Chapter 29

2. _United Kingdom._--On the invention of printing (see PRESS LAWS) the crown, or other sovereign powers, granted patents or licences with the object of restricting the right of multiplying copies of literary works, and this supervision of publication still has certain historical results. A special kind of what amounts to perpetual copyright in various publications has for various reasons been recognized by the laws (1) in the crown, and (2) in the universities and colleges. The various copyright acts, referred to below, except from their provisions the copyrights vested in the two English and the four Scottish universities, Trinity College, Dublin, and the colleges of Eton, Westminster and Winchester. Crown copyrights are saved by the general principle which exempts crown rights from the operation of statutes unless they are expressly mentioned. Among the books in which the crown has claimed copyright are the English translation of the Bible, the Book of Common Prayer, statutes, orders of privy council, proclamations, almanacs, Lilly's Latin Grammar, year books and law reports. The copyright in the Bible is rested by some on the king's position as head of the church; Lord Lyndhurst rested it on his duties as the chief executive officer of the state charged with the publication of authorized manuals of religion. The right of printing the Bible and the Book of Common Prayer is vested in the king's printer and the universities of Oxford and Cambridge. These copyrights do not extend to prohibit independent translations from the original. The obsolete copyright of the crown in Lilly's Latin Grammar was founded on the fact of its having been drawn up at the king's expense. The universities have a joint right (with the crown's patentees) of printing acts of parliament. Law reports were decided to be the property of the crown in the reign of Charles II.; by act of parliament they were forbidden to be published without licence from the chancellor and the chiefs of the three courts, and this form of licence remained in use after the act had expired. University and college copyrights were made perpetual by an act of George III., but only on condition of the books being printed at their printing presses and for their own benefit.

3. The first definite statute, or Copyright Act, in England was passed in 1709. The preamble states that printers, booksellers and other persons were frequently in the habit of printing, reprinting, and publishing "books and other writings without the consent of the authors or proprietors of such books and writings, to their very great detriment, and too often to the ruin of them and their families." "For preventing, therefore, such practices for the future, and for the encouragement of learned men to compose and write useful books, it is enacted that the author of any book or books already printed, who hath not transferred to any other the copy or copies of such book or books in order to print or reprint the same, shall have the sole right and liberty of printing such book or books for the term of one-and-twenty years, and that the author of any book or books already composed, and not printed and published, or that shall hereafter be composed, and his assignee, or assignees, shall have the sole liberty of printing and reprinting such book or books for the term of fourteen years, to commence from the day of first publishing the same, and no longer." The penalty for offences against the act was declared to be the forfeiture of the illicit copies to the true proprietor, and the fine of one penny per sheet, half to the crown, and half to any person suing for the same. "After the expiration of the said term of fourteen years the sole right of printing or disposing of copies shall return to the authors thereof, if they are then living, or their representatives, for another term of fourteen years." To secure the benefit of the act registration at Stationers' Hall was necessary. In section 4 was contained the provision that if any person thought the price of a book "too high and unreasonable," he might complain to the archbishop of Canterbury, the lord chancellor, the bishop of London, the chiefs of the three courts at Westminster, and the vice-chancellors of the two universities in England, and to the lord president, lord justice general, lord chief baron of the exchequer, and the rector of the college of Edinburgh in Scotland, who might fix a reasonable price. Nine copies of each book were to be provided for the royal library, the libraries of the universities of Oxford and Cambridge, the four Scottish universites, Sion College, and the faculty of advocates at Edinburgh.

It was believed for a long time that this statute had not interfered with the rights of authors at common law. Ownership of literary property at common law appears indeed to have been recognized in some earlier statutes. The Licensing Act 1662 prohibited the printing of any work without the consent of the _owner_ on pain of forfeiture, &c. This act expired in 1679, and attempts to renew it were unsuccessful. The records of the Stationers' Company show that the purchase and sale of copyrights had become an established usage, and the loss of the protection, incidentally afforded by the Licensing Act, was felt as a serious grievance, which ultimately led to the statute of 1709. That statute, as the judges in _Millar_ v. _Taylor_ (1769, 4 Burr. 2303) pointed out, speaks of the ownership of literary property as a known thing. Many cases are recorded in which the courts protected copyrights not falling within the periods laid down by the act. Thus in 1735 the master of the rolls restrained the printing of an edition of the _Whole Duty of Man_, published in 1657. In 1739 an injunction was granted by Lord Hardwicke against the publication of _Paradise Lost_, at the instance of persons claiming under an assignment from Milton in 1667. In the case of _Millar_ v. _Taylor_ the plaintiff, who had purchased the copyright of Thomson's _Seasons_ in 1729, claimed damages for an unlicensed publication thereof by the defendant in 1763. The jury found that before the statute it was usual to purchase from authors the perpetual copyright of their works. Three judges, among whom was Lord Mansfield, decided in favour of the common law right; one was of the contrary opinion. The majority thought that the act of 1709 was not intended to destroy copyright at common law, but merely to protect it more efficiently during the limited periods. _Millar_ v. _Taylor_, however, was speedily overruled by the case of _Donaldson_ v. _Beckett_ in the House of Lords in 1774. The judges were called upon to state their opinions. A majority (seven to four) were of opinion that the author and his assigns had at common law the sole right of publication in perpetuity. A majority (six to five) were of opinion that this right had been taken away by the statute of 1709, and a term of years substituted for the perpetuity. The decision appears to have taken the trade by surprise. Many booksellers had purchased copyrights not protected by the statute, and they now petitioned parliament to be relieved from the consequences of the decision in _Donaldson_ v. _Beckett_. A bill for this purpose actually passed the House of Commons, but Lord Camden's influence succeeded in defeating it in the House of Lords. The result is that from that time on ordinary copyright has been recognized except in so far as it is sanctioned by statute. The university copyrights were, however, protected in perpetuity by an act passed in 1775.

By an act of 1801 the penalty for infringement of copyright was increased to threepence per sheet, in addition to the forfeiture of the book. The proprietor was to have an action on the case against any person in the United Kingdom, or British dominions in Europe, who should print, reprint, or import without the consent of the proprietor, first had in writing, signed in the presence of two or more credible witnesses, any book or books, or who knowing them to be printed, &c., without the proprietor's consent should sell, publish, or expose them for sale; the proprietor to have his damages as assessed by the jury, and double costs of suit. A second period of fourteen years was confirmed to the author, should he still be alive at the end of the first. Further, it was forbidden to import into the United Kingdom for sale books first composed, written, or printed and published within the United Kingdom, and reprinted elsewhere. Another change was made by the act of 1814, which in substitution for the two periods of fourteen years gave to the author and his assignees copyright for the full term of twenty-eight years from the date of the first publication, "and also, if the author be living at the end of that period, for the residue of his natural life."

Act of 1842.

4. The Copyright Act of 1842 repealed the previous acts on the same subject, and is the basis of the existing law. Its preamble stated its object to be to encourage the production of "literary matter of lasting benefit to the world." The principal clause is the following (§ 3): "That the copyright in every book which shall after the passing of this act be published in the lifetime of its author shall endure for the natural life of such author, and for the further term of seven years, commencing at the time of his death, and shall be the property of such author and his assignees; provided always that if the said term of seven years shall expire before the end of forty-two years from the first publication of such book the copyright shall in that case endure for such period of forty-two years; and that the copyright of every book which shall be published after the death of its author shall endure for the term of forty-two years from the first publication thereof, and shall be the property of the proprietor of the author's manuscript from which such book shall be first published and his assigns." The benefit of the enlarged period was extended to subsisting copyrights, unless they were the property of an assignee who had acquired them by purchase, in which case the period of copyright would be extended only if the author or his personal representative agreed with the proprietor to accept the benefit of the act. By section 5 the judicial committee of the privy council may license the republication of books which the proprietor of the copyright thereof refuses to publish after the death of the author. The sixth section provides for the delivery within certain times of copies of all books published after the passing of the act, and of all subsequent editions thereof, at the British Museum. And a copy of every book and its subsequent editions must be sent _on demand_ to the following libraries: the Bodleian at Oxford, the public library at Cambridge, the library of the faculty of advocates in Edinburgh, and that of Trinity College, Dublin. Other libraries (the libraries of the four Scottish Universities, King's Inns, Dublin, and Sion College) entitled to this privilege under the earlier acts had been deprived thereof by an act passed in 1836, and grants from the treasury, calculated on the annual average value of the books they had received, were ordered to be paid to them as compensation. A book of registry is ordered to be kept at Stationers' Hall for the registration of copyrights, to be open to inspection on payment of one shilling for every entry which shall be searched for or inspected. And the officer of Stationers' Hall shall give a certified copy of any entry when required, on payment of five shillings; and such certified copies shall be received in evidence in the courts as prima facie proof of proprietorship or assignment of copyright or licence as therein expressed, and, in the case of dramatic or musical pieces, of the right of representation or performance. False entries shall be punished as misdemeanours. The entry is to record the title of the book, the time of its publication, and the name and place of abode of the publisher and proprietor of copyright. Without making such entry no proprietor can bring an action for infringement of his copyright, but the entry is not otherwise to affect the copyright itself. Any person deeming himself aggrieved by an entry in the registry may complain to one of the superior courts, which will order it to be expunged or varied if necessary. A proprietor may bring an action on the case for infringement of his copyright, and the defendant in such an action must give notice of the objections to the plaintiff's title on which he means to rely. No person except the proprietor of the copyright is allowed to import into the British dominions for sale or hire any book first composed or written or printed and published in the United Kingdom, and reprinted elsewhere, under penalty of forfeiture and a fine of £10. The proprietor of any encyclopaedia, review, magazine, periodical work, or work published in a series of books or parts, who shall have employed any person to compose the same, or any volumes, parts, essays, articles, or portions thereof, for publication on the terms that the copyright therein shall belong to such proprietor, shall enjoy the term of copyright granted by the act.[1] But the proprietor may not publish separately any article or review without the author's consent, nor may the author unless he has reserved the right of separate publication. Where neither party has reserved the right they may publish by agreement, but the author at the end of twenty-eight years may publish separately. Proprietors of periodical works shall be entitled to all the benefits of registration under the act, on entering in the registry the title, the date of first publication of the first volume or part, and the names of proprietor and publisher.

The interpretation clause of the act defines a book to be every volume, part, or division of a volume, pamphlet, sheet of letter-press, sheet of music, map, chart, or plan separately published.

Recent extensions.

5. During the last quarter of the 19th century the question of copyright became continually more prominent, and a considerable extension was given by judicial interpretation to the scope of the act of 1842. "Literary matter of lasting benefit to the world" came to include every publication (not being illegal) which could be described as "literary" or "original," the criterion as to the latter qualification being, in the last resort, whether (see _Trade Auxiliary Co._ v. _Middlesborough Association_, 1889, 40 Ch.D. 425) the author or compiler has really put his own brain-work into it.

Newspapers.

6. The most marked and certain progress has been in the application of the law of copyright to the periodical press, in order to protect within reasonable limits the labour and expenditure of newspapers that obtain for the public the earliest news and arrange it for publication. It is settled law since 1881 (_Walter_ v. _Howe_, 17 Ch.D. 708, overruling _Cox_ v. _Land & Water Journal Co._, 1869), that a newspaper is a book within the meaning of the act, and can claim all rights that a book has under the Copyright Act. Thus, leading articles, special articles, and even news items are protected (_Walter_ v. _Steinkopff_, 1892, 3 Ch. 489; _Exchange Telegraph Co._ v. _Gregory and Co._, 1896, 1 Q.B. 147). Current prices of stocks and shares, translations, the compilation of a directory, summaries of legal proceedings, and other similar literary work, so far as the literary form, the labour and money are concerned, are equally protected. In short, the test may now be broadly stated to be, whether labour of the brain and expenditure of money have been given for the production; whilst the old requirement of original matter is very broadly interpreted. The leading case on the subject is _Walter_ v. _Lane_ (decided in the House of Lords, 6th August 1900). The question there raised was, whether or not copyright applied under the act of 1842 in respect of _verbatim_ reports of speeches. Four law lords, viz. Lord Chancellor Halsbury, Lord Davey, Lord James of Hereford and Lord Brampton upheld the claim to copyright in such cases, whilst Lord Robertson was the sole dissentient.

Apart from newspapers, protection has been extended to publications having no literary character; Messrs Maple's furniture catalogue, and the Stock Exchange prices on the "tape" have been awarded the same protection as directories. The courts have declined to protect works which are mere copies of railway time-tables, or the "tips" of a sporting prophet, or mechanical devices with no independent literary matter, such as patterns for cutting ladies' sleeves.

Lectures.

7. The publication of lectures without consent of the authors or their assignees is prohibited by the Lecture Copyright Act 1835, which reinforces the common law against publication of "unpublished" matter, and gives a copyright for 28 years. This act, however, excepts from its provisions: (1) lectures of which notice has not been given two days before their delivery to two justices of the peace living within 5 m. to the place of delivery (an impracticable condition), and (2) lectures delivered in universities and other public institutions. Sermons by clergy of the established Church are believed to fall within this exception. The leading cases are _Nicols_ v. _Pitman_, 1884, 26 Ch.D. 374, and _Caird_ v. _Sime_, 1887, 12 A.C. 326.

Private letters.

8. The writer of private letters sent to another person may in general restrain their publication. It was urged in some of the cases that the sender had abandoned his property in the letter by the act of sending; but this was denied by Lord Hardwicke (_Pope_ v. _Curl_ in 1741), who held that at most the receiver only might take some kind of joint property in the letter along with the author. Judge Story, in the American case of _Folsom_ v. _Marsh_, 2 Story (Amer.) 100, states the law as follows: "The author of any letter or letters, and his representatives, whether they are literary letters or letters of business, possess the sole and exclusive copyright therein; and no person, neither those to whom they are addressed, nor other persons, have any right or authority to publish the same upon their own account or for their own benefit." But there may be special occasions justifying such publication. See also the English case of _Macmillan_ v. _Dent_ (1905).

Test of infringement.

9. The question of what is an infringement of copyright has been the subject of much discussion. It was decided under the statute of 1709 that a repetition from memory was not a publication so as to be an infringement of copyright. In the case of _Reade_ v. _Conquest_, 1861, 9 C.B., the same view was taken. The defendant had dramatized the plaintiff's novel _It's Never too Late to Mend_, and the piece was performed at his theatre. This was held to be no breach of copyright; but the circulation of copies of a drama, so taken from a copyright novel, whether gratuitously or for sale, is not allowed. Then again it is often a difficult question to decide whether the alleged piratical copyright does more than make that fair use of the original author's materials which the law permits. It is not every act of borrowing literary matter from another which is piracy, and the difficulty is to draw the line between what is fair and what is unfair. Lord Eldon put the question thus,--whether the second publication is a legitimate use of the other in the fair exercise of a mental operation deserving the character of an original work. Another test proposed is "whether you find on the part of the defendant an _animus furandi_--an intention to take for the purpose of saving himself labour." No one, it has been said, has a right to take, whether with or without acknowledgment, a material and substantial portion of another's work, his arguments, his illustrations, his authorities, for the purpose of making or improving a rival publication. When the materials are open to all, an author may acquire copyright in his selection or arrangement of them. Several cases have arisen on this point between the publishers of rival directories. Here it has been held that the subsequent compiler is bound to do for himself what the original compiler had done. When the materials are thus _in medio_, as the phrase is, it is considered a fair test of piracy to examine whether the mistakes of both works are the same. If they are, piracy will be inferred. Translations stand to each other in the same relation as books constructed of materials in common. The _animus furandi_, mentioned above as a test of piracy, does not imply deliberate intention to steal; it may be quite compatible with ignorance even of the copyright work. Abridgments, moreover, of original works appear to be favoured by the courts--when the act of abridgment is itself an act of the understanding, "employed in carrying a large work into a smaller compass, and rendering it less expensive." Lord Hatherley, however, in _Tinsley_ v. _Lacy_, 1863, 1 H. & M. 747, incidentally expressed his disapproval of this feeling--holding that the courts had gone far enough in this direction, and that it was difficult to acquiesce in the reason sometimes given that the compiler of an abridgment is a benefactor to mankind by assisting in the diffusion of knowledge. A mere selection or compilation, so as to bring the materials into smaller space, will not be a bona fide abridgment; "there must be real substantial condensation, and intellectual labour, and judgment bestowed thereon" (Justice Story). A publication professing to be _A Christmas Ghost Story, Reoriginated from the Original by Charles Dickens, Esq., and Analytically Condensed expressly for this Work_, was found (_Dickens_ v. _Lee_, 1844, 8 Jur. 183) to be an invasion of Charles Dickens's copyright in the original.

Injurious works.

10. There can be no copyright in any but innocent publications. Books of an immoral or irreligious tendency have been repeatedly decided to be incapable of being made the subject of copyright. In a case (_Lawrence_ v. _Smith_, 1 Jac. 471) before Lord Eldon in 1822, an injunction had been obtained against a pirated publication of the plaintiff's _Lectures on Physiology, Zoology, and the Natural History of Man_, which the judge refused to continue, "recollecting that the immortality of the soul is one of the doctrines of the Scriptures, and considering that the law does not give protection to those who contradict the Scriptures." The same judge refused in 1822 to restrain a piracy of Lord Byron's _Cain_, and _Don Juan_ was refused protection in 1823. Compare also _Cowan_ v. _Milbourn_, 1867, L.R. 2 Ex. 230, in which a contract to let a room for lectures of an irreligious character was held not to be binding.

Titles of works.