no cause of action in the assignee.[359] There is nothing to suggest that payment must be made before publication.[360]

_Author's Separate Rights._--When an author has contributed to a periodical and the conditions of the section have been fulfilled so as to vest the copyright in the proprietor of the periodical, it would seem that for twenty-eight years, _i. e._ until the right of publishing in separate form reverts to the author, the author has no right to sue third parties in respect of an infringement without joining the proprietor of the periodical as co-plaintiff. If, however, the author, while contributing on the terms that the proprietor should have the copyright, reserves the right of publishing his composition in a separate form within the meaning of the proviso at the end of the section, when he does publish in separate form he will be entitled to copyright concurrently with the proprietor, but semble that he will have no right to sue alone until publication in separate form,[361] or until the lapse of twenty-eight years.

During the twenty-eight years the proprietor of a periodical work is not, apart from express agreement, entitled to publish the contribution in separate form. If the proprietor does publish separately in breach of the provision of the section, the author has a right of action against him, and the author's right not being one of copyright but in respect of a breach of implied or statutory contract he does not require to be registered.[362] "Separate" means in any other form than the original collective publication, whether as a single work by itself or in conjunction with other matter. When the proprietor of a magazine reprinted certain stories which had appeared in the magazine from time to time, and published them as a supplement to the current number, this was held to be a publication in separate form which the author could prevent.[363] So also the republication of the Christmas number of a periodical under a different title, form, and price, is a separate publication of an article contained in such number.[364] A Christmas number of a serial publication, although published in an entirely different form with separate pagination and sold at a different price from the ordinary numbers, is part of the periodical, and separate publication of the stories therein will be prohibited under section 18.[365]

An article may be contributed to a periodical under express or implied terms that the copyright shall belong to the proprietor for all purposes, in which case there will be no reservation of a right of separate publication.[366]

It should be clearly noted that the second part of section 18 applies only to periodical works. Therefore in the case of an encyclopædia or similar collective works the owner has, apart from special terms, a right to publish the contributor's article separately from the original publication.

=Employer's Rights where Section 18 does not Apply.=--A question of some difficulty has been raised from time to time to which there is no definite authoritative answer, viz. whether apart from the provisions of section 18 the copyright ever vests _ab initio_ in the employer of an author. We shall see in dealing with assignment that probably the sole right before publication to acquire the copyright of a book on first publication may pass from the author to his assignee without writing, either by an implied gift on delivery of the manuscript or by express oral assignment. The question now considered is whether by the fact of employment alone the work of the employee may not _ipso facto_ on production become the property of his employer. In _Sweet_ v. _Benning_[367] it was held that the employment of certain members of the bar as reporters came within section 18, and that the copyright vested in the employers themselves; but during the argument Maule, J., is reported to have said:

"One might almost infer without the aid of an Act of Parliament that one who employs another to write an article or to make anything else for him is the owner or proprietor."

I think that this suggestion is wrong if applied to the case of an independent contractor, and that if such an employment does not come within section 18 there will be no proprietary right in the employer _ab initio_, although it may be transferred to him before publication by mere delivery of the manuscript with the mutual intention to convey all rights. But in the case of a servant or agent who produces literary work in the course of his employment, I think it is different. I think that his work will vest _ab initio_ irrespective of section 18, and that section 18 only applies to an independent contractor and not to a servant. In _Hildesheimer_ v. _Dunn_[368] Kekewich, J., takes this view. He says:

"I entertain a strong opinion that when a person has composed verses, we will say on behalf of another, that is to say as his servant or agent, whether for pay or not, the person on whose behalf such verses are composed is properly registered under the Act as the proprietor, notwithstanding that there is no assignment in writing or indeed any assignment at all."

SECTION V.--THE ASSIGNEE.

=Before Publication.=--Before a manuscript has been published the right to publish and acquire the copyright may be assigned so that on publication the copyright will be the property of the assignee. If the publication takes place during the lifetime of the author, the assignee takes the copyright under sections 2 and 3 of the Copyright Act, 1842.[369] Section 3 provides "that the copyright in every book which shall, after the passing of the Act, be published in the lifetime of its author ... shall be the property of such author and his assigns." Section 2 provides that the word "assigns" shall be "construed to mean and include every person in whom the interest of an author in copyright shall be vested, whether derived from such author before or after the publication of any book, and whether acquired by sale, gift, bequest, or by operation of law or otherwise." If the publication takes place after the death of the author, the assignee takes the copyright under section 3, which enacts that "the copyright in every book which shall be published after the death of its author ... shall be the property of the proprietor of the author's manuscript from which such book shall first be published and his assigns." The possession and right of property in the manuscript is _primâ facie_ proof of the right to publish and acquire copyright, but such proof may be rebutted by showing that the possession or ownership of the manuscript has been separated from the right to publish and acquire copyright. Thus in the case of letters the literary property remains in the writer and his assigns, whereas the property in the physical substance of the manuscript has passed to the receiver and his assigns.

If an assignment of manuscript, purporting to carry with it the right to publish and acquire copyright, is made before publication, it is submitted that no writing is required. The requirement that an assignment of copyright after publication must be in writing is founded not on an express enactment, but on implication from section 15 of the Copyright Act, 1842.[370] This section prohibits the reproduction of any book in which there is subsisting copyright without the consent in writing of the proprietor thereof. From this it is deduced by _a fortiori_ argument that an assignment of subsisting copyright must be in writing.[371] It does not in the least follow that the common law right in manuscript may not be assigned by any mode by which property of that description might be assigned at common law. The Courts have not, however, sufficiently distinguished between an assignment before and an assignment after publication, and as a result the case law on the subject is in a most unsatisfactory condition. There are several cases under the statute of Anne, which statute, in very similar words to the statute of Victoria, provides that copyright shall belong to the author and his assignee or assigns. There is no definition of "assigns," as in the statute of Victoria, but the rule that assignment of copyright must be in writing is deduced in the same way from the proviso that consent to copy must be in writing. The cases under the statute of Anne should therefore be equally applicable as authorities under the statute of Victoria. In _Clementi_ v. _Walker_[372] a French author had assigned orally to an English subject the exclusive right of printing and publishing a musical composition in this country. The work had not been published in England, and apart altogether from the question of a prior publication in France, the Court was of opinion that the publication in England did not give copyright to the English publisher, "because there was not any assignment or consent in writing given to the author previously to that publication. The case of _Power_ v. _Walker_[373] is an authority to show that a parole assignment is not sufficient to give to the assignee the privileges conferred by the legislature upon the author." In _Colburn_ v. _Duncombe_[374] there was a written publishing agreement whereby the author agreed to write a book and assign the whole copyright therein. On completion the manuscript was delivered to the publisher, and the author gave a written receipt for the consideration and agreed to deliver a regular assignment when called upon. This was never done, and in an action by the publisher against an infringer it was held that he could not sue without the author in whom the copyright had vested and remained. In _Sweet_ v. _Shaw_[375] the plaintiffs agreed with A and B that A and B should report cases for them. A and B accordingly took notes of cases, and these were printed and published by the plaintiffs. Shadwell, V. C., said that he thought the plaintiffs had a copyright in equity but not in law. "I cannot," he said, "see how the agreement that persons shall prepare a work for the plaintiffs gives the plaintiffs a copyright in law, for there can be no assignment in law except of that which actually exists." In all these three cases last cited it is submitted that the whole right of the author should have been held to have passed to the publisher by the delivery to him of the manuscript with the mutual intention that he should acquire all rights therein. The first case in which it is recognised that the author's right may before publication pass without writing is _Jefferys_ v. _Boosey_.[376] Erle, J.,[377] and Coleridge, J.,[378] decided that no writing was required. Speaking of an oral assignment abroad of a manuscript subsequently published here, Coleridge, J., said: "The assignee is clearly within the enabling clause of the statute (8 Anne, c. 19); he is the assignee of an author, and even if these words may in some cases mean an assignee under an instrument in writing attested by two witnesses, it has not been shown or decided that they must or can mean this in all cases. I think the contrary has been shown. Larger words and less restrained the legislature could scarcely have used, and on what sound principle are we to import a restraint by implication?" Lord St. Leonards, however, in the same case, seemed to be of opinion that the assignment must be in writing and attested by two witnesses (under 8 Anne, c. 19) even although made before publication. In some of the cases the publisher with whom the author has agreed that he shall have the whole copyright, but to whom there has been no assignment in writing, has been said to be an equitable owner of the copyright.[379] But it is submitted that if the manuscript passes before publication with mutual intention to convey to the publisher all right, title, and interest therein, the publisher is the legal assignee, and on publication is the legal owner of the copyright, and there is no necessity for a formal assignment in writing.[380] The same principle may not apply to performing rights in dramatic and musical works under 3 & 4 Will. IV. c. 15. It is probable that statutory performing rights vest in the author on production,[381] and if this is so there would probably be no common law performing right, and therefore no common law assignment; the statutory mode of assignment would attach from the beginning.[382]

=After Publication.=--After publication an assignment must be in writing.[383] It need not be by deed nor attested by witnesses,[384] nor, it would seem, need it be signed by the proprietor or any one.[385] The assignment may be given by an agent. An assignment does not require to be registered in order to make it valid as a transfer of the property: but an assignee who sues must be registered.[386] If the assignor is registered as proprietor complete assignment may be made by entry on the Book of Registry at Stationers' Hall.[387] Probably an author, even although not registered, may make a valid assignment by registering the book in the name of his assignee as proprietor.[388] It has been held that an unregistered author may so register himself and two others and give all three a title to sue as joint proprietors, from which it seems to follow that he could have registered the two others without himself.[389] An assignee may make the entry on the register himself without the concurrence or consent of his assignor.[390]

In the case of an assignment made otherwise than by entry on the register, the writing must in itself amount to a present conveyance of the copyright although no particular words of conveyance are required. An executory contract to assign is not sufficient,[391] neither will it invalidate a subsequent regular assignment to others.[392] A written agreement "to let A have" a particular drama in discharge of a debt of £10 was held a complete assignment of all rights in the drama.[393] A receipt for money purporting to be paid in respect of an assignment is not in itself an assignment.[394] The copyright will not pass merely by the sale and transfer of possession of any instrument whereby the book may be reproduced such as stereotype blocks.[395] In the event of mesne assignments the burden of proof is in those disputing the title to show that they were not _rite et solenniter acta_;[396] and even in the case of an alleged assignment to a party in the action, a valid assignment has been presumed from a long course of dealing without actual evidence of an assignment in writing.[397]

An executory contract or a purported assignment not valid at law will be recognised in equity, and the Court will order specific performance or compel the assignor to allow the assignee to sue in the assignor's name.[398]

The assignee cannot sue in his own name in respect of acts of infringement committed before he became proprietor.[399] An assignee cannot, apart from special agreement, prevent his assignor selling against him copies of the book which such assignor has printed before assignment.[400] Probably the assignment of copyright implies a warranty of the right to convey, free from encumbrances, and quiet enjoyment.[401]

Co-assignees take as tenants in common and not as joint tenants,[402] and any one or more may maintain an action against a stranger for an infringement of the entire copyright.[403] It follows that one of several co-assignees cannot grant an effective licence without the concurrence of the others.[404]

In _Jefferys_ v. _Boosey_[405] Chief Baron Pollock expressed an opinion that if a foreigner resident abroad had a copyright in this country, an assignment valid by the laws of a foreign country would be sufficient, inasmuch as copyright is expressly enacted to be personal property, and would therefore pass according to the laws of the country where the transfer took place.

=Partial Assignment.=--It was laid down in _Jefferys_ v. _Boosey_[406] by Lord St. Leonards that copyright was one and indivisible, and could not be partially assigned. If this is correct, any attempt to assign a partial right would operate if at all as a mere licence. This opinion of Lord St. Leonards was in respect of the statute of Anne. It seems to be more or less accepted that under the statute of Victoria copyright is divisible; that there may be partial assignment limited as to place,[407] _e. g._ provincial rights, right to publish in a particular country, or limited as to the nature of the right,[408] _e. g._ the right to dramatize, the right to translate. This view appears to be based on section 13 of the Act of Victoria,[409] which enacts that a registered proprietor may assign his interest or any portion therein by making entry on the register. I do not think that this provision in itself is conclusive or that it necessarily follows that a copyright can be split up and partially assigned. Section 13 may merely mean that the owner can assign a certain undivided share in his copyright to another. Cotton, L. J., in _Trade Auxiliary_ v. _Middlesborough_,[410] refers to Lord St. Leonards' doctrine. He does not disapprove of it, but he distinguishes the case of common ownership in a copyright from the case of a partial assignment as to place.

In a case decided in the Supreme Court of New South Wales,[411] it was held that the assignee of a performing right limited to the Australian colonies could sue in his own name for infringement. The Court distinguished between the performing right and the copyright. They said that even although the copyright, in accordance with Lord St. Leonards' opinion, was not divisible the performing right was.[412]

In any view of partial assignment I do not think there can be partial assignment as to time.[413] Such an assignment would create an estate in possession and reversion in personal property, and there is no reason for holding that copyright is any exception to the general rule that such an interest cannot be created in personalty. Equitable estates, limited as to time, can no doubt be created as in the case of any other personal property.[414] What purports to be an assignment limited as to time must as a rule be treated as a licence.

=Assignment distinguished from Licence.=--The distinction between an assignment and a licence must be carefully observed; questions of the utmost importance will often depend on whether a transaction was one or the other. An assignment is a conveyance of the right denuding the grantor and carrying to the grantee the whole interest including the right to sue and the right to re-assign, whereas a licence is only a personal permission to the grantee to infringe the grantor's right, and carries with it no right of action except in the grantor's name. In determining whether a particular transaction is an assignment or a licence, the first question is whether, on a true construction of the statute, the right purported to be given can be given by assignment or only by licence. If the right is one so limited that it cannot legally be the object of assignment, the transaction must necessarily be a licence; but if it can legally be the object of assignment, the further question arises as to what was the intention of the parties as evidenced by what they have said and done. There may often be clear words to show what was intended, but more often it may never have occurred to the parties that there was any distinction between an assignment and a licence, and the form used will consequently be ambiguous. The principal test in such cases is to examine the contract and the circumstances under which it was made, and see whether or not it bears the impress of a reliance by the grantor on the personal skill or reputation of the grantee. If it does a licence will be presumed rather than an assignment; for instance, in a publishing agreement a licence only will be presumed, since either the pocket or the reputation of the author would suffer if the right of publication were to pass into incompetent hands.[415]

SECTION VI.--THE LICENSEE.

Whether a bare licensee can bring an action for infringement without joining the legal owner of the copyright is open to doubt. It is submitted that he cannot. The essence of a licence proper is that it is merely a personal relationship between a licensor and a licensee whereby the latter is permitted to infringe the former's copyright. The old cases are not satisfactory. The distinction between partial assignment and licence is not clearly drawn, and the result is a confusion of the respective rights of the assignee and the licensee. In several cases it was said that licensees could sue[416] but _quære_ whether they were not really partial assignees. It has also been said that an owner of copyright who has granted an exclusive licence cannot sue in respect of an infringement which touches only the rights included in such licence, unless such owner has the consent of his licensee.[417] This again, it is submitted, is not a correct statement of the law, and arises from a confusion between a partial assignee and a licensee. In _Taylor_ v. _Neville_[418] the grant of provincial performing rights although called a licence was really treated as an assignment and distinguished from a "merely personal licence." It is submitted that a licence proper is always "merely personal" and that the grantor may sue without consent of his licensee. Where a licence has been granted or when there is doubt as to whether a particular grant is an assignment or a licence, it will always be safer to join both grantor and grantee as co-plaintiffs. A licence will not be presumed to be a sole licence, and unless it is expressly stated, or must necessarily be implied from the circumstances that it is so, the first licensee cannot restrain the licensor from granting, or a second licensee from acting on, a second licence.[419]

SECTION VII.--THE EXECUTORS OR ADMINISTRATORS.

Copyright is personal property, and descends on the death of an owner to his personal representatives.[420] "Assigns" is expressly interpreted to include one taking by bequest or by operation of law. The common law property in the manuscript passes on the death of the owner in the same way as copyright. A bequest of "all my books" has been held to include valuable manuscript notes left by a physician.[421]

SECTION VIII.--THE TRUSTEE IN BANKRUPTCY.

Copyright comes within the vesting section of the Bankruptcy Act and passes to the trustee of a bankrupt owner.[422] A bankrupt's unpublished works, probably, cannot be published for the benefit of his creditors without his consent.