mere question of fact, or of the universal understanding of mankind, which is equivalent to fact, the situation of parties seems to be as follows. When one person writes a letter to another it is not to be assumed, that he considers the value of the paper as of any consequence. It does not enter into his contemplation as an element of what he is doing, and nothing can possibly turn in his view on the ownership or subsequent destination of that paper. But he considers the contents of the writing as a communication to be the sole thing in hand. He is making a certain communication of his ideas in the way of carrying on the business of life, whether in the shape of dealing with property or gratifying his feelings of friendship, or indignation, or curiosity. But he makes the communication to the correspondent personally, unless the contents show that he makes it otherwise. He does not authorise the correspondent, either immediately or at any future time, to publish the contents, or even communicate such contents to third parties; and the correspondent mustapart from any questions of libellous letters-take the risk of doing so. Such being the common understanding of mankind with respect to letters and written communications, the law, in dealing with that state of facts, seems to view the subject in the following light. The mere property in the paper on which the letter is written has no bearing whatever on the mutual relations of the parties. Whether the correspondent on receipt puts the letter in the fire, or first copies the contents and then destroys the original, or after destroying the original rewrites from memory the substance on paper, or keeps the document in his possession for life, can make no difference, and the position of parties would remain unaltered. Again, the communication being made for a limited purpose, namely, to the correspondent for his personal use, there is nothing inconsistent in the latter further communicating the contents in whole or part to one or more individuals, this being within the ordinary discretion which is inherent in all men in the course of their mutual dealings. But the purpose of the communication when once made to the correspondent being served, it has fulfilled its office so far as he is concerned; and the further right of dealing with the communication either in the way of

keeping it secret or publishing it to all the world—either for purposes of gain, of vanity, benevolence, or other lawful motive-must necessarily remain in the writer, for there is nobody else in whom any interest can be discovered, or traced, or to whom it has been transferred. If, therefore, the correspondent, without the consent of the writer, takes upon himself to publish the contents, he is doing something which he was never authorised to do by the writer, and is interfering with that further reversionary and absolute right and discretion, which inheres in the author, of further dealing with the letters as he pleases, and of treating them either as objects of literary value and a means of profit, or destroying all recollection of them so far as he could do so consistently with the correspondent's limited user.

Whether letters are joint property of writer and correspondent.-Again it will be seen how fallacious and confused is the notion, that there is a joint property in the letter between the writer and receiver, and that neither can do anything as regards it without the consent of the other. This arises from confounding the fate of the mere paper with the substantial thing which is the medium of communication. The correct rule seems to be, that the paper belongs absolutely to the receiver, but the letter, or means of communication, belongs absolutely to the writer, subject only to the limited user of the contents for the receiver's personal benefit. At first the courts were not a little puzzled how to treat the mutual rights of those who sent and who received letters of a private nature. Lord Hardwicke, however, in 1741, when deciding the case of Pope, who sought to restrain a publisher from publishing letters to and from the poet, held, that it was a mistake to suppose, that the writer of the letter made a gift to the correspondent of his writing for all purposes. He might give away the paper, but the words written on it were not given absolutely. The receiver had only a special or limited property in these, and the radical right to them for publication remained in the writer. Hence Pope was held entitled to prevent publication of the letters he himself wrote, but not of the letters he received.1 And the same doctrine was held as to Lord Chesterfield's letters.2

1 Pope v Curl, 2 Atk. 342.

2

Thompson v Stanhope, Amb. 737.

It has sometimes been said that the common letters exchanged between people are too petty to be dignified as literary compositions, or to be entitled to be subjects of copyright, and therefore that there is no copyright in them. 1 But remarks on subjects, however common-place, have so many points of view from which they may be regarded, and may, from unseen circumstances, become so important at one time, though not at another, that no court could safely take on itself to draw the line and separate the important from the unimportant, or the literary from the non-literary. The court may well treat all written communications as prima facie capable of copyright, subject to the rule which applies to this as to all other departments of the law, namely, that if from the subject matter or the expression they are of no importance, then the court will treat them as non-existent and refuse to protect them in any way, using as its excuse the maximde minimis non curat lex.

While the property or copyright in the letter sent to a correspondent is prima facie in the sender, and the receiver has prima facie only a special or limited use of such letter, this latter special use may vary with the subject matter, and the receiver may, for purposes of vindication of character, or otherwise, be impliedly entitled to publish it. The reason of this seems to be, that if a sender of a letter put the receiver in such a position that nothing less than publication will serve the lawful purpose of selfprotection, then this limited right of publication must be taken to have been contemplated by the writer, and his consent impliedly given, and he cannot set up his copyright in order to restrain such use. But for all other general purposes of publication the sender retains his copyright in the letter he has written.2 There is also a distinction as to the ownership of the copyright of letters, owing to the relation of master and servant. If a servant or clerk write a letter on the business of the employer, then the copyright of that letter belongs to the employer and not to the servant. One other point as between correspondents turns on the nature of the special property or use which the receiver has. It is obvious that that use

1 Per Plumer, V. C., Percival v Phipps, 2 V. & B. 19. 2 Percival v Phipps, 2 V. & B. 19. 2 Howard v Gunn, 32 Beav. 465.

includes the permanent retention by the receiver of the paper, as well as the letter itself, and whether the receiver afterwards returns the original to the writer and keeps a copy, or whether he returns that original without keeping a copy, his right remains the same. He must have been

intended by the writer to keep the original letter permanently, and hence the writer cannot demand the original back. If the writer has retained a copy of the original letter, he may use it for purposes of publication, but he cannot compel the receiver to give up such original at any time or in any circumstances. Yet some of the cases confuse this subject.' The result, therefore, is, that in respect of private letters the ownership of the paper is of no account, and therefore belongs to the receiver, who is entitled to its possession, and can recover it even from the writer to whom it has been lent, while the substantial right or the copyright remains undivested in the writer.2

3

Publishing letters without writer's consent.-Where the receiver of letters, or any other person, has, without the consent of the writer, published, or threatened to publish, such letters, the latter may obtain an injunction from the court. It is true that the court seems to have granted this relief on the professed ground of there being a breach of trust, but it would be more correct to hold the act as a tort or violation of the owner's right to do what he pleases with his own letter or communication. There may, however, be sometimes an express contract between writer and receiver, and the breach of that contract by the latter may be a ground also of the court interfering to restrain publication.5 There may also be cases in which the receiver of a letter may be entitled to use it, as already stated, for some purpose of vindication or self-defence, in which event the publication may be excused."

Copyright in letters to newspapers, public offices, &c. It has been said that a letter adressed to the editor of a newspaper for publication or otherwise is the sole

1 Gee Pritchard, 2 Swanst. 415.

2 Oliver v Oliver, 11 C. B.,

4 Percival

N. S. 139. 3 Pope v Curl, 4 Burr. 2330; 2 Atk. 342; Thompson v Stanhope, Ambl. 737; Gee v Pritchard, 2 Swanst. 426. v Phipps, 2 V. & B. 19; Gee v Pritchard, 2 Swanst. 402; Clarke v Freeman, 11 Beav. 112. 5 Percival v Phipps, 2 V. & B. 23, 27.

6 Howard v Gunn, 32 Beav. 462.

property of the editor, but there seems no reason for any difference in the rule applicable. The receiver in all cases may keep the letter or burn it, or he may publish it, having the writer's leave to do so. But as neither party contemplated republication in another form, there seems no reason why that radical right should not remain undivested in the writer.

as

Who is an author, and what is literature?—Though the Act of 1842 describes its object to be to encourage the production of literary works of lasting benefit to the world, it is not possible to define very accurately what amounts to literature, or how far it is likely to be lasting, or who is entitled to be called an author. Nor indeed was or is this necessary. No court can be expected, any more than the legislature, to have any peculiar faculty for singling out the literary element. It would have been better, as indeed it is practically the only alternative, to treat as literature every kind of writing or order of words which is capable of being printed or published—is saleable or intended to be so. Though this view gets rid of every attempt to appraise literary merit, and confines the law, it is in other cases, to the protection of the order of words merely, in so far as these may minister to the profit of the maker or collector, and treats literary fame as a thing too subtle to be within its cognizance, yet the result will be, that all literary works of value will be in effect protected, seeing that it is not usual for mankind to be curious or covetous to acquire books which are destitute of thought, and are of no value, and ought never to have existed in a published form. Though the word "author" is the descriptive name of the person from whom the efficient merit of a published work proceeds, and he cannot be defined without the same difficulty as the word "book," there are cases in which it is necessary to fix upon one person out of several who have been mixed up with the production of a book, and say which is in the eye of the law the author. If, for example, one person suggests, and intends to act as publisher, while the other supplies the design and execution, and from whose brain the originality, if any, comes, then the latter is the author.1

1 Shepherd v Conquest, 17 C. B. 444.