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 [75] 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. [76] 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 [77] 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] [78] 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 [79] 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. [80]
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 [81] 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] [82]
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] [83]
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]
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. [84]
Copyright is defined by the Copyright Act, 1842, as "the sole and exclusive liberty of printing or otherwise multiplying copies." Any invasion of this monopoly is an infringement of copyright. Besides infringement of copyright, i.e. illegal copying, the Act makes it an offence to deal in certain ways with unlawful copies. The offences against copyright and the owner's remedies may be conveniently summarised as follows:
For the following offences:[423]
i. Piratical copying. ii. Importing for sale or hire unlawfully printed books. iii. Selling or hiring, or having in possession for sale or hire, unlawfully printed books, knowing the same to be unlawfully printed.[424] iv. Causing any of the above acts to be done.The remedies[425] are an action in a Court of Record for:
1. Damages and account of profits. 2. Delivery up of copies. 3. Injunction.For the following offences:[426]
The remedies are:
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 [86] 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 [87] 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 [88] 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:[89]
"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 [90] 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] [91]
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 [92] 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] [93]
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 [94] 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 [95] 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 [96] 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]
Literary property may be invaded in three ways: