PART I. CHAPTER I not pretending to omniscience could undertake to perform. Hence our law takes no cognisance of any claims to the ownership of ideas which have not found a material clothing, and refuses to preserve the most original of men from the annoyance of having published abroad, either by writing or by word of mouth, his most original ideas, which have been communicated to another in the course of conversation. The original ideas of a man on any subject, though they exist not out of relation to his mind, in one sense really belong as entirely to him as if they were reduced by him to writing, and hence it might be thought that he ought to be enabled to assert an equal claim to them in the one case as in the other. But the practical impossibility referred to, of dealing by means of legal proof with the former case, has rendered necessary the distinction which the law makes between the two. The intangible and incorporeal products of his mind, so long as they remain in that condition, are beyond the protection of law; when reduced into any material form, which can be produced in a court of justice, or be identified by proofs of a satisfactory kind, the author's right to them (called copyright) becomes enforceable by law.(a) And that right is twofold: first, he has a right to them, and a property in them whilst the materials embodying them remain unpublished in his possession; and, secondly, after they are published he has a statutory exclusive property in them limited in point of duration. (b) This obvious division of the subject will be followed in dealing with the copyright belonging to individuals, and we shall treat separately of the property in unpublished works, or copyright before publication, and in published works, or copyright after publication. Before doing so, however, it will be advisable to determine the answers to two other questions, namely: first, in what works this right of property exists? and secondly, what class of persons are entitled to claim and enjoy the right? With these we shall now proceed to deal in order. (a) "It is a well-known and established maxim (which, I apprehend, holds as true now as it did 2000 years ago) that nothing can be the object of property which has not a corporeal substance':" (Yates, J., in Millar v. Taylor, 4 Burr. 2361.) (b) Copyright is not of a simple but a complex nature, involving two conditions, one of publication and the other of exclusion. An author claims the right of multiplying the copies of his work, and of thus securing to himself present reputation and distant fame; and he also claims the advantage of excluding by statute law, other persons from multiplying copies of the same work:" (Arguendo in Prince Albert v. Strange, 2 De G. & Sm. 674.) PART I. CHAPTER II. CHAPTER II. IN WHAT WORKS COPYRIGHT EXISTS. works. COPYRIGHT may exist with regard to every original composi- Enumeration of tion or work of literature, science, or art, which is innocent in its nature, including every volume, part or division of a volume, map, chart, or plan separately published (5 & 6 Vict. c. 45, s. 2), lectures (5 & 6 Will. 4, c. 65), engravings (8 Geo.2, c. 13; 7 Geo. 3, c. 38; 17 Geo. 3, c. 57), lithographs (15 & 16 Vict. c. 12, s. 14), paintings, drawings, and photographs (25 & 26 Vict. c. 68). innocent. If the work be not innocent in its nature, there is no right Work must be of property in it which the law will enforce or protect. In what respect, then, may a work not be innocent? The test of the innocence of a work, where the Court of Chancery is asked to interfere, laid down by Lord Eldon in the case of Southey v. Sherwood, (a) is the possibility of making it the foundation of a successful action at law. "If this publication is an innocent one," said his lordship, "I apprehend that I am authorised by decided cases to say that, whether the author did or did not intend to make a profit by its publication, he has a right to an injunction to prevent any other person from publishing it. If, on the other hand, this is not an innocent publication, in such a sense as that an action would not lie in case of its having been published by the author and subsequently pirated, I apprehend that this Court will not grant an injunction." And the same judge observes, "If the doctrine of Lord Chief Justice Eyre (b) is right, and I think it is, that publications may be of such a nature that the author can maintain no action at law, it is not the business of this court, even upon the submission in the answer [as to one edition of the book in question which the defendants acknowledged that they had pirated] to decree either an injunction or an account of the profits of works of such a nature that the author can maintain no action at law for the invasion of that which he calls his property, but which the policy of the law will not permit him to consider his property." (c) And again, "This court interferes by injunction; but not in cases where an action cannot be maintained." (d) Now it is a fundamental principle of our common law that no action can be maintained on any contract, express or implied, parol or under seal, which is in direct violation of (a) 2 Meriv. 437. (b) See next page. (c) Southey v. Sherwood (ubi supra). (d) Laurence v. Smith (Jac. 472). PART I. CHAPTER II. law-whether statutory or unwritten-which is of an immoral tendency or contrary to sound policy. (a) When a contract is said to be void and incapable of being enforced as "opposed to sound or public policy," this is in accordance with the principle of law that "no subject can lawfully do that which has a tendency to be injurious to the public or against the public good-which may be termed, as it sometimes has been, the policy of the law, or 'public policy' in relation to the administration of the law."(b) The legal maxim on the subject is, Nihil quod est inconveniens est licitum. (c) A work, then, may lack the character of innocence by being opposed to any law, either unwritten or statutory, by being of an immoral tendency (a test, as applied, of a very comprehensive character) or by being contrary to what is called sound or public policy. If it offends against innocence in any of these respects no action at law would lie to enforce any alleged right with reference to it, and, as a consequence, no court of equity would interfere to hinder any infringement of such alleged right. The opinion of Lord Chief Justice Eyre, already referred to(d) by Lord Eldon, was expressed by him on the trial of an action brought by Dr. Priestley against a hundred to recover damages sustained by him in consequence of the riotous proceedings of a mob at Birmingham. Amongst other property alleged to have been destroyed, and for the loss of which he claimed compensation, were certain unpublished MSS. It was alleged, by way of defence, on behalf of the hundred, that the plaintiff was in the habit of publishing works injurious to the government of the State, but no evidence was produced in support of that allegation. The Lord Chief Justice observed that if such evidence had been produced, he should have held it was fit to be received as against the claim made by the plaintiff. (e) In Walcot v. Walker, (f) it was held that a court of equity would not act, either by giving an injunction or an account, even upon a submission in the defendant's answer, in the case of an unauthorised publication of a literary work of such a nature that an action at law could not be maintained in respect of it. "It is no answer," said Lord Eldon," that the defendants are as criminal. It is the duty of the court to know whether an action at law would lie; for if not, the (a) Broom's Com. p. 354, 3rd edit. (b) Per Lord Truro in Egerton v. Brownlow (4 H. L. Cas. 196). PART I. court ought not to give an account of the unhallowed profits of libellous publications. At present I am in total ignorance CHAPTER II. of the nature of this work, and whether the plaintiff can have a property in it or not. . . . Before I uphold any injunction I will see these publications and determine upon the nature of them, whether there is question enough to send to law as to the property in those copies; for, if not, I will not act upon the submission in the answer. If, upon inspection, the work appears innocent, I will act upon that submission; if criminal, I will not act at all; and if doubtful, I will send that question to law." Where the work is of a criminal character the Court of Chancery, not being a court of criminal jurisdiction, simply refuses to interfere in any way. It punishes the author of a criminal, libellous, or immoral production no otherwise than by denying him any assistance in the assertion of a right of property in his work, or in the attempt to hinder the piracy of it. Courts of equity stand quite neutral. "The Court does not interfere in the way of injunction to punish or to prevent injuries done to the character of individuals; but it leaves the party to his remedy at law."(a) One Lord Chancellor (Macclesfield), indeed, seems to have taken a different and much more lofty view of the province of courts of equity in dealing with books of the character above mentioned, being of opinion "that the Court of Chancery had a superintendency over all books, and might in a summary way restrain the printing or publishing any that contained reflections on religion or morality;" (b) and his lordship granted an injunction to restrain the publication of a translation of two Latin works ("Archæologia Philosophica" and "De Statu Mortuorum et Resurgentium ") written by Dr. Burnett, on the sole ground that "inasmuch as the book contained to his (the Chancellor's) knowledge (he having read it in his study) strange notions intended by the author to be concealed from the vulgar in the Latin language—in which language it could not do much hurt, the learned being better able to judge of it-it was proper to grant an injunction to the printing and publishing it in English." And Lord Ellenborough, in dealing with the case of a libellous picture (a) Per Lord Eldon (Southey v. Sherwood, 2 Meriv. 438); see also the opinion of Lord Langdale, M.R., in Clark v. Freeman (11 Beav. 117, 119), but as to the decision in the latter case, see the remarks of Lord Cairns in Maxwell v. Hogg (L. Rep. 2 Ch. App. 310; 16 L. T. N. S. 130 ; 36 L. J. 433, Ch.), and of Malins, V.C. in Springhead Spinning Company v. Riley (L. Rep. 6 Eq. 561; 19 L. T. N. S. 64; 37 L. J. 889, Ch). (b) Burnett v. Chetwood, cited from a manuscript volume of cases, in a note, by the learned reporter to Southey v. Sherwood (ubi supra). PART I. said, that "upon an application to the Lord Chancellor, he CHAPTER II. Would have granted an injunction against its exhibition.” (a) These opinions with regard to the extent of the jurisdiction of courts of equity in dealing with non-innocent publications have, as the cases already cited show, been long since abandoned, and courts of equity now simply refuse to interfere in the matter at all. Lord Eldon, in Lawrence v. Smith, (b) in express words repudiates the jurisdiction asserted by Lord Macclesfield. In the judgment pronounced by him in that case, he says: "As this Court has no jurisdiction in matters of crime, (c) it has been said that if the injunction be refused it has the effect of increasing the number of copies. The answer to that is, I have nothing to do with it as a crime. The question relates only to a civil right of property. If the one party has that right, the other must not invade it; if he has not that right the Court cannot give him the consequences that belong to it." There are other means of punishing the authors of criminal and libellous works, which will be treated of in a subsequent portion of this work.(d) In Southey v. Sherwood (e) a motion was made on the part of the poet Southey to restrain the defendants from printing or publishing a poem called "Wat Tyler," which had been composed by the plaintiff about twenty-three years previously, and had lain unpublished during the whole of that period in the hands of the bookseller to whom Southey had first sent it for his perusal and consideration as to the advisability of (a) Du Bost v. Beresford (2 Camp. 511). Referring to this dictum of Lord Ellenborough, the editor of Howell's State Trials says (vol. xx. p. 799): "I have been informed by very high authority, that the promulgation of this doctrine relating to the Lord Chancellor's injunction excited great astonishment in the minds of all the practitioners in the Courts of Equity, and I had apprehended that this must have happened; since, I believe there is not to be found in the books any decision or any dictum, posterior to the days of the Star Chamber, from which such doctrine can be deduced, either directly, or by inference, or analogy; unless, indeed, we are to except the proceedings of Lord Ellenborough's predecessor Scroggs, and his associates, in the case of Henry Care, in which case 'Ordinatum est quòd liber intitulat' The Weekly Packet of Advice from Rome, or the History of Popery, non ulterius imprimatur vel publicetur per aliquam personam quamcunque.' The learned editor does not appear to have known of the decision of Lord Macclesfield in Burnett v. Chetwood, above cited. (b) Jac. 471. Vide post, pp. 7, 8. (c) If a publication, which is criminal, tends also to the destruction or deterioration of property, the Court of Chancery has, according to the decision of Malins, V.C., in The Springhead Spinning Company v. Riley (L. Rep. 6 Eq. 551; 19 L. T. N. S. 64; 37 L. J. 889, Ch.), jurisdiction to restrain the publication by injunction. (d.) See the chapters on Libel," post. (e) 2 Meriv. 435. |