vi. Selling or hiring or having in possession for sale or

hire foreign copies knowing them to be unlawfully imported.[428]

The remedies are:

1. Seizure and destruction by any officer of Customs,[429] and on conviction before two justices of the peace. 2. £10 for every offence.[430] 3. Double the value of every copy dealt with,[431] and

An action in the High Court for

4. An injunction.[432]

=Causing to be Printed.=--The prohibition in section 15 is against "printing, or causing to be printed." Thus the author, publisher,[433] and printer of a piratical book are all equally liable, and it is no defence for the publisher, who has employed the printer, or for the printer to say he was acting merely as an innocent agent.[434] There may sometimes be difficulty in determining whether a person who, to a certain extent, is interested in the publication has yet caused it to be printed within the meaning of the section. Thus, in the case of _Kelly's Directories_ v. _Gavin and Lloyds_,[435] the plaintiff had published a directory of merchants and shipping statistics. The defendant Gavin prepared a similar directory, and agreed with the defendants Lloyds for its publication. Lloyds were to print part of it and allow the use of their name in the title and receive some share in the profits. The book was accordingly published under the title of "Lloyds' Diary for Merchants, &c.," and bore on the title-page the statement "printed at Lloyds, Royal Exchange, London." Part of the book was held to be an infringement of the plaintiff's copyright; but it was proved on the trial that that part was not printed by Lloyds, but by a printer employed by Gavin, and that Lloyds had no knowledge of its piratical nature. Byrne, J., found that Lloyds were not partners in the undertaking with Gavin, and that the printing of the piratical portion was not done by the printer as their agent. He therefore held that Lloyds had not "caused" that portion to be printed within the meaning of the section, and dismissed the action as against Lloyds, but without costs, as they had allowed their name to appear on the title-page as printers.

=Damages.=--An action for damages lies, irrespectively of sections 15 or 23, for any infringement of copyright as defined by section 2.[436] The damages are damages as for conversion or detinue,[437] and may be matter for inquiry before a master or official referee, but frequently are assessed by the judge on a rough estimate.

=Account of Profits.=--An order for an account of profits is an equitable remedy. The defendant is held to have been in possession of the plaintiff's property, and must account for the profits thereof.[438] The account will be for an account of net profits.[439] On an interlocutory application for an injunction the defendant may undertake to keep an account of profits until trial; but, strictly, the right to an account depends on the right to an injunction, and will not be ordered when the case for an injunction fails.[440] If the defendant's work is not wholly piratical, the profits must be apportioned according to the relative value of the piratical with the non-piratical matter. The defendant's profits may not entirely recoup the plaintiff for the damage he has suffered, and in that event he is entitled to an inquiry into damages to supplement his compensation.[441]

=Injunction.=--This is also an equitable remedy. It is not specially provided for in the Copyright Act, but being the ancillary remedy in equity for the protection of legal rights, it will be granted or withheld according to the discretion of the Courts in all cases of infringement or other offences against the Act.[442]

An interim injunction is usually granted on motion before trial where the plaintiff shows a _primâ facie_ case on affidavit. In doubtful cases weight will be given to the consideration which side is more likely to suffer from an erroneous judgment.[443] The Court will consider the balance of convenience on the one side and the other.[444] The reason for granting an interim injunction is that a continuing infringement might cause damage for which it would be difficult or impossible to assess an adequate money compensation. If the taking is of an inconsiderable part, an interim injunction might not be given, although an injunction might go at the hearing. In urgent cases an interim injunction may be granted _ex parte_. In all interim injunctions the plaintiff is, as a rule, required to undertake to give compensation to the defendant if on trial he fails to establish his case.[445] When such an undertaking is given the defendant is, if he succeed in his defence, entitled to an inquiry as to the damage sustained on account of the interim injunction against him.[446] When there has been undue delay in bringing an action, or where the conduct of the plaintiff has been such as to induce the defendant to believe that his conduct would not be objected to, an interim injunction will probably be refused.[447] A mere expression of opinion by the plaintiff that it would be legal to make a certain use of his work is not a sufficient ground for refusing an injunction if in point of law the use made by the defendant is illegal.[448] "Copyright is not to be lost by the mere expression of opinion."[449] At the hearing of the action a perpetual injunction will be granted on the plaintiff proving his title and infringement. Delay or acquiescence not amounting to fraud will not prevent an injunction going at the hearing when the plaintiff proves his right;[450] "for at the hearing of the cause it is the duty of the Court to decide upon the rights of the parties, and the dismissal of the bill upon the ground of acquiescence amounts to a decision that a right which has once existed is absolutely and for ever lost."[451] When an infringement has been shown the Court will not wait until it can ascertain distinctly what parts have been pirated. It will grant an injunction in general terms restraining the defendant, his agents, servants, or workmen from further printing, publishing, selling, or otherwise disposing of any copy or copies of the defendant's book containing any passage or passages copied, taken, or colourably altered from the plaintiff's book.[452] If it appears that the piratical parts of the defendant's book can be distinguished from that which is innocent, this will be done in the injunction.[453] For a form of injunction against a servant restraining him from using blocks and materials obtained while in the plaintiff's employment, see _Lamb_ v. _Evans_.[454] An injunction will be granted without any inquiry as to actual damages;[455] but there must be probability of damage. In _Borthwick_ v. _Evening Post_,[456] Cotton, L. J., said:

"In my opinion, in order to justify the Court in granting an injunction, we ought to be satisfied that there probably will be injury to the pockets of the plaintiff ... an injunction is an equitable remedy, and ought not to be granted unless the Court is satisfied that there is damage to the plaintiff--probable damage, not necessarily damage already suffered--as the result of the defendant's conduct."[457]

_Quære_ whether an injunction will be granted to protect the future numbers of a periodical. In _Cate_ v. _Devon and Exeter Constitutional Newspaper Company_,[458] North, J., in granting an injunction to restrain a systematic infringement of a periodical, said:

"It is clear that an injunction can only be granted in respect of matters in regard to which the plaintiffs now have the copyright and a present right to sue; they cannot have any protection by injunction to restrain the defendants from publishing hereafter any future entries with respect to which the plaintiffs may possibly ... acquire a copyright, ... but as to which they clearly cannot at this moment have any copyright."[459]

In another case, however, where a single illustration had been taken from _Punch_, Kekewich, J., said he saw no objection to the injunction extending to the protection of the contents of future numbers of _Punch_, and granted a perpetual injunction accordingly against the _Ludgate Monthly_.[460] An injunction will not be granted when it is difficult or impossible to enforce it,[461] for instance, when the defendant can readily reprint the same matter, compiling it from original sources.[462] The piracy proved may be so inconsiderable, and so little likely to injure the plaintiff, that the Court may decline to interfere by injunction.[463]

=Delivery up of Copies.=--All copies of any books wherein there is copyright and of which entry has been made in the Registry Book and which are unlawfully printed or imported, are deemed to be the property of the registered proprietor of such copyright, and he is entitled after demand in writing to sue for the same in detinue and trover.[464]

This right to the delivery up of pirated copies for the benefit of the proprietor of the copyright is purely statutory. Under the Acts of Anne and George III. the proprietor on delivery up was enjoined to damask and make waste paper of the copies.[465] Under the Act of Victoria the proprietor for the first time is entitled to recover such copies for his own use. It has been doubted whether there was any right to delivery up at common law,[466] but the bulk of authority is in favour of the view that there was,[467] although the delivery up was for destruction only.[468] It is a doubtful point whether section 23 applies to unlawful copies made before registration of the plaintiff's title. Fry, L. J., held that it did not,[469] and therefore in the case of such copies ordered delivery up for destruction as a common law remedy, but refused the statutory remedy of delivery up for the plaintiff's benefit. Jessel, M. R., however, differed from this view,[470] and thought that the 23rd section applied to unlawful copies made before the plaintiff's title was registered. It must also be considered doubtful whether section 23 applies where the defendant's book is not merely a reprint of the plaintiff's. In an Irish case O'Brien, J., said:

"It would be difficult to maintain that under the 23rd section the proprietor of the copyright in a book would acquire the property of all copies of another book which contained printed therein a few pages or passages of his book."[471]

But, whether or not in such a case the plaintiff would be entitled under the section to extraction and delivery up for his benefit of the pirated parts, he is under the general jurisdiction of the Court entitled to delivery up for cancellation.[472] In _Warne_ v. _Seebohm_[473] the order was that the defendant should first state upon oath what copies of the work exist; secondly, extract from those copies which are in his possession or power and deliver up to the plaintiffs for cancellation all passages copied, taken, or colourably imitated from the plaintiffs' book; thirdly, produce to the plaintiffs, if required by them for examination, the copies after the pirated passages have been extracted.[474] _Quære_ whether the Court would order delivery up in an action to which the person who owned the books and paper and at whose expense the printing was executed was not a party.[475]

=Customs Act.=--The Customs Laws Consolidation Act, 1876,[476] provides for the seizure of foreign books, and in this respect is somewhat inconsistent with section 17 of the Copyright Act. Section 42 of the Customs Act prohibits the importation of books "first composed or written or printed in the United Kingdom and printed or reprinted in any other country, as to which the proprietor of such copyright or his agent shall have given to the Commissioners of Customs a notice in writing duly declared[477] that such copyright subsists, such notice also stating when such copyright will expire." On reference to section 17 of the Copyright Act it will be noticed that the prohibition there is as to books "reprinted in any country or place outside the British dominions." _Quære_ does the provision in the Customs Act enlarge the protection by the words "printed or reprinted in any other country"? Does this include the colonies? Again it will be noticed that the Copyright Act has no condition as to notice to the Commissioners of Customs. _Quære_ is the notice required by the Customs Act a condition precedent to all protection from unlawful importation, and in this respect does the Customs Act limit the provisions of the Copyright Act, or is the Customs Act merely directory to the Custom-house officials? To be on the safe side the notice should always be given. Section 44 of the Customs Act provides for the keeping of a list of books as to which notice has been given, and section 45 entitles any person who shall have cause to complain of the insertion of any book in such list to apply to a judge at chambers for the rectification thereof.

=Every Offence.=--Each separate transaction of sale or importation will constitute a separate offence, for which a separate penalty of £10 will accrue.[478] It would seem that "every such offence" does not, as in the Artistic Copyright Act, mean "or the sale or importation of every copy."[479]

=Limitation of Action.=--Section 26 of the Copyright Act, 1842, enacts, "that all actions, suits, bills, indictments or informations for any offence that shall be committed against this Act shall be brought, sued, and commenced within twelve calendar months next after such offence committed, or else the same shall be void and of none effect." It is clear that even although the remedy for one offence is barred, that in no way extinguishes the owner's right, and the owner may sue for subsequent offences;[480] thus although a piratical book has been printed and published more than twelve months before action brought, yet the owner will be entitled to sue in respect of sales, &c., made within the twelve months. In a Scotch case, _Stewart_ v. _Black_,[481] it seems to have been held by Lord President Boyle that the limitation in the 26th section did not apply to an action of damages for infringement, and Malins, V. C., says _obiter_ in _Weldon_ v. _Dicks_,[482] that in his opinion the limitation only applies to an action for penalties. It is submitted that _Stewart_ v. _Black_, if applied to books published after 1842, is wrong, and that the dictum of Malins, V. C., in _Weldon_ v. _Dicks_, is also wrong. The section seems sufficiently clear and applicable to all actions brought in respect of an infringement of copyright. The argument contra seems to be based on the use of the words "for any offence that shall be committed," from which it is argued, that penalties only are pointed at. Offence, however, is used in the 15th section as applicable to infringement of copyright not involving penalties. In cases where the Public Authorities Protection Act applies, the shorter limitation of six months must be substituted.[483]

=Pleading.=--The defendant is required to give to the plaintiff a notice in writing of any objections on which he means to rely on the trial of the action. If the defendant intends to dispute that the plaintiff is author or first publisher, or that he is proprietor, he must state the name of the person whom he alleges to be the author or proprietor, together with the title of the book and the time when, and the place where, such book was first published.[484] It has been said to be sufficient, in the case of an old publication, to state the year of first publication without stating the day and month in the notice of objections.[485]

The notice of objections must be specific, and give full notice of the nature of the defence.[486] If the defence is that the book has not been registered at all, that must be stated.[487] If a faulty registration is relied on, it is not sufficient to deny that the book has been duly registered; the notice must state what the particular objection to the registration is.[488] If the plaintiff's title is denied, it will not do merely to state that the proprietor "is some person unknown, but not the plaintiff;"[489] the full particulars as required by the section must be given.[490] In objecting to the registration, however, it is not necessary for the defendant to state what the correct entry should he. Thus if he says the time of first publication is wrongly entered, he does not require to specify the true date of first publication.[491] It is unnecessary to deliver a separate "Notice of Objections," as was the practice at one time,[492] it is sufficient if it is incorporated in the defence. A suggestion of defective title contained in an affidavit would not be sufficient.[493] If a defective title is apparent from the plaintiff's own statement of claim or evidence, the action would probably be dismissed by the Court, _proprio motu_, even although the defendant had not given notice of objection.[494] Leave to amend the pleadings and take further objection may be allowed on conditions under the judicial discretion given by the Rules of the Supreme Court,[495] but if the objection be merely technical, the Court will not give leave to amend,[496] unless, perhaps, the plaintiff had otherwise fair notice that the objection might be taken.[497] It has been held by a County Court judge that section 16 of the Copyright Act does not apply to proceedings in the County Court, as that Court was created after the date of the Act.[498]

The plaintiff may be ordered to specify the particular passages which he is prepared to prove have been pirated from his work.[499]

=Evidence.=--The great test of piracy is coincidence of blunders, and when some passages are proved by the recurrence of blunders to have been copied, other passages which are the same with passages in the original book are presumed _primâ facie_ to be likewise copied, although no blunders occur in them.[500]

It will greatly prejudice the defendant if his manuscript is not produced or accounted for.[501]

A denial by the defendant that he has made any use whatsoever of the plaintiff's work raises a presumption of piracy if it is shown that he must have made some use of it, however fair.[502]

To prove that A on a certain date heard certain music performed from printed sheets, is no evidence that the music was published as a book at that date.[503]

=Discovery.=--The defendant is entitled to administer interrogatories to ascertain the extent of the sale of plaintiff's book, and to enable the defendant to ascertain the damages and pay into Court.[504]

The plaintiff is entitled to interrogate as to the original sources from which the defendant alleges his work to have been compiled.[505]

=Mode of Trial.=--Formerly the question of piracy or no piracy and the amount of damages was frequently tried by jury, but now the trial of the action is almost invariably before a judge alone, either in the Chancery or the King's Bench Division. Either party may ask for a trial by jury, but not as a matter of right, it is a matter entirely in the discretion of the Court and semble that the onus lies on the party applying for a jury to show that the cause could be more conveniently tried in that way.[506]

=Costs.=--In copyright as in other actions a successful party may be refused his costs. The plaintiff will not get his costs if he has unduly acquiesced in the defendant's conduct, and thereby induced the defendant to incur expenses,[507] or if after acquiescence and delay an action is brought without fair warning.[508] So, too, if the plaintiff has suffered no real harm, but brings an action for the purpose of making money out of it;[509] and in one case where the Court was of opinion that although the plaintiff was entitled to nominal damages, the action was one which should never have been brought, the plaintiff was ordered to pay the defendant's costs as well as his own.[510] If the plaintiff has increased the expenses by raising other questions in which he has failed, the costs will be apportioned.[511] A defendant, although successful, may lose his costs or part of them if he has acted in such a way as was not fair and right as between man and man;[512] for instance, if he has made some use of the plaintiff's book, but does not acknowledge it at the hearing.[513] A successful defendant may lose his costs if in his defence he challenges the plaintiff's title and fails in his attack, but wins on the question of piracy. If a defendant by his conduct in lending his name to a publication has led the plaintiff to assume that he "caused it to be printed," he will probably not be allowed his costs.[514] A defendant may also be refused his costs if the Court is of opinion that he brought the action on himself by sailing too near the wind.[515] The Court will not encourage a plagiarist or one who has made an illiberal use of another's work, even although he has not actually committed a piracy. Costs have also been refused where, although the defendant succeeded, his defence was a merely technical one, such as a defect in registration.[516] If copyright is claimed in part of a book only, the whole of which is registered without distinction, the notice of motion or statement of claim should specify the parts in which copyright is claimed, or the plaintiff may be liable in costs unnecessarily incurred by the defendant.[517]

SECTION II.--WHAT IS A PIRATICAL COPY.

Literary property may be invaded in three ways:

(i) Open Piracy; (ii) Literary Larceny; (iii) Commercial Fraud.[518]

With the first there is no difficulty once a title has been established and the pirate caught. It consists in a bodily reprinting and publishing of the whole or of large portions of a copyright book. The third is not properly speaking an infringement of copyright. It is the invasion of the common law rights of an author or publisher, and will be dealt with later. The second, literary larceny, gives rise to many difficult questions and is dealt with in this section.

The question put by the law is, in its simplest form: "Is the alleged infringement an unauthorised copy of the whole or part of a copyright work?" The statute does not attempt to define what a copy is, and such rules as there are for determining whether one work is a copy of another are entirely derived from the case law on the subject. It is impossible to lay down any very definite rules as to infringement; it is really a question of fact not of law; and although now almost invariably tried by a judge sitting alone, it was at one time constantly referred to the decision of a jury. The judges either in giving their own decisions or in directing juries have from time to time laid down general rules as an aid to determining these questions of fact.

The Copyright Acts have always received a liberal interpretation in favour of the author, and against the plagiarist. "If we can construe the Act so as to promote fair and honest dealing, such a construction is to be preferred."[519]

=What is a Copy.=--A copy is that which will provide a substitute for the whole or for a substantial part of the original book.[520] The owner of the copyright has the sole and exclusive liberty of printing or otherwise multiplying copies. It has been held that the right is not in any way limited by section 15 of the Copyright Act, 1842, which section applies its remedy only to cases where the subject-matter is multiplied by printing.[521] Thus copies produced by writing,[522] lithography,[523] type writing,[524] photography,[525] are copies within the meaning of the Act. The symbols used matter little in themselves; the question in each case is whether the defendants are multiplying copies.[526] It is not necessary that the copy should be primarily intended to be used for the same purpose as the original. Thus a copy in shorthand characters intended for instruction in shorthand was held to be an infringement of a story in a magazine.[527] But the copy must provide a reasonable substitute for the whole or part of the original work. A perforated scroll used for the mechanical reproduction of music from an instrument is not a copy, since no reasonable being would use it as a substitute for the original sheet of music.[528]

=A Substantial Part must be Taken.=--In other words, _De minimis non curat lex_.

"Part is not necessarily the same as particle, and there may be a taking so minute in its extent and so trifling in its nature as not to incur the statutable liability."[529]

In _Sweet_ v. _Benning_,[530] Jervis, C. J., said:

"It is undoubtedly exceedingly difficult, perhaps absolutely impossible, to lay down any general rule upon this subject. I do not assent to the argument that every publication of a portion of a work in which there is subsisting copyright will afford a ground of action: it is a question of degree which must depend upon the circumstances of each particular case."

In _Chatterton_ v. _Cave_,[531] Brett, J., said:

"Unless there is a taking of a material and substantial part there is no infringement of copyright. It is true that the question under the second section is not only whether the whole production has been copied, but also whether a part has been copied; but by a part this section must mean a material and substantial part."[532]

In _Chatterton_ v. _Cave_,[533] two small points or incidents were taken from one drama by the author of another, and it was held that the taking was not of a substantial part. In _Pike_ v. _Nicholas_,[534] in the case of two rival essays on the same subject, one quotation from a classical author was taken by the defendant directly from the plaintiff's book; Lord Hatherley, L. C., and Giffard, L. J., were of opinion that it would not do to show merely one or two passages; some material part of the book must be shown to have been taken.

The question is not altogether one of quantity, it is perhaps mainly one of quality,[535] and depends on the character of the work and the relative value of the material taken.[536]

"The question of the extent of appropriation which is necessary to establish an infringement of copyright is often one of extreme difficulty: but in cases of this description the quality of the piracy is more important than the proportion which the borrowed passages bear to the whole work."[537]

"It ought to be clearly established that, looking at the works as a whole, there has been a substantial appropriation by the one party of the independent labour of the other before any proceeding on the ground of copyright can be justified."[538]

"When it comes to a question of quantity it must be very vague. One writer might take all the vital[539] part of another's book, though it might be but a small proportion of the book in quantity. It is not only quantity, but value that is always looked to."[540]

"The principle of the cases is that, when one man for his own profit puts into his work an essential part of another man's work from which that other may still derive profit, or from which but for the act of the first he might have derived profit, there is evidence of piracy."[541]

Although it is no excuse for infringement to say that the matter taken has been improved upon or added to, yet there may be so much new matter that the part borrowed becomes so insignificant that the Courts will not interfere. In _Mawman_ v. _Tegg_,[542] Lord Chancellor Eldon says:

"After the quantity of matter which has been copied has been ascertained, the quantity of matter not piratical with which the piratical matter has been intermixed is still a circumstance of great importance."

The materiality of the part taken may sometimes be judged more by the proportion which it bears to the defendant's work than to the work from which it is taken. Thus in _Neale_ v. _Harmer_[543] the plaintiff had prepared and published an elaborate work intituled "The Abbey Church of St. Alban," containing about 200 architectural drawings. The defendant took and published three of these in a magazine article on St. Alban's Abbey, and they were the only strictly architectural drawings illustrating the article. It was held to be an infringement. Kekewich, J., said in his judgment:

"It is said that these drawings did not form a material part of the plaintiff's work. In one sense that is true. The plaintiff's work is a large one, and it is a very learned work. The test is not so much what proportion of the plaintiff's work had been taken, but rather what portion of the defendant's work is the plaintiff's."

In questions of amount it is material to inquire whether the matter was taken so as to compete with the plaintiff's work,[544] but an infringement need not necessarily be shown to be in competition with the work infringed, since it is sufficient if the defendant has made such a use of part of the plaintiff's work as the plaintiff might himself have done.

If matter is taken regularly and systematically by one periodical from another, and particularly if it is taken and claimed to be taken as of right, a very small amount will suffice.[545] As to a claim of right, North, J., said in _Cate_ v. _Devon_:

"That of itself is sufficient to put the plaintiff in the wrong in the action and get over any question as to the amount of matter actually taken."[546]

Although the Court will not grant a remedy for a trifling infringement, it will not refuse an injunction merely on account of the minute inquiries into detail which, in some cases, may be necessary to establish even an extensive piracy.[547]

=No Animus Furandi need be Proved.=--In _Cary_ v. _Kearsley_[548] Lord Ellenborough's judgment contained a reference to the _animus furandi_ in cases of infringement, from which a mistaken idea seems to have arisen that in all cases of infringement the _animus furandi_ must be proved.[549] Lord Ellenborough said:

"That part of the work of one author is found in another is not in itself piracy or sufficient to support an action; a man may fairly adopt part of the work of another; he may so make use of another's labours for the promotion of science and the benefit of the public, but having done so the question will be, was the matter so taken used fairly with that view and without what I may term the _animus furandi_."[550]

This did not mean that in every case of infringement alleged it was necessary to prove an _animus furandi_ or guilty intention. Lord Ellenborough in a subsequent case[551] said:

"The intention to pirate is not necessary in an action of this sort; it is enough that the publication complained of is in substance a copy whereby a work vested in another is prejudiced. If A takes the property of B the _animus furandi_ is inferred from the act."[552]

In _Scott_ v. _Stanford_,[553] Page Wood, V. C., after quoting the above passage from Lord Ellenborough's judgment in _Cary_ v. _Kearsley_,[554] said:

"It is urged that this is a case in which no _animus furandi_ can be found on the part of Mr. Hunt, who has taken these statistics in perfect good faith and with the fullest acknowledgment[555] in his book of the source from which they are derived. But if in effect the great bulk of the plaintiff's publication--a large and vital portion of his work and labour--has been appropriated and published in a form which will materially injure his copyright, mere honest intention on the part of the appropriator will not suffice, as the Court can only look at the result and not at the intention in the man's mind at the time of doing the act complained of, and he must be presumed to intend all that the publication of his work effects."[556]

Although the _animus furandi_ does not require to be proved, it is a useful aid to proof, and where it appears piracy is more readily presumed.[557]

=Taking not necessarily for Profit.=--The prohibition in section 15 of the Copyright Act, 1842, is against printing or causing to be printed "either for sale or exportation," but as this has been held not to confine piracy to copying by means of printing, neither does it confine it to copying for sale or exportation, and the purpose for which the copy when made is to be used is immaterial. In _Alexander_ v. _Mackenzie_[558] the Society of Writers to the Signet in Edinburgh prepared for the use of their own members a book of forms taken largely from a similar copyright work. The Court of Session held that this was an infringement of copyright. A catalogue of books, although not intended for sale, may be an infringement of another catalogue;[559] manuscript copies of a copyright song distributed exclusively among the members of a philharmonic society,[560] and a telegraphic code distributed only among the agents of a shipping firm have also been prohibited.[561] In _Ager_ v. _The P. & O._, Kay, J., said:

"It has long been settled that multiplying copies for private distribution among a limited class of persons is just as illegal as if it were done for the purpose of sale."

It is submitted that making a single copy for private use is an infringement.

=Copying may be Indirect and Unintentional.=--If matter in which copyright exists is taken it is immaterial that the appropriation was made not directly from the original work but indirectly through some other work, copyright or non-copyright, authorised or unauthorised. Thus a book may be infringed by retranslating or copying a translation of it,[562] and a drama may be infringed by dramatizing a novel founded on the drama.[563] In _Cate_ v. _Devon and Exeter Constitutional Newspaper Company_,[564] it was argued that an indirect copying could not be considered an infringement, because since the copyist is ignorant of what works he is indirectly copying, he cannot know whether or not he is infringing any copyright books, but this argument was rejected. Ignorance on the part of the copyist does not excuse him from the consequences of his act.[565]

=Custom of Trade= has been pleaded in defence of what was otherwise clearly a piracy. A custom was alleged whereby provincial newspapers were entitled to make large extracts, without criticism, from articles in magazines which were sent to them;[566] and in another case "a usual practice" among publishers of magazines to take articles from each other[567] was pleaded. It is clear that no such customs can be admitted. In _Walter_ v. _Steinkopff_[568] the _St. James' Gazette_ alleged that there was a universal understanding among journalists and newspaper proprietors that paragraphs of news may be quoted verbatim by one daily paper from another without express consent, provided (1) the source was acknowledged, (2) the papers were not direct rivals, (3) there is give and take between the papers, and (4) no expressed objection. The _St. James' Gazette_ took articles from the _Times_ on this alleged footing. North, J., held that they had not complied with these conditions, and that even if they had it would have been no defence.

"The plea of the existence of such a habit or practice of copying, as is set up, can no more be supported when challenged than the highwayman's plea of the custom of Hounslow Heath."[569]

=Fair Use.=--When an author writes on a subject in which there are common sources of information he must do the work of research and compilation for himself, and the only use he can lawfully make of a prior copyright work on the same subject is--